UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2023

Argued: March 20, 2024 Decided: May 23, 2025

No. 23-828 ______________________________________

JANA ROMANOVA, Plaintiff-Appellant,

v.

AMILUS INC., Defendant-Appellee.

______________________________________

Before: JACOBS, LEVAL, and SULLIVAN, Circuit Judges.

Plaintiff Jana Romanova appeals from the judgment of the United States District Court for the Southern District of New York (Caproni, J.) dismissing Romanova’s claim of willful copyright infringement against Defendant Amilus Inc. pursuant to Section 501 of the Copyright Act. Her complaint alleged that Defendant infringed upon her rights when it published a photograph authored by her on its website without her authorization. Defendant made no answer to the complaint and did not appear in the district court. On Plaintiff’s motion for default judgment, the district court ordered Defendant to show cause why the court should not grant the motion. Having received no response from Defendant, the court then sua sponte ordered Plaintiff to show cause why Defendant’s use of Plaintiff’s photograph did not constitute fair use. After considering Plaintiff’s response, the district court dismissed Plaintiff’s complaint with prejudice on the ground that Defendant’s publication of Plaintiff’s photograph constituted fair use. The district court’s judgment is REVERSED, and the case is REMANDED with instructions to enter a default judgment in Plaintiff’s favor.

JUDGE SULLIVAN concurs in a separate opinion.

RENEE J. ARAGONA (Craig B. Sanders, on the brief), Sanders Law Group, Garden City, NY, for Plaintiff-Appellant.

LEVAL, Circuit Judge:

Plaintiff Jana Romanova, a professional photographer, appeals from the judgment of the United States District Court for the Southern District of New York (Caproni, J.) dismissing Romanova’s claim of willful copyright infringement against Defendant Amilus Inc. pursuant to Section 501 of the Copyright Act, 17 U.S.C. § 501. The complaint alleged that Amilus infringed her copyright by displaying a copyright-protected photograph authored by her on its website without her authorization. Amilus neither answered the complaint nor appeared in the district court. Nor has Amilus appeared in this appeal.

While Romanova’s motion for default judgment was pending, the district court, sua sponte, ordered her to show cause why her complaint should not be dismissed on the ground that Defendant’s republication of her photograph was a fair use. Upon consideration of Romanova’s response, the district court

2 dismissed the complaint with prejudice, concluding that the fair use defense was “clearly established on the face of the complaint.” App’x at 76.

Plaintiff’s appeal is on two grounds, one substantive and one procedural. She argues (1) that the court erred in finding a basis in her complaint for the fair use defense; and (2) that the court erred in sua sponte raising a “substantive, non- jurisdictional affirmative defense on the part of a non-appearing defendant,” Appellant’s Br. at 3. We agree with Plaintiff’s substantive argument and therefore have no need to consider her procedural argument. We REVERSE the judgment and REMAND with instructions to enter default judgment in favor of Plaintiff.

BACKGROUND I. Facts

We draw the following facts from the allegations of Plaintiff’s complai