The U.S. District Court for the Southern District of New York has granted summary judgment on behalf of a prominent Los Angeles-based photographer specializing in celebrity portraits represented by Spector Gadon & Rosen, P.C., rejecting a financial website’s “fair use” defense in a copyright infringement dispute.

The opinion presents a rare look at a court’s application of the “fair use” defense in the context of an online photography case.

In Michael Grecco Productions, Inc. v. Valuewalk, LLC and Jacob O. Wolinsky, Spector Gadon & Rosen attorneys Bruce Bellingham and David B. Picker represent Michael Grecco, a professional photographer working primarily in the entertainment and fashion industry.  An image of Jeffrey Gundlach, a bond trader, that Grecco took for a Barron’s magazine cover story in 2012 was infringed by Valuewalk.com in 2015.

The parties both moved for summary judgment and U.S. District Court Judge Gregory H. Woods considered and discarded the “fair use” defense, finding it unsuitable for consideration by the jury.

In addition to seeking summary judgment on Valuewalk’s “fair use” defense, Spector Gadon & Rosen sought judgment on Valuewalk’s affirmative defenses that the infringement was “extra-territorial” because a contractor in Pakistan contributed to the U.S. publication, and that the photographer’s effort to enforce his copyright constituted “copyright abuse.”

The court held that Valuewalk’s unlicensed use of the image was not “fair use” because it used the image without a license for precisely the purpose for which it was created to license for payment: to illustrate an article about the financier.

The court also held that Grecco was a prominent, highly compensated photographer whose claim for substantial monetary damages against an unlicensed user was not an abuse of copyright.

Finally, the court dismissed as frivolous Valuewalk’s argument that its use of a foreign contractor in preparing a work for publication by a U.S. website made the publication “extraterritorial” and, hence, beyond the jurisdiction of the Copyright Act.

After granting judgment on most of Valuewalk’s defenses, the court scheduled trial on a narrow remaining issue: whether Grecco should have known of an earlier 2012 infringement of the image by Valuewalk that was disclosed in fact discovery and, if so, had the three-year statute of limitations run when Grecco sued in 2016 notwithstanding Valuewalk’s republication of the image in the revised and substituted 2015 article that was the subject of Grecco’s complaint.

In addition, Grecco’s claims for willful infringement (enhancing statutory damages) and individual liability of Valuewalk’s owner/editor will be tried.

The fact that the case proceeded through the summary judgment phase is considered a rare feat.

Spector Gadon & Rosen, P.C. represents business and commercial law clients nationally and internationally from its offices in Philadelphia, Pa., Marlton, N.J., St. Petersburg, Fla. and New York, N.Y.  The firm serves national and local entities, corporate boards and highly placed individuals engaged in multifaceted industries (including finance and banking, manufacturing, hospitality, gaming and entertainment, real estate and commercial development, insurance and  venture capital) through a cadre of dedicated and highly talented lawyers in specialized practice groups that include banking and financial services, bankruptcy and creditor rights, commercial litigation, corporate formation and governance, cyber risk and security, employment, environment and energy, estates, trust and wealth management, healthcare, hospitality, insurance coverage and insured casualty litigation, mergers, acquisitions and divestitures, professional liability, real estate, securities and sports, entertainment and amusements.