Industry News


Lawsuit over Misuse of RBG Portrait Dismissed

March 20, 2023

By Hillary K. Grigonis

Photo Courtesy of the U.S. District Court for the Northern District of Georgia

A U.S. District judge has dismissed a copyright infringement lawsuit over an artist’s derivative use of an iconic Ruth Bader Ginsburg portrait. Last week, a judge in Georgia granted artist Julie Torres’ motion to dismiss a lawsuit brought by Creative Photographers Inc. However, the judge did not rule over whether the artwork fell under fair use. Instead, the judge said that the contract with the photographer granted the photo agency rights as an exclusive agent, but did not transfer copyright ownership.

The case, Creative Photographers, Inc v. Julie Torres Art, revolves around a photograph of the late United States Supreme Court Justice. The Ruth Bader Ginsburg portrait was taken in 2009 by Ruvén Afanador and later licensed by Creative Photographers, Inc, a commercial photography agency. The contract names the photo agency as the exclusive agent for selling, licensing and distributing the photograph while the photographer retains the copyright.

[Read: Supreme Court Hears Arguments in Landmark Fair Use Case, Warhol v. Goldsmith]

Atlanta, Georgia, artist Julie Torres has allegedly used that photograph in several screen prints and mixed media art. Some of those pieces sold for up to $12,000, along with being part of a gallery display. The photo agency claims that the artist and the galleries refused to acknowledge Afanador as the photographer. The lawsuit also lists gallery companies Maune Contemporary LLC and International Fine Art Direct, LTD as defendants.

The courts refused to determine whether or not the artist’s work is derivate enough to fall under fair use. Northern District of Georgia Judge Jean Paul Boulee said that fair use “requires a case-by-case and fact-intensive analysis,” concluding that it would be improper to consider fair use arguments at the motion to dismiss stage.

But, the judge did grant the artists request to dismiss the lawsuit because a copyright lawsuit requires the legal or beneficial owner of the copyright to be the plaintiff. The courts highlighted the contract language between Afanador and Creative Photographers, including the term “you must the the sole owner of the copyright.” The judge concluded that the contract did not give the photo agency copyright ownership.

As copyright infringement needs to be filed by the copyright holder, the judge granted Torres’ request to dismiss the case on March 13. However, Creative Photographers could revise and resubmit the complaint. If the photo agency does not submit a revised complaint within 14 days of the judge’s decision, the entire action will be dismissed.