Sadowski v. LawNewz, Inc. — Entry #16: FIRST MEMORANDUM OF LAW in Support re: 15 FIRST MOTION to Dismiss Plaintiff's Complaint

Case 1:25-cv-02917-JMF           Document 16       Filed 06/13/25     Page 1 of 25


                       IN THE UNITED STATES DISTRICT COURT

                    FOR THE SOUTHERN DISTRICT OF NEW YORK


 CHRISTOPHER SADOWSKI,                                             Case No. 1:25-cv-02917
                                  Plaintiff,
                                                                   MEMORANDUM OF
                                                                   LAW IN SUPPORT OF
                                                                   DEFENDANT’S
                                                                   MOTION TO DISMISS
                                                                   PLAINTIFF’S
                           v.                                      COMPLAINT
                                                                   PURSUANT TO F.R.C.P.
                                                                   12(b)(6)

 LAWNEWZ, INC.,
                                  Defendant.

       PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law in support

of Defendant’s Motion to Dismiss Plaintiff’s Complaint, dated April 9, 2025, the exhibits attached

thereto, and upon all the papers and proceedings previously had in this matter, Defendant

respectfully moves this Court before the Honorable Jesse M. Furman United States District Court

for the Southern District of New York, at the United States District Courthouse, 40 Foley Square,

Courtroom 1105, New York, NY 10007, for an Order dismissing Plaintiff Christopher Sadowski’s

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon

which relief can be granted on the ground that defenses exist upon documentary evidence, together

with such other and further relief as the Court deems just and proper.


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                                                            Table of Contents

INTRODUCTION ..................................................................................................................... 1-2

STANDARD OF REVIEW ....................................................................................................... 2-4

FACTUAL BACKGROUND .................................................................................................... 4-5

ARGUMENT ................................................................................................................................. 6

   I.        PLAINTIFF’S CLAIMS ARE MERITLESS AS DEFENDANT’S USE OF THE
   THUMBNAIL PHOTO CONSTITUTES FAIR USE ............................................................ 6
        a.     Defendant’s Use of the Photo was Transformative and for a News Reporting
        Purpose ................................................................................................................................... 7
        b.     The Factual Nature of the Photo Favors Fair Use .................................................... 10
        c.     Defendant Did Not Use Any More of the Thumbnail Photo than Necessary for Fair
        Use…………………………………………………………………………………………. 12
        d.     Defendant’s Use Does Not Usurp the Market for Plaintiff’s Work ........................ 14

   II.         PLAINTIFF’S CLAIMS ARE MERITLESS AS DEFENDANT’S USE WAS DE
   MINIMIS AND THEREFORE NOT SUBSTANTIALLY SIMILAR TO PLAINTIFF’S
   ORIGINAL PHOTO ............................................................................................................... 16

   III.        DEFENDANT’S UTILIZATION OF THE PHOTO AS A THUMBNAIL IMAGE
   IS A NON-INFRINGING FAIR USE................................................................................. …18

CONCLUSION ............................................................................................................................ 19


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                                                    Table of Authorities

Cases
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith,
      598 U.S. 508 (2023) .............................................................................................. 11

Ashcroft v. Iqbal,
       556 U.S. 662 (2009) ............................................................................................ 2, 3

Authors Guild v. Google Inc.,
       804 F.3d 202, 214 (2d Cir. 2015) ............................................................ 8, 9, 11, 18

A.V. ex rel. Vanderhye v. iParadigms, LLC,
        562 F.3d 630 (2009) .............................................................................................. 11

Bell Atl. Corp. v. Twombly,
        550 U.S. 433 (2007) ............................................................................................ 2, 3

Bill Graham Archives, LLC. v. Dorling Kindersley Ltd.,
       386 F.Supp.2d 324, 329 (S.D.N.Y. May 2005)……………………......9, 12, 15, 18

Bill Graham Archives v. Dorling Kindersley Ltd.,
       448 F.3d 605 (2d Cir. 2006) .............................................................................. 7, 12

Blanch v. Koons,
       467 F.3d 244 (2d Cir. 2006) ........................................................................ 8, 10, 12

Burgin v. National Football League,
       2014 WL 1760112…………………………………………………………………….… 17

Cali v. Chrysler Group, LLC,
        426 Fed. App’x. 38 (2d Cir. 2011) .......................................................................... 3

Cole v. John Wiley & Sons, Inc.,
        2012 WL 3133520 (S.D.N.Y. 2012) ....................................................................... 4

Campbell v. Acuff-Rose Music, Inc.,
     510 U.S. 569 (1994) ............................................................................................ 7, 8

Capitol Records, LLC v. ReDigi Inc.,
       910 F.3d 649 (2d Cir. 2018) .................................................................................. 14

Cariou v. Prince,
       714 F.3d 694 (2d Cir. 2013) .............................................................................. 8, 12

Fox News Network, LLC v. TVEyes, Inc.,


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          43 F.Supp.3d 379 (S.D.N.Y. 2014)………………………………………………….… 14

Giammatteo v. Newton,
     452 Fed. App’x. 24 (2d Cir. 2011) .......................................................................... 3

Gottlieb Dev. LLC. v. Paramount Pictures Corp.,
       590 F. Supp. 2d 625 (S.D.N.Y. 2008) ................................................................... 16

Hannley v. Mann,
      2023 WL 3407183 (C.D. Ca. 2023)…………………………………………..… 18

Hughes v. Benjamin,
      437 F. Supp. 3d 382 (S.D.N.Y. 2020) ..................................................................... 6

Kelly v. Arriba Soft Corp.,
        336 F.3d 811 (9th Cir. 2003)………………………………………………... 13, 15

King Spider LLC v. Panda (Hong Kong) Technology Co., Ltd.,
       2025 WL 89123 (S.D.N.Y. 2025)…………………………………………..…... 10

Lopez v. Big Commerce Inc.,
       2017 WL 3278932 (S.D.N.Y. 2017)………………………………………….… 18

Marano v. Metro Museum of Art,
      472 F. Supp. 3d 76 (S.D.N.Y. 2020) ..................................................................... 14

Marano v. Metropolitan Museum of Art,
      844 Fed. App’x. 436 (2d Cir. 2021) ........................................................................ 6

Marvullo v. Gruner & Jahr,
      105 F. Supp. 2d 225 (S.D.N.Y. 2000) ..................................................................... 3

Mathieson v. Associated Press,
      1992 WL 164447 (S.D.N.Y. 1992) ................................................................... 7, 12

Morris v. Wise,
       2020 WL 2475839 (N.D. Ohio 2020)……………………………………………….... 18

NXIVM Corp. v. Ross Institute,
     364 F.3d 471 (2d Cir. 2004) .................................................................................... 7

Olkey v. Hyperion 1999 Term Trust, Inc.,
       98 F.3d 2 (2d Cir. 1996) .......................................................................................... 3

Perfect 10, Inc. v. Amazon.com, Inc.
       508 F.3d 1146 (9th Cir. 2007)…………………………………………………... 18


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Perfect 10, Inc. v. Yandex N.V.,
       2013 WL 4777189 (N.D. Ca. 2013)………………………….…………………. 15

Ringgold v. Black Entm’t. T.V. Inc.,
      126 F.3d 70 (2d Cir. 1997) .................................................................................... 16

Ritani, LLC v. Aghjayan,
        970 F. Supp. 2d 232 (S.D.N.Y. 2013) ..................................................................... 4

Rudkowski v. Mic Network, Inc.,
      2018 WL 1801307 (S.D.N.Y. 2018) ..................................................................... 17

Rosen v. eBay, Inc.,
       2015 WL 16000081 (C.D. Ca. 2015)……………………………………………. 13

Sarl Louis Feraud Int’l v. Viewfinder, Inc.,
       627 F. Supp. 2d 123 (S.D.N.Y. 2008) ................................................................... 12

Smith v. City of New York,
       2013 WL 1903856 (S.D.N.Y. 2013) ....................................................................... 3

Swatch Grp. Mgmt. Servs. v. Bloomberg, L.P.,
      742 F.3d 17, 89 (2d Cir. 2014) .............................................................................. 12

TCA Television Corp. v. McCollum,
      839 F.3d 168 (2d Cir. 2016) .............................................................................. 6, 14

Wright v. Warner Books, Inc.,
       953 F.2d 731 (2d Cir. 1991) .................................................................................... 7

Yang v. Mic Network Inc.,
       2022 WL 906513 (2d Cir. Mar. 29, 2022)........................................................... 6, 7

Statutes

17 U.S.C. § 107 ........................................................................................................... 2, 6, 7

17 U.S.C. § 501 ................................................................................................................... 1

Rules

Federal Rule of Civil Procedure 12(b)(6) .............................................................. 1-4, 6, 17


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        Defendant LawNewz, Inc. (“Law&Crime” or “Defendant”) respectfully requests that the

Court dismiss Plaintiff Christopher Sadowski’s (“Plaintiff”) Complaint pursuant to the Federal

Rule of Civil Procedure (“F.R.C.P.”) 12(b)(6), for failure to state a claim upon which relief can be

granted in its entirety.


                                        INTRODUCTION
        Plaintiff Christopher Sadowski, an individual claiming legal and rightful ownership over

the materials at issue in this case (see Plaintiff’s Complaint, ECF Doc. No. 1, ¶ 2) (hereinafter

“Plaintiff’s Complaint”), has insufficiently set forth claims alleging that Defendant engaged in

willful copyright infringement of one (1) photo (the “Photo”), that Plaintiff incorrectly alleges was

shown in one (1) video posted to Law&Crime’s Facebook account on July 5, 2024, originally

entitled “P. Diddy Grand Jury Probe Confirmed as New Allegations Exposed”,1 but was never

actually shown in the playing of the video. The Photo depicts a general image of a courthouse and

nowhere in the playing of the video is the Photo actually shown – instead, only a portion of the

Photo was used as a brief thumbnail image for the video, as the thumbnail Photo was partially

covered by another photo showing Sean Combs (see Plaintiff’s Complaint, ECF Doc. No. 1,

Exhibit 2). Plaintiff specifically alleges that Defendant has engaged in copyright infringement

pursuant to 17 U.S.C. § 501 by infringing Plaintiff’s right to reproduce, distribute, and publicly

display his work. Simply put, Plaintiff’s copyright infringement claims fail because Plaintiff’s

Complaint fails to state a claim upon which relief can be granted, as required by the Federal Rules

of Civil Procedure.


1
   See: P. Diddy Grand Jury Probe Confirmed as New Allegations Exposed, FACEBOOK, July 5, 2024,
https://www.facebook.com/lawandcrime/videos/p-diddy-grand-jury-probe-confirmed-as-new-allegations-
exposed/372023729245339/.


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       First, Plaintiff’s claims fail pursuant to the fair use doctrine, as Defendant’s use of the

Photo falls squarely within the “news reporting and “commentary” exceptions of fair use

enumerated in the Copyright Act. 17 U.S.C. § 107. An analysis of the fair use factors establishes

that Defendant’s use of the thumbnail Photo was (i) fair use, as the thumbnail Photo was used for

news reporting purposes, to provide context to the actual content of the video itself, which

discussed the latest probes by the grand jury during Sean Combs’ case, which at that point had not

yet resulted in his indictment; (ii) courts within this Circuit and others have held that displaying a

thumbnail photo of a video (similar to what occurred in this matter) is a form of non-infringing

fair use, and any copyright claims thereof must fail; and (iii) Defendant’s usage of the underlying

Photo is de minimis, as it consisted of a mere thumbnail image, which was partially obscured and

shown on the preview of the actual video, and never once was the underlying Photo shown in the

actual playing of the video.

       For these reasons and those discussed in greater detail herein, Plaintiff’s Complaint

warrants dismissal in its entirety.


                                      STANDARD OF REVIEW
       This Court may grant a motion to dismiss pursuant to F.R.C.P. Rule 12(b)(6) where the

complaint fails to state a claim upon which relief should be granted (“Rule 12(b)(6)”). “To survive

a Rule 12(b)(6) motion, however, the plaintiff must plead sufficient facts ‘to state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 433, 570 (2007)). A claim is facially plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. Moreover, a “plaintiff must allege ‘more than a sheer possibility

that a defendant acted unlawfully’” and a “complaint that offers only ‘labels and conclusions’ or a


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‘formulaic recitation of the elements of a cause of action will not do.’” Smith v. City of New York,

2013 WL 1903856, at *2 (S.D.N.Y. May 8, 2013) (granting defendant’s Rule 12(b)(6) motion)).

This standard has been upheld by the Second Circuit for years. See Giammatteo v. Newton, 452

Fed. App’x. 24 (2d Cir. 2011) (upholding lower court’s dismissal of plaintiff’s complaint pursuant

to Rule 12(b)(6)); Olkey v. Hyperion 1999 Term Trust, Inc., 98 F.3d 2, 9 (2d Cir. 1996) (upholding

the lower court’s dismissal, stating that “dismissal under Rule 12(b)(6) is appropriate because ‘it

is clear that no relief could be granted under any set of facts that could be proved consistent with

the allegations’”); Cali v. Chrysler Group, LLC, 426 Fed. App’x. 38 (2d Cir. 2011) (upholding the

lower court’s dismissal of plaintiff’s claim pursuant to Rule 12(b)(6).

       Moreover, Plaintiff must plead “enough facts to state a claim to relief that is plausible on

its face” and Plaintiff must allege sufficient facts to “nudge their claims across the lien from

conceivable to plausible.” Twombly, 550 U.S. at 570 (dismissing plaintiff’s complaint for failure

to state a claim under rule 12(b)(6)). Further, “[a] claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (holding the plaintiff failed to plead

sufficient facts to survive a Rule 12(b)(6) motion to dismiss). Plaintiff must do more than allege

bare legal conclusions with no factual support to survive a motion to dismiss pursuant to Rule

12(b)(6).

       Courts in this circuit have granted Rule 12(b)(6) motions to dismiss when it is clear that

the face of the complaint alleging copyright infringement fails to meet the standards set by the

Federal Rules of Civil Procedure. See Marvullo v. Gruner & Jahr, 105 F. Supp. 2d 225, 233

(S.D.N.Y. 2000) (granting defendant’s Rule 12(b)(6) motion to dismiss, as the court noted

plaintiff’s allegations of direct copyright infringement suffered from “…fatal defects, including of


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vagueness and conclusoriness…”). When there are no facts supplied in a plaintiff’s complaint

regarding the actions alleged (particularly in regard to copyright infringement claims), courts in

this circuit have dismissed such pleadings in their entirety, in accordance with Rule 12(b)(6). See

Cole v. John Wiley & Sons, Inc., 2012 WL 3133520, at *17 (S.D.N.Y. Aug. 1, 2012) (dismissing

plaintiff’s amended complaint entirely, as “Plaintiff has pleaded no facts capable of showing that

Wiley’s alleged fraudulent acts…led to any direct and proximate loss…that would have been

caused by Wiley’s copyright infringement”); Ritani, LLC v. Aghjayan, 970 F. Supp. 2d 232, 262

(S.D.N.Y. 2013) (upholding aspects of lower court’s dismissal pursuant to Rule 12(b)(6), stating

that “Ritani, however, offers no facts supporting the conclusory allegation that an alleged loss of

sales resulted from any wrongful conduct by Aghjayan, or that Aghjayan even possessed

confidential information or used such information inappropriately”).

       When courts within this circuit have determined that if a plaintiff’s complaint fails to

provide sufficient factual contentions and to state a claim upon which relief can be granted, that

warrants dismissal of the pleading in its entirety.


                                   FACTUAL BACKGROUND
       LawNewz, Inc. (d/b/a “Law&Crime”), is a multi-platform media company providing

coverage of the largest courtroom trials across the nation, sharp legal news and analysis, and

gripping true crime content. Founded in 2016 by television host and ABC News’ Chief Legal

Analyst, Dan Abrams, Law&Crime has been the go-to source for delivering breaking news within

the legal space for nearly a decade. Plaintiff Christopher Sadowski is an individual claiming to be

a “professional photographer by trade who is the legal and rightful owner of certain photographs

which Plaintiff commercially licenses.” See Plaintiff’s Complaint, ECF. Doc. No. 1, ¶ 12. At issue

in this case is the general photograph Plaintiff took of the exterior of an unidentified courthouse,


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which Plaintiff claims he created “with the intention of it being used commercially and for the

purpose of display and/or public distribution.” See Id. at ¶ 20.

          The Photo of the exterior of a courthouse was partially used by Law&Crime as a mere

thumbnail image for the video published to Law&Crime’s Facebook account, on July 5, 2024 and

never once was the underlying Photo shown in the actual playing of the Video. Moreover, the

entirety of the Photo was not used as the thumbnail image – rather, nearly half of the image was

covered by a photo of Sean Combs, the subject of the video. Further, the Photo was utilized to

provide further context for the viewer regarding the subject matter of the underlying video –

specifically, to provide coverage of breaking news that another lawsuit was being filed against

Combs alleging misconduct, and that at the time, outlets were reporting that a federal grand jury

in New York was hearing evidence about Combs (which ultimately led to his eventual indictment

just two months later).

          It is clear that Plaintiff has failed to properly allege that Defendant’s usage of the Photo

constitutes copyright infringement and that dismissal of Plaintiff’s claims is warranted due to the

fact that (i) Defendant’s use of the Photo as a partially obscured thumbnail image that was not

displayed or shown even once in the actual playing of the Video constituted fair use; (ii)

Defendant’s usage of the Photo itself was de minimis; and (iii) usage of a photo as a thumbnail

image in a video has been upheld by courts as non-infringing.

          Thus, dismissal of Plaintiff’s Complaint in its entirety is warranted for the reasons set forth

herein.


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                                          ARGUMENT
   I.       PLAINTIFF’S CLAIMS ARE MERITLESS AS DEFENDANT’S USE OF THE
            THUMBNAIL PHOTO CONSTITUTES FAIR USE
         Defendant’s use of the Photo is permissible by law, as an analysis of the fair use factors

demonstrates that Defendant’s use constitutes as fair use, and therefore does not violate Plaintiff’s

exclusive rights to the Photo. The Copyright Act states that “the fair use of a copyrighted work,

including such use … for purposes such as criticism, comment, [or] news reporting … is not an

infringement of copyright.” 17 U.S.C. § 107. Defendant’s use of the Photo as a thumbnail image

constitutes fair use primarily because its usage falls squarely within the news reporting,

commentary, and criticism exception of fair use enumerated in the Copyright Act. Further, the four

factors courts utilize when determining fair use all weigh in favor of Defendant.

         The Second Circuit “has acknowledged the possibility of fair use being so clearly

established by a complaint as to support dismissal of a copyright infringement claim” on a Rule

12(b)(6) motion. TCA Television Corp. v. McCollum, 839 F.3d 168, 178 (2d Cir. 2016).

Accordingly, this Court has considered fair use when granting a defendant’s Rule 12(b)(6) motion

to dismiss by comparing the allegedly infringing work described in the complaint with the original,

and the Second Circuit has affirmed dismissal on these grounds. See, e.g., Yang v. Mic Network

Inc., 2022 WL 906513, at *1, *3 (2d Cir. March 29, 2022); Hughes v. Benjamin, 437 F. Supp. 3d

382, 395 (S.D.N.Y. Feb. 3, 2020); & Marano v. Metropolitan Museum of Art, 844 Fed. App’x.

436, 439 (2d Cir. 2021), cert. denied, 142 S. Ct. 213 (2021).

         When determining whether the use of a work constitutes fair use, courts examine four

factors provided by the Copyright Act: (1) the purpose and character of the use, (2) the nature of

the copyrighted work, (3) the amount and substantiality of the portion used in relation to the

copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value


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of the copyrighted work. 17 U.S.C. § 107. Courts examine all four of these factors on a separate

basis and then balance them together collectively, “in light of the purposes of copyright,” with no

single factor being entirely dispositive. Bill Graham Archives v. Dorsley Kindersley Ltd., 448 F.3d

605, 608 (2d Cir. 2006) & NXIVM Corp. v. Ross Institute, 364 F.3d 471, 479 (2d Cir. 2004). If a

majority of the factors weigh in favor of a fair use finding, then the use at issue is considered fair

use, and dismissal of the pleading is usually granted. See Yang, 2022 WL 906513, at *1, *3.

       In this instance, Defendant’s utilization of the Photo as a thumbnail image constitutes as

fair use, as all four factors of the fair use doctrine have unquestioningly been met to the extent that

Plaintiff’s Complaint cannot possibly state a plausible claim for copyright infringement.

           a. Defendant’s Use of the Photo Was Transformative and for a News Reporting
              Purpose
       With respect to the first factor, which examines the purpose and character of the use of the

work at issue, “the enquiry focuses on whether the new work merely supersedes the objects of the

original creation, or whether and to what extent it is transformative, altering the original with new

expression, meaning, or message.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)

& Mathieson v. Associated Press, 1992 WL 164447 (S.D.N.Y. June 24, 1992). Section 107 of the

Copyright Act specifically carves out news reporting, commentary, and criticism as protectable

fair use purposes, and the Second Circuit has held that “if a [work] falls into one of these categories

[…] assessment of the first fair use factor should be at an end.” Wright v. Warner Books, Inc., 953

F.2d 731, 737 (2d Cir. 1991). The actual Video was coverage of a breaking news story at the time

– specifically, the latest lawsuit filed against Sean Combs and reports that a New York federal

grand jury began to hear evidence regarding Combs (eventually culminating in his September 2024

indictment by the Southern District of New York). The use of the Photo as a thumbnail image

assisted in providing context to the viewer as to what they were about to watch, as it consisted of


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an image of a non-identified photo of a courthouse, emphasizing the key role the grand jury played

were about to play in Combs’ eventual indictment. As such, the purpose of the use of the Photo as

a thumbnail image was journalistic, assisting to provide context to the viewer regarding the subject

matter of the underlying video. Moreover, the news-worthiness purpose is proven even further by

the fact that the video was published on July 5, 2024, ensuring Law&Crime viewers would be able

to receive this news and unique take on the issue in a timely manner (in or around the same time

the news actually occurred). Law&Crime is a multi-platform news company focused on, among

other things, providing coverage of breaking news in the legal realm and ongoing court cases,

investigations, and trials. Thus, its timely reporting of this development in Combs’ case and its fair

use of the image is precisely the entire purpose of Law&Crime as a whole, and therefore

strengthens the position that the use was purely for news reporting purposes.

       Moreover, the use of the Photo is clearly transformative. A use is transformative if it

“communicates something new and different from the original or expands its utility.” Authors

Guild v. Google, Inc., 804 F.3d 202, 214 (2d Cir. 2015). The Second Circuit has observed that

“[t]he law imposes no requirement that a work comment on the original or its author in order to be

considered transformative…” Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013) cert. denied, 571

U.S. 1018 (2013). Rather, a use is transformative as long as it “adds something new, with a further

purpose or different character.” Campbell, 510 U.S. at 579. For example, in Blanch v. Koons, the

Second Circuit held that a visual artist made a transformative use of a copyrighted picture of a

woman’s legs and glittery Gucci sandals. 467 F.3d 244, 251-53 (2d Cir. 2006). The artist copied

the image, originally intended to communicate a sexualized, glamorous lifestyle, and included it

in a collage painting as part of an artistic commentary on the banality of mass media. Id. The court


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found that the purpose of the collage as distinct from the original work, and the use was thus found

to be fair.

        Here, Defendant’s usage of the Photo was clearly transformative, both in how the Photo

was actually used for purposes of reporting on the story, as well as the purposes of the use itself.

Firstly, the Photo itself was not used in its original form – rather, Law&Crime used a significantly

altered version of the Photo for purposes of news reporting: i) first, the original image itself was

not displayed once in the Video; ii) as the thumbnail image, Defendant utilized a clearly much

smaller version than the original Photo; and iii) the Photo shown as a thumbnail image was nearly

half covered by another photo of Sean Combs (the subject of the video itself). Further, the Photo

was not being used by Defendant for the same purposes as its original function – Defendant

purports in his complaint that the purpose of the photo was created with the intention of it being

used commercially and for the purpose of display/public distribution (see Plaintiff’s Complaint,

ECF Doc. No. 1, ¶ 20), whereas Defendant’s main purpose in utilizing the thumbnail was purely

for news reporting, in an effort to provide adequate and critical context to the viewer as to the

importance of the role the grand jury and the overall legal system would play in Combs’ eventual

indictment. Defendant’s transformative purpose provides new context to the Photo that Defendant

used in its reporting by presenting it in a different light from its original intention. Defendant did

not merely use the Photo as a generic stock photo to drum up more views, but rather it was used

as a helpful illustration of the subject of the underlying video itself. In such an instance, courts

have deemed such usage of a thumbnail image as transformative. See: Bill Graham Archives, LLC.

v. Dorling Kindersley Ltd., 386 F.Supp.2d 324, 329 (S.D.N.Y. May 12, 2005)(stating “… his use

is sufficiently transformative, and different from the original purpose to advertise, draw attention

to and solicit listeners to an event, such that the market is not one expected to be reserved to the


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copyright holder.”); Authors Guild, 804 F.3d at 220 (2d Cir. 2015)(“… the second factor favors

fair use… because the secondary use transformatively provides valuable information about the

original, rather than replicating protected expression in a manner that provides a meaningful

substitute for the original.”); & King Spider LLC v. Panda (Hong Kong) Technology Co., Ltd.,

2025 WL 89123, 24-CV-2668, *8 (S.D.N.Y. Jan. 14, 2025)(granted defendant’s motion to dismiss,

stating: “… a search engine’s display of thumbnail images in search results amounts to non-

infringing fair use.”). Further, even if the website in question which displayed a thumbnail version

of the original photo is not a standard search engine such as Google or Yahoo!, courts have still

ruled websites with search functionality can still adopt this ruling. See: King Spider LLC, 2025

WL 89123 at *8: “The Court finds that the images displayed on Pandabuy's website are akin to

images being collated by a Google search.” As such, Defendant’s transformative usage of the

Photo as a thumbnail image for news reporting purposes clearly meets the first factor of the fair

use analysis.

           b. The Factual Nature of the Photo Favors Fair Use
       The second factor analyzes the nature of the copyrighted work and considers “(1) whether

the work is expressive or creative, such as a work of fiction, or more factual, with a greater leeway

being allowed to a claim of fair use where the work is factual or informational, and (2) whether

the work is published or unpublished, with the scope for fair use involving unpublished works

being considerably narrower.” Blanch, 467 F.3d at 256 (citation omitted). The second factor favors

Defendant because the underlying Photo itself is factual and non-creative in nature, and therefore

does not warrant further protection in terms of copyright.

       First, the photo (and the thumbnail Photo derived therefrom) is completely factual and

informational. The face of Plaintiff’s Complaint even makes clear that the thumbnail Photo comes


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from a non-creative, factual Photo taken of a courtroom. Indeed, the Photo was captured with little

to no creative input from Plaintiff, as Plaintiff merely captured the courthouse exterior and the

Photo did not have additional artistic input such as coloring, lighting, or other individuals or props.

This type of circumstance has generally been deemed as more factual than expressive. See: Authors

Guild, 804 F.3d at *220: deeming fair use present after snippet views of books, or thumbnails,

were featured on Google Books, noting the books were factual and that “Courts have sometimes

speculated that this might mean that a finding of fair use is more favored when the copying is of

factual works than when copying is from works of fiction.” & A.V. ex rel. Vanderhye v.

iParadigms, LLC, 562 F.3d 630, 641 (4th Cir. 2009)(affirmed district court granting summary

judgment to defendant regarding plaintiff’s copyright infringement claim, stating “… even if the

plaintiffs’ works were highly creative in nature, iParadigms’ use of the plaintiffs’ works was not

related to the creative core of the works.”).

       While some courts within this Circuit have relied upon the recent Supreme Court decision

in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) for more

recent guidance regarding fair use, in which the Supreme Court of the United States found fair use

was not present as the works at issue shared a similar purpose in the depiction of two photos of

musical artist Prince, Defendant respectfully avers that Warhol is inapplicable to the instant case.

Firstly, the works at issue in Warhol were creative and artistic in nature, as they involved creative

portraits of a famous musician. This greatly differs from the instant matter, as the work at issue

here is a trivial thumbnail Photo of a larger original photo capturing a general courthouse, with no

other artistic input, for the purposes of reporting on breaking news regarding the highly-followed

case of Sean Combs, which has been covered and followed by thousands all around the world.

Secondly, the Supreme Court viewed the purposes of the works as similar in Warhol, whereas here


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      Case 1:25-cv-02917-JMF            Document 16           Filed 06/13/25   Page 17 of 25


the purposes of the usage of the thumbnail Photo differ from the original purpose of the Photo.

While Plaintiff took the original Photo to merely take a photo of a non-descript courthouse exterior,

here the Defendant utilized a trivial thumbnail of the Photo to serve the purpose of apprising the

general public of a newsworthy event and to provide more background and context to Sean Combs’

developing legal case. As a result, Defendant is of the position that Warhol is distinguishable and

therefore inapplicable to the facts of this instant matter.

           c. Defendant Did Not Use Any More of the Thumbnail Photo than Necessary for
              Fair Use
       The third factor, which looks at the amount and substantiality of the original work used,

considers whether “the quantity and value of the materials used are reasonable in relation to the

purpose of the copying.” Swatch Grp. Mgmt. Servs. v. Bloomberg, L.P., 742 F.3d 17, 89 (2d Cir.

2014) (quoting Campbell, 510 U.S. at 586); Blanch, 467 F.3d at 257. It is well-established in the

Southern District of New York that “a commentator may fairly reproduce as much of the original,

copyrighted work as is necessary to his proper purpose.” See Mathieson, 1992 WL 16447, at *8;

Bill Graham Archives, 448 F.3d at 613 (finding fair use even though the photographs at issue were

“reproduced in their entirety”); Sarl Louis Feraud Int’l v. Viewfinder, Inc., 627 F. Supp. 2d 123,

133 (S.D.N.Y. Dec. 19, 2008) (“[T]he Second Circuit has found that entire reproductions can be

justifiable where the purpose of the secondary work differs from the original.”). This is particularly

true for transformative works, which “must be [permitted] to ‘conjure up’ at least enough of the

original’ to fulfill its transformative purpose.” Cariou, 714 F.3d at 710 (quoting Campbell, 510

U.S. at 588).

       First, Defendant merely used a thumbnail photo of the original Photo (as opposed to

utilizing the original Photo in its original, larger size) which courts have found to be a trivial, de

minimis use as it constitutes only a small fragment of the larger Photo. See: Bill Graham Archives,


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      Case 1:25-cv-02917-JMF          Document 16        Filed 06/13/25      Page 18 of 25


LLC at 329. Second, the entirety of the underlying Photo was not utilized in the thumbnail, as the

photo was partially covered by a photo of Sean Combs (the main subject of the actual video),

therefore even further obscuring the original Photo. Third, Defendant utilized the Photo to provide

further context to the video, a piece of critical news reporting commenting on then-breaking news

(specifically, a then-tenth lawsuit filed against Combs alleging misconduct, and with news sources

stating a federal grand jury in New York was hearing evidence about Combs, which ultimately led

to his eventual indictment that occurred just two months later). Defendant utilized the Photo to

provide the public with further context regarding this newsworthy event on Combs’ then-

developing legal case and to provide more explanation as to the grand jury/court’s role in pushing

along Combs’ indictment. It was necessary for Defendant to include a visual reference, as the

thumbnail photo to help represent the court/grand jury’s critical role in pushing along Combs’ case

and eventual indictment. Defendant’s usage of the Photo was therefore necessary in order for

Defendant to fulfill its transformative purpose. When defendants have utilized portions or

derivatives of a work via a thumbnail (as is the case here), courts have ruled in favor of fair use.

See: Rosen v. eBay, Inc., 2015 WL 16000081, No. CV13-6801 MWF, *19 (C.D. Ca. Jan. 16,

2015)(“ That the image is only derivatively a copy of Rosen's work further supports the Court's

determination that the extent of copying is reasonable.”) & Kelly v. Arriba Soft Corp., 336 F.3d

811, *821 (9th Cir. 2003)(“… although Arriba did copy each of Kelly’s images as a whole, it was

reasonable to do so in light of Arriba’s use of the images. It was necessary for Arriba to copy the

entire image to allow users to recognize the image…”).

       Accordingly, this factor weighs in favor of Defendant.


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      Case 1:25-cv-02917-JMF           Document 16         Filed 06/13/25      Page 19 of 25


           d. Defendant’s Use Does Not Usurp the Market for Plaintiff’s Work
       The fourth and final factor in the fair use inquiry analyzes the effect of Defendant’s use on

the market for the underlying Photo or its derivatives. This factor too strongly weighs in favor of

Defendant, therefore warranting dismissal of Plaintiff’s Complaint. The fourth factor requires

courts to consider “whether the copy brings to the marketplace a competing substitute for the

original, or its derivative, so as to deprive the rights holders of significant revenues because of the

likelihood that potential purchasers may opt to acquire the copy in preference to the original.” See

Marano v. Metro Museum of Art, 472 F. Supp. 3d 76, 87 (S.D.N.Y. Jul. 13, 2020) (finding fair use

and stating that courts are of the position that “the more transformative the secondary use, the less

likelihood that the secondary use substitutes for the original”); TCA Television Corp., 151 F. Supp.

3d at 434 (dismissing plaintiff’s claims entirely, finding fair use was present and stating that “it

was unlikely that a reasonable observer of the new work would find that […] reenactment […]

could usurp the market for the original […] performance of the Routine”). Moreover, “[f]actor

[f]our is necessarily intertwined with [f]actor [o]ne; the more the objective of secondary use differs

from that of the original, the less likely it will supplant the commercial market for the original.”

Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649, 662 (2d Cir. 2018).

       No plausible inference can be made from the face of Plaintiff’s Complaint that any

potential licensee could have received from the thumbnail Photo what they would have received

by licensing the Photo directly from Plaintiff. It is implausible that any person seeking out a license

for the Photo would opt for the obscured thumbnail Photo used by Defendant in the Video, rather

than the actual Photo created by Plaintiff. In terms of thumbnails specifically, courts have ruled

that if a thumbnail usage of an underlying photo or piece of content differs from the original and

does not serve as a replacement, the fourth fair use factor is weighed in defendant’s favor. See:

Fox News Network, LLC v. TVEyes, Inc., 43 F.Supp.3d 379, 396 (S.D.N.Y. Sept. 9, 2014)(“No


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      Case 1:25-cv-02917-JMF             Document 16         Filed 06/13/25       Page 20 of 25


reasonable juror could find that people are using TVEyes as a substitute for watching Fox News

broadcasts on television. There is no history of any such use, and there is no realistic danger of

any potential harm to the overall market of television watching from an “‘unrestricted and

widespread conduct of the sort engaged in by defendant.’”) & Kelly, 336 F.3d at 821 (thumbnail

reproduction of photographs in search engine constituted fair use in part because the thumbnails

did not harm the market for the original, underlying images).

        As previously explained, Defendant’s use of the Photo was quintessentially transformative,

utilizing the Photo not just as a visual aid for the content of the video itself, but helping to illustrate

the critical role that the court/grand jury played in this aspect of Combs’ case. Moreover,

Defendant’s transformative use of the Photo makes it less likely for the Court to find Defendant’s

use substituted for the Photo; as stated, the original photo was not utilized or shown in the Video,

but rather a smaller version of the Photo was utilized as a thumbnail and that thumbnail image was

significantly covered/obscured by a photo of Combs. See: Bill Graham Archives, LLC at 329 ( “…

the significant reduction to thumbnail size of the images indicates an entirely different use of the

image… The transformative nature of the images supports a finding in favor of defendants.”) &

Perfect 10, Inc. v. Yandex N.V., 2013 WL 4777189, No. C 12-01521, *7 (N.D. Ca. Sept. 6,

2013)(disposed of Perfect 10’s direct infringement claims entirely, stating in regard to this factor:

“In sum, there is no evidence in the record that Yandex.com’s use of thumbnail versions of Perfect

10's image during a nine-month period had any effect on the market for those same images.”).

        And finally, Plaintiff’s Complaint is utterly devoid of the specific monetary drawbacks,

loss of revenues, or decreases of business revenue as a result of Defendant’s use of the thumbnail

Photo in the video. The underlying Photo at issue was taken nearly five years ago (see Plaintiff’s

Complaint, ECF Doc. No. 1, ¶ 19) and is a generic image taken of an unidentified courthouse


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      Case 1:25-cv-02917-JMF            Document 16         Filed 06/13/25      Page 21 of 25


exterior, which is similar in nature to countless other stock photographs taken of the same image.

The Photo does not feature prominent individuals or public figures, does not show an unusual or

highly attended event, and does not constitute a photo or form of media that went “viral” –

therefore, the likely minimal value of a generic image of a courthouse taken years ago would not

be usurped by Defendant’s usage. Therefore, Plaintiff has failed to sufficiently allege any actual

harm in regard to monetary decrease, market value, or any other similar reductions.

         Accordingly, the fourth factor weighs in favor of Defendant, and balancing all four fair use

factors together, the Court should find that Defendant’s fair use defense appears on the face of

Plaintiff’s Complaint, therefore warranting dismissal of this action.

   II.      PLAINTIFF’S CLAIMS ARE MERITLESS AS DEFENDANT’S USE WAS DE
            MINIMIS AND THEREFORE NOT SUBSTANTIALLY SIMILAR TO
            PLAINTIFF’S ORIGINAL PHOTO
         It is well established that in order to prevail on claims of copyright infringement a plaintiff

“must prove that (1) unauthorized copying of the copyrighted work occurred, and (2) the infringing

work is substantially similar.” See Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F. Supp.

2d, 625 631 (S.D.N.Y. Dec 29, 2008)(granting defendant’s motion to dismiss in its entirety with

prejudice). Moreover, to prove substantial similarity, “a plaintiff must show (i) that it was protected

expression in the earlier work that was copied and (ii) that the amount that was copied is more

than de minimis.” See id. (emphasis added) (internal quotation marks omitted). As the Court in

Gottlieb Dev. explained, “there is a difference between ‘factual copying and actionable copying’”

See id. (quoting Ringgold v. Black Entm’t. T.V. Inc., 126 F.3d 70, 75 (2d Cir. 1997). In further

explanation of this principle, the Court stated that “…if the copying is de minimis and so trivial as

to fall below the quantitative threshold of substantial similarity, the copying is not actionable.” See

id. In assessing whether a use is de minimis, “courts often look to the amount of the copyrighted


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      Case 1:25-cv-02917-JMF           Document 16        Filed 06/13/25      Page 22 of 25


work that was copied. This quantitative component must be considered together with the

qualitative similarity between the two works, with the Court asking whether an average lay

observer would recognize the alleged copy as having been appropriated from the copyrighted

work.” See Rudkowski v. Mic Network, Inc., 2018 WL 1801307, at *4. (S.D.N.Y. March 23, 2018).

       Applying these principles to the instant litigation, it is clear that Plaintiff cannot and has

not proven that Defendant’s use of the Photo as a thumbnail image (which was not displayed or

shown once during the actual video) was substantial enough to meet the required threshold in order

to have an actionable copyright infringement claim within this Circuit or others. The Court’s

analysis in Rudkowski v. Mic Network, Inc. makes it all the more clear that Defendant’s use of the

thumbnail photo in this matter is not actionable. Id. Even further, in Burgin v. National Football

League, the court ruled that the defendant’s usage of the copyrighted images in television shows

and films did not count as copyright infringement, as the fact that the “final inclusion of plaintiffs

copyrighted content is included as a rotating thumbnail image on the site’s landing page…

illustrates that the copyright violation here is de minimus.” Burgin v. National Football League,

2014 WL 1760112, 13 CIV. 8166, *2 (S.D.N.Y. April 30, 2014).

       Furthermore, courts in the Southern District of New York have dismissed copyright

infringement claims pursuant to Rule 12(b)(6) where no substantial similarity was found, as is the

case here, due to Defendant’s de minimis use of the thumbnail Photo of the original photo. In this

action, there is no substantial similarity between the original Photo and Defendant’s usage of it as

a thumbnail image, as the Photo was i) significantly minimized size-wise; ii) partially obscured by

another image; and iii) not displayed once in full-context in the video, but used as a mere

thumbnail.


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      Case 1:25-cv-02917-JMF           Document 16       Filed 06/13/25     Page 23 of 25


          Thus, Plaintiff’s Complaint should be dismissed, as Defendant’s use of the thumbnail

Photo was de minimis and therefore does not meet the substantial similarity threshold, which is

required in order for Plaintiff to advance an actionable claim of copyright infringement.

   III.      DEFENDANT’S UTILIZATION OF THE PHOTO AS A THUMBNAIL IMAGE
             IS A NON-INFRINGING FAIR USE
          Courts within this circuit and other courts have ruled that a search engine’s display of

thumbnail images is non-infringing fair use, and therefore any copyright infringement claim

against such usage must fail. See Authors Guild, 804 F.3d at 229 (holding that “Google's

unauthorized digitizing of copyright-protected works, creation of a search functionality, and

display of snippets from those works are non-infringing fair uses”); Perfect 10, Inc. v.

Amazon.com, Inc., 508 F.3d 1146, 1168 (9th Cir. 2007) (holding that Google's display of thumbnail

images in search results is likely to be a fair use), & Lopez v. Big Commerce, Inc., 2017 WL

3278932, 16-CV-8970, *4 (JPO)(S.D.N.Y. Aug 1. 2017)(“However, because a search engine's

display of thumbnail images in search results is a non-infringing fair use, this theory of

copyright infringement fails.”) Similarly in this instance, a search within the Facebook account of

Law&Crime demonstrates this thumbnail photo constituted non-infringing usage, as Facebook is

an online platform that users must search through for content, (whether the search is for an

individual, a group, or news content) on which the Photo was utilized as a thumbnail image. See:

Hannley v. Mann, 2023 WL 3407183, 2:21-CV-02043-JLS (C.D. Ca. March 8, 2023)(Court ruled

in favor of defendant after deeming thumbnail of a YouTube video was fair use) & Morris v. Wise,

2020 WL 2475839, 1:19-CV-2467, *1 (N.D. Ohio May 13, 2020)(Dismissed federal copyright

infringement claim as “the allegedly infringing use was clearly transformative…”); regarding use

of a copyrighted image on a video thumbnail published on the defendants’ YouTube channel); &

Bill Graham Archives, LLC., 386 F.Supp.2d at 329: Ruling multiple contested thumbnail poster


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      Case 1:25-cv-02917-JMF            Document 16        Filed 06/13/25       Page 24 of 25


images was fair use (“… the significant reduction to thumbnail size of the images indicates an

entirely different use of the image.”). The precedent in both this circuit and others outline a clear

line of precedent which enables Defendants to utilize thumbnail images of certain content,

particularly if it constitutes fair use and is for news reporting purposes, as is the case here.

    IV.      CONCLUSION
          For all the aforementioned reasons, Defendant respectfully requests that the Court dismiss

Plaintiff’s Complaint with prejudice, as Defendant’s usage of the Photo (i) is fair use; (ii) is de

minimis, and therefore does not meet the substantial similarity threshold; and (iii) courts have

routinely held that thumbnail images, particularly those found displayed within search engines, do

not constitute copyright infringement.

                                                                        Respectfully submitted,

                                                                        /s/ Elizabeth Vulaj
                                                                        Elizabeth Vulaj, Esq.
                                                                        LawNewz, Inc.
                                                                        Business & Legal Affairs
                                                                        1261 Broadway, Sixth
                                                                        Floor New York, NY
                                                                        10001 Telephone: (646)
                                                                        370-1258
                                                                        Email:
                                                                        elizabeth@lawandcrime.co
                                                                        m
                                                                        Attorneys for Defendant
                                                                        LawNewz, Inc.

                                                                        Respectfully submitted,

                                                                        /s/ Andrew Eisbrouch
                                                                        Andrew Eisbrouch, Esq.
                                                                        LawNewz, Inc.
                                                                        Business & Legal Affairs
                                                                        1261 Broadway, Sixth
                                                                        Floor New York, NY
                                                                        10001 Telephone: (646)
                                                                        370-1258


                                                  19


Case 1:25-cv-02917-JMF   Document 16   Filed 06/13/25   Page 25 of 25


                                                 Email:
                                                 andrewe@lawandcrime.co
                                                 m
                                                 Attorneys for Defendant
                                                 LawNewz, Inc.


                                20