Willie Memes Can Get You in Trouble

This post is in: January 10, 2019

U.S. Court refuses to dismiss copyright infringement claim over Willie Nelson image

In Philpot v. ALTERNET MEDIA, INC., the California District Court heard a motion to dismiss claims against Alternet, an “alternative news website” with a companion Facebook page, by Philpot, a photographer whose work focuses on US concert events. Philpot had taken a photo of singer Willie Nelson, for which he registered a copyright in 2012, and uploaded it to the Wikimedia website. In June 2015 Alternet posted on its Facebook page a meme that superimposed a quotation from Nelson over Philpot’s photo, which received 14,000 likes, 33,000 shares and 306 comments. Alternet did not seek or receive Philpot’s permission to use the photo, and ignored his requests to cease and desist. Philpot brought claims against Alternet framed in infringement of copyright and violation of the US Digital Millennium Copyright Act (DCMA). Alternet moved to dismiss the claims.

Alternet argued that the “fair use” defence barred Philpot’s claim. The court described that defence:

When determining whether a use constitutes a "fair use," courts consider several factors, including (1) the purpose and character of the use, including whether the use is commercial or for non-profit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion of the work used in relation to the work as a whole, and (4) the effect of the use on the potential market for or value of the work. Id.; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576-77 (1994).

The main issue for the court was the one raised by the first factor: whether and to what extent the photo as it had been used by Alternet was “transformative,” i.e. “whether the new work merely `supersedes the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” The court reasoned as follows:

On this motion to dismiss, there are not enough facts alleged in the Complaint to allow the Court to determine whether or not Alternet's use of the Willie Nelson photo was transformative. First of all, there are almost no allegations concerning Philpot's purpose in taking the photo. Second, it is not clear as a matter of law what Alternet's purpose was in reproducing the photo. Philpot does allege that Alternet is an alternative news website whose purpose is "to influence its readers' political leanings, and consists of opinion pieces, purportedly newsworthy information, and sensationalized current events." Compl. ¶ 7. However, taken at face value, the Court reads this to be merely a description of Alternet's operational model rather than an allegation of Alternet's purpose in using the photo.

Attached to the Complaint as an exhibit is a snapshot of the Facebook post by Alternet featuring an image of Willie Nelson with the quote: "Rednecks, hippies, misfits—we're all the same. Gay or straight? So what? It doesn't matter to me. We have to be concerned about other people, regardless. I don't like seeing anybody treated unfairly. It sticks in my craw. I hold on to the values from my childhood." Compl. Ex. E, ECF No. 1-5 at 2. Alternet argues that by adding the quote, it used the photograph to provide political commentary and that this use of the photograph supersedes Philpot's original purpose. Mot. to Dismiss, ECF No. 19 at 12.

While that is possible, at this stage of the pleadings, Philpot credibly argues that the photograph, as used by Alternet, was merely for the purpose of identifying who the quote came from, thus leaving the purpose unchanged: to identify Willie Nelson. In order to make a determination as to Philpot's argument, the Court would need additional facts. For example, whether or not Alternet's purpose in using the photograph was to identify Willie Nelson's connection to the quote or to transform it into a political poster. The latter is a factual question more appropriate for the summary judgment phase. As evident based on the above analysis, the facts, as alleged in the complaint, are simply insufficient to conduct a thorough analysis of transformative use at this time. Accordingly, this factor weighs in favor of denying dismissal.

The questions raised by the other three criteria, similarly, could not be answered on the pleadings and required some form of evidence to be led. The court therefore refused to dismiss the copyright infringement claim. However, it dismissed the DMCA claim because the plaintiff was required to plead facts that could lead to the conclusion that Alternet possessed the required mental state to make out a breach of the act, “the mental state of knowing, or having reasonable grounds to know, that his actions will induce, enable, facilitate, or conceal infringement to be liable for removing copyright management information (CMI) metadata and distributing images knowing that CMI was removed.” However, the plaintiff had simply provided conclusions on this point without pleading facts, leading to the claim being struck.