Case: 1:14-cv-10490 Document #: 47 Filed: 09/09/15 Page 1 of 13 PageID #:254
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`QUENTON GALVIN AND JACOB MEISTER,
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`No. 14 C 10490
`Judge James B. Zagel
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Plaintiffs Quenton Galvin and Jacob Meister (“Plaintiffs”) filed a twenty-six count complaint
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`against Defendants Illinois Republican Party, Illinois House Republican Organization, Roderick
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`Drobinski, Friends of Rod Drobinski, Jamestown Associates, LLC, and Majority Strategies, Inc.
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`alleging copyright infringement, civil conspiracy, appropriation of image, false light, and defamation.
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`Defendant Jamestown Associates was dismissed by stipulation. The remaining Defendants
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`(“Defendants”) now move to dismiss Counts I-VII of Plaintiff’s complaint for failure to state a claim
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`pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, Defendants’ motion to dismiss is
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`granted.
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`I.
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`FACTUAL BACKGROUND
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`In early October 2014, Defendants Illinois Republican Party, Illinois House Republican
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`Organization, Roderick Drobinski, Friends of Rod Drobinski, and Majority Strategies, Inc.
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`intentionally authorized, printed, and mailed several thousand 8.5 by 17-inch flyers with two copies
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`of an altered picture of Plaintiff Jacob Meister. The original picture (the “Photograph”) depicts
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`Plaintiff Meister driving a convertible in a political parade with a poster on the side of the car
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`advertising Sam Yingling, a Democratic member of the Illinois House of Representatives who was
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`1
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`Plaintiffs,
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`v.
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`ILLINOIS REPUBLICAN PARTY, ILLINOIS
`HOUSE REPUBLICAN ORGANIZATION,
`RODERICK DROBINSKI, FRIENDS OF ROD
`DROBINSKI, JAMESTOWN ASSOCIATES, LLC,
`AND MAJORITY STRATEGIES, INC.,
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`Case: 1:14-cv-10490 Document #: 47 Filed: 09/09/15 Page 2 of 13 PageID #:255
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`running for re-election. The Photograph was taken and copyrighted by Plaintiff Quenton Galvin, a
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`professional photographer who authorized Sam Yingling to post the Photograph on his campaign
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`website.
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`Without the permission of the photographer, Galvin, or the subject, Meister, Defendants
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`electronically copied the Photograph from Mr. Yingling’s website and altered it to appear as though
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`Mr. Meister was driving away from the Illinois State Capitol with stolen money in the backseat and
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`hundred dollar bills flying out of the open convertible. Defendants believed that the man driving the
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`car was Representative Yingling rather than Plaintiff Meister, a private individual, and intended to
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`criticize Mr. Yingling’s fiscal policies.
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`Plaintiffs incorporated two slightly different versions of the altered Photograph in a flyer
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`(the “Flyer”) promoting Roderick Drobinski, a candidate running for State Representative opposite
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`Sam Yingling. Superimposed above or beside the altered photographs are the words: “Mr. Yingling
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`Went to Springfield . . . And Fiscal Responsibility Went Out the Window” and “Career Politician
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`Sam Yingling in the Driver’s Seat as Illinois Speeds Towards Higher Taxes, More Wasteful
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`Spending, and More Jobs Lost.” Defendants mailed the Flyer to several thousand potential voters
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`leading up to the Illinois State Representative election.
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`II.
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`LEGAL STANDARD
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`A motion to dismiss under Rule 12(b)(6) does not test the merits of a claim; rather, it tests
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`the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In
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`deciding a 12(b)(6) motion, the court accepts all well-pleaded facts as true, and draws all reasonable
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`inferences in favor of the plaintiff. Id. at 1521. To survive a 12(b)(6) motion, “a complaint must
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`contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
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`face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff
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`pleads factual content that allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.” Id. “While legal conclusions can provide the framework of a
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`Case: 1:14-cv-10490 Document #: 47 Filed: 09/09/15 Page 3 of 13 PageID #:256
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`complaint, they must be supported by factual allegations.” Id. at 679.
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`A plaintiff may state a claim even though there is a defense to that claim, and courts should
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`usually refrain from granting Rule 12(b)(6) motions on affirmative defenses. Brownmark Films, LLC
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`v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (citing United States v. Lewis, 411 F.3d 838,
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`842 (7th Cir.2005). Still, when all relevant facts are presented, the court may properly dismiss a case
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`before discovery on the basis of an affirmative defense. See id.
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`III.
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`DISCUSSION
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`A.
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`Copyright Infringement and Civil Conspiracy (Counts I-VII)
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`Plaintiffs claim that Defendants infringed Plaintiff Galvin’s copyright in violation of the U.S.
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`Copyright Act, 17 U.S.C. § 501 by intentionally authorizing, printing, and mailing several thousand
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`Flyers using two copies of the Photograph without Plaintiff Galvin’s permission. Defendants do not
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`dispute that Plaintiffs have adequately pled a claim of copyright infringement, as the complaint
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`establishes the two necessary elements: (1) ownership of a valid copyright and (2) copying of
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`constituent elements of the work that are original. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc.,
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`499 U.S. 340, 361 (1991). Rather, Defendants assert an affirmative defense on the ground that the
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`Photograph was used in the Flyer for the purpose of criticism and commentary and thus constitutes a
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`fair use under 17 U.S.C. § 107. As with any affirmative defense, the Defendants carry the burden of
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`proving that their unauthorized use of the Photograph constitutes a fair use. Chicago Bd. of Educ. v.
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`Substance, Inc., 354 F.3d 624, 629 (7th Cir. 2003).
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`Under the Copyright Act, the exclusive rights afforded to copyright owners do not extend to
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`“fair uses” of copyrighted works. § 107. Therefore, anyone who makes a fair use of a copyrighted
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`work is not an infringer of the copyright with respect to such use. Sony Corp. of America v. Universal
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`City Studios, Inc., 464 U.S. 417, 432 (1984). There is no statutory definition or formula for
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`establishing a fair use, but Congress listed “criticism, comment, [and] news reporting . . .” in the
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`preamble of § 107 as paradigmatic examples of fair uses. Harper & Row Publ’rs, Inc. v. Nation
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`Case: 1:14-cv-10490 Document #: 47 Filed: 09/09/15 Page 4 of 13 PageID #:257
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`Enterprises, 471 U.S. 539, 592 (1985). In addition to these illustrations, Congress codified the
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`following four factors, which courts must consider when analyzing an unauthorized use under § 107:
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`(1) the purpose and character of the use, including whether such use is of a
`commercial nature or is for non-profit educational purposes;
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`(2) the nature of the copyrighted work;
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`(3) the amount and substantiality of the portion used in relation to the copyrighted
`work as a whole; and
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`(4) the effect of the use upon the potential market for or value of the copyrighted
`work.
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`U.S. Copyright Act, 17 U.S.C. § 107.
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`These factors are not exhaustive and represent common law jurisprudence, which Congress
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`expected to evolve over time. See Harper & Row, 471 U.S. at 595 n.19. Since fair use defies precise
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`definition, courts must analyze fair use defenses on a case-by-case basis, keeping in mind the goal of
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`copyright protection at large—that is, “[t]o promote the Progress of Science and useful Arts . . ..”.
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`U.S. Const., Art. I, § 8, cl. 8.
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`As a preliminary matter, Defendants’ motion to dismiss based on an affirmative defense is
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`procedurally appropriate at this juncture.1 It is well established that courts should refrain from
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`granting Rule 12(b)(6) motions on affirmative defenses that turn on facts not before the court,
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`Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012), and that the fair use
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`defense usually implicates questions of law and fact. Harper & Row, 471 U.S. at 549. However, a
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`court “may conclude as a matter of law that the challenged use [does] or does not qualify as a fair use
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`of the copyrighted work” when the facts on record are “sufficient to evaluate each of the [fair use]
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`statutory factors.” Id. at 560 (internal quotations and citations omitted). Such is the case here.
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`Plaintiff’s claim is limited to the production and distribution of a single, allegedly infringing
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`1 As the Seventh Circuit has repeatedly cautioned, the proper heading for motions on the basis of affirmative defenses is
`Rule 12(c) because an affirmative defense is external to the complaint. See Brownmark Films, 682 F.3d at 690 n.1. I am
`nonetheless ruling on the instant affirmative defense under the Rule 12(b)(6) heading, but future litigants should take heed
`of the Seventh Circuit’s exhortation.
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`4
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`Case: 1:14-cv-10490 Document #: 47 Filed: 09/09/15 Page 5 of 13 PageID #:258
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`work, and both the original work and its unauthorized reproduction are attached to the complaint,
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`allowing side-by-side review. See Brownmark Films, 682 F.3d at 690 (stating that despite
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`defendants’ arguments to the contrary, “the only two pieces of evidence needed to decide the
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`question of fair use in this case are the original version of [the copyrighted episode] and the
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`[allegedly infringing] episode at issue.”). Given the limited nature of the present claim and the
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`sufficiency of the allegations in and attachments to the complaint, the Court can evaluate each of the
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`fair use factors at this juncture.2
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`1.
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`The Purpose and Character of Defendants’ Use.
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`The first factor to be considered in the fair use determination is “the purpose and character of
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`the use, including whether such use is of a commercial nature or is for nonprofit educational
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`purposes.” § 107(1). The Supreme Court explained that the goal of this investigation is to see
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`“whether the new work merely supersedes the objects of the original creation . . . or instead adds
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`something new, with a further purpose or different character, altering the first with new expression,
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`meaning, or message; it asks, in other words, whether and to what extent the new work is
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`transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (internal quotations
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`and citations omitted).
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`Defendants argue that the purpose and character of the Flyer is wholly unrelated and
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`altogether different from the purpose of the Photograph, making their work “highly transformative.”
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`A cursory look at the two works confirms that the Photograph was created to document the campaign
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`parade of Representative Yingling, while the Flyer was created to lambast his politics. Their
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`difference in purpose is obvious. In the words of the Supreme Court in Campbell, the Flyer
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`“transformed” the Photograph by giving it “new meaning [and] message” through political criticism.
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`Id. See also Dhillon v. Does 1-10, No. C 13-01465 SI, 2014 WL 722592, at *5 (N.D. Cal. Feb. 25,
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`2 Plaintiffs argue that discovery is needed to resolve disputes regarding material facts, such as the commercial value of the
`Flyer, before the Court can properly rule as a matter of law on the sufficiency of Defendants’ affirmative defense. Even
`taking any such disputed facts in Plaintiffs’ favor, the Court would not alter the outcome of the instant fair use analysis.
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`5
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`Case: 1:14-cv-10490 Document #: 47 Filed: 09/09/15 Page 6 of 13 PageID #:259
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`2014) (finding defendant’s use of politician’s headshot “transformative,” because plaintiff used the
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`photo as a tool to positively market herself as a candidate for state office while defendant used it to
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`criticize her political views).
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`The critical and political nature of the Flyer, however, does not automatically tilt the scale in
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`favor of the Defendants with respect to the first factor. The list of fair use examples in the preamble
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`of § 107, including “criticism [and] commentary,” was not meant to single out any particular use as
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`presumptively fair. Harper & Row, 471 U.S. at 561. Furthermore, the politically significant nature of
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`the subject matter of a work does not afford it any more or less copyright protection than less topical
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`works. Id. at 545. Critiquing the policies of a candidate for elected office is undoubtedly essential to
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`democratic discourse; however, the right to engage in political speech is primarily protected by the
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`First Amendment rather than the Copyright Act. Id. at 556.
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`While the First Amendment preserves the non-exclusive right to express political speech, the
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`Copyright Act preserves the exclusive right to use one’s fixed expressions of political speech. Id.
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`(stating that “[c]opyright laws are not restrictions on freedom of speech as copyright protects only
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`form of expression and not the ideas expressed.”) (internal citations and quotations omitted).
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`Therefore, Plaintiff Galvin’s exclusive right to use his Photograph (under the Copyright Act) can
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`coexist with Defendants’ right to criticize Mr. Yingling’s policies (under the First Amendment).
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`Contrary to the Defendants’ intimation, the nature of the Flyer as political criticism does not in and
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`of itself override the copyright protection accorded to the Photograph. See id. at 557 (holding that
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`“[t]he fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright
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`whenever it determines the underlying work contains material of possible public important.”)
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`(internal citations and quotations omitted).
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`In Campbell, the Supreme Court addressed the role of fair use with respect to criticism and
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`commentary. 510 U.S. 569 (1994). There, the Court distinguished between parodies (which directly
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`comment, at least in part, on the original work) and satires (which comment more broadly on societal
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`6
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`mores and institutions). Id. at 579-84. The Court held that the “parodist is justified in using the
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`original work because a parody's effectiveness necessarily springs from recognizable allusion to its
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`object,” whereas the satirist who ridicules subjects unrelated to the work lacks the same claim to use
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`of the work. Id. at 588, 580. Accordingly, parodies have “an obvious claim to transformative value,”
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`while satires face a “greater burden of proving the necessity of the[ir] use.” Id. at 579, 580 n.14.
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`In this case, the Flyer critiques the politician (believed to be) pictured in it, rather than
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`critiquing the Photograph itself. Defendants argue that the Flyer does comment on the underlying
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`work insofar as it parodies the “nonchalant and reckless attitude of the man brought out by the
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`photograph.” Based on the allegations in the complaint and a perfunctory review of the Flyer, it is
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`clear that the Defendants aimed to criticize Mr. Yingling’s fiscal policy through an amusing
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`juxtaposition of wordplay and imagery. This effect, however, could have been realized just as well
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`through the use of a photograph depicting an intense, focused driver as opposed to a “nonchalant and
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`reckless” one. Therefore, “[t]here’s no good reason why defendants should be allowed to appropriate
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`someone else’s copyrighted efforts as the starting point in their lampoon, when so many
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`noncopyrighted alternatives (including snapshots they could have taken themselves) were available.”
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`Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 759 (7th Cir. 2014).
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` In addition to the transformative value and critical nature of an unauthorized use, the
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`copier’s motivation as “commercial” versus “non-profit educational” also informs courts’ first factor
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`analyses. See Campbell, 510 U.S. at 579 (referencing § 107(1)). The crux of this commercial/non-
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`profit distinction is “whether the user stands to profit from exploitation of the copyrighted material
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`without paying the customary price.” Harper & Row, 471 U.S. at 562. As the complaint makes clear,
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`Defendants did not directly profit from the Flyer, copies of which were distributed to voters free of
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`charge.
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`Even though the Defendants saved money by not licensing the Photograph or commissioning
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`an original one of their own, it is clear that the Defendants’ objectives were more “non-profit” than
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`7
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`Case: 1:14-cv-10490 Document #: 47 Filed: 09/09/15 Page 8 of 13 PageID #:261
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`“commercial.” See Henley v. DeVore, 733 F. Supp. 2d 1144, 1159 (C.D. Cal. 2010) (surveying fair
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`use case law and finding that “[d]istrict courts that have actually considered whether campaign
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`advertisements are commercial in the fair use context come down on the side of noncommercial.”);
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`Kienitz, 766 F.3d at 759 (finding that defendants’ small profit margin—from an unauthorized use of a
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`politician’s portrait on a t-shirt—was neutralized by the fact that they “chose the design as a form of
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`political commentary.”).3
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`The net result of this Court’s first factor analysis is unavailing. On the one hand, the
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`transformative purpose and non-commercial nature of the Flyer weigh in favor of Defendants. On the
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`other hand, Defendants did not need to use the Photograph in order to effectuate their criticism, and
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`the fair use privilege “is not designed to protect lazy appropriators.” Id. Given this deadlock under
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`factor one, I move on to the remainder of the statutory factors, bearing in mind that “the dichotomy at
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`the heart of the first factor between new works that transform and complement the original versus
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`new works that serve as a substitute for and supersede the original, is best understood in terms of the
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`fourth factor.” Leveyfilm, Inc. v. Fox Sports Interactive Media, LLC, No. 13 C 4664, 2014 WL
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`3368893, at *9 (N.D. Ill. July 8, 2014) (referencing Ty, Inc. v. Publications Int'l Ltd., 292 F.3d 512,
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`523 (7th Cir. 2002)).
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`2.
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`The Nature of the Copyrighted Work.
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`The second statutory factor requires that courts assess the “value of the materials used.” See
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`Campbell, 510 U.S. at 576 (internal quotations and citations omitted). In so doing, courts generally
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`consider whether the original work is more creative or factual in nature and whether it was published
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`at the time of the allegedly infringing use. See Harper & Row, 471 U.S. at 563-64.
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`3 An additional element that Plaintiffs have encouraged this Court to consider as part of the first factor analysis is the good
`versus bad faith exhibited by the Defendants in their use of the Photograph. See, e.g., Harper & Row, 471 U.S. at 562.
`Here, Defendants undisputedly intended to criticize the political subject of the Photograph, but criticism is not
`synonymous with bad faith lest all parodies, satires, and other forms of critique fall outside the realm of fair use. Although
`the Supreme Court described good faith and fair dealing as required elements of fair use in Harper & Row, the Court has
`since stated that good faith is not central to fair use. See Campbell, 510 U.S. 578 n. 18. I therefore do not find it necessary
`to assess Defendants’ good versus bad faith, which is a factual determination that would be of little consequence in this
`Court’s aggregate analysis of Defendants’ fair use defense.
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`8
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`Case: 1:14-cv-10490 Document #: 47 Filed: 09/09/15 Page 9 of 13 PageID #:262
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`In this case, the Photograph was already published and publicly available online when
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`Defendants copied it for use in the Flyer. Moreover, the Photograph bears a factual nature. Although
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`“the fair-use doctrine is not intended to set up the courts as judges of the quality of expressive
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`works,” Ty, Inc., 292 F.3d at 523, courts are responsible for evaluating the facial plausibility of the
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`pleadings. See Ashcroft, 556 U.S. at 678.
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`This Court need only inspect the Photograph to characterize it as a “candid image taken of [a
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`politician] at a political event” and primarily factual in nature. See Kienitz v. Sconnie Nation LLC,
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`965 F. Supp. 2d 1042, 1052 (W.D. Wis. 2013). Because Plaintiff Galvin took the Photograph during
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`a live parade, he obviously did not stage the action depicted in it. Whatever artistry he contributed
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`(by way of the angle, framing, or other composition of the Photograph) could not plausibly outweigh
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`its factual nature. I therefore find that the nature of the copyrighted work as a published, factual
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`photograph weighs in favor of Defendants’ fair use defense.
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`3.
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`The Amount and Substantiality of the Portion Used.
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`The third fair use factor examines whether the amount and substantiality of the portion used
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`was reasonable in relation to the copyrighted work as a whole. § 107(3). Because “there is no per se
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`rule against copying in the name of fair use an entire copyrighted work,” Chicago Board of Educ.,
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`354 F.3d at 629, a reasonable reproduction can include substantial portions of the original. The
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`determination of what qualifies as reasonable harks back to the first statutory factor insofar as “the
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`extent of permissible copying varies with the purpose and character of the use.” Campbell, 510 U.S.
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`at 586-87.
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`For example, a copy that parodies the underlying work may reasonably use a
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`significant portion of the original because “[p]arody needs to mimic an original to make its point,”
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`Henley, 733 F. Supp. 2d at 1152, whereas “satire can stand on its own two feet and so requires
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`justification for the very act of borrowing.” Campbell, 510 U.S. at 581.
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`It is again relevant that Defendants did not need to use the copyrighted work in order to
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`convey their political message. In order to play off of taglines like “Career Politician . . . in the
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`Driver’s Seat” and “Fiscal Responsibility Went out the Window,” Defendants needed to show the
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`politician driving a car, but they did not need to use Plaintiff Galvin’s copyrighted work in particular.
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`Furthermore, much of the original Photograph was unaltered in the Flyer, including the depiction of
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`the driver, who figures prominently in both works. Given the plethora of alternative means for
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`Defendants to criticize Mr. Yingling and the qualitative similarities between the Flyer and
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`Photograph, I find that the third factor weighs against Defendants’ fair use defense.
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`4.
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`Effect Upon Potential Market or Value of the Copyrighted Work.
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`The fourth factor examines whether and how the unauthorized use will affect the potential
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`market for or value of the copyrighted work. § 107(4). The Seventh Circuit has indicated that this
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`factor is usually the most important. See Kienitz, 766 F.3d at 758. When evaluating the market effect
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`of an alleged infringement, courts consider whether it serves as a substitute in both the market for the
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`original work and the market for its legally protected derivatives. See Campbell, 510 U.S. at 587.
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`Furthermore, courts must consider “whether unrestricted and widespread conduct of the sort engaged
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`in by the defendant . . . would result in a substantially adverse impact on the potential market for the
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`original,” id. at 590 (internal quotations and citations omitted), for “[i]solated instances of minor
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`infringements, when multiplied many times, become in the aggregate a major inroad on copyright
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`that must be prevented.” Harper & Row, 471 U.S. at 566-67 (internal quotations and citations
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`omitted).
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`In the case of pure parody, it is unlikely that the copy will act as a substitute for the original,
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`since the two works serve different market functions. Campbell, 510 U.S. at 591. The same logic
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`applies to derivative markets of criticism, because “[t]he market for potential derivative uses includes
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`only those that creators of original works would in general develop or license others to develop. Yet
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`the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their
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`own productions removes such uses from the very notion of a potential licensing market.” Id. at 592.
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`Despite its clear findings regarding the market effects of parodies, the Supreme Court has eschewed
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`any finding “as to the derivative markets for works using elements of an original as vehicles for satire
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`or amusement, making no comment on the original or criticism of it.” Id. at 592 n.22.
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`Absent guidance regarding “looser” forms of criticism like satires and political
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`commentaries, this Court has conducted a side-by-side analysis of the Photograph and Flyer and
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`reasons that the latter is a “complement” to rather than a “substitute” for the former. See Kienitz, 766
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`F.3d at 758 (finding that a t-shirt depicting an altered portrait of a politician in order to comment on
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`his politics is complementary). Considering only the loss to potential licensing revenues from
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`“traditional, reasonable, or likely to be developed markets,” Associated Press v. Meltwater U.S.
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`Holdings, Inc., 931 F. Supp. 2d 537, 560 (S.D.N.Y. 2013) (internal citations and quotations omitted),
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`I find that the Flyer has not and will not plausibly cut into demand for the Photograph.
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`A basic comparison of the two works reveals that they cater to wholly different audiences.
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`Anyone who wants an accurate depiction of the political parade or Mr. Yingling’s campaign
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`activities (for example, a media outlet interested in using the Photograph for a news story) would not
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`plausibly license the Flyer instead. See New Era Publications Int’l, ApS v. Carol Pub. Grp., 904 F.2d
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`152, 160 (2d. Cir. 1990) (stating that “a critical biography serves a different function than does an
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`authorized, favorable biography, and thus injury to the potential market for the favorable biography
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`by the publication of the unfavorable biography does not affect application of factor four.”). In fact,
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`the Flyer may have increased market demand for the Photograph given the attention it ostensibly
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`brought to the election and political campaign of Mr. Yingling. In the event that the Flyer impaired
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`the market for the Photograph, the only plausible way it could have done so is as a “negative
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`complement,” Ty, Inc., 292 F.3d at 518, much like a book review or parody that criticizes the subject
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`matter of the copyrighted work.
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`The Seventh Circuit has acknowledged that such “negative complements” can impair a
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`plaintiff’s “long-range commercial opportunities” even if a defendant’s unauthorized use does not
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`reduce the value derived from the plaintiff’s original work. See Kienitz, 766 F.3d at 759. In Kienitz,
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`Case: 1:14-cv-10490 Document #: 47 Filed: 09/09/15 Page 12 of 13 PageID #:265
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`the Seventh Circuit found that the defendants’ unauthorized use of a mayor’s portrait on a political t-
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`shirt was a fair use, but the court surmised in dicta that fewer politicians might hire the plaintiff as a
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`photographer if they think the high quality of his work would make his photographs more effective
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`when used against them. Id.
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`In this case, however, Plaintiffs do not argue that fewer people will hire or cooperate with
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`Mr. Galvin given Defendants’ use of his work. Rather, Plaintiffs’ only argument related to market
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`effect is that Defendants’ political commentary harms the reputation of Mr. Galvin’s subjects and
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`thus the value of his photographs. Avoiding this result is simply not a purpose of copyright law. Fair
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`use analyses do not take account of commercial depreciations that are due solely to critical
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`commentary of underlying works. See Campbell, 510 U.S. at 570, 592 (stating that “[t]he cognizable
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`harm is market substitution, not any harm from criticism” and that “the role of the courts is to
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`distinguish between biting criticism that merely suppresses demand and copyright infringement,
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`which usurps it.”) (internal quotations and citations omitted).
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`Potential market harm due to the blemished reputation of the politician depicted in the
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`Photograph is not protected by Plaintiff Galvin’s copyright. See New Era Publications, 904 F.2d at
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`160 (stating that “even if [an unfavorable biography] ultimately harms sales of the authorized
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`biography, this would not result from unfair infringement . . . but rather from a convincing work that
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`effectively criticizes [the subject of the biography], the very type of work that the Copyright Act was
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`designed to protect and encourage.”); Dhillon v. Does 1-10, No. C 13-01465 SI, 2014 WL 722592, at
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`*5 (N.D. Cal. Feb. 25, 2014) (holding that unauthorized use of politician’s headshot to criticize her
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`politics is “precisely what the Copyright Act envisions as a paradigmatic fair use.”); Katz v.
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`Chevaldina, No. 12-22211-CIV-KING, 2014 WL 2815496, at *1 (S.D. Fla. June 17, 2014) (finding
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`unauthorized use of unflattering photo of businessman in a blog that is critical of his business
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`practices to be fair use as a matter of law).
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`For these reasons, I find that the fourth factor weighs in favor of Defendants’ fair use
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`Case: 1:14-cv-10490 Document #: 47 Filed: 09/09/15 Page 13 of 13 PageID #:266
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`defense.
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`IV.
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`CONCLUSION
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`Given findings in favor of the Defendants under the second and fourth factors—the latter
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`of which is afforded the most importance by the Seventh Circuit, see Kienitz, 766 F.3d at 758, I
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`conclude that the Defendants have raised a satisfactory fair use defense. The findings in favor of the
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`Plaintiffs under the third factor do not outweigh the preceding findings in favor of the Defendants;
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`the same would hold true if the first factor analysis were resolved in Plaintiffs’ favor. Therefore,
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`Plaintiffs’ copyright infringement claims are precluded by Defendants’ affirmative defense under §
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`107, and Counts I-VI are dismissed. Plaintiffs’ civil conspiracy claims under Count VII (conspiracy
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`to infringe Plaintiffs’ copyright) are also dismissed, for “[w]here . . . a plaintiff fails to state an
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`independent cause of action underlying its conspiracy allegations, the claim for a conspiracy also
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`fails.” Indeck N. Am. Power Fund, L.P. v. Norweb PLC, 316 Ill. App. 3d 416, 432 (2000).
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`ENTER:
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`James B. Zagel
`United States District Judge
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`DATE: September 9, 2015
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