Background
In 2009, fashion blogger Lauren Messiah — whose site was then called “Ask Fashion Kitty” — wrote a post titled “Style Suggestions for Army Wives” offering outfit advice to spouses welcoming soldiers home from Afghanistan. To illustrate the post, Messiah searched Google Images for “army fashion,” found a black-and-white photograph (the “Parker Train Photo” — a 1962 image first published in a book in 2000), and embedded it. She testified that she looked for a watermark before using it, found none, and had no idea the filename “Melvin-Sokolsky5.jpg” identified the photographer.
In 2011, Messiah migrated the blog to LaurenMessiah.com, taking the post with it. The photo stayed up for more than a decade. In 2025, the plaintiff — Sokolskyfilm, Inc., a company that licenses the Melvin Sokolsky photograph portfolio for fine-art reproductions at up to $5,000 each — discovered the post, sent a cease-and-desist letter, and sued for copyright infringement and violations of the Copyright Management Information (CMI) statute, 17 U.S.C. § 1202, when Messiah’s assistant dismissed the C&D as spam and deleted it without forwarding it.
The parties proceeded to summary judgment on both claims.
The Court’s Holding
The court granted summary judgment in favor of Messiah on both counts.
Copyright infringement — fair use. Working through the four statutory factors under § 107, the court found all of them favored the defendant:
- Purpose and character of use. The court found the use transformative because the Parker Train Photo appeared “as part of a broader work” within a fashion-guidance blog post, rather than as part of a fine-art anthology. Although the blog had a commercial purpose, the court found “no evidence in the record of any revenue or commercial benefit earned from the blog or, more specifically, the Parker Train Photo blog post.”
- Nature of the copyrighted work. The court acknowledged the photo was a creative expression (a fashion photograph), which typically weighs against fair use — but this factor did not override the others.
- Amount taken. Although Messiah used the entire photograph, the court found it rendered “insubstantial in context” because the question-and-answer fashion commentary did not substantively engage with the image itself.
- Market effect. Sokolskyfilm’s admitted market is fine-art reproductions; Messiah’s blog post served “a different market function.” No market substitution was shown.
CMI claim — § 1202(a)/(b). The court dismissed the CMI count for lack of evidence. Messiah found the image on Google Images with no visible watermark, saved it without altering the file, and posted it without any knowledge of who the photographer was. The court found “a dearth of evidence” that Messiah knowingly removed or failed to include CMI, or that she had the requisite intent to facilitate infringement.
Key Takeaways
- Illustrative use can be transformative. The court took a defense-favorable view, treating a photograph used purely for illustration in a thematically different blog post as transformative — a conclusion some courts would reject when the image is used without any direct commentary on it.
- Different markets matter. The fine-art-licensing market and the fashion-blog market were sufficiently distinct that the court found no market harm, even though the plaintiff had an active licensing program for the photo.
- CMI intent is a high bar. Removing or failing to include copyright management information only violates § 1202 when done knowingly and with intent to facilitate infringement. An unknowing blogger who picked up a photo from Google Images without a watermark will not meet that bar.
- Statute of limitations remains unsettled. The opinion did not address the statute of limitations despite the original post being 14-plus years old — a reflection of how each new view can nominally reset the clock under current Ninth Circuit precedent, but also a potential vulnerability in the plaintiff’s theory left unexplored.
Why It Matters
This case sits at the intersection of two persistent tensions in online copyright law: the practical reality that bloggers routinely illustrate posts with images found through search engines, and the legitimate interests of photographers in controlling commercial use of their work. The court’s defense-favorable application of fair use — finding transformativeness even without direct commentary on the image, and finding no market harm in a case where the plaintiff actively licensed the photo — offers modest comfort to bloggers but may not survive in every circuit or courtroom.
Legal commentator Eric Goldman, who flagged this opinion, notes it may have been influenced by the court’s discomfort with the stakes: a single lightly-trafficked blog post generating a federal lawsuit through summary judgment. Goldman argues that cases like this belong in the Copyright Claims Board (CCB), Congress’s small-claims alternative for low-value copyright disputes. The case is a useful reminder that illustrating a blog post with a third-party image — even one found without a watermark on a public image search — carries real legal risk, and that non-infringing alternatives (Creative Commons images, generative AI) are now readily accessible.
Surfaced via Eric Goldman’s Technology & Marketing Law Blog.