Vedros v. Endless Mountain Labradors — Court Rules Blogger’s Photo Republication Is Not Fair Use

Background

Nick Vedros, a professional photographer, created a staged photograph of a dog sitting on a scale next to a cat — a humorous image originally produced for a dog food advertising campaign, published in 2007 and registered with the Copyright Office in 2014. In February 2016, an employee of The Sterling Group of the Twin Tiers, Inc. — which operates the commercial website Endless Mountain Labradors, selling purebred puppies, dog food, and related products — used the photograph without permission as a header image for a blog post titled “A Breeder’s Note on Canine Obesity.”

Vedros discovered the unauthorized use and sued for copyright infringement. The Sterling Group raised fair use as an affirmative defense, arguing that the blog post was educational in nature and that a small commercial dog breeder should not be held liable for such minimal use. Both parties moved for summary judgment.

The Court’s Holding

Chief Judge Brann granted summary judgment for Vedros, finding that all four fair use factors weighed against the defendant.

Purpose and character of use: The court found the use was commercial, not transformative. The photograph appeared on a blog operated by a commercial website that sold puppies, dog food, and essential oils. The defendant used the image as an attention-getting thumbnail with no commentary on or critical engagement with the photograph itself. The court rejected the argument that the blog’s purportedly “educational” purpose about canine obesity transformed the use of the photo — the educational content of the post did not extend to the photograph.

Nature of the copyrighted work: The photograph was a creative, artistic work — a deliberately staged and composed image — not an informational or factual work. This weighed against fair use.

Amount used: The defendant reproduced the entire photograph without alteration and without credit. Wholesale copying of an entire work weighs heavily against fair use.

Market effect: The defendant failed to carry its burden of showing no market harm. The court presumed harm from the wholesale copying, noting that Vedros sells his photographs commercially and that the production costs of professional photography are substantial.

The court also rejected several novel arguments by the defendant, including a claim that the photograph could have been produced by artificial intelligence. The court called this argument “absurd,” stating that accepting it “would destroy the foundations of copyright law.”

Key Takeaways

• Using someone else’s photo to illustrate a blog post is high-risk. Even on a blog with educational content, grabbing an image from the internet to use as a header or thumbnail — without licensing — exposes the blogger to copyright liability. The “educational” purpose of the surrounding text does not transform the use of the image.
• Small scale does not save you. The blog post received only 43 views before the photo was removed during litigation, but the court still found all four factors weighed against fair use. Low traffic does not negate infringement.
• The “AI could have made this” defense is a non-starter. The court firmly rejected the argument that a creative photograph might not deserve copyright protection because AI tools could theoretically generate similar images. This suggests courts will take a dim view of attempts to undermine copyright claims by invoking AI capabilities.
• Commercial context matters broadly. The court looked beyond the specific blog post to the commercial nature of the website as a whole — the blog existed as part of a business that sold products, making the use commercial even if the individual post did not directly sell anything.

Why It Matters

This ruling is a straightforward but important reminder for businesses and bloggers: the internet is not a free stock photo library. The practice of searching Google Images for an eye-catching photo to accompany a blog post remains one of the most common ways small businesses stumble into copyright liability. The court’s analysis leaves little room for bloggers to argue fair use when they reproduce an entire photograph for decorative purposes on a commercial site.

The decision’s brief but emphatic rejection of the AI-defense argument is also notable. As AI-generated imagery becomes more common, defendants in copyright cases may increasingly try to blur the line between human-created and AI-generated works. This court’s reaction — that such arguments threaten the very foundations of copyright law — signals that judges are prepared to push back against such tactics.

Surfaced via Eric Goldman’s Technology & Marketing Law Blog.