Copyright – Website’s use of AOC picture deemed ‘fair use’

Where a photographer sued a website for copyright infringement, after it used his photograph of Alexandria Ocasio-Cortez  in an online publication without his authorization, his suit was dismissed. The use of the photograph constituted fair use.

Background

Jesse Korman alleges that The Washington Free Beacon, a conservative political journalism website, knowingly copied and displayed Korman’s professional photograph of Representative Alexandria Ocasio-Cortez, or AOC, in an online publication without his authorization in violation of the federal Copyright Act. The Free Beacon has filed a motion to dismiss.

Standard

In determining whether a particular use is fair, courts consider four statutory factors: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Use

An “objective inquiry into what use was made, i.e., what [Free Beacon] d[id] with the original work” confirms that its use of the photograph was transformative. Korman took the professional headshot of AOC with a goal of portraying AOC in the best possible light. His website identifies himself as “the campaign photographer for [AOC] during her historic congressional run,” and AOC used the photograph in her campaign as a tool to market herself in a positive light with the goal of garnering votes.

By contrast, Free Beacon used the photograph as part of its criticism of, and commentary on, AOC’s politics and lifestyle. Free Beacon’s purpose in including the photograph of AOC in its article” “was to negatively portray the Congresswoman” and depict her as the type of wealthy individual who would normally be the subject of her criticism. These are plainly transformative uses. The conclusion that Free Beacon’s use of Korman’s photograph was transformative is well-supported by the case law cited by the parties.

The court must also consider whether the use at issue was commercial in nature. Free Beacon argues that its use of Korman’s photograph was not commercial because Free Beacon is “privately owned,” “does not . . . offer paid subscriptions,” and does not hide its articles behind a paywall. Several courts have held that a website’s use of a copyrighted work is not commercial in nature where the website does not charge for access to its articles.

Moreover, “[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from the exploitation of the copyrighted material without paying the customary price.” Although Korman argues that Free Beacon’s website is “monetized in that it hosts paid advertising,” he has not explained how Free Beacon’s advertisement-related profits are related to its alleged exploitation of Korman’s work.

Nature

Because the Court has found that Free Beacon used Korman’s photograph in a transformative manner – namely, to criticize AOC’s politics – this factor is largely insignificant. Moreover, this factor is typically neutral where the photograph at issue is both creative and factual, as here. For these reasons, the court has found that the second factor does not weigh in favor of either party.

Proportionality

Free Beacon’s argument that it used only a cut-out of Korman’s photograph is unpersuasive because cropping out the negative space in a photograph still leaves the “heart of the work” untouched. Nonetheless, Free Beacon’s copying of the heart of Korman’s work “does not preclude” a finding of fair use. Rather, where the transformative purpose of the new work cannot be achieved without copying a substantial portion of the original work, the third fair use factor does not weigh in favor of either party. In sum, the third factor, like the second factor, is neutral.

Market

Free Beacon’s argument raises a concern that any market harm that might have occurred is de minimis given that Korman did not discover the alleged infringement for 45 months. Additionally, Free Beacon’s alleged infringement poses a minimal risk of market usurpation because the collage featuring AOC’s image serves a different market function than Korman’s professional photograph.

Moreover, as Free Beacon persuasively argues, its consumers are unlikely to be the same individuals seeking a license to use Korman’s photograph. For these reasons, the court has concluded that the fourth fair use factor weighs in favor of Free Beacon.

Defendant’s motion to dismiss granted.

Korman v. Free Beacon LLC, Case No. 1:25-cv-2076, March 30, 2026. EDVA at Alexandria (Brinkema). VLW 026-3-158. 23 pp.

Full-Text Opinion

VLW 026-3-077
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