UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ELLIOT MCGUCKEN, an individual, No. 21-55854 Plaintiff-Appellant, D.C. No. v. 2:20-cv-01923- RGK-AS PUB OCEAN LIMITED, DBA AbsoluteHistory.com, DBA MagellanTimes.com, DBA OPINION MaternityWeek.com, DBA NewRavel.com, DBA Scribol Publishing, DBA Scribol.com, Defendant-Appellee,

and DOES, 1–10, inclusive, Defendant.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted May 13, 2022 Pasadena, California

Filed August 3, 2022 2 MCGUCKEN V. PUB OCEAN LTD.

Before: Sandra S. Ikuta, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

Opinion by Judge Nguyen

SUMMARY *

Copyright

The panel reversed the district court’s summary judgment in favor of the defendant, based on a fair use defense in an action under the Copyright Act, and remanded for further proceedings.

Elliott McGucken alleged copyright infringement in the posting by Pub Ocean Ltd. of an article about an ephemeral lake that formed on the desert floor in Death Valley, using twelve of McGucken’s photos of the lake without seeking or receiving a license.

The panel held that Pub Ocean could not invoke a fair use defense to McGucken’s copyright infringement claim. Under 17 U.S.C. § 107, in determining whether fair use applies, a court must analyze the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. The court must analyze and weigh these non-exhaustive

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MCGUCKEN V. PUB OCEAN LTD. 3 factors in light of the purposes of copyright. The panel held that the four statutory factors help illuminate what kind of creativity merits protection from the ordinary strictures of copyright law. In defining and identifying that creativity, a court considers whether the copying use is transformative, meaning that it adds something new and important.

The panel determined that the first statutory factor weighed against fair use. The panel concluded that Pub Ocean’s work made a commercial use of McGucken’s photos, and this use was not transformative because the article used the photos for exactly the purpose for which they were taken: to depict the lake. Further, Pub Ocean did not meaningfully transform the photos by embedding them within the text of the article, but rather used them as a clear, visual recording of the article’s subject matter.

The panel determined that the second statutory factor, the nature of the copyrighted work, weighed against fair use because the photos were the creative product of many technical and artistic decisions.

The third factor, the amount and substantiality of the portion used, weighed against fair use because Pub Ocean used McGucken’s photos with only negligible cropping, and it copied extensively without justification.

The fourth factor, market effect, weighed against fair use because, if carried out in a widespread and unrestricted fashion, Pub Ocean’s conduct would destroy McGucken’s licensing market.

Because all four statutory factors pointed unambiguously in the same direction, the panel held that the 4 MCGUCKEN V. PUB OCEAN LTD. district court erred in failing to grant partial summary judgment in