Criticism of a copyrighted work is one of the enumerated purposes that is not considered infringement by way of fair use, found in the preamble of 17 U.S.C. § 107. “The fair-use privilege under §107 is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors. (Many copyright owners would block all [criticisms], for example, and the administrative costs of finding and obtaining consent from copyright holders would frustrate many academic uses.)” Kienitz v. Sconnie Nation, LLC, 766 F.3d 756.
Criticism – Examples
Katz v. Google, Inc., 802 F.3d 1178 (11th Cir. 2015) - Katz works in commercial real estate, and he owns the copyright in a photo of himself that he categorized as both "compromising" and "embarrassing." Chevaldina was a former tenant in one of Katz's shopping centers, and Chevaldina uploaded the photo as part of several blog posts "devoted to sharply criticizing Katz." The court determined that Chevaldina's use was fair, in part because her use of the photo in conjunction with her blog posts served to criticize and satirize Katz's character.
Kienitz v. Sconnie Nation, LLC, 766 F.3d 756 (7th Cir. 2014) cert. denied 135 S. Ct. 1555 (2015) - Kienitz photographed Paul Soglin, the mayor of Madison, Wisconsin. In 2012, Soglin wanted to shut down the Mifflin Street Block Party, a Madison event that according to Soglin was designed to take "a sharp stick and pok[e] it in the eye of authority." Sconnie Nation used the photo of Soglin taken by Kienitz to create t-shirts that included the words "Sorry for Partying." In addition, the photo "was posterized, the background was removed, and Soglin's face was turned lime green." In concluding Sconnie Nation's use was fair, the court noted that Sconnie "chose the design as a form of political commentary" and that "[t]hey wanted to mock the Mayor."
Hosseinzadeh v. Klein, 276 F.Supp.3d 34 (S.D.N.Y. 2017) - Plaintiff Hosseinzadeh created and posted a short skit on YouTube. Defendants created a "reaction video" commenting on Hosseinzadeh's video and posted the reaction on YouTube. Hosseinzadeh sued the Defendants for copyright infringement. However, the court found that the first factor of the fair use inquiry "weigh[ed] heavily in defendants' favor," because the reaction video was "quintessential criticism and comment."
Non-Criticism – Example
Barcroft Media, Ltd. v. Coed Media Group, LLC, 297 F.Supp.3d 339 (S.D.N.Y. 2017) – Barcroft Media "provide[s] entertainment-related photojournalism and own the copyrights for various paparazzi photographs . . . of celebrities." Coed Media Group (CMG) "runs several small popular culture, sports, and entertainment websites." CMG used many of the Barcroft’s images on its sites. The court determined CMG's use of these images was not fair. In reaching this conclusion, the court noted "CMG's articles did not comment on, criticize, or report news about the Images themselves; instead, they used the Images as illustrative aids because they depicted the subjects described in its articles."