Bloomberg Law
Dec. 11, 2018, 8:29 PM

Viral Photo of Wedding-Crashing Trump Is Not Fair Use for Hearst (1)

Kyle Jahner
Kyle Jahner
IP Reporter

An iPhone-snapped picture of President Donald Trump crashing a wedding is protected by copyright law, a federal judge said in finding that Hearst Communications Inc. infringed the rights of a bank executive who took the photo.

Wedding guest Jonathan Otto, a vice-president of Deutsche Bank AG, sued Hearst and other media outlets after they published his shot from a 2017 wedding at Trump National Golf Club, which went viral. Four other media companies settled with Otto, but Hearst argued that Esquire’s use of the picture satisfied standards of fair use.

The U.S. District Court for the Southern District of New York rejected Hearst’s defense and granted Otto summary judgment. The Dec. 10 ruling shows the difficulty of claiming fair use when a commercial media organization publishes a photograph without the creator’s permission—even if the image is more factual than creative and has already gone viral.

The court also denied Hearst’s bid for a summary ruling that its alleged infringement wasn’t willful, which could open the door to statutory damages of up to $150,000 per infringed work. If the court had said Hearst infringed the photos unwillfully, Otto would only be able to claim actual damages, based on his lost profits and Hearst’s ill-gotten profits.

Hearst argued it didn’t know Otto owned the photo, and that any infringement wasn’t willful because it credited the Instagram user’s page from which it took the photo. But the court said it provided no evidence that it tried to contact the Instagram user about acquiring a license. It added that a jury could infer willful blindness due to the numerous infringement lawsuits against Hearst.

Balance Test

Fair use decisions require balancing four factors: the nature of an alleged infringer’s use of the work, the nature of the work itself, the portion of the work used, and the infringement’s effect on its potential market.

Hearst’s use of the entire photo for commercial purposes weighed heavily in Otto’s favor, the court said. Hearst argued that Esquire’s article transformed the photo’s purpose by adding commentary about the president making himself available for wedding photographs. But the court found the publication used the work to document Trump’s presence—the same reason Otto did when he texted it to a fellow guest.

The work’s nature weighed against Otto because it was informative rather than expressive or creative, the court said. But it added that this factor “does not carry much weight in the fair use analysis” and rarely decides the issue.

The image becoming widely available before Otto could license it didn’t negate the factors in his favor, the court said, especially since he quickly showed interest in licensing it. The day after the wedding, he asked the photo’s initial recipient how TMZ, CNN, the Washington Post and the Daily Mail obtained it, and notified TMZ of the alleged infringement, the court said.

“The creator of a work should not be precluded from future profits should they lack the marketing prowess to capitalize on their work at the time of creation,” the court said, noting the popularity of the photo showed it had market value. “Otto’s status as an amateur photographer with an iPhone does not limit his right to engage in sales of his work.”

Judge Gregory H. Woods wrote the opinion.

Liebowitz Law Firm PLLC represented Otto. Hearst was represented by in-house counsel.

The case is Otto v. Hearst Commc’ns, Inc., 2018 BL 457180, S.D.N.Y., No. 17-4712, 12/10/18

To contact the reporter on this story: Kyle Jahner in Washington at

To contact the editor responsible for this story: Keith Perine at