Case 1:19-cv-08208-KPF Document 14 Filed 11/04/19 Page 1 of 2

 
November 4, 2019
VIA FAX
Honorable Katherine Polk Failla
United States District Court
Southern District of New York
40 Foley Square
New York, NY 10007-1312
Re:

Polaris Images Corp. v. Entech Media Group, LLC, 1:19-cv-08208

Dear Judge Failla:
We represent Plaintiff Polaris Images Corp. (“Plaintiff”) in the above-captioned case and
write in opposition to Defendant Enttech Media Group, LLC (“Defendant”)’s motion for a premotion conference to dismiss the complaint under Fed.R.Civ. P. 12(b)(6). Plaintiff responds to
each point as follows:
First, Defendant argues that Polaris is a non-exclusive licensee because Rachel Dolezal
published the image to Instagram. This is irrelevant. Dolezal entered an exclusive licensing
agreement with Polaris. If Dolezal has violated that agreement, then such dispute exists between
Polaris and Dolezal, but that does not absolve Defendant for liability for copyright infringement.
Moreover, Defendant cannot show that it has the unfettered right to re-publish images it poaches
from Instagram.
Second, Dolezal holds a valid copyright registration, bearing number VA 2-163-244 with
effective date of July 20, 2019. See Complaint, para. 9. Accordingly, as exclusive agent, Polaris
has standing to sue. The cases cited by Defendant involve plaintiffs who have not obtained a
valid copyright registration certificate from the U.S. Copyright Office and are therefore
inapposite.
Third, the fair use defense is borderline frivolous. Defendant admits that its secondary
use “was a direct copy of the news itself, the Instagram Post, which contained the Subject Image,
and was used strictly for the purpose of conveying information to the public accurately.” [Dkt.
#13, p. 3] By Defendant’s own admission, it did nothing to transform the work, such as by
adding commentary directed at the photograph. Instead, it just photocopied from a pre-existing
work and re-published it on its commercial website. That is not fair use.

 

 Case 1:19-cv-08208-KPF Document 14 Filed 11/04/19 Page 2 of 2

 
In Otto v. Hearst Communications, Inc., 17-cv-4712 (GHW), where Hearst expropriated
a photograph from Instagram and re-published it in a news article without first obtaining
permission from the photographer, Judge Woods rejected the fair use defense and found Hearst
liable for copyright infringement. Judge Woods noted:
"Stealing a copyrighted photograph to illustrate a news article, without adding new understanding
or meaning to the work, does not transform its purpose—regardless of whether that photograph
was created for commercial or personal use . . ."
"It would be antithetical to the purposes of copyright protection to allow media companies to steal
personal images and benefit from the fair use defense by simply inserting the photo in an article
which only recites factual information—much of which can be gleaned from the photograph
itself."

Similarly, in Hirsch v. Complex Media, Inc., 18-cv-5488 (CM), Chief Judge McMahon
denied the defendant’s motion to dismiss the complaint on fair use, relyin in part on this Court’s
decision in Gossip Cop. The Chief Judge noted:
Complex misunderstands the nature of the transformative effect inquiry. Section 107 provides
that the display of a copyrighted image may be transformative "where the use serves to
illustrative criticism, commentary, or a news story about that work." Barcroft Media, Ltd. v. Coed
Media Grp., LLC, 297 F. Supp. 3d 339,352 (S.D.N.Y. 2017) (citing 17 U.S.C. § 107) (emphasis
in original). It does not apply where images are used simply as "illustrative aids" depicting the
subjects described in a news article. Id.; see also BWP Media USA, Inc. v. Gossip Cop Media,
Inc., 196 F. Supp. 3d 395, 404-05 (S.D.N.Y. 2016). Complex has not established that its Video
did anything more than merely describe the subject of Hirsch’s Photograph, newsworthy or not.
That conduct alone does not suffice as transformative. "Newsworthy contents will rarely justify
unlicensed reproduction; were it otherwise, photojournalists would be unable to license photos,
and would effectively be out of a job." BWP Media USA, 196 F. Supp. 3d at 406 n.6.

Based on the foregoing, the motion for a pre-motion conference should be denied.
Respectfully Submitted,
/s/richardliebowitz/
Richard Liebowitz
Counsel for Plaintiff

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