On September 10, 2020, Photographer Lawrence Schwartzwald filed a copyright infringement lawsuit against the owner of the Huffington Post, for posting an edited version of the viral photograph Schwartzwald had taken of Mad Men star Jon Hamm in 2013.
The photograph was taken by Schwartzwald prominently depicted the outline of Hamm’s genitals through his pants as he strolled down a crowded Manhattan street with his girlfriend. The Huffington Post republished the image without Schwartzwald’s permission. The Huffington Post’s publication of the image included an opaque black box over Hamm’s crotch with the statement “Image Loading.”
In the lawsuit, Schwartzwald mentions that he licensed the photograph to third-party media outlets “for the purpose of commercial news reporting.” In 2018, Schwartzwald stumbled upon the Huffington Post article, which was not one of the media sources he authorized to use the photograph.
A federal district court judge in the Southern District of New York, Ronnie Abrams, found that the Huffington Post was not in violation of copyright law by republishing Schwartzwald’s image of Hamm. After weighing the necessary factors required by the Supreme Court to evaluate “fair use,” the judge declared that the Huffington Post was covered by the fair use doctrine. In certain specific situations, the fair use doctrine allows the unlicensed use of copyrighted material in order to promote freedom of expression. Typical factors looked at to determine whether the use of a copyrighted work is “fair use” (and therefore non-infringing even though no compensation was paid to the copyright owner nor permission obtained) are: the nature of the copyrighted work, the purpose and character of the use, how much of the work was used, how substantial the use is, and the effect of the use upon the potential market.
The Judge in the Southern District of New York further held that the Huffington Post had “fundamentally transformed” Schwartzwald’s photograph by adding the opaque black box to the image. In addition to the black box covering Hamm’s private parts, the court also noted that there was a brazen sentence following the image, which, according to the court, was a show of parody. The court noted that the inclusion of the black box was obviously meant to mock the original paparazzi photograph, and therefore, substantially “transformed” the original photograph.
The Judge also mentioned that it is implausible a purchaser would look to buy the version of the photograph published on the Huffington Post because it deliberately leaves out the portion of the photograph the purchaser is likely interested in. Due to the fact that the unique element (Hamm’s crotch) was the element taken out of the republished Huffington Post photo, the court decided the photograph was adequately modified so as not to be the proper subject of a copyright claim.
Schwartzwald is represented by James H. Freeman and Richard Liebowitz of the Liebowitz Law Firm PLLC.
The Huffington Post is represented by Jennifer Lynn Bloom Hunton Andrews Kurth LLP.
The case is Schwartzwald v. Oath Inc., case number 1:19-cv-09938, in the U.S District Court for the Southern District of New York.