Photojournalist Wins Lawsuit Against the City of Chicago

On Monday, Judge Jeremy C. Daniel of the Northern District of Illinois Eastern Division granted a motion of summary judgment in favor of a photojournalist who had a video they recorded used by the City of Chicago.

Dominic Gwinn filed the lawsuit in March 2023. According to the lawsuit, the city used a video that he recorded as part of a compilation video the city distributed on social media and to news outlets.

According to Gwinn, the city not only infringed on his work through its distribution but also removed copyright management information (CMI) connected to it. As such, he sued for both copyright infringement and CMI removal.

The judge has granted summary judgment on both counts. No damages have been awarded at this time, but both parties are ordered to submit briefings on the issue.

The case is unusual. It is not only against a city and a former police superintendent but also involves a detailed analysis of CMI issues on social media. The result should be very interesting to visual artists of all stripes.

The Facts of the Case

The facts of the case are, for the most part, not in dispute. On June 17, 2020, Dominic Gwinn filmed a 102-second-long video of protestors throwing objects at members of the Chicago Police Department.

Shortly after that, Gwinn posted the video to his X (formerly Twitter) account. He received interest from several news organizations but couldn’t agree to a license with any of them.

On June 20, 20202, David Brown, then the Superintendent of the Chicago Police Department, held a press conference regarding the protests. As part of that conference, he shared a compilation video of the protests, which included 97 seconds of Gwinn’s video.

After the press conference, the compilation was posted on the City’s YouTube page and sent to various news outlets. It remained on the City’s YouTube page until Gwinn notified them about the copyright infringement.

The next month, Gwinn filed for a copyright registration on the video and received it on September 10, 2020. Gwinn then sued the city, bringing the case to its current state.

The Court’s Fair Use Findings

The defendants did not deny using Gwinn’s work. Instead, they argued that their actions were fair use and protected under the law. As such, Judge Daniel solely focused on the fair use question when determining copyright infringement.

To do that, the judge examined the four fair use factors in order:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit
2. educational purposes; 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 of the copyrighted work

On the first factor, the judge found that the arguments favored Gwinn. He found that the work was not changed and that the new use served the same intent as the original. The judge added that the factual commentary over the video did not add any new creativity or meaning.

The second factor favored the City. Gwinn acknowledged that the work was more factual than creative, conceding this point to the City.

The third factor favored Gwinn. Of a 102-second clip, the city used all but nine seconds. As such, the judge ruled this factor strongly favored Gwinn.

The judge deemed the fourth and final factor neutral. Gwinn failed to license the clip both before and after the press conference. The judge could not determine if this was because there was no market for the work or if the City’s use destroyed that market.

With that in mind, the judge ruled that the factors strongly favored Gwinn in determining the City’s distribution was not a fair use. He then granted summary judgment on the issue against both the City and Brown.

The Copyright Management Information Findings

Gwinn argued that the City and Brown had removed copyright management information (CMI) from the work, in addition to committing copyright infringement. Specifically, he claimed that the City removed information contained in his original post on X, including his name and username.

Here, the judge once again sided with Gwinn. The judge found that no rule said the CMI had to be affixed to the work, only presented alongside it. The judge cited several cases where photographs had “gutter credits” similar to the information in the post.

After ruling that the post information qualifies as CMI, the judge applied a double scienter requirement to the alleged infringement. This requires a copyright owner to demonstrate that the alleged infringer had knowledge of the conduct and that they knew it was likely infringing.

This was the only partial win for the defendants. The judge ruled that Brown does not meet the double scienter requirement. There was no evidence that he played any role in creating the infringing video and did not remove the CMI himself.

However, according to the judge, the City admitted to every fact needed to meet the standard for their actions. As such, the judge granted summary judgment in favor of Brown but against the City.

As a result, both the City and Brown are liable for the copyright infringement, and the City is liable for the removal of CMI.

What Does it Mean

This should be an interesting case for visual artists, particularly those who work in journalism and/or post their material on social media.

The fair use ruling keeps in line with other fair use decisions since the Warhol ruling. Though this ruling only cites that decision twice, the logic flows similarly to the Supreme Court’s findings in that case.

However, the CMI decision highlights how much CMI has changed over the past 20 years. CMI, initially, was very narrowly defined. This case expands CMI to include information around the image or video in a social media post.

This means that removing content from social media platforms and using it without attribution may qualify as removing copyright management information. This is potentially a blessing for visual artists who post on social media.

Granted, one still has to show that the alleged infringer both committed the infringement and knew it was likely infringing, but that was not much of a hurdle in this case. Given how similar this case is to other infringements, it may be the same in those cases.

All in all, it’s an interesting case that should give some hope to visual artists.

Bottom Line

To be clear, the impact of this ruling will likely be limited. It’s a summary judgment ruling in a district court. Even worse, it’s in the Seventh Circuit, which doesn’t deal with a large volume of copyright cases.

Still, the case is an interesting read. It involves a photographer winning a summary judgment against a major city and has fascinating commentary on fair use and copyright management information.

One thing I do find interesting is how little coverage it has gotten. I learned about the case from a Courthouse News Service brief. Not even the local news in Chicago seems to have picked up the story.

It’s also worth noting that the Copyright Claims Board (CCB) cannot hear about CMI removal. While cases like this one would be a good fit for the CCB, the board can not currently hear allegations related to CMI. Copyright holders must file such claims in federal court.

Still, it is an interesting ruling that photographers and other visual artists should know about. When others use your work without attribution, there are more ways to fight back.

It’s a small victory but a potentially important one.