Appeal No.

14-14525
__________________________________________________________________
United States Court of Appeals
For The Eleventh Circuit
__________________________________________________________________
Raanan Katz,
Appellant,
v.
Irina Chevaldina,
Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

APPELLEES BRIEF

Michael E. Rosman
CENTER FOR INDIVIDUAL RIGHTS
1233 20th St. NW, Suite 300
Washington, DC 20036
(202) 833-8400
Attorney For Appellee Irina Chevaldina

Certificate Of Interested Persons

1.

Borrello, Robert, Trial Attorney for Defendant

2.

Burton, Marc, Trial Attorney for Defendant

3.

Burton, Richard, Trial Attorney for Defendant

4.

The Burton Law Firm, Trial Attorneys for Defendant

5.

Chesal, Michael B., Trial Attorney for Plaintiff

6.

Chevaldina, Irina, Appellee

7.

Coffey Burlington, Trial Attorneys for Defendant

8.

Davis, Michael T., Trial Attorney for Defendant

9.

Delgado, Jorge, R., Attorney for Appellant

10.

Devoy, J. Malcolm, Trial Attorney for Defendant

11.

Dmitrovsky, Susan, Trial Attorney for Defendant

12.

Hajec, Christopher, Attorney for Appellee

13.

Handelson, Erika, Trial Attorney for Defendant

14.

Kain, Robert C., Trial Attorney for Defendant

15.

Kain & Associates, P.A., Trial Attorneys for Defendant

16.

Katz, Raanan, Appellant

17.

King, James L., U.S. District Judge, S.D. Fla.

18.

Kluger, Alan J., Attorney for Appellant

i

19.

Kluger, Kaplan, Silverman, Katzen & Levine, PL, Attorneys for

Appellant

20.

Kuehne, Benedict P., Trial Attorney for Defendant

21.

Law Offices of Benedict P. Kuehne, P.A., Trial Attorneys for

Defendant

22.

Levine, Todd A., Attorney for Appellant

23.

McAliley, Chris M., U.S. Magistrate Judge, S.D. Fla

24.

Peretz Chesal & Herrmann, PL, Trial Attorneys for Plaintiff

25.

Randazza, Marc J., Trial Attorney for Defendant

26.

Randazza Legal Group, Trial Attorneys for Defendant

27.

Rosman, Michael E., Attorney for Appellee

28.

Russomanno, Herman, Trial Attorney for Defendant

29.

Russomanno & Borrello, PA, Trial Attorney for Defendant

30.

Saltz, Joshua E., Trial Attorney for Plaintiff

31.

Solnick, Peter J., Trial Attorney for Defendant

32.

Spielman, Darren J., Trial Attorney for Defendant

33.

Tamayo, Fernando, Trial Attorney for Defendant

34.

Torres, Edwin G., U.S. Magistrate Judge, S.D. Fla.

35.

Villa, Vanessa, Trial Attorney for Defendant

ii

36.

Zack, David J., Trial Attorney for Defendant

None of the foregoing are publicly traded companies.

Respectfully submitted,

/s/ Michael E. Rosman

Michael E. Rosman
CENTER FOR INDIVIDUAL RIGHTS
1233 20th St. NW Suite 300
Washington, DC 20036
(202) 833-8400

iii

Statement Regarding Oral Argument

Appellee desires oral argument. This appeal involves issues related to the
fair use doctrine in copyright law and its relationship with important principles
of free speech protected by the First Amendment.

iv

Table of Contents

Certificate Of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Statement of Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of The Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A.

Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B.

Statement Of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.

The Photo And Its Initial Publication . . . . . . . . . . . . . . . . . . . 6

2.

Chevaldina Blogs Using The Picture . . . . . . . . . . . . . . . . . . . . 9

3.

Katz Obtains The Copyright And Sues . . . . . . . . . . . . . . . . . 12

4.

Katz Registers His Copyright, But Never

Markets The Photo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

5.

Katz Stipulates That He Has Suffered No Economic Harm 14

6.

The Parties Cross-Motions For Summary Judgment . . . . . . 15

7.

Katzs Motion To Voluntarily Dismiss . . . . . . . . . . . . . . . . . 18

8.

The District Court Adopts The Report . . . . . . . . . . . . . . . . . . 20

9.
C.

The State Court Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Standard Of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
I.

THE COURT BELOW CORRECTLY CONCLUDED THAT

CHEVALDINA WAS ENTITLED TO SUMMARY JUDGMENT
ON HER AFFIRMATIVE DEFENSE OF FAIR USE . . . . . . . . . 28
A.

II.

The Purpose And Character Of The Use . . . . . . . . . . . . . . . . 29

1.

Transformative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

2.

Non-Commercial Use . . . . . . . . . . . . . . . . . . . . . . . . . . 40

B.

Nature And Character Of The Work . . . . . . . . . . . . . . . . . . . 43

C.

Amount And Substantiality Of Work Used . . . . . . . . . . . . . . 46

D.

The Effect On The Potential Market . . . . . . . . . . . . . . . . . . . 47

E.

Katzs Bad Faith Argument Is Misplaced . . . . . . . . . . . . . 50

THIS COURT MAY AFFIRM ON THE GROUND THAT KATZ

FAILED TO SHOW THAT THE PHOTO IS A FOREIGN
WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

vi

Table of Authorities

Cases

Constitutional Provisions, Statutes, and Regulations

Other Authority

vii

Statement of Issues

1. Did the court below properly grant summary judgment to defendant on

her affirmative defense of fair use?

2. Should defendants motion for summary judgment have been granted on

the alternative ground that plaintiff failed to meet his burden of showing that the
copyrighted photograph was not a United States work?

Statement of The Case

This is an action for direct copyright infringement that appellant Katz

commenced after allegedly purchasing the copyright of a picture of himself that
had first been published more than fifteen months earlier, and that had been
available on the Internet throughout that time and that can still be seen there today.
Although Katz no longer seeks damages, and although appellee Chevaldina took
the picture off of any websites to which she contributed shortly after this litigation
commenced, Katz still seeks injunctive relief against Chevaldina.

A.

Course of Proceedings

Plaintiff Raanan Katz filed the initial complaint in this action on June 12,

2012, naming Google, Inc. and Irina Chevaldina as defendants. Doc. No. 1.1 It
alleged that Katz owned an image (which was included in the initial complaint,
albeit partially distorted, id. at 3), that Chevaldina had copied and publicly
displayed the image in violation of Katzs exclusive rights, that Katz had sent
Google several take-down requests under the Digital Millennium Copyright Act,
and that Google refused those requests. Id. The complaint sued Chevaldina for
direct copyright infringement and Google for contributory copyright infringement.

On July 20, 2012, Katz filed an amended complaint. The amended

complaint named only Chevaldina as a defendant, and alleged only direct
copyright infringement. Doc. No. 10 (App. 25-30). It sought damages and
injunctive relief, although Katz subsequently withdrew the claim for damages.

The parties cross-moved for summary judgment in early September 2013.

Magistrate Judge Chris M. McAliley issued a report and recommendation on June
17, 2014, recommending that the Court deny Katzs motion for summary judgment
and grant Chevaldinas motion for summary judgment pursuant to her affirmative

Doc. No. references are to the district courts docket. App. references
are to the Appendix submitted by Appellant Katz.
2

defense of fair use.

Ten days later, Katz moved to voluntarily dismiss the action on the ground
that a state court order issued on May 29, 2014, three weeks before Magistrate
Judge McAlileys report (Doc. No. 151-2 at 201 (App. 1118)) enforcing a
settlement agreement in a separate action between Katz and Chevaldina rendered
the federal action moot. The court below denied that motion, concluding that
[b]ased on the considerable effort and expense Defendant has already incurred
defending this action, Defendant would suffer prejudice (Doc. No. 158) were the
Court to permit voluntary dismissal.

Katz filed his objections (which continued to assert that the action was
moot, Doc. No. 159 at 19-20 (App. 1137-38)) to Magistrate Judge McAlileys
report on July 21, 2104. The court below adopted Magistrate Judge McAlileys
report in an order dated September 4, 2014.

B.

Statement Of Facts2

Katz is a wealthy man. He owns approaching 30" retail shopping centers,

from which he derived an income of between $7 and $10 million in 2012 alone.
Doc. No. 96-1 (Katz Dep.) at 30, 61 (App. 273, 304). He is a limited partner in the
partnership that owns the Miami Heat. Doc. No. 116-1 at 1 (App. 973) (Katz Aff.
3). Chevaldina is a former tenant in one of Katzs shopping centers. More
precisely, the Chevaldinas [that is, Chevaldina and her husband] are very unhappy
former tenants of RK Associates [the company through which Katz owns shopping
centers]. Chevaldina v. R.K./FL Management, Inc., 133 So. 2d 1086, 1088 (Fla.
Dist. Ct. App. 2014).

They are frequent opponents in litigation (id. (noting eight South Florida
proceedings between the Chevaldinas and Raanan Katz/RK Associates)), and the
litigations have not been terribly amicable. Just in this litigation, for example,
Katz moved to sanction and disqualify Chevaldinas counsel for improper
behavior during a deposition. In ruling on that motion, Magistrate Judge
2

Since the court below granted Chevaldinas motion for summary judgment,
this recitation of the facts resolves disputed evidence in Katzs favor. Thus, for
example, although Chevaldina has disputed whether Katz ever obtained a
copyright in the photo, and would do so again if this case were reopened, this
recitation assumes that he obtained a copyright. But see n.4, infra.
4

McAliley noted that counsel on both sides behaved unprofessionally, that she
had previously warned Katzs attorney that his conduct was highly
unprofessional and would not be tolerated, and that it was disappointing, to say
the least, to see that [her] admonition . . . apparently had no effect on either
attorney. Doc. No. 105 at 2. She resolved Katzs motion by appointing a special
master to oversee the remainder of Chevaldinas deposition, the cost being borne
equally by one attorney on each side, because [b]oth appear unable to control
their antipathy for one another, and for the opposing parties. Id. at 3.

Nor is it clear, Katzs claim of irreparable harm notwithstanding, how much

effect Chevaldinas blogging about Katz had prior to his commencing this (and the
state court) lawsuit. Chevaldina v. R.K./FL Management, Inc., 133 So. 2d at 1091
n.4 (noting various indications that the blog posts were largely ignored). See
also Doc. No. 96-2 (Katz Dep.) at 62 (App. 427) (testifying that no one believes
the things Chevaldina posts). To be sure, now that Katz has sued several times
over Chevaldinas blogging, obtained a prior restraint in state court (subsequently
overturned), and argued that copyright laws permit him to buy a picture he does
not like in order to control its use with criticism of his practices, those interested in

free speech and the free Internet have rightfully taken notice.3

1.

The Photo And Its Initial Publication

There is no competent evidence in the record as to who took the photograph

that is the subject of this litigation. Katz believes that a freelance photographer
named Seffi Magriso took the shot of him while he was watching a basketball
game in Israel (Doc. No. 96-1 at 69-70 (App. 313)) but, since he did not know that

Katz is apparently unfamiliar with, or indifferent to, the so-called Streisand

Effect. Guttenberg v. Emery, 26 F. Supp. 3d 88, 95 (D.D.C. 2014) (describing
effect); Wikipedia, Streisand effect (available at https://en.wikipedia.org/
wiki/Streisand_effect). A number of websites now have posts that include the
copyrighted photo on which this litigation centers. See, e.g., Posting of David
Kluft to Trademark And Copyright Law,
http://www.trademarkandcopyrightlawblog.com/2014/07/copyright-as-an-online-r
eputation-management-tool-a-round-hole-for-a-square-peg/ (July 16, 2014);
Technology & Marketing Law Blog, http://blog.ericgoldman.org/archives/2014/
06/griping-blogger-can-show- photo-of-griping-target-katz-v-chevaldina.htm
(June 28, 2014); Posting of Eugene Volokh to Volokh Conspiracy,
http://www.washingtonpost.com/ news/volokh-conspiracy/wp/2014/06/27/partowner-of-miami-heat-likely-to-lose-copyright-claim-against-blogger-whorepublished-unflattering-photo (June 27, 2014); Posting of Sean Newell to
Deadspin, http://deadspin.com/5969402/the-miami-heat-minority-owner-who-sued
-google-because-of-this-derpy-photo-is-a-dick (Dec. 18, 2012, 3:05 p.m.); Posting
of Michelle Fabio to legal zoom, http://blog.legalzoom.com/intellectual-property/
nba-owner-sues-blogger-over-unflattering-photo/ (June 27, 2012, 3:59 p.m.,
updated June 28, 2012) (all sites last visited on May 1, 2015). Not all of the blogs
focus on this litigation. The post by Sean Newell to Deadspin, for example,
relates primarily to Katzs state court litigation. To Chevaldinas knowledge, Katz
has not sued any of these blogs for copyright infringement.
6

a picture of him was being taken (Doc. No. 96-2 at 6-7 (App. 372)), he obviously
does not have personal knowledge of that fact. Katzs belated certificate of
registration lists Magriso as the author of the work. Doc. No. 96-15 (App. 805).

Katz testified that he fell or lost [his] balance, and [he] stuck [his] tongue
out in a compromising, embarrassing position, and that the [p]hoto was a candid
shot that doesnt accurately depict or portray [him]. Doc. No. 116-1 at 2 (Katz
Aff. 6) (App. 974). See also Doc. No. 96-1 at 70 (App. 313) (I fell down and
Im undressed, my pant . . . went out.) Katz does not like the picture; he
repeatedly described it in his deposition in derogatory terms. Doc. No. 96-1 at 67,
90; Doc. No. 96-2 at 118; Doc. No. 96-3 at 4 (App. 310, 333, 483, 491) (ugly);
Doc. No. 96-1 at 92 (App. 334) (unfair and make[s] fun of me); Doc. No. 96-1
at 92 (App. 335) (insult[s] me, not me, underdressed); Doc. No. 96-2 at 6
(App. 371) (not me); Doc. No. 96-2 at 95 (App. 460) (disgusting), Doc. No.
96-2 at 112 (App. 477) (as ugly as it could be).

The photo was first published in an online article on Haaretz.com along

with an article, dated February 22, 2011 at 1:50 a.m., that indicates that Katz was
considering buying an interest in an Israeli basketball team. Doc. No. 96-5 (App.
525). See also Doc. No. 117-2 (App. 1034) (letter from Seffi Magriso to
7

browardbulldog.com stating that image was first published in 2011 on

www.haaretz.com.); Doc. No. 122-1 (App. 1086) (letter from Katz to Magriso
stating that we prepared Magrisos letter to browardbulldog.com). The articles
byline is Haaretz Sports Staff; Katz was told that it was written by Johav
Borowski. Doc. No. 96-2 at 3 (App. 368). Haaretzs online website is on the
World Wide Web, available throughout the world. Although Katz has insisted in
this litigation that the article was first published in the print edition of Haaretz in
Israel, there is no copy of any article from the print edition of Haaretz in the
record. (Katz has made much of the fact that the URL at the top of the print-out of
the online article that is in the record has print-edition in it. There was no
evidence from anyone with knowledge as to what that meant. Even assuming
arguendo that it is evidence that something appeared in the print edition of the
paper at some time, it does not indicate whether that was Magrisos photo,
Borowskis article, or both, much less when the print edition was published and
distributed.)

Katz was sent a copy of the article a few days after it was first published.
Doc. No. 96-1 at 71-72 (App. 315). He spoke to Magriso a short time after that,
apparently because of Chevaldinas use of the picture in her blogs. Doc. No. 96-1

at 76, 78, 83 (App. 319, 321, 326).

Despite his antipathy towards the picture, Katz did not ask Haaretz.com, or
have Magriso ask Haaretz.com, to take the picture off of its website. Doc. No. 962 at 3 (App. 368). He testified that Borowski and Magriso told him that it had
been destroyed (Doc. No. 96-1 at 112-13, Doc. No. 96-2 at 4-5 (App. 355-56, 36970)), but he apparently never checked (or had anyone else check) to see whether
this was true. In February 2013, two years after it was first published and eight
months after he obtained the copyright, Katz first asked Haaretz.com to remove
the photo from its website. Doc. No. 116-1at 3 (Katz Aff. 13), 8 (App. 975,
980). It can be seen today on other websites. See n.3, supra.

2.

Chevaldina Blogs Using The Picture

Chevaldina used the photo on various of her blogs that she uses to criticize
Katz, and in an effort to shed light on his business practices. Chevaldina found
the photo on the Internet using Google Image Search. She clicked on the photo
there and was taken to haaretz.com. With the exception of those depictions of the
photo which contained text captions on top of the image, the photos on
Chevaldinas blog contained a link to the original haaretz.com article. Doc. No.

95-2 (Chevaldina Aff.) 2-3) (App. 238); Doc. No. 99 (Chevaldinas Statement
of Undisputed Facts) 9 (App. 934-35) & Doc. No. 116 (Katzs Response To
Chevaldinas Statement Of Undisputed Facts) 10 (App. 967).4

Chevaldina began using the photo in her blogs in the spring of 2011, a few
months after it appeared on haaretz.com. She has not made any money from the
posts. Doc. No. 96-6 at 18 (App. 546); see also Doc. No. 99, 20 (App. 937) &
n.4, supra.

The blog posts using the photo are in the record, Doc. No. 96-10 at 1-51
(App. 712-62), and are described, tendentiously at times, in Katzs opening brief
(Katz Br.) on pp. 6-11. Even as Katz describes them, though, many of them
involve little more than links to, or reprintings of, publicly-available documents.
E.g., Katz Br. 6 (noting that May 3 blog (Doc. No. 96-10 at 1 (App. 712))

Local Rule 56.1(a), S.D. Fla., provides that [s]tatements of material facts
submitted in opposition to a motion for summary judgment shall correspond with
the order and with the paragraph numbering scheme used by the movant . . . .
(emphasis added). Katzs statement in opposition, Doc. No. 116, largely ignored
this requirement; its numbering does not correspond to Chevaldinas statements
after the first eight and its subsequent responses frequently do not identify which
paragraphs they are addressing. Under the circumstances, it would have been
appropriate for the court below, and would be appropriate for this Court, to accept
as true all of Chevaldinas assertions not specifically identified as disputed.
10

includ[ed] links to two court opinions);5 id. (noting that September 18 blog
included letter from Katz to City of North Miami); Doc. No. 96-10 at 3, 50-51
(App. 714, 761-62) (blogs that include two letters regarding liens placed on
properties for moneys owed for past code violations); Doc. No. 96-10 at 16 (App.
727) (quoting a newspaper article); Doc. No. 96-10 at 33, 34, 36, 44 (App. 744,
745, 747, 755) (three blogs that quote a lease provision from an RK Associates
Lease, the last noting that it is missing from a particular lease with Ross For Less),
39 (App. 750) (quoting the initial complaint in this action against Google, Inc.), 42
(App. 753) (quoting decision from a California free speech case), 45 (App. 756)
(quoting from Katzs opposition to the motion to dismiss in this action), 48 (App.
759) (quoting from a trademark registration application). To be sure, Chevaldina
often viewed these documents with a critical eye, but the reader certainly could
draw his or her own conclusions.

Indeed, many of the blogs simply asked questions about Katz and/or his
business practices. E.g., Id. at 13 (App. 724) (Does Ranaan Katz business model
5

The two linked court opinions are Katz v. Massachusetts Commn Against
Discrimination, 365 Mass. 357, 312 N.E.2d 182 (1974) (affirming trial courts
decree upholding Commissions finding that Katz and others violated antidiscrimination law by refusing to rent to an African-American) and Katz v. King,
627 F.2d 568 (1st Cir. 1980) (affirming the denial of Katzs habeas petition seeking
to overturn a criminal conviction for contempt of court in state court).
11

make defaults profitable?), 15 (App. 726) (Ranaan Katz Gets Ready For
Deposition?), 22 (App. 733) (RK Centers: Daniel Katz Real Fear, Fake Fear, Or
No Fear?), 33-34 (App. 744-45) (RK Centers: How To Rip-Off People On
Common Area Maintenance In Miami?), 36 (App. 747) (Ranaan Katz:
Operating Expense, The Myth And The Reality?), 37 (App. 748) (RK Centers,
Ranaan Katz: Double Rent Demand, Is It Legal?), and 45 (App. 756) (Ranaan
Katz is Americas Next Top Model?).

There is no evidence to suggest that Magriso ever objected to Chevaldinas

use of the image.

3.

Katz Obtains The Copyright And Sues

Although Katz apparently had been in contact with Magriso since early in
2011 (Doc. No. 96-1 at 76 (App. 319)), and knew Chevaldinas identity since early
in 2012 (Katz Br. 14 & Doc. Nos. 96-11, 96-12 (App. 763-65)), he did nothing to
have Magriso contact Chevaldina or to procure Magrisos rights until late spring
of 2012. At that time, he and Magriso executed an assignment of the copyright.
Doc. No. 96-14 at 1 (App. 803). Magriso signed the copyright on or around June
3, 2012. Id.; Doc. No. 93 at 4 (Katz Statement of Undisputed Facts, 25 (stating

12

it was June 5, 2012)) (App. 185); Doc. No. 138 at 3 (Joint Pretrial Stipulations,
Plaintiffs Statement of the Case) (stating it was June 5, 2012). Katz paid no
money for the assignment. Doc. No. 96-1 at 98 (App. 341); Doc. 116-1, 12
(App. 975).

A week or so later (on June 12, 2012), Katz commenced this lawsuit.
Although Katzs complaints have alleged that Chevaldina refused [Katzs]
requests to cease displaying the photo (e.g., Doc. No. 10 at 3 (App. 27) (Am.
Compl. 10)), there is no evidence in the record suggesting that Katz even made
such a request to Chevaldina between the time that Magriso executed the
assignment and the time that Katz filed this suit. Indeed, no cease and desist
letter at all is in the record. But see Katz Br. 4 (quoting Katz affidavit that
Chevaldina refused to accede to his unidentified requests that she cease and
desist). And, as previously noted, Katz did nothing to have haaretz.com remove
the photo from its website until February 2013.

4.

Katz Registers His Copyright, But Never Markets The Photo

In November 2012, Katz registered his copyright with the U.S. Copyright
Office. Doc. No. 96-15 (App. 805). The registration asserts that the nation of 1st

13

publication of the photo was Israel, but does not identify the publication. Id.
Chevaldina has removed the photo from her blog posts. Doc. No. 96-7 at 31 (App.
669). Compare Katz Br. 13.

Katz has never used the copyright for any purpose but to sue Chevaldina.
Doc. No. 96-2 at 6 (App. 371). He has never licensed the photo or tried to sell it.
Id. He has not created any derivative works from the photo. Doc. No. 96-1 at 97
(App. 340).

5.

Katz Stipulates That He Has Suffered

No Economic Harm

During discovery in the lower court, Chevaldina sought information about

Katzs finances and moved to compel that discovery. Katz opposed that effort,
arguing that questions about his finances are irrelevant because he has withdrawn
his claim for monetary damages. Doc. No. 67 at 1. In resolving that motion,
Magistrate Judge McAliley ruled that Chevaldina would be precluded from
questioning [Katz] about his finances if Katz stipulate[s] that he and his related
companies suffered no direct or indirect economic harm as a result of the alleged
copyright infringment. Id. at 2.

14

In response to that order, Katz stipulated that he had suffered no economic

harm as a result of [Chevaldinas] infringement of [Katzs] copyright as alleged in
this lawsuit. Doc. No. 85 at 1(App. 52). Katz enter[ed] this Stipulation based
upon the language required by Magistrate Judge McAlileys Order . . . Id.
Conspicuously, although Katz continued to claim that he suffered irreparable
harm, there was no limitation on the type of economic harm that he was willing
to stipulate that he did not suffer in order to avoid discovery of his finances. Thus,
both out-of-pocket expenses and lost profits, both direct economic harm and
indirect economic harm, and both calculable economic harm and incalculable
economic harm were all included in Katzs stipulation.

6.

The Parties Cross-Motions For Summary Judgment

After the close of discovery, Katz and Chevaldina each separately moved
for summary judgment. Magistrate Judge McAliley issued a report and
recommendation on June 17, 2014, recommending that the Court deny Katzs
motion for summary judgment and grant Chevaldinas motion for summary
judgment on her fair use defense. Doc. No. 148, App. 1067-1111.

After briefly describing the background to the suit, and the standards for

15

summary judgment (Doc. No. 148 at 1-5), Magistrate Judge McAliley proceded to
consider the merits. She assumed that Katz had a valid copyright, and that, with
that assumption, he satisfied the two elements needed to state a prima facie case of
copyright infringement. Id. at 6-8. She then proceeded to consider the fair use
defense, and its four statutory elements.

In considering the purpose and character of Chevaldinas use, Magistrate

Judge McAliley noted that the inquiry should be guided by the examples given in
the preamble of Section 107 of the Copyright Act, which specifically identifies
criticism and comment as examples of fair use. She listed each of the twenty-five
posts by subject matter, id. at 11-14, and concluded that they all presented
unabashed criticism of, and commentary on, Plaintiffs business and litigation
practices. Id. at 14. She considered Katzs argument about Chevaldinas
reference in one of the blogs that she intended to write a book, but concluded that
that singular statement . . . even if one day acted upon, does not transform her
blogs into a commercial venture. Id. She similarly rejected Katzs evidence that
Chevaldina stood to gain from her use of the photo in other ways as entirely
insufficient to establish his assertion. Id. at 15 n.8. Noting the absence of
advertisements on the blog and the fact that Chevaldina had not made money from

16

her use of the photo, the Magistrate Judge concluded that there was no genuine
issue that Chevaldinas use was non-commercial. Id. at 15.

She then proceeded to consider whether Chevaldinas use was

transformative. Concluding that the photo was used in Haaretz in a favorable
light, but that Chevaldina used the [p]hoto in blog posts that disparage [Katz],
the Magistrate Judge concluded that Chevaldinas use was transformative
because it served a very different function than did its original use. Id. at 16.

Magistrate Judge McAliley then concluded that the nature of the

copyrighted work weighed in favor of fair use because the photo had been
published previously and it was primarily a factual work. Id. at 18-19. She
concluded that the amount of the work used was a neutral factor because
Chevaldina copied only as much of the [p]hoto as was needed to further her
criticism. Id. at 20.

Finally, Magistrate Judge McAliley determined that the undisputed facts

demonstrated that Chevaldinas use had no effect on the potential market for the
photo, and thus the last factor favored fair use, noting that Katz had stipulated that
he had suffered no economic harm as a result of Chevaldinas use of the photo and

17

had presented no evidence that a potential market even existed, much less that
Chevaldinas use threatened that market. Id. at 21. Lastly, she rejected Katzs
argument that Chevaldinas bad faith weighed against a finding of fair use,
noting that courts have considered bad faith only when the alleged infringer had
used a work to obtain the material in an inappropriate way or had taken a
commercial advantage belonging to the copyright holder. Id. at 24.

Weighing all of the statutory factors together, Magistrate Judge McAliley

concluded that the balance of the fair use inquiry weighs decidedly in favor of a
finding of fair use. Id. at 24.

7.

Katzs Motion To Voluntarily Dismiss

On June 27, 2014, Katz moved to voluntarily dismiss the action pursuant to
Rule 41(a)(2), Fed. R. Civ. P. Katz claimed that the issues had been rendered
moot by virtue of a court-enforced settlement between Katz and Chevaldina in
the state court action between them (discussed in Part 9 of this section, infra),
which required Chevaldina to remove the blog located at
www.rkassociatesusa.blogspot.com and all of its content. Doc. No. 151 at 1.
The court order did not preclude Chevaldina from using the photo on another blog

18

 and, indeed, Katz admitted that she had used it on another blog not affected by
the state court order (Doc. No. 159 at 20 (App. 1138) n.7) or in any other context
(like an email distribution or a pamphlet). Doc. No. 151-2 (App. 1112).

The timing of the motion was suspicious. The state court order that it relied
upon had been signed on May 29, 2014 (id.), three weeks before Magistrate Judge
McAlileys report and recommendation, and Katz had never suggested that it
mooted the case prior to the report. Nor had Katz ever suggested that
Chevaldinas removal of the photo from the blog earlier had mooted the case. To
the contrary. Doc. No. 138 at 4 (Joint Pretrial Statement, Plaintiffs Statement of
the Case) (Although Chevaldina . . . removed or replaced the Photo, . . . she is
like [sic] to continue copying the photo to further harass Katz . . . ). Indeed, on
this appeal, he still refers to her removal of the photo as temporary. Katz Br. 13.

Of course, having abandoned his claim for monetary damages, Katz must
prove that he is entitled to a permanent injunction; he has not explained how he
can be if Chevaldina has not used the photo recently and has taken her blog down.6
6

E.g., Shapiro, Bernstein & Co. v. 4636 S. Vermont Ave., Inc., 367 F.2d 236,
242 (9th Cir. 1966) (injunctive relief will not be granted when there is no
probability or threat of continuing or additional infringements) (quoting Nimmer
on Copyright, 157.2 (1966)); Morley Music Co. v. Cafe Continental, Inc., 777 F.
(continued...)
19

The District Court denied Katzs motion to voluntarily dismiss. It

concluded that Chevaldina would suffer prejudice, given the considerable effort
and expense she already had incurred in defending the action, if Katzs motion to
dismiss were granted. Doc. No. 158 at 1. It also noted that Magistrate Judge
McAliley already had issued her report and recommendation on the cross-motions
for summary judgment. Id. at 1-2.

8.

The District Court Adopts The Report

The District Court affirmed and adopted the Magistrate Judges report in an
order dated September 5, 2014. Doc. No. 167 (App. 1142-45). It set forth each of
the reports conclusions with respect to the four fair use factors, and agreed with
them. It carefully considered the arguments and objections advanced by [Katz]
and [found] that they are without merit. Id. at 3 (App. 1144).

9.

The State Court Litigation

Katzs brief on appeal provides extensive discussion of a state court

6

(...continued)
Supp. 1579, 1583 (S.D. Fla. 1999) (A Plaintiff is entitled to a permanent
injunction in a copyright action when liability has been established and where
there is a threat of continuing violations.).
20

litigation between him and Chevaldina. Katz Br. 14-16, 50-53. Although, for the
reasons set forth in the Argument, the state court litigation is irrelevant to the
issues on this appeal, a brief response to Katzs contentions is provided here.

Much of Katzs discussion centers on a preliminary injunction, and an order

to show cause as to whether Chevaldina had violated that preliminary injunction.
No finding that she had was ever made because the preliminary injunction was
reversed as an improper prior restraint and (to the extent that it was based on other
torts) factually baseless. The state court of appeals noted that [a] temporary
injunction directed to speech is a classic example of prior restraint, and that the
exception (permitting such prior restraint) for defamation made in furtherance of
another intentional tort was inapplicable because Katzs evidence was woefully
short of competent, substantial evidence that any blog entry interfered with any
business or contractual relationship of [Katz and] the [other] appellees.
Chevaldina v. R.K./FL Management, Inc.,133 So. 3d at 1090-91. The court also
found the evidence to support the injunction against stalking and trespassing
inadequate, and the injunction not supported by adequate factual findings. Id. at
1091-92.

Katz also quotes Judge Walshs reaction to subpoenas that Chevaldinas

21

state court attorneys served in response to the order to show cause (for possible
violations of the subsequently-reversed preliminary injunction). Katz Br. 15-16.
Suffice it to note that (1) Judge Walshs reaction was based on her belief that her
order to show cause was crystal clear that it did not involve any allegations of
interference with any relationship between Katz and his attorneys (Doc. No. 96-20
at 74 (App. 925)) and (2) Chevaldinas attorneys respectfully disagree with that
assessment and that a plain reading of the document supports them. Id. at 71
(App. 928); Doc. No. 96-18 (App. 850-54).

Katz claims that Chevaldina threatened Katzs counsel and their families
(Katz Br. 15, 52), a charge that Chevaldina has denied under oath. Doc. No. 96-6
at 42-43 (App. 570-71).

Finally, Katz refers to the settlement in state court, the validity of which is
on appeal. Katz Br. 16. But he misleads in stating that Chevaldina agreed to
remove the blog located at www.rkassociatesusa.blogspot.com and all of its
content in an unsolicited email to Katzs counsel. Id. In fact, the email
proposed only removal of the blog, Doc. No. 151-1 at 3 (Tr. 6, line 3), without
any further identification as to which blog; whether that was a sufficiently specific
term to form a contract, and whether the state court erred in picking out a specific
22

blog and ordering Chevaldina to take it down as part of a settlement, are among
the issues on appeal.

C.

Standard Of Review

This Court reviews an order granting summary judgment de novo.

Summary of Argument

Copyrights purpose is to promote the creation and publication of free

expression. Eldred v. Ashcroft, 537 U.S. 186, 219, __ S. Ct. __, __ (2003)
(emphasis in original). It does so by providing incentives for creative effort. Sony
Corp. Of America v. Universal City Studios, Inc., 464 U.S. 417, 450, 104 S. Ct.
774, 793 (1984) (The purpose of copyright is to create incentives for creative
effort.); id. at 429, 104 S. Ct. at 782 (The monopoly privileges that Congress
may authorize are [not] . . . designed to provide a special private benefit. Rather,
the limited grant is a means by which an important public purpose may be
achieved. It is intended to motivate the creative activity of authors and investors
by the provision of a special reward . . . .). It is hard to imagine a case alleging
copyright infringement further removed from these purposes than this one.

23

Katz here seeks to silence a fierce critic, one who happens to use the
Internet. As the Florida Court of Appeals recognized, though,

[A]nalytically, and legally, these rants are essentially the

electronic successor of the pre-blog, solo complainant
holding a poster on a public sidewalk in front of an auto
dealer that proclaimed, DONT BUY HERE! ONLY
LEMONS FROM THESE CROOKS! Existing and
prospective customers of the auto dealership considering
such a poster made up their minds based on their own
experience and research.

Chevaldina v. R.K./FL Management, Inc., 133 So. 2d at 1092 (capitalization in

original). If the critic used a copyrighted advertising slogan of the auto dealer on
her poster or the auto dealer owner bought the rights to a picture of himself used
on the poster no court seriously would entertain a copyright infringement case.
This case involves the same issues with 21st century technology.

Indeed, Katz seems to recognize the tension between his case and
copyrights goals. In his conclusion, Katz states that [t]he use of a political
candidates headshot as part of actual criticism and commentary on the candidates
political views is fair use, but that vindictively harassing a person and their
family by using a photo in numerous blog posts to extract financial gain, or to
simply harass, defame or otherwise harm the copyright owner, is not. Katz Br.
24

53-54 (citing Dhillon v. Does 1-10, 2014 WL 722592 (N.D. Cal. Feb. 25, 2014)).
See also Katz Br. 21 (the defamatory nature of Chevaldinas blog posts . . . shows
that [her] use of the Photo was not driven by the purpose protected under fair use
(such as criticism), but for far more nefarious reasons.); id. at 52. According to
Katz, then, this Court must distinguish in a copyright case, of all fora between
actual criticism and criticism designed to harass, defame, or otherwise harm
its object. Katz gives no clue as to how this Court should go about doing so, much
less provide argument that Chevaldinas criticism falls into the latter category
rather than the former.7 It would seem, though, that he now wants to relitigate the
state court lawsuit that he (and his co-plaintiffs) purportedly settled for a sum that
(he claims) was far below Chevaldinas exposure. Doc. No. 151 at 4 (Chevaldina
was potentially liable for damages far beyond the amount for which she agreed to
7

Indeed, it seems fair to say that Katzs objective has been to avoid any
question of whether Chevaldinas criticism is legitimate. For example, in the
lower court, he moved in limine to exclude any reference to the cases in which he
was found guilty of criminal contempt and racial discrimination in housing. Doc.
No. 131 (moving to exclude any evidence of Katz v. Massachusetts Commn
Against Discrimination, 365 Mass. 357, 312 N.E.2d 182 (1974), which affirmed a
finding of racial discrimination in housing against Katz, and Katz v.
Commonwealth, 379 Mass. 305, 399 N.E.2d 1055 (1979), which affirmed his
criminal contempt conviction). See also Doc. No. 96-1 at 11-13 (App. 254-57).
Katz does not explain how a trier of fact could determine whether Chevaldinas
assertions that Katz has a criminal record and was found liable for race
discrimination was actual criticism without examining the underlying cases that
formed the basis for her assertions.
25

settle.). Cf. Peter Letterese and Associates, Inc. v. World Institute of Scientology
Enterprises Intl, 533 F.3d 1287, 1298 n.12 (11th Cir. 2008) (Peter Letterese)
(holding, in a copyright infringement case, that evidence of defendants alleged
internet smear campaign that caused plaintiff to lose income from his business
and distracted [plaintiffs] counsel was irrelevant (belonging, if anything, to
another lawsuit).).8

Application of the statutory factors for fair use demonstrates that the court
belows thorough analysis was exactly correct. Katz did not create the photo in
the first place, it was hardly a great work of art, and his commercial interests have
never been harmed (as his own stipulation demonstrates) and never will be.
Chevaldina has never earned a cent from her use of the photo and never will.

And even if that were not so, the judgment of the court below can be
affirmed on another ground. The photo is not a foreign work, and Katz was thus
obligated to register his copyright before suing. So anxious was he to sue
Chevaldina though, that he sued within days of procuring the copyright and thus
failed to perform this simple condition precedent to his suit.
8

Katz seems to have his own idiosyncratically broad understanding of

defamation (albeit one not inconsistent with his speech-chilling efforts). Katz Br.
39 (Deal With Him At Your Own Risk was a defamatory caption[].)
26

Argument

On a motion for summary judgment, a moving party that bears the burden of
proof at trial must affirmatively demonstrate the absence of a genuine issue of
material fact with credible evidence that would entitle it to a directed verdict if not
controverted by the non-moving party. U.S. v. Four Parcels of Real Property, 941
F.2d 1428, 1438 (11th Cir. 1991) (en banc). If it does so, it is entitled to summary
judgment unless the non-moving party comes forward with significant, probative
evidence demonstrating the existence of a triable issue of fact. Id. On issues on
which the non-moving party bears the burden at trial, a summary judgment movant
may also show the absence of evidence on an issue necessary to support the nonmoving partys case or that the non-moving party otherwise will be unable to
prove its case at trial. Id. at 1437-38.

The court should not weigh evidence or make credibility determinations on

a motion for summary judgment; the non-movants admissible evidence is to be
accepted. Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
Similarly, all inferences drawn from the evidence must be viewed in the light most
favorable to the non-moving party. Id. However, where the evidence is

27

circumstantial, a court may grant summary judgment when it concludes that no

reasonable jury may infer from the assumed facts the conclusion upon which the
non-movants claim rests. Id. at 743. That is, [i]nferences from the non-moving
partys specific facts as to other material facts . . . may be drawn only if they are
reasonable in view of other undisputed background or contextual facts . . . . Id.
(quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn, 809 F.2d 626,
631 (9th Cir. 1987)).

I.

THE COURT BELOW CORRECTLY CONCLUDED THAT

CHEVALDINA WAS ENTITLED TO SUMMARY
JUDGMENT ON HER AFFIRMATIVE DEFENSE
OF FAIR USE

Section 107 of the Copyright Act (quoted at Katz Br. 21-22) provides that
the fair use of a copyrighted work, for purposes such as criticism, comment, news
reporting . . . is not an infringement of copyright. 17 U.S.C. 107. The fair use
doctrine is a statutory exception to copyright infringement, which seeks to balance
First Amendment concerns with the protections otherwise afforded authors by the
Copyright Act. Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1238 (11th Cir.
2010).

Fair use is a mixed question of law and fact. Katz Br. 22. Thus, although it
28

is fact-sensitive, it is also appropriate for summary judgment. Peter Letterese, 533

F.3d at 1319 (affirming grant of summary judgment on claim that certain courses
for training of church officials infringed the copyright of a sales technique book).

Section 107 lists four non-exclusive factors for courts to consider in

determining whether a particular use is fair: the purpose and character of the use,
the nature of the copyrighted work, the substantiality of the portion of the
copyrighted work used, and the effect of the use upon the potential market for the
copyrighted work. Here, an examination of those factors demonstrates that the
court below correctly granted summary judgment to Chevaldina.

A.

The Purpose And Character Of The Use

On the first factor, [t]he enquiry may be guided by the examples given in
the preamble to 107, looking to whether the use is for criticism, or comment, or
news reporting . . . . Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114
S. Ct. 1164, 1171 (1994). Courts generally examine whether the use of the
copyrighted work is transformative and whether its use is commercial or for
other purposes. Transformative and non-commercial uses both support a finding
of fair use, and either factor alone may weigh sufficiently for this factor to

29

militate in favor of that defense. Id. at 579, 114 S. Ct. at 1171 (the more
transformative the new work, the less will be the significance of other factors, like
commercialism, that may weigh against a finding of fair use.); Sony Corp., 464
U.S. at 449, 104 S. Ct. at 792 (holding that copying over-the-air television
broadcasts on a videotape recorder was noncommercial and thus weighed in favor
of fair use despite the fact that entire programs were copied without change).

Here, Chevaldinas use of the copyrighted work was both transformative

and non-commercial, and thus the first factor weighs heavily in favor of her fair
use defense.

1.

Transformative. To be transformative, a work should add

something new, with a further purpose or different character, altering the first with
new meaning, or message. Campbell, 510 U.S. at 579, 114 S. Ct. at 1171.
Chevaldinas use of the photo was transformative for three reasons: first,
considering Katzs own use basically to force Chevaldina to remove the photo
from her blogs Chevaldinas use is entirely different; second, the photo was used
as part of a criticism of Katz rather than simply providing news about him; and,
third, the ugly photo enhanced the criticism.

30

In determining whether the use is transformative, it is not the original use

that is relevant but rather the copyright owners use. Righthaven, LLC v. Jama,
2011 WL 1541613, *2 (D. Nev. Apr. 22, 2011) (holding that reprint of entire
newspaper article was transformative where newspaper had assigned the copyright
to the plaintiff; Although the former owner, the [newspaper], used the article for
news-reporting, the court focuses on the current copyright owners use, which, at
this juncture, has been shown to be nothing more than litigation-driven.). Cf.
Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1282 (11th Cir. 2014) (holding
that, under the first fair use factor, we are primarily concerned with the effect of
Defendants copying on [publishing company] Plaintiffs incentive to publish, not
on academic authors incentive to write) (emphasis in original). Here, even if
Katzs motivation is not entirely litigation-driven and this lawsuit, filed days
after acquiring the copyright, certainly suggests so it certainly is nothing more
than forcing Chevaldina to stop using the picture. Doc. No. 96-2 at 6 (App. 371)
(obtained the copyright to stop this atrocity).

Even if Magrisos use, and not Katzs, were relevant, Chevaldinas use is
still quite different. Magriso presumably took the picture so that he could sell it to
a newspaper for an article about Katz. The article itself was not written by

31

Magriso and, in any event, was hardly critical of Katz. Doc. No. 96-5 (App. 525).
In contrast, it is hardly disputed that the blog posts in which Chevaldina used the
photo were highly critical of Katz. Doc. No. 96-8 at 88 (used the picture to
criticize him). This different objective demonstrates the transformative nature of
the use. See 17 U.S.C. 107(a)(1) (factor to be considered shall include the
purpose and character of the use) (emphasis added); Blanch v. Koons, 467 F.3d
244, 252 (2nd Cir. 2006) (The sharply different objectives that [pop artist] had in
using, and [photographer] had in creating [photograph] confirms the
transformative nature of the use.); Dhillon, 2014 WL 722592 at *5 (holding that
use of political candidates headshot in an article criticizing the candidates
political view was transformative; plaintiff used the headshot photo as a tool to
positively market herself . . . . By contrast, the defendant used the headshot photo
in connection with an article criticizing the plaintiffs political views.).

Finally, Katz (by his own admission) looks ugly in the photo. Thus,
Chevaldina specifically used this aspect of the photo to reinforce what she
perceives as Katzs ugly business practices. Doc. No. 96-6 at 93 (App. 621)
(picture very much reflects the story written in this particular article); id. at 95
(App. 623) (in parity with the way he conducts his business); id. at 110 (App.

32

638) (picture is very much connected to the articles that I have on the blog. Its
very much critical.); Doc. No. 96-7 at 4-5 (App. 642-43) (picture is very much
reflecting him trying to wipe [his debts] out . . . Nasty business, nasty face); id. at
6 (App. 644) (openly speaking about his disgusting business would basically
show his business and his face and how they all connected); id. at 26 (App. 664)
(The article is critical . . . . The image is critical . . . .).

Katz offers various arguments to support the argument that Chevaldinas

use was not transformative, to no avail. First, he criticizes Magistrate Judge
McAliley for purportedly failing to perform a work-by-work analysis. Katz Br.
22-26. Katz relies on this Courts opinion in Cambridge Univ. Press v. Patton,
769 F.3d 1232 (11th Cir. 2014) for this argument, but he confuses a work-bywork or case-by-case analysis with an infringement-by-infringement
analysis. (As the footnote Katz quotes (Katz Br. 23) demonstrates, this Court
equated a work-by-work analysis and a case-by-case analysis.) Nothing in
Patton suggests that this Court demanded separate analyses of identical or nearlyidentical infringements of the same copyrighted work. To the contrary, this
Courts point in Patton was that there were many different copyrighted works that
were copied, and the infringement of each work needed to be addressed separately.

33

Id. at 1259 n.20 (Courts must apply the fair use factors to each work at issue.)
(emphasis added). Here, of course, that simply is not true. Only one copyrighted
work is at issue, and the uses did not vary much.

In any event, Magistrate Judge McAliley identified each alleged use of the
photo, including its date and the topic of the blog. Doc. No. 148 at 11-14 (App.
1097-1100). The gist of her holding was that the article in Haaretz had used the
photo in a favorable light and that Chevaldina used it in a disparaging light. Katz
places great emphasis on the fact that she went on to point out that, [i]n some
posts, Chevaldina altered the photo or superimposed writing on it, Katz Br. 24,
but he fails to show that this played any significance in her recommendation. Her
conclusion of a different purpose was just as true of the use of the purportedly
unaltered photo as it was of any other use.

Katz makes several other arguments. First, he complains that Chevaldina

did not comment on the photo itself. Katz Br. 34-36. As Katzs own cases
demonstrate, though, this has never been necessary for a use to be transformative.
BWP Media Use, Inc. v. Gossip Cop Media, LLC, 2015 WL 321863, *6 (S.D.N.Y.
Jan. 26, 2015) (Katz Br. 31) (the Second Circuit has specifically rejected the
contention that commentary is necessary to the fair use defense, holding that [t]he
34

law imposes no requirement that a work comment on the original or its author in
order to be considered transformative.) (quoting Cariou v. Prince, 714 F.3d 694,
706 (2nd Cir. 2013)).9 Indeed, the BWP Media court concluded that the use of
photos along with commentary on the article that the photo originally
accompanied (and not the photo itself) was transformative. Id. at *7. Katzs
citation of BWP Media focuses on that cases analysis of a photo in which there
was no commentary or criticism of anything.

Katz also claims that Chevaldinas use was not transformative because she
did not change the photo sufficiently in at least some of the blogs. Katz Br. 35.
(This actually is a matter of contention between the parties, but, for purposes of
this appeal, this Court can assume that some of the blogs did not alter the photo at
all.) But, again, there is no such requirement. E.g., Bouchat v. Baltimore Ravens
Ltd. Partnership, 737 F.3d 932, 940 (4th Cir. 2014) (holding that use of original
Baltimore Ravens logo used in historical videos was fair use; it does not matter
that the [original Ravens] logo is unchanged in the videos, for [t]he use of a

Katz cites LaChappelle v. Fenty, 812 F. Supp. 2d 434, 448 (S.D.N.Y. 2011)
(Katz Br. 34) without disclosing the fact that it relied on the subsequently reversed
district court opinion in Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011),
revd, 714 F.3d 694 (2nd Cir. 2013) for this point. LaChappelle, 812 F. Supp. 2d at
448 n.90.
35

copyrighted work need not alter or augment the work to be transformative in

nature.) (quoting A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639
(4th Cir. 2009)).

These erroneous arguments support Katzs larger argument that a different

purpose like criticism is not sufficient to make a new use transformative. Katz
relies most heavily on Monge v. Maya Magazine, 688 F.3d 1164 (9th Cir. 2012) for
this proposition. In Monge, the Ninth Circuit held that a newspapers use of a
celebrity couples private photographs of their wedding night to demonstrate that
they were, in fact, married was not transformative. As the Ninth Circuit more
recently noted, [t]he plethora of cases addressing this topic means there is no
shortage of language from other courts eludicating (or obfuscating) the meaning of
transformation. Seltzer v. Green Day, Inc., 725 F.3d 1170, 1176 (9th Cir. 2013).
Id. (noting that whether a work is transformative is a often highly contentious
topic, citing the dissent in Monge). In Green Day, the court summarized the law
as follows: a work is typically viewed as transformative as long as new
expressive content or message is apparent . . . even where . . . the . . . work makes
few physical changes to the original or fails to comment on the original. Id. at
1177 (emphasis added). Thus, whether the majority or dissent was correct about

36

transformation in Monge and we respectfully submit that it was the dissent

even current Ninth Circuit doctrine supports Chevaldinas position here.

In any event, the Supreme Court in Campbell stated the addition of a

further purpose would make a use transformative, and, as the Green Day court
pointed out, the Supreme Court relied in large part on Judge Levals influential
law review article, which had stated that [t]he use must be productive and must
employ the quoted matter in a different manner or for a different purpose from its
original. Id. at 1176 (quoting Pierre Leval, Toward A Fair Use Standard, 103
Harv. L. Rev. 1105, 1111 (1990)). Thus, Katzs (and the Monge courts)
suggestion that a different purpose is not enough to constitute a transformative use
is inconsistent with the best interpretation of binding precedent.

Katz also claims that Chevaldina simply used the photo to identify him, and
thus she had the same purpose as Haaretz, and that it does not further any criticism
of him. Katz Br. 35-37. These contentions manage to be both wrong and
irrelevant. First, Katz does not explain why the alleged purpose of Haaretz
(which, according to Katz, never had a copyright interest in the photo) rather than
his purpose, should matter. Second, cases like Dhillon demonstrate that a common
identifying rationale for the photo does not preclude the use from being
37

transformative if the accompanying article has a different purpose from the

purpose of the works original use. And, third, Chevaldinas use of an ugly
photo did further her criticism; the bad photo matched the bad business practices
that the blog posts wanted to illuminate. See discussion, supra at 32-33.

To support this only identification argument, Katzs fact recitation

focuses on several deposition answers in which Chevaldina testified that the photo
also served the purpose of allowing readers to see the subject of the the posts.
Katz Br. 12-13. But that hardly means that the use of the photo did not further her
criticism. It did, and Katz conceded as much in the court below. Doc. No. 115 at
18 (App. 956) (This candid image does not merely identify Katz, it depicts Katz
in a manner beyond factual, albeit not flattering. Indeed, it is these creative
elements of the Photo that Chevaldina seeks to exploit.). And the fact that
Chevaldina testified that she did not consider the photo flattering or unflattering
(Katz Br. 12) means only that she does not consider Katz particularly attractive,
and that the ugly photo, in her view, accurately reflects him.

Katz also claims that the photo was unnecessary to Chevaldinas criticism
because she replaced the photo after being sued. Katz Br. 40. (Curiously, in the
court below, he has claimed that he never argued in this case that Chevaldinas
38

use of the copyrighted photo must be essential to her purported criticism. Doc.
No. 187 at 17. This argument on appeal seems to be exactly that.) Fair use does
not require that a copyrighted work be necessary in the sense that no alternative
to the new work could be created in its absence. One does not have to quote a
book in a book review, but it is certainly within fair use to provide limited quotes.
The author of the 480 page Grateful Dead history at issue in Bill Graham Archives
v. Dorling Kindersley Ltd., 448 F.3d 605 (2nd Cir. 2006) could have written a
nearly-identical book without the seven (of 2000) images on which plaintiff
owned a copyright. Katzs argument would mean, counterintuitively, that less
fair use protection would be given when the copyrighted work constitutes a very
small portion of the new work. Id. at 611 (conclusion that use was transformative
is bolstered because [copyrighted] images constitute an inconsequential portion
of [book].); Bouchat, 737 F.3d at 942.

Katz tries to distinguish Dhillon by claiming that the user there juxtaposed
a political headshot an inherently positive image with negative political
commentary which furthered and contributed to the criticism. Katz Br. 40.
This rather odd contention goes unexplained how exactly does a positive image
further and contribute to criticism because of a juxtaposition? Would a

39

picture of a fireman rescuing someone from a burning building further criticism

of the fireman in a negative article because of the contrast? It seems unlikely, and
Dhillon certainly said nothing about any juxtaposition of a positive image and
negative criticism. Rather, Dhillon demonstrates that the copyrighted work need
not further the criticism in order for its use with criticism to be transformative.
And even if that were not so, here, a picture unflattering to Katz (Katz Br. 41)
would further criticism of him, and, when its original use did not involve any
criticism of him at all, the new, critical use is transformative a fortiori.

2.

Non-Commercial Use

Chevaldina has never made any money from her blogs. Doc. No. 96-6 at 18
(App. 546). By itself, this undisputed fact would obligate a jury to find that her
use of the photo was non-commercial.

Katz nevertheless tries to claim a genuine issue of material fact because, on

one of her blogs, Chevaldina mentioned that her posts would be shorter because
she was writing a book, and then briefly described the book she hoped to write.
Katz Br. 7. In her deposition (well over one year later), Chevaldina testified that
she still had not progressed in writing it. Doc. No. 96-7 at 21 (App. 659).

40

Nonetheless, Katz repeatedly claims that Chevaldina was using his picture to
advertise (Katz Br. 18, 20, 28-29, 49) her still non-existent book, and thus has a
profit motive. Katz. Br. 30.

Katz supplies no evidence that Chevaldina intended to sell her book once
she wrote it, or even to distribute it to any substantial audience for free. The
proposition that Chevaldina was using the photo to advertise a book years
before she wrote it, is facially absurd. It is not a fact but rather an inference that
Katz tries to squeeze from the contents of the March 12 blog. It is not reasonable
in view of other undisputed background or contextual facts (Mize, 93 F.3d at 742
(internal quotation marks omitted)) and, accordingly, does not preclude summary
judgment.

Even if it were plausible, it would not change the conclusion that the
general nature of Chevaldinas use of the photo was non-commercial. The
commercial inquiry is not a yes-or-no inquiry; rather courts are to examine the
extent of [a uses] commerciality. Campbell, 510 U.S. at 580, 114 S. Ct. at 1172
(emphasis added). See, e.g., Bouchat, 737 F.3d at 947 (This determination does
not, however, require a clear-cut choice between two polar characterizations,
commercial and non-profit. . . . Instead, [t]he commercial nature of a use is
41

a matter of degree, not an absolute.) (quoting Maxtone-Graham v. Burtchaell,

803 F.2d 1253, 1262 (2nd Cir. 1986)). Moreover, the commercial/nonprofit
dichotomy concerns the unfairness that arises when a secondary user makes
unauthorized use of copyrighted material to capture significant revenues as a
direct consequence of copying the original work. Patton, 769 F.3d at 1266
(emphasis added) (quoting Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913,
922 (2nd Cir. 1994)).

Even if it were plausible to infer that Chevaldina was using the photo to
advertise a book to be written at an unidentified time in the future, it would not
change the fact the March 12 blog, much less Chevaldinas overall use of the
photo, was largely non-commercial. She did not capture significant revenues
(or, for that matter, any revenues) as a direct consequence of her use of the
photo, and Katz supplies no evidence, just speculation, about any other benefit she
may have gleaned. Patton, 769 F.3d at 1267 (holding that digital distribution of
copyrighted works to university students for their coursework was noncommercial even though it made the courses that students took less costly and the
school more financially attractive; Even if Defendants use profits [university] in
some sense, we are not convinced that this type of benefit is indicative of

42

commercial use. There is no evidence that Defendants captured significant

revenues as a direct consequence of copying Plaintiffs works.).

B.

Nature And Character Of The Work

The second factor listed in Section 107 is the nature of the copyrighted
work. Courts here should consider whether the work is highly creative or more
factual, and whether the work is unpublished. Patton, 769 F.3d at 1268. The
photo had been published on haaretz.com, and Katz does not dispute that. Nor
does he dispute that the photographer did not pose him, choose his clothing, or
adjust the lighting in the room in which the picture was taken. Katz did not even
know that his picture was being taken.

Nonetheless, relying on Keinitz v. Sconnie Nation LLC, 965 F. Supp. 2d

1042 (W.D. Wisc. 2013), Katz disputes the court belows conclusion that the
photograph was primarily factual. He claims that it had mixed elements of fact
and creativity because it was a candid shot, like the one in Keinitz. Katz Br. 4243.

But Katzs argument just demonstrates that the photo had some element of
creativity, enough to entitle it to copyright protection. This Court requires
43

creativity beyond that basic level to characterize a work as creative for purposes
of the second factor. Patton, 769 F.3d at 1268 n.25 (The second statutory fair
use factor . . . refers to the nature of the work beyond this initial inquiry [of
originality sufficient to be copyrightable].) (quoting Compaq Computer Corp. v.
Ergonome, Inc., 387 F.3d 403, 410 (5th Cir. 2004)). See also, e.g., Fitzgerald v.
CBS Broadcasting, Inc., 491 F. Supp. 2d 177, 188 (D. Mass. 2007) (holding that
photographs of a well-known mobster taken shortly after his arrest were factual in
nature; [M]inimal authorial control is necessary to make a work copyrightable at
all. . . . Creativity for the purposes of fair use is harder to establish than threshold
copyrightability.) (emphasis in original). Keinitz did not adopt this principle, and
thus should not be followed here.

The conclusion of the court below that the work was primarily factual is
correct under this standard, as was its overall conclusion that the second factor
favored Chevaldina. E.g., Nunez v. Caribbean Intl News Corp., 235 F.3d 18, 2324 (1st Cir. 2000) (holding that even where professional photographer posed model
for pictures for her modeling career, the impact of [the photographs] creativity
on the fair use finding is neutral; given that they had been commissioned by the
model for the very purpose of semi-public dissemination and already had been

44

shown on the evening use before defendant newspaper published them, this
[second] factor favors [newspaper].); North Jersey Media Group Inc. v. Pirro,
2015 WL 542258, *10 (S.D.N.Y. Feb. 10, 2015) (although photojournalists
photograph of three firefighters raising an American flag near the ruins of the
World Trade Center on September 11, 2001 exhibited great artistry in carrying
out his task . . . there can also be no dispute that [the photo] is a quintessential
example of photojournalism, and that the photograph was factual and thus the
second factor favored fair use) (citing Katz v. Chevaldina, 2014 WL 2815496
(S.D. Fla. June 17, 2014), adopted by, 2014 WL 4385690 (S.D. Fla. Sept. 5,
2014)); Fitzgerald, 491 F. Supp. 2d at 188 (holding that pictures of well-known
mobster on day of his arrest were factual works because photographer
exercised no more than the minimum authorial decision-making necessary to
make a work copyrightable); Super Future Equities, Inc. v. Wells Fargo Bank
Minnesota, N.A., 553 F. Supp. 2d 680, 699 (N.D. Tex. 2008) (holding that web
page describing companys Just Pay apparel, that included three small images,
was factual in character; [w]hile the images are similar to photographs, they do
not rise to the level of creativity of the photographs in [case involving professional
photographers images of the American West].); Guccione v. Flynt, 1984 WL 18,
*4 (S.D.N.Y. June 5, 1984) (dismissing copyright claim on fair use grounds; the
45

single reproduced photograph [did not] represent . . . a substantial creative effort

by plaintiffs).

C.

Amount And Substantiality Of Work Used

The third fair use factor is the amount and substantiality of the portion used
in relation to the copyrighted work as a whole. The court below concluded that
this factor was neutral because it concluded that Chevaldina had copied the entire
photo on some occasions, but copied only as much as was necessary to further her
criticism. Doc. No. 148 at 20. (Katz falsely asserts that the court below found that
the factor weighed in favor of Chevaldina as a matter of law. Katz Br. 45.)
Assuming arguendo that Chevaldina used the entire photograph for at least some
blogs (see p. 35, supra), her use was reasonable.

Katz argues that this Court should examine whether Chevaldina used more
of the work . . . than was necessary. Katz Br. 44. But, as already discussed, fair
use does not require that the use be so essential that no new work could be
produced at all without the copyrighted work. Here, Chevaldinas use of the photo
furthered the purpose of reinforcing the written criticism of Katz and his business
practices. The court below properly considered this factor neutral.

46

D.

The Effect On The Potential Market

The fourth statutory factor is the effect of the use on the potential market for
the copyrighted work, both by the allegedly infringing uses and by hypothetical,
widespread similar such uses. Patton, 769 F.3d at 1275. On this factor, the
evidence included the undisputed facts that Katz (1) paid nothing for the photo,
(2) never licensed or sold the photo, (3) has used the copyright only to sue
Chevaldina, (4) introduced no evidence of any licensing scheme that he has set up
or intends to set up (e.g., Patton, 769 F.3d at 1279 (plaintiffs have the burden of
going forward with evidence on the question of availability of licenses for their
own works)), and (5) stipulated that he did not suffer any economic harm from
Chevaldinas use. These undisputed facts would warrant a directed verdict on the
question of whether Chevaldinas use (and hypothetical widespread similar use)
could harm the market or potential market for the photo. In short, it demonstrates
that there was no potential market for the photo, and will not be. The court below
thus correctly concluded that this factor favored Chevaldinas fair use defense.

Katz offers several arguments that the court below erred. First, he tries to
walk away from the stipulation that he signed to avoid any discovery of his

47

finances. In a remarkable example of lawyerly captiousness, he asserts that his

stipulation that he suffered no economic harm . . . cannot fairly be equated to
an admission that there is no economic harm. Katz Br. 46. He seeks to support
this Kafkaesque assertion with his own self-serving affidavit that he is unable to
calculate the amount of economic harm I have suffered as a result of . . .
Chevaldinas infringement of my Copyright. Id. (quoting Doc. No. 116-1 at 4
(App. 976)) (emphasis added).

This will not do. Katzs stipulation was not that he suffered no calculable
economic harm, but rather that he suffered no economic harm at all. The lost
business his affidavit claims he may have suffered is obviously economic harm.
He should be held to his stipulation. Connelly v. Metropolitan Atlanta Rapid
Transit Authority, 764 F.3d 1358, 1365 (11th Cir. 2014) ([P]arties are bound by
their stipulations.) (quoting G.I.C. Corp. v. United States, 121 F.3d 1447, 1450
(11th Cir. 1997)) (brackets as in Connelly). Cf. Manasota-88 Inc. v. Tidwell, 896
F.2d 1318, 1322 n.7 (11th Cir. 1990) (parties are bound by the admissions and
stipulations of counsel absent manifest injustice).

In any event, the harm that Katzs affidavit claims from Chevaldinas use
the loss or modification of business relationships has nothing to do with the
48

harm that the fourth factor considers. It is only loss of the value of the
copyrighted work through market substitution that matters in this context.
Campbell, 510 U.S. at 592, 114 S. Ct. at 1178 (the role of the courts is to
distinguish between [b]iting criticism [that merely] suppresses demand [and]
copyright infringement[, which] usurps it.) (quoting Fisher v. Dees, 794 F.2d
432, 438 (9th Cir. 1986)); Patton, 769 F.3d at 1276 (The central question under
the fourth factor is not whether Defendants use of Plaintiffs works caused
Plaintiffs to lose some potential revenue. Rather, it is whether Defendants use
taking into account the damage that might occur if everybody did it would
cause substantial economic harm such that allowing it would frustrate the
purposes of copyright by materially impairing Defendants incentive to publish the
work.) (emphasis in original); Peter Letterese, 533 F.3d at 1315 ([T]he adverse
effect with which fair use is primarily concerned is that of market substitution.).

Katz also relies heavily on Peter Letterese in an effort to escape from his
stipulation, but that case actually undermines his argument that the fourth factor
favors him. In Peter Letterese, the parties stipulated that there was no existing
market or potential market for the copyrighted material, and that the plaintiff
had never made, and would not make, a sale of that material. Id. at 1316. This

49

Court questioned whether the parties meant what the stipulation seemed to suggest
and, in any event, could not accept the interpretation that defendants offered
because it flatly contradicted undisputed facts at the very heart of the case,
including the fact that a third-party publisher had sought to use the copyrighted
work. Id. at 1317. Katz does not identify any undisputed facts at the very heart
of the case that his stipulation contradicts. Indeed, all of the undisputed facts
here point in the same direction: there is no potential market at all in the photo.

Of course, Katz may be correct that his stipulation alone might not prove
that the copyright in the photo has no market. But when combined with the other
undisputed facts and in the absence of any facts submitted by Katz to the
contrary it does prove that Chevaldinas use has not substituted for any market
for the work that Katz (or anyone else) could or would exploit.

E.

Katzs Bad Faith Argument Is Misplaced

Finally, Katz goes to the well of his state court litigation yet again in the
hopes that he can show bad faith sufficient to influence the fair use calculus.
Katz Br. 50-52. The specific responses to Katzs oft-repeated accusations are set
forth on pp. 20-23, supra. More importantly, Katz does not explain why

50

Chevaldinas conduct in a separate litigation, having nothing to do with her use of

the copyrighted work, should be relevant. One could just as well argue that the
state appellate court finding that Katz presented evidence woefully short of
that needed to support the extraordinary remedy of a prior restraint on speech
demonstrates bad faith on his part that should militate against his claim of
copyright infringement. Katz cites no authority for the proposition that this
copyright case should somehow replay the issues in the state court litigation that
he claims has been settled, much less only the parts that he prefers to replay.

Katz cites Peter Letterese again, but it proves of no help here either. The
footnote that Katz relies on stated that the propriety of the defendants conduct
was relevant to the first factor alone, but concluded that the defendants good faith
in their use of the copyrighted material did not prevent the Court from concluding
that the first factor weighed against fair use. Id. at 1312 n.27. On the other
hand, this Court rejected plaintiffs argument that it was improperly prevented
from pursuing evidence that defendants lacked the clean hands needed to assert
the fair use defense because of defendants economic attack and internet smear
campaign against plaintiff. Id. at 1299 n.12. It ruled the evidence irrelevant
(belonging, if anything, to another lawsuit). Id. See also, e.g., Super Future

51

Equities, 553 F. Supp. 2d at 698, and cases cited therein.

II.

THIS COURT MAY AFFIRM ON THE GROUND THAT KATZ FAILED

TO SHOW THAT THE PHOTO IS A FOREIGN WORK

This Court may affirm the judgment of the court below on any ground
properly raised there. Nasser v. City of Homewood, 671 F.2d 432, 441 (11th Cir.
1982). Cf. Kernal Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012)
(this Court may affirm the judgment of the district court on any ground supported
by the record, regardless of whether that ground was relied upon or even
considered by the district court). Katzs amended complaint alleges that
registration of the [photo] with the copyright office is not a prerequisite to filing a
claim because the photo is not a United States work. Doc. No. 10 at 3 (App.
27) (Complaint 13). Chevaldinas motion for summary judgment disputed that
fact. Doc. No. 94 at 9-12 (App. 200-03). Accordingly, Katz was on notice that he
needed to present evidence to support his allegation. Kernal Records Oy, 694
F.3d at 1309 n.16.

Section 411(a) of the Copyright Act states that no civil action for
infringement of the copyright in any United States work shall be instituted until
preregistration or registration of the copyright claim has been made . . . 17
52

U.S.C. 411(a). Thus, a copyright plaintiff must show that the copyrighted work
is not a United States work (or registration of the work if it is) as part of its initial
copyright infringement case. On that issue, a defendants burden on summary
judgment may be met by showing the absence of any evidence to support
plaintiffs claim. Katz did not register his copyright in the photo prior to
commencing suit. Thus, if Katz cannot show that the photo is not a United States
work, then Katz failed to comply with Section 411(a), and his suit must be
dismissed.10

Section 101 of the Copyright Act defines a United States work as a work
that, in the case of a published work, is first published in the United States or
simultaneously in the United States and another treaty party or parties, whose law
grants a term of copyright protection that is the same as or longer than the term
provided in the United States. Any number of countries meet this requirement.
Kernal Records Oy, 694 F.3d at 1304 & nn. 11-12 (identifying Mexico as one

10

Although Katz allegedly registered the photo after commencing this action,
and after filing the amended complaint, he did not seek to supplement the
complaint to allege that fact. Accordingly, he cannot rely on that registration to
avoid dismissal. Member.com LLC v. Barber, 2013 WL 5348546, *5 (E.D.N.Y.
Sept. 23, 2013) (Where plaintiff has received registrations subsequent to the
filing of the complaint, the complaint should be amended.) (quoting Patry On
Copyright, 19.4 (2013)).
53

such country).

The primary evidence that Katz supplied in the court below that the photo
was not a United States work was his belated registration statement, which
identified the country of nation of 1st publication as Israel. Doc. No. 96-15
(App. 805). And while, Section 410(c) states that a timely registration is prima
facie evidence of . . . the facts stated in the certificate, 17 U.S.C. 410(c), the
nation of first publication is not a fact, but a legal conclusion based on numerous
distinct facts. It requires an examination of the method, extent, and purpose of
the alleged distribution to determine whether that distribution was sufficient for
publication and an examination of both the timing and geographic extent of the
first publication to determine whether the work was published abroad. Kernal
Records Oy, 694 F.3d at 1304. Because of the nature of this complex undertaking,
this Court has rejected sworn testimony about how and where a work was
published. Id. at 1310 (Although [author of work] baldly attests that the disk
magazine was published, publication is a legal word of art, denoting a process
much more esoteric than is suggested by the lay definition of the term. . . . The
unsupported, conclusory, and general attestation by [author] that [work] was
published lacks probative value, and is insufficient to prevent a grant of

54

summary judgment.) (quoting Estate of Martin Luther King, Jr., Inc. v. CBS, Inc.,
194 F.3d 1211, 1214 n.3 (11th Cir. 1999)). Surely, Katzs unsworn contention in
his registration statement that the work was first published in Israel is entitled to
no more weight, even with the assistance of Section 410(c).

The only other evidence Katz put forth below was Chevaldinas testimony
that the photo was first published in Israel in the Israeli newspaper on my blog
the first time it appeared in May 3rd 2011. Doc. No. 96-6 at 104 (App. 632). This
somewhat convoluted testimony when it appeared on haaretz.com, the article
was dated February 22, 2011 at 1:50 a.m. has at least the same flaws as Katzs
registration statement and more. Chevaldina explained that the name of the
newspaper was haaretz.com, (Id. at 107 (App. 635)) and, as shown below,
haaretz.com is a website that appears in many countries simultaneously on the
World Wide Web.

Even if the registration statement were prima facie evidence of all the facts
needed to support the legal conclusion that the work was first published in
Israel, the prima facie evidence can be rebutted. Black's Law Dictionary 1228 (8th
ed. 2004) (defining prima facie evidence as evidence sufficient to raise a
presumption of fact or to establish the fact in question unless rebutted); United
55

States Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.
Ct. 1478, 1481 (1983) (holding that when a defendant in a Title VII case
responds to the plaintiffs proof [of a prima facie case] by offering evidence of
the reason for the plaintiffs rejection, the fact finder must then decide whether the
rejection was discriminatory within the meaning of Title VII. At this stage, the . . .
presumption drops from the case, . . . and the factual inquiry proceeds to a new
level of specificity.) (quoting Texas Dept of Community Affairs v. Burdine, 450
U.S. 248, 255 & n.10, 101 S. Ct. 1089, 1095 & n.10 (1981)). Once rebutted, the
presumption of Section 410(c) is insufficient to establish the rebutted fact.

Here, Katz produced documents in discovery, including an email to

Magriso, in which he referred to a previous letter that Magriso had sent to a
website, prepared by Katz or his attorneys. (The website had published an article
about Katzs state court lawsuit against Chevaldina and had apparently used the
photo.) The letter Katz prepared for Magriso states that the photo was first
published in 2011 on haaretz.com. Doc. Nos. 117-2 and 122-1 (App. 1034,
1086). Haaretz.com is a website accessible generally to users of the world wide
web (and was in February 2011). See
http://web.archive.org/web/20110222015240/http://www.haaretz.com/ (showing

56

website on that date). Healthcare Advocates, Inc. v. Harding, Earley, Follmer &
Frailey, 497 F. Supp. 2d 677, 631-32 (E.D. Pa. 2007) (The creators of the
[internet archives] seek only to include publicly available websites in their
library.). Working in the United States, Chevaldina found the image on the
World Wide Web shortly thereafter through an image search leading her to
haaretz.com. Doc. No. 96-8 at 79-80 (obtained photo from the World Wide
Web); Doc. No. 95-2 (App. 238) (Chevaldina Aff. 2-3).

In short, the letter Katz prepared for Magriso is evidence that the photo was
published simultaneously in the United States and numerous other countries (like
Mexico) that qualify under subsection 1(B) of the definition of United States
work in Section 101. Katz, then, cannot rely on Section 410(c)s presumption,
and, because he lacks competent evidence to show that the photo was a foreign
work, as the amended complaint alleges, summary judgment may be affirmed on
that ground.

Conclusion

For the foregoing reasons, the judgment should be affirmed.

/s/ Michael E. Rosman

Michael E. Rosman
57

CENTER FOR INDIVIDUAL RIGHTS

1233 20th St. NW, Suite 300
Washington, DC 20036
(202) 833-8400
Attorney For Appellee Irina Chevaldina

58

Certificate of Compliance

I certify that the foregoing brief complies with the type-volume limitation of
Fed. R. App. P. 32(a)(7)(B) because it contains ________ words, excluding those
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B) and 11th Cir. R.
32(a)(1), as counted using the word-count function of WordPerfect 12 software.

/s/ Michael E. Rosman

Michael E. Rosman
Counsel for Appellee Chevaldina

Certificate of Service

I certify that on April 24, 2015, I served a copy of this motion to the
following individual through the Courts ECF/CM system.

Alan Kluger
Kluger Kaplan
201 South Biscayne Blvd., 27th Floor
Miami, FL 33131

/s/ Michael E. Rosman

Michael E. Rosman

60