A federal court tossed out a lawsuit filed by Rep. Alexandria Ocasio Cortez’s official campaign photographer alleging the Washington Free Beacon violated his copyright when it used a cutout of a portrait he took in a Free Beacon series spotlighting the congresswoman’s illegal parking and reckless driving.
The opinion, handed down Monday by Judge Leonie Brinkema of the Eastern District of Virginia, found that the Free Beacon’s use of the photo, taken by photographer Jesse Korman, was protected by the doctrine of fair use and granted the Free Beacon’s motion to dismiss the case. Korman, who filed the lawsuit four years after the photograph was used, argued the Free Beacon’s use of the photograph had substantially damaged the market for his photograph and had demanded a fee of $15,000.
"Here, Free Beacon's articles and accompanying images are paradigmatic examples of social commentary and political criticism," Brinkema wrote. "Imposing a requirement on journalists to receive permission from, and pay royalties to, copyright holders to use their photographs as part of political criticism regarding the public figures depicted would frustrate the balance Congress struck between robust copyright protections and the free flow of ideas."
The Free Beacon used the portrait in a 2021 series spotlighting the congresswoman’s white Tesla parked illegally outside a Washington, D.C., Whole Foods. "One source familiar with the parking situation at the Navy Yard Whole Foods described the illegal parking job as ‘pathetic’ because the grocery store offers free parking for its élite customers," Free Beacon reporter Andrew Stiles noted.
Korman has filed at least a dozen copyright infringement lawsuits, according to public records. He filed a lawsuit against Fox News in 2019 over its use of a photograph of AOC. The network settled with him in 2020.
The Free Beacon argued that the use of Korman’s work was transformative and therefore permitted under the fair use doctrine. While Korman’s photograph was intended to portray the socialist lawmaker in the best possible light, the Free Beacon was using it to criticize her. Brinkema agreed, stating in her opinion that "Free Beacon was not using the image of AOC to depict AOC, nor was it using the photograph to portray AOC in a positive light or to facilitate her political campaign. Rather, Free Beacon used the photograph as part of its criticism of AOC’s politics, focusing on the hypocrisy of claiming to be one of the common folk but actually being an elitist."
"These are plainly transformative uses," she concluded.
Brinkema also indicated that Korman, who was seeking "damages, disgorgement of profits attributable to the infringement, an order enjoining Free Beacon from any infringing use of Korman’s works, and attorney’s fees," did not demonstrate he had suffered any financial damages.
