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                                                                          [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                 No. 14-14525
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:12-cv-22211-JLK



RAANAN KATZ,
an individual,

                                                 Plaintiff - Appellant,

                                     versus

GOOGLE INC.,
a Delaware corporation,

                                                 Defendant,

IRINA CHEVALDINA,
an individual,

                                                 Defendant - Appellee.

                           ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                              (September 17, 2015)
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Before TJOFLAT, WILSON and BLACK, Circuit Judges.

PER CURIAM:

       Raanan Katz holds the copyright to a candid photograph (the Photo) of

himself in which his tongue protrudes askew from his mouth. Katz considers the

Photo unflattering and embarrassing.1 Irina Chevaldina copied the Photo into

several scathing blog posts she wrote about Katz and his business practices. Katz

appeals the district court’s grant of summary judgment to Chevaldina on his

copyright infringement claims, brought pursuant to 17 U.S.C. § 501. Katz argues

the district court erred in finding Chevaldina was entitled to summary judgment

based on her affirmative defense that her use of the Photo constituted fair use

under 17 U.S.C. § 107. Upon review, we affirm.

                                    I. BACKGROUND

       Katz is a minority investor in the Miami Heat basketball team and a

commercial real estate tycoon who owns and operates shopping centers through

corporate entities collectively known as RK Centers. In February 2011, Seffi

Magriso, a professional photographer, took a photograph of Katz while Katz was

standing courtside at a basketball practice in Jerusalem. The Photo is a candid

headshot of Katz in which his eyebrows are arched sharply upwards and his tongue

       1
         We make no independent determination as to whether the Photo is unflattering or
embarrassing. Construing the evidence in the light most favorable to Katz for the purposes of
summary judgment, however, we accept Katz’s own characterizations of the Photo as
aesthetically displeasing.
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is sticking out of his mouth. In Katz’s opinion, the Photo is “ugly,”

“embarrassing,” and “compromising.” Haaretz, an Israeli newspaper, published

the Photo online in an article about Katz’s interest in buying the Hapoel Jerusalem

basketball team.

      Chevaldina is a disgruntled former tenant in one of Katz’s shopping centers.

She found the Photo through a Google image search. Chevaldina created a blog

devoted to sharply criticizing Katz and the business practices of RK Centers. From

May 3, 2011, to September 24, 2012, Chevaldina published 25 blog posts that

reproduced the Photo and criticized Katz. Chevaldina reproduced the Photo in her

blog posts in three ways: (1) copied in its unaltered, original state; (2) accompanied

by sharply worded captions; or (3) cropped and pasted into mocking cartoons. For

example, in a September 18, 2011 blog post where the Photo was copied in its

unaltered, original state, Chevaldina lambasted Katz for allegedly ripping off a

“young American Jewish single mother of [a] special needs child,” calling him

“the most immoral human-being in the world.” In a September 12, 2012, blog

post, Chevaldina criticized Katz’s litigation strategies as frivolous and copied the

Photo with a caption across Katz’s chest that says, “HE RIPPED-OFF SPECIAL

NEEDS LITTLE JEWISH GIRL.” In a February 19, 2012, post about Katz’s

preparation for a deposition, Chevaldina cropped Katz’s face and superimposed it

against a cartoon dunce hat.


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       On June 3, 2012, Magriso assigned all of his rights in the Photo to Katz.

Katz then filed a complaint against Chevaldina alleging direct copyright

infringement. 2 The parties filed cross-motions for summary judgment. The

magistrate judge entered a Report and Recommendation (R&R) that recommended

granting summary judgment to Chevaldina because her use of the Photo

constituted fair use. Katz timely filed objections to the R&R. The district court

overruled the objections, adopted the R&R, and granted summary judgment to

Chevaldina. Katz timely appealed.

                             II. STANDARD OF REVIEW

       We review de novo a district court’s grant of summary judgment, viewing

all facts and reasonable inferences in the light most favorable to the nonmoving

party. Beal v. Paramount Pictures Corp., 20 F.3d 454, 458–59 (11th Cir. 1994).

“Summary judgment is proper when there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law.” Id.; see Fed. R. Civ.

P. 56(a).

                                    III. DISCUSSION

       The only issue in this appeal is whether Chevaldina’s use of the Photo in her

blog posts constitutes fair use, as a matter of law, under Section 107 of the


       2
          Katz’s original complaint also named Google Inc. as a defendant for contributory
copyright infringement. Katz filed an amended complaint omitting Google Inc. as a defendant,
but retaining the direct copyright infringement claim against Chevaldina.
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Copyright Act. Under Section 107, “[n]otwithstanding the provisions of sections

106 and 106A, the fair use of a copyrighted work . . . for purposes such as

criticism, comment, news reporting, teaching (including multiple copies for

classroom use), scholarship, or research, is not an infringement of copyright.” 17

U.S.C. § 107.

       In deciding whether a defendant’s use of a work constitutes fair use, courts

must weigh the following four factors: (1) the purpose and character of the

allegedly infringing use; (2) the nature of the copyrighted work; (3) the amount of

the copyrighted work used; (4) and the effect of the use on the potential market or

value of the copyrighted work. Id. These four statutory factors are not to be

treated in isolation from one another. See Campbell v. Acuff-Rose Music, Inc., 510

U.S. 569, 578, 114 S. Ct. 1164, 1170–71 (1994). Rather, they are “[a]ll are to be

explored, and the results weighed together, in light of the purposes of copyright.”

Id., at 578, 114 S. Ct. at 1171. Based on our weighing of the factors discussed

below, the district court did not err in granting summary judgment to Chevaldina

because her use of the Photo in each blog post constituted fair use. 3 We discuss

each factor in turn.


       3
          Katz argues the district court erred by failing to perform a “work-by-work” analysis of
the blog posts, see Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1259 (11th Cir. 2014), and
instead analyzed only the blog posts containing altered versions of the Photo. This argument
lacks merit. In the R&R adopted by the district court, the magistrate judge outlined all 25
allegedly infringing blog posts, and noted that its finding of fair use applied to each post.
Therefore, the district court did, in fact, perform the required “work-by-work” analysis. The
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A. Purpose and Character of the Work

       The first factor—the purpose and character of the allegedly infringing

work—requires consideration of “(1) whether the use serves a nonprofit

educational purpose, as opposed to a commercial purpose; and (2) the degree to

which the work is a transformative use, as opposed to a merely superseding use, of

the copyrighted work.” Peter Letterese & Assocs., Inc. v. World Inst. of

Scientology Enters., 533 F.3d 1287, 1309 (11th Cir. 2008) (quotation omitted).

The district court did not err in concluding Chevaldina’s use of the work was both

noncommercial and transformative.

       Every use of the Photo on the blog was of a primarily educational, rather

than commercial, character. Chevaldina unabashedly criticized and commented on

the dealings of Katz, his businesses, and his lawyers. Chevaldina’s blog posts

sought to warn and educate others about the alleged nefariousness of Katz, and she

made no money from her use of the photo. See 17 U.S.C. § 107 (designating

“criticism” and “comment” as fair use).

       Katz argues the Photo served a primarily commercial purpose because, in a

March 4, 2012, blog post, Chevaldina said she was “in the process of writing a

book ‘Why RK Centers Was The Wrong Choice.’” Thus, Katz argues, Chevaldina




district court was not required to write a prolix, unwieldy opinion with 25 separate sections
devoted to each alleged instance of infringement.
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used the Photo to advertise for commercial book sales. Chevaldina’s reference to

her intention to write a book about her experiences with Katz does not alone,

however, transform the blog post into a commercial venture. Overall, the blog post

retains her educational purpose of lambasting Katz and deterring others from

conducting business with him. See March 4, 2012 Blog Post (“I hope my book

will help ambitious people in their dream to be successful without selling the[ir]

soul to the [d]evil.”). Moreover, the link between Chevaldina’s commercial gain

and her copying of the Photo was attenuated given that Chevaldina never wrote a

book nor made any profits whatsoever. See Swatch Grp. Mgmt. Servs. Ltd. v.

Bloomberg L.P., 756 F.3d 73, 83 (2d Cir. 2014) (discounting commercial nature of

use where “the link between the defendant’s commercial gain and its copying is

attenuated such that it would be misleading to characterize the use as commercial

exploitation” (quotations and alterations omitted)).

      Chevaldina’s use of the Photo was also transformative. A use is

transformative when it “adds something new, with a further purpose or different

character, altering the first with new expression, meaning, or message.” See

Campbell, 510 U.S. at 579, 114 S. Ct. at 1171. Chevaldina’s use of the Photo was

transformative because, in the context of the blog post’s surrounding commentary,

she used Katz’s purportedly “ugly” and “compromising” appearance to ridicule

and satirize his character. See Swatch, 756 F.3d at 84 (“Courts often find such uses


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[of faithfully reproduced works] transformative by emphasizing the altered purpose

or context of the work, as evidenced by the surrounding commentary or

criticism.”); A.V. ex el Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir.

2009) (“The use of a copyrighted work need not alter or augment the work to be

transformative in nature.”); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257,

1270 (11th Cir. 2001) (finding transformative use where work was “principally and

purposefully a critical statement”).

      Chevaldina’s use of the Photo was noncommercial and transformative.

Accordingly, the first factor weighs in favor of fair use.

B. Nature of the Copyrighted Work

      The second fair use factor—the nature of the copyrighted work—

“recognizes that there is a hierarchy of copyright protection in which original,

creative works are afforded greater protections than derivative works or factual

compilations.” Suntrust, 268 F.3d at 1271. In evaluating this factor, courts

consider (1) whether the work was previously published and (2) whether the work

is primarily creative or factual. See Harper & Row Publishers, Inc. v. Nation

Enters., 471 U.S. 539, 563–64, 105 S. Ct. 2218, 2232 (1985).

      There is no dispute that the Photo was published prior to Chevaldina’s use.

As such, the time of publication weighs in favor of fair use. See Kelly v. Arriba




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Soft Corp., 336 F.3d 811, 820 (9th Cir. 2003) (holding publication of images on

internet before defendant’s copying favored fair use).

      The district court did not err in finding the Photo was primarily a factual

work. “The law generally recognizes a greater need to disseminate factual works

than works of fiction or fantasy.” Harper & Row, 471 U.S. at 563, 105 S. Ct. at

2232. Photography is an art form that may require the photographer to make many

important creative decisions. See Leibovitz v. Paramount Pictures Corp., 137 F.3d

109, 116 (2d Cir. 1998) (stating a photographer “is entitled to protection for such

artistic elements as the particular lighting, the resulting skin tone on the subject,

and the camera angle that she selected”). The Photo, however, is merely a candid

shot in a public setting, and there is no evidence in the record that Magriso, the

photographer, attempted to convey ideas, emotions, or in any way influence Katz’s

pose, expression, or clothing. See Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d

177, 188 (D. Mass. 2007) (concluding candid photograph of mobster leaving

police station was a primarily factual work). While Magriso’s photojournalistic

timing was fortuitous (at least from Chevaldina’s perspective), this alone was not

enough to make the creative gilt of the Photo predominate over its plainly factual

elements.

      The Photo was previously published and primarily factual. The second

factor therefore weighs in favor of fair use.


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C. Amount of the Work Used

       The third factor is “the amount and substantiality of the portion used in

relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). A court must

ask whether the defendant has “helped [herself] overmuch to the copyrighted work

in light of the purpose and character of the use.” Peter Letterese & Assocs., 533

F.3d at 1314 (quotation omitted). This factor “weighs less when considering a

photograph—where all or most of the work often must be used in order to preserve

any meaning at all—than a work such as a text or musical composition, where bits

and pieces can be excerpted without losing all value.” Fitzgerald, 491 F. Supp. 2d

at 188; see Seltzer v. Green Day, Inc., 725 F.3d 1170, 1178 (9th Cir. 2013)

(“[U]nlike an episode of the Ed Sullivan show or a book manuscript, [a drawing] is

not meaningfully divisible.”).

       The district court did not err in finding the third factor was neutral as applied

to the blog posts incorporating the Photo. Though ten blog posts reproduced the

Photo in its entirety and without alteration, to copy any less of the image “would

have made the picture useless to [Chevaldina’s] story” that Katz is a predatory

commercial landlord. See Núñez v. Caribbean Int’l News Corp., 235 F.3d 18, 24

(1st Cir. 2000). As such, the third factor neither weighs for nor against a finding of

fair use.




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D. Effect of the Use on the Potential Market for the Work

      The fourth factor is “the effect of the use upon the potential market for or

value of the copyrighted work.” 17 U.S.C. 107(4). The “central question” is

whether, assuming that everyone engaged in the conduct of the defendant, the use

“would cause substantial economic harm such that allowing [the conduct] would

frustrate the purposes of copyright by materially impairing [the defendant’s]

incentive to publish the work.” Cambridge Univ. Press v. Patton, 769 F.3d 1232,

1276 (11th Cir. 2014).

      The district court did not err in finding Chevaldina’s use of the Photo would

not materially impair Katz’s incentive to publish the work. Katz took the highly

unusual step of obtaining the copyright to the Photo and initiating this lawsuit

specifically to prevent its publication. Katz profoundly distastes the Photo and

seeks to extinguish, for all time, the dissemination of his “embarrassing”

countenance. Due to Katz’s attempt to utilize copyright as an instrument of

censorship against unwanted criticism, there is no potential market for his work.

While we recognize that even an author who disavows any intention to publish his

work “has the right to change his mind,” see Monge v. Maya Magazines, Inc., 688

F.3d 1164, 1181 (9th Cir. 2012) (quotation omitted), the likelihood of Katz

changing his mind about the Photo is, based on the undisputed evidence in the

record, incredibly remote. Since there is no evidence Chevaldina’s use of the


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Photo had or would have any impact upon any actual or potential market, the

fourth factor weighs in favor of fair use.

                                    IV. CONCLUSION

      Three factors in our fair use inquiry—the purpose and character of the work,

the nature of the work, and the effect of the use on the potential market—weigh in

favor of Chevaldina. The amount and substantiality of the work is neutral. After

weighing all four factors, our analysis tilts strongly in favor of fair use. The

district court did not err in granting summary judgment to Chevaldina because

every reasonable factfinder would conclude the inclusion of the Photo in her blog

posts constituted fair use.

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment to Chevaldina. 4

      AFFIRMED.




      4
          We also deny Katz’s motion to strike Chevaldina’s supplemental authorities.
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