In a March 18, 2014 Memorandum and Order, Judge Analisa Torres denied Defendant Fox News Network, LLC’s motion to dismiss Plaintiffs Yunghi Kim and Contact Press Images, Inc.’s amended complaint alleging copyright infringement. Plaintiff alleged that defendant made unauthorized copies of and displayed Kim’s copyrighted photograph in a video aired on defendant’s cable television channel and posted on defendant’s website. Defendant contended that the video constituted “fair use” as defined by Section 107 of the Copyright Act. Defendant argued that, because a fair use purportedly appeared on the face of the complaint and in the video, this action should be dismissed pursuant to Rule 12(b)(6).
Fair use is an affirmative defense, and is, therefore, not appropriate for determination on a Rule 12(b)(6) motion unless the defense appears on the face of the complaint. “[F]air use is a mixed question of law and fact.” Section 107 of the Copyright Act provides that “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. The four factors identified by Congress as especially relevant in determining whether the use was fair are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect on the potential market for or value of the copyrighted work. Thus, a fair use defense appears on the face of a complaint where the complaint contains unambiguous factual allegations sufficient to enable the district court to evaluate each of these four factors.
