MANHATTAN (CN) - A federal judge on Wednesday scoffed at a gossip site's "frivolous" argument that simply adding catty insults to Playboy's leaked nudes of rapper Azealia Banks dressed as a kitten transforms the images to fair use.
A month before Playboy's cover hit the stands, the Manhattan-based gossip site Mediatakeout got its hands on leaked images of Banks shot by noted fashion photographer Ellen Von Unwerth.
Displaying Unwerth's signature style of high-fashion and sexual domination, the photos captured the rapper scantily decked out in feline-themed fetish gear.
Well before their intended April 2015 release, the images hit Mediatakeout with the headline "MTO Exclusive: We Got the UNCENSORED Nekkid Playboy Pics ... of LOUD MOUTH Rapper Azaelia Banks ... And Her Body Looks VERY STRUGGLE!"
After Playboy sued for copyright infringement last September, Mediatakeout's lawyer Notoya Green tried to swat away the federal lawsuit by arguing that adding commentary like this next to the pictures made it transformative use.
"In the article, it commented on the rapper's appearance, criticized the look of her face, hips, breasts and butt and used enough of the photos of her face and body to support its point," she wrote in a Jan. 25 motion to dismiss.
Steven Cowley, an attorney for Playboy with the firm Duane Morris, said that the gossip site's commentary only bragged about its scoop.
"Their stealing nude photos does not become a story just because they say, 'We got it first,'" he said.
U.S. District Judge Paul Engelmayer showed impatience with what he called Mediatakeout's "frivolous" arguments.
"There is no merit to this motion to dismiss," he said on Wednesday. "Period. Full stop."
Although Mediatakeout claimed to have a license to run the picture, Engelmayer said that the gossip site would have to prove it over the course of discovery.
The parties will meet again for a conference on June 24.
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