Last week, a magistrate judge recommended that Raanan Katz’s claim be rejected on fair use grounds (Katz v. Chevaldina (S.D. Fla. June 17, 2014)); I think the analysis is right, and will likely be adopted by the district judge. Here is the statement of the facts:

Plaintiff, Raanan Katz, holds the copyright to an unflattering photograph of himself, which Defendant, Irina Chevaldina, has published as part of highly critical blog articles she has written about Katz. Katz brought this lawsuit for copyright infringement against Chevaldina, asking this Court to enjoin Defendant from further use of the photograph….

Plaintiff Raanan Katz owns a number of shopping centers throughout Florida and New England, in addition to a minority stake in the Miami Heat professional basketball team. Plaintiff and his company, RK Centers (formerly RK Associates), are the subject of two blogs, whose author, Irina Chevaldina, is the Defendant in this action. The blogs are highly critical of Plaintiff and his business practices.

Between May 2011 and September 2012, in conjunction with approximately two dozen blog posts, Defendant published an unflattering photograph of Plaintiff …. In an effort to obtain control over the Photo, Plaintiff entered into an Assignment of Copyright with the photographer on June 5, 2012, whereby the photographer assigned to Plaintiff all rights to the image. Plaintiff then asked Defendant to remove the Photo from her blog posts and, when she did not do so, Plaintiff filed this suit for copyright infringement….

In February 2011, professional photographer Seffi Magriso took a photograph of Plaintiff while Plaintiff was attending a basketball practice in Jerusalem…. Plaintiff considers the Photo “ugly” and “candid and embarrassing.”

The Photo was first published in an Israeli newspaper known as Haaretz on February 22, 2011, accompanying an article headlined “Basketball / Ex-Maccabi Tel Aviv Co-Owner Closer to Buying into Hapoel Jerusalem.” …

Defendant’s blogs, and, are devoted to criticism and commentary about Plaintiff and his company. Defendant first published the Photo on her blog after finding it online through a Google search. The blog posts that have been filed with the Court reveal that the Photo was either reproduced in its original state, sometimes accompanied by sharply worded captions, or it was cropped and pasted into derisive cartoons.

And here’s the fair use analysis:

In deciding whether a defendant’s use of a work is “fair,” courts must weigh the following four statutory factors: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107….

1. Purpose and Character of Use …

a. Commercial or Non-commercial Use

I find that Defendant’s uses of the copyrighted image were non-commercial…. Plaintiff argues that Defendant’s use is commercial, as shown by the March 4, 2012, post, in which Defendant declared her interest in writing a book titled “Why RK Centers Was the Wrong Choice.” Defendant’s singular statement that she intended to write a book about her experiences in business, even if one day acted upon, does not transform her blogs into a commercial venture.

Significantly, there are no advertisements on Defendant’s U.S. blog and minimal advertisements on the U.K. version, and those appear to be for the benefit of the blog-hosting service. Defendant also testified that she has not made any money from her use of the Photo, and Plaintiff does not dispute this assertion….

b. Transformative Use

The second part of the first fair use factor asks whether the defendant’s use of copyrighted material was “transformative.” A transformative use is one that takes copyrighted material and “add[s] something new, with a further purpose or different character, altering the first with new expression, meaning, or message….” For a use to be transformative, the “copyrightable expression in the original work [must be] used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings….” … “Whether a use is transformative depends upon whether the new use supersedes the objects of the original creation or instead, serves a new purpose.” …

“Even making an exact copy of a protected work may be transformative, provided the copy serves a different function than the original work.” To evaluate whether Defendant’s use of the Photo was transformative, the Court must compare Defendant’s use of the Photo to its only other use: its publication by Haaretz.

Haaretz used the Photo to identify Plaintiff, in an article about the possibility of Plaintiff acquiring an ownership interest in an Israeli basketball team. Notably, that article cast Plaintiff is a favorable light. In sharp contrast, Defendant used the Photo in blog posts that disparage Plaintiff. In some posts, Defendant cropped and pasted the image of Plaintiff’s face into cartoons that either depicted him wearing a dunce cap or otherwise ridiculed his behavior. In other posts, the derogatory captions “DEAL WITH HIM AT YOUR OWN BUSK,” or “HE RIPPED OFF SPECIAL NEEDS LITTLE JEWISH GIRL,” were superimposed on the Photo.

Defendant did not use the Photo simply to identify Plaintiff, as did the Haaretz publication; rather, the record is clear that Defendant used it as a means of satirizing and criticizing Plaintiff. I find that Defendant’s use of the Photo was transformative because it served a very different function than did its original use….

2. Nature of the Copyrighted Work

The second factor in the fair use inquiry “recognizes that there is a hierarchy of copyright protection” depending on the nature of the copyrighted work. Courts typically consider two aspects of the copyrighted work when evaluating this factor: (1) whether the work at issue is creative or factual, with creative works meriting greater protection, and fair use more likely to be found with factual works, and (2) whether the work was previously published….

There is no dispute that the Photo had been published before Defendant’s use…. [And] not all photographs are creative works…. There is no evidence that the photographer influenced, at all, the Plaintiff’s activity, pose, expression or clothing. Also, it cannot be said that the Photo conveys the photographer’s ideas or emotions….

3. Amount of the Work Used

The third fair use factor asks whether the amount and substantiality of the portion used — in relation to the copyrighted work as a whole — are “reasonable in relation to the purpose of the copying.” … [T]his factor “weighs less when considering a photograph — where all or most of the work often must be used in order to preserve any meaning at all — than a work such as a text or musical composition, where bits and pieces can be excerpted without losing all value.” …

Here, Defendant either copied the entire Photo or, when posting cartoons, copied and inserted Plaintiff’s face. Depending on the topic of her blog post, Defendant copied only as much of the Photo as was needed to further her criticism. Because the copyrighted work at issue is a photograph, I find that the third factor is neutral and does not weigh either for or against a finding of fair use.

4. Effect of the Use Upon the Potential Market

The fourth fair use factor requires courts to examine “the effect of the use upon the potential market for or value of the copyrighted work.” … Here, there is no evidence that Defendant’s use of the Photo caused any market harm…. Similarly, Plaintiff has not shown that a potential market exists for the Photo or that Defendant’s use threatens the potential market. Significantly, Plaintiff disavows any interest in selling or profiting from the Photo….