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

By Gregory 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 potential market for or value of the work.

In response to the district court’s order, Romanova submitted papers arguing against dismissal.  But the district court ultimately concluded that she had failed to state a claim upon which relief could be granted, explaining that fair use of the photograph was evident from the allegations of the complaint itself.

On appeal, plaintiff argued (i) that the district court erroneously found a basis in her complaint for the fair use defense, and (ii) that the district court erred in raising this substantive, non-jurisdictional affirmative defense on the part of the non-appearing defendant.

After conducting its own examination of the applicability of the fair use defense, the Second Circuit agreed with plaintiff that there was no valid reason supporting the lower court’s conclusion that Amilus’s copying of the photography was a fair use.  The Second Circuit also took the chance to address and disagree with plaintiff’s second argument, on the sua sponte issue, which is the focus of this article.

In rejecting plaintiff’s argument, the Second Circuit acknowledged that courts must be “cautious” (per U.S. Supreme Court guidance in a different context) about bringing up affirmative defenses sua sponte on behalf of non-appearing defendants.  But the Second Circuit said that there was no categorical rule prohibiting courts from doing so.  The court noted that “overly rigid” refusals to consider defenses sua sponte “can make a lawsuit an instrument of abuse.”  For example, the court explained, small corporations might not be able to afford the expense of engaging counsel needed to defend a suit, and a default should “not necessarily preclude the court’s consideration of affirmative defenses available to the defendant, especially when they have obvious merit and their applicability is evident from the face of the complaint.”  Otherwise, an “unscrupulous” plaintiff could bring patently bogus claims against an entity that could not afford to hire counsel to raise an obviously valid fair use defense on its behalf, thereby unjustly “defeat[ing] the goals of copyright.”

Accordingly, the Second Circuit instructed that, while courts should be “cautious before sua sponte invoking affirmative defenses on behalf of defaulting defendants, they should also be cautious about not considering such defenses.”

The Contrary View

In a concurring opinion in Romanova, Judge Richard Sullivan stated that he would reverse the district court on the narrower ground that it had procedurally erred in sua sponte raising fair use on behalf of a non-appearing defendant.

Judge Sullivan noted that Second Circuit law is clear that, when a plaintiff establishes a prima facie claim for copyright infringement, the defendant may invoke fair use as an affirmative defense, and that the party asserting the defense bears the burden of proof in establishing it.

In this case, Judge Sullivan observed, the district court never concluded that Romanova had failed to plead facts constituting a viable cause of action for copyright infringement.  Instead, the lower court “sua sponte interposed the affirmative defense of fair use . . . and then faulted Romanova for not sufficiently rebutting this defense.”  That, according to Judge Sullivan, erroneously placed the burden on Romanova.

Judge Sullivan also took the position that, by opting not to appear in the action, Amilus had forfeited its right to raise the defense, which is the general rule regarding non-raised affirmative defenses.  Holding to the contrary, he said, would lead to inefficient dispute resolution and erode “the principle of party presentation so basic” to the American system of adjudication.  Judge Sullivan also cited caselaw for the proposition that, in cases where the Supreme Court “has sanctioned sua sponte action by a court to raise a forfeited affirmative defense, the Court has made clear that the circumstances of a case must squarely implicate the institutional interests of the judiciary for such action to be permissible” – with the obvious implication being that there were no such interests at play in Romanova, but rather merely the defendant’s own private interest in protecting its First Amendment right to fair use of copyrighted material.

It is perhaps worth noting that other courts have agreed with Judge Sullivan’s general approach.  For example, in Oregon v. Ames, 2016 WL 9226398 (D. Or. Sept. 13, 2016), the District Court of Oregon held that because the defendant there had never appeared in the action and because fair use is an affirmative defense, “fair use ought not be adjudicated sua sponte.”  And in Latimer v. Roaring Toyz, Inc., 601 F.3d 1224 (11th Cir. 2010), the Eleventh Circuit ruled that a district court had erred in raising the fair use defense sua sponte in a case where the defendant had appeared but had failed to plead fair use.

Takeaways

At least in the Second Circuit, it is now clear that district courts may on their own raise the affirmative defense of fair use on behalf of a defaulting defendant.

Nevertheless, parties named as defendants in copyright infringement lawsuits should – aside from never ignoring service of a complaint on them to begin with – not count on a court raising this defense on their behalves.  While courts have the discretion to consider that defense sua sponte, they are by no means obligated to raise it on behalf of a defaulting party.

From plaintiffs’ perspective, a party seeking to enforce its copyright should evaluate and be prepared to rebut a potential fair use defense, including even when the named defendant never actually appears in the lawsuit.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Gregory Feit who counsels clients on employment law, litigation, arbitration, negotiation, and trial advocacy. Mr. Feit is admitted to practice in New York.