In BWP Media USA v. Gossip Cop Media, a case sure to bring cheer to paparazzi and tabloid publishers everywhere, a judge in the Southern District of New York has found after a bench trial that a gossip website willfully infringed copyrights in photos showing celebrities Mila Kunis, Ashton Kutcher, Robert Pattinson, and Liberty Ross.
The plaintiff in the case, BWP Media, is an entity that purchases “freelance celebrity photographs” and licenses them to The Sun and other tabloids. The defendant, Gossip Cop Media, operates a website at gossipcop.com. Gossip Cop (perhaps for the benefit of readers who might otherwise be inclined to assume that tabloid news stories are always well-researched and accurate) reposts tabloid stories along with their pictures, discusses the accuracy of those stories, and rates them on a scale of “real” to “rumor.” For instance, readers can helpfully learn from the site that one well-known actress “was NOT hiding her belly at LAX airport on Monday, and she’s still not pregnant, despite a new bogus tabloid report.”
The case centered on the issue of fair use. Gossip Cop claimed that its content is “transformative,” because it reprinted the articles and photographs for purposes of commenting or critiquing the tabloid stories. For example, next to the photograph for the article about whether Ms. Kunis and Mr. Kutcher had moved to London, the site discussed whether it was true that the couple had relocated.
The Court found that, while this might have been a valid defense “in theory,” there was a small problem when applied to the actual facts of the case: the defendant’s text accompanying the photos did indeed contain commentary, but not about the photographs themselves. Instead, the commentary focused on the gossip associated with the celebrities in the photos. In other words, it was using the photos simply as illustrations – which is exactly what the tabloids themselves were doing, and paying the plaintiff for.
This tipped the fair use analysis, including the question of “transformative” use, squarely against Gossip Cop. In fact, the Court held that the fair use defense was weak enough that the infringement was willful. To make the victory complete, the Court invited the plaintiff to apply for its attorneys’ fees.