In February of 2007, Universal City Studios Productions (Universal Studios) filed a complaint against gossip blogger Mario Lavandeira (p/k/a Perez Hilton) alleging copyright infringement. According to the document, Universal Studios produced and distributed the romantic comedy “The Break Up” starring Vince Vaughn and Jennifer Aniston. Universal Studios filed an application with the U.S. Copyright office to register the motion picture. During production or post-production of the motion picture, Universal Studio alleges that certain images of Jennifer Aniston were illegally copied, including a topless movie still of the actress. Obtaining this image (provided as “Exhibit A” in the complaint), Perez Hilton posted an “identical reproduction” on his website. Universal Studio charges that Perez Hilton “reproduced, distributed and publically displayed [Universal Studio’s] copyrighted images…in violation of [Universal Studio’s] exclusive rights…under 17 U.S.C. § 106.” Universal Studios sought an order from the court “enjoining Defendants from any further infringement” and requested the “U.S. Marshall to seize and impound all items…which infringed [Universal Studio’s] copyrights.” Responding to the lawsuit, Perez Hilton’s attorney Bryan Freedman stated, “[Hilton] used [the photograph] for the purpose of news commentary and satire as he often does with photographs. That constitutes fair use and there's nothing illegal or improper with that use."
The complaint and Freedman’s response are extremely useful in determining whether or not Perez Hilton’s use of a movie still constitutes fair use. First, is should be noted that Freedman chose the word “satire” to describe his client’s use of the photo, rather than “parody.” This puts his client in a more difficult position, as it is harder to proclaim fair use for satirical works. When posting the image on his website, Hilton drew three white teardrops under Aniston’s eyes, claiming that this constitutes a fair use as it transforms the work. Although the case was settled out of court, a quick analysis of the four factors, which will be elaborated on in my research paper, clearly demonstrates that these few marks do not constitute a fair use of the movie still. There is nothing transformative in Hilton’s expression of the photograph, as no new meaning was added to the work. The purpose of Hilton’s use was simply to display a topless photo of a famous actress. The commentary he added below, simply stating that the picture was a topless photo of an actress, was completely unrelated to the three teardrops. Had the commentary discussed Aniston’s highly emotional nature, Hilton would have a better claim of fair use as he transformed the picture to match his opinions. Furthermore, in regard to the nature of the work, the fact that that photo of Aniston was not used in the final cut of the movie weighs against Hilton, as Universal Studios has the right to show the first public appearance of the movie still. The third factor, amount and substitutability of portion taken, does really not weigh in favor of one party, as the “newsworthy” significance of the movie still and the alleged satire requires the whole movie still to be used. The final factor, the effect of use upon the potential market, significantly weighs in favor of Universal Studios. As Universal Studios held the copyright to this still, it is possible the studio could have licensed the image for a substantial fee. Overall, Hilton’s use of the movie still as the news story does not constitute a fair use as he did not transform the still.