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HuffPo Use Of Jon Hamm Crotch Shot Was Fair Use SDNY Judge Abrams Rules

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE,  Sept 10 – In 2013 the Huffington Post used a photo of Jon Hamm with his crotch obscured by a box saying, Image Loading.

 Now notorious copyright attorney Richard Liebowitz, recently slammed by U.S. District Court for the Southern District of New York Judge Jesse M. Furman, sued. 

 On July 7 SDNY Judge Ronnie Abrams held a proceeding in the matter. Inner City Press covered it, below.

Liebowitz, perhaps wisely, let James H. Freeman do the argument for him. And it was a highbrow argument, about what constitutes satire and thus fair use, and what doesn't.

The defendant's lawyer argued that the box made it a commentary; Freeman said that real Jon Hamm fans would want to license even the doctored picture, and so he needed discovery.

 Judge Abrams reserved judgment, then.

Now on September 10 she has ruled that it was fair use, writing in part that "The mere fact that Oath reproduced the Photograph without seeking Schwartzwald’s authorization does not lead to a finding of bad faith, as the Second Circuit has noted that it is “aware of no controlling authority to the effect that the failure to seek permission for copying, in itself, constitutes bad faith.” Blanch, 467 F.3d at 256. In any event, bad faith is not “itself conclusive of the fair use question, or even of the first factor.” NXIVM Corp., 364 F.3d at 479. In sum, the Court finds that two of the three sub-factors regarding the purpose and  character of the use weigh in favor of a finding that Oath’s use was fair, and that the only sub- factor that counsels against fair use is not entitled to significant weight."

The case is Schwartzwald v. Oath Inc., 19-cv-9938 (Abrams)


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