Miami Heat Honcho Loses Photo Flap With Blogger

(CN) - An owner of the Miami Heat doesn't have a case against the blogger who uses an "ugly" picture of him with his tongue hanging out in her bristly posts, the 11th Circuit ruled.

Raanan Katz is a real estate tycoon who owns strip malls in Florida. The ruling published Thursday by the Atlanta-based federal appeals court describes blogger Irina Chevaldina as a disgruntled former commercial tenant with an ax to grind.

A professional photographer took the candid photo in question four years ago while Katz stood courtside at a ball practice in Jerusalem.

Katz's tongue is sticking out, and his eyebrows are cocked. Its subject has called the photo "ugly" and "compromising."

Haaretz, a newspaper in Israel, first ran the picture on its website to go with a story about Katz's interest in buying the Hapoel Jerusalem basketball team.

Chevaldina then paired the picture with at least 25 blog posts in which she criticized Katz between May 2011 and September 2012.

In one, she lambasted Katz for ripping off a "young American Jewish single mother of [a] special needs child," and called him "the most immoral human-being in the world."

In another, she cropped Katz's face out and gave him a dunce hat, claiming, "He ripped-off special needs little Jewish girl."

Katz had the photographer who snapped the picture assign all rights to him in June 2012. Then he sued Chevaldina for copyright infringement.

He took his case to the 11th Circuit when a federal judge in Miami threw out the lawsuit after finding that the use of the picture was fair game.

But the appeals court ruled 3-0 Thursday that Katz remains out of bounds.

"Chevaldina unabashedly criticized and commented on the dealings of Katz, his business, and his lawyers," the unsigned decision states. "Chevaldina's blog posts sought to warn and educate others about the alleged nefariousness of Katz, and she made no money from her use of the photo."

Katz failed to persuade the court that Chevaldina benefitted by creating buzz about a book she claimed to be writing called, "Why RK Centers Was the Wrong Choice."

Mentioning an intent to write a book that never even materialized does not "transform the blog post into a commercial venture," the judges wrote.

"Overall, the blog post retains her educational purpose of lambasting Katz and deterring others from conducting business with him," they added.

And anyway, the picture was already out there, the court gound.

"There is no dispute that the photo was published prior to Chevaldina's use," the panel wrote. "As such, the time of publication weighs in favor of fair use."

The picture "is merely a candid shot in a public setting, and there is no evidence in the record that ... the photographer, attempted to convey ideas, emotions, or in any way influence Katz' pose, expression or clothing."

"While Magriso's photojournalistic timing was fortuitous (at least from Chevaldina's perspective), this alone was not enough to make the creative gilt of the photo predominate over its plainly factual elements," the 12-page ruling continues (parentheses in original).

The judges said "every reasonable factfinder" would reach the same conclusion.

While the panel side-stepped Katz's about the picture being unflattering, they still entertained the notion.

"We make no independent determination as to whether the photo is unflattering or embarrassing," a footnote to the ruling states. "However, we accept Katz's own characterizations of the photo as aesthetically displeasing."

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