"Unauthorized Use of Photos to Illustrate Article Is "in No Way Transformative," Says CA9"

Elliot McGucken is an award-winning fine-art photographer who specializes in natural landscapes. (Check out his website.) In March of 2019, McGucken hiked for several hours through Death Valley (talk about dedication) to capture photographs of an ephemeral lake that had formed on the desert floor following unusually heavy rainfall. As the court puts it, “[w]ith a little luck, a little sweat, and plenty of skill, McGucken produced a series of photos of stunning beauty.” The photos - which truly are spectacular – are included in the court’s opinion.

McGucken posted the images on Instagram (natch), where they were shared widely. Riding the wave of interest in his work, McGucken licensed the photos to several publications (including The Daily Mail, Smithsonian Magazine, and Live Science). About a month after he took the photos, online publisher Pub Ocean used twelve of them, without permission, to illustrate an article titled “A Massive Lake Has Just Materialized In The Middle Of One Of The Driest Places On Earth.” The article described how the lake had formed, narrated how McGucken captured the photos, and included various “digressions” about desserts and other naturally occurring phenomena (such as desert superblooms and vanishing islands). Each digression was illustrated with photography from third party sources. (The opinion is silent as to whether Pub Ocean obtained licenses to use the other photos. But you do the math.) In total, the article prominently featured 28 photos. How prominently? In the court’s view, “[i]n size, the photos dwarf the text” to such an extent that the article “appear[ed] as a series of photos with the text broken up into tiny captions underneath.” Sort of like a picture book. Or a slide show. Or a listicle. (Or, perhaps, clickbait?)

Read the full article by the Advertising Law here.