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Walsh v. Townsquare Media, Inc.

United States District Court for the Southern District of New York

June 1, 2020, Decided; June 1, 2020, Filed

19-CV-4958 (VSB)

Opinion

OPINION & ORDER

VERNON S. BRODERICK, United States District Judge:

Plaintiff Rebecca Fay Walsh brings this action against Townsquare Media, Inc., asserting a claim of copyright infringement in connection with Defendant's unlicensed publication in an online article (the "Article") of a copyrighted photograph (the "Photograph") taken by Plaintiff. Before me is Defendant's motion for judgment on the pleadings. Because Defendant's publication of the Photograph constituted fair use, Defendant's motion for judgment on the pleadings is GRANTED.

I. Factual Background1

Plaintiff is a Brooklyn-based professional photographer who licenses her photographs to online and print media for a fee. (Am. Compl. ¶ 5.)2 Defendant is a Delaware-incorporated business that owns and operates an online website called XXL Mag ("XXL"), located at the URL www.XXLMag.com. [*2]  (Id. ¶¶ 6-7.)

On September 5, 2018, Plaintiff photographed rapper and celebrity Cardi B at a Tom Ford Fashion show in New York City. (Id. ¶ 10.) At around the time of the fashion show, she captured numerous photographs of Cardi B, and then made them available for license through Getty Images, a stock photography agency. (Id. ¶ 15; id. Ex. C). Among those photographs is the one at issue in this action, reproduced below in resized but uncropped form:

(Id. Ex. A.) Plaintiff has a copyright to the Photograph, which is registered with the United States Copyright Office. (Id. ¶ 11.)

On September 10, 2018, Townsquare ran an article on XXL Mag entitled CardiB Partners with Tom Ford for New Lipstick Shade, available at the URL https://www.xxlmag.com/news/2018/09/cardi-b-tom-ford-lipstick-shade-named-after-her/ . (Id. ¶ 13.) The text of the Article read as follows:

Cardi B is having a busy 2018 New York Fashion Week. After allegedly getting into a fight with Nicki Minaj, the Invasion of Privacy rapper is now getting her own shade of lipstick from Tom Ford.

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2020 U.S. Dist. LEXIS 96090 *; Copy. L. Rep. (CCH) P31,659; 2020 U.S.P.Q.2D (BNA) 10610

REBECCA FAY WALSH, Plaintiff, - against - TOWNSQUARE MEDIA, INC., Defendant.

CORE TERMS

Photograph, lipstick, transformative, celebrity, fight, weigh, screenshot, quotation, creative, embedded, caption, license, website, media, reproduced, composite, displayed, rapper, shade