Second Circuit Permits Sua Sponte Raising Of "Fair Use" Defense For Non-Appearing Defendant

• Published date: 30 May 2025
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Copyright, Trials & Appeals & Compensation
• Law Firm: Reavis Page Jump LLP
• Author: Mr Gregory P. Feit

Consider the following scenario: A professional photographer sues a company for copyright infringement, alleging that the company displayed her copyright-protected photograph on its website without her authorization. Although properly served with the photographer's complaint, the company never appears in the lawsuit. The photographer moves for a default judgment, but the court believes, merely from the face of the complaint itself, that the company's display of the photograph constitutes a permissible, "fair use" of the copyrighted work.

In this situation, can the court sua sponte - i.e., of its own accord; without motion or prompting by any party - raise the fair use defense on behalf of the non-appearing defendant and on that basis dismiss the photographer's claim?

Last week, in Romanova v. Amilus Inc., 2025 WL 1479007 (2d Cir. May 23, 2025), the United States Court of Appeals for the Second Circuit answered in the affirmative.

Romanova Background & Holding

The underlying facts in Romanova, as alleged in the complaint by plaintiff Jana Romanova against defendant Amilus Inc., match those set forth in the above scenario.

After a hearing on Romanova's motion for a default judgment against Amilus, the district court sua sponte ordered her to show cause why it should not dismiss her case on the ground that Amilus's use of her photograph constituted a fair use. The fair use defense allows for the unlicensed use of copyright-protected works in certain circumstances, for purposes like criticism, news reporting, comment, and scholarship. The fair use framework, which is codified at 35 U.S.C. ' 107, involves the evaluation of four factors: (i) the purpose and character of the use (including whether for commercial purposes or for nonprofit education); (ii) the nature of the copyrighted work; (iii) the amount and portion of the work used; and (iv) the effect of the use upon the...