Prohibition of Sua Sponte Fair Use Defense Against Defaulting Defendants: Second Circuit Clarification in Romanova v. Amilus Inc.

Introduction

Romanova v. Amilus Inc. is a 2025 Second Circuit decision that reaffirms core principles of default judgment practice in copyright infringement actions and clarifies the limits on district courts’ power to raise substantive affirmative defenses sua sponte for non-appearing defendants. The plaintiff, professional photographer Jana Romanova, alleged that Amilus Inc. republished her copyrighted photograph of a Russian woman with pet snakes on its subscription website without authorization. The district court sua sponte invoked the fair use defense, dismissed the complaint with prejudice and denied Romanova’s motion for default judgment. On appeal, the Second Circuit reversed, remanding with instructions to enter default judgment in Romanova’s favor.

Parties and Court:

  • Plaintiff-Appellant: Jana Romanova, professional photographer
  • Defendant-Appellee: Amilus Inc., operator of a subscription-based website
  • Court Below: U.S. District Court, Southern District of New York (Judge Caproni)
  • Appellate Court: U.S. Court of Appeals for the Second Circuit (Judges Leval, Jacobs, Sullivan)
  • Decision Date: May 23, 2025

Summary of the Judgment

The district court entered a certificate of default against Amilus Inc. and, rather than granting Romanova’s default judgment motion, sua sponte raised the affirmative defense of fair use. Concluding that fair use was “clearly established on the face of the complaint,” it dismissed the case with prejudice. The Second Circuit reversed on de novo review of the district court’s Rule 12(b)(6)-style dismissal, holding:

  1. The district court misapplied the fair use doctrine. Under Campbell v. Acuff-Rose and Andy Warhol Foundation v. Goldsmith, fair use requires not only that the secondary work be “transformative” in the sense of conveying a new message, but also that the copier offer a valid justification for the taking. Amilus’s republication of Romanova’s photograph communicated the same message as the original work and offered no recognized justification.
  2. Even if fair use could be apparent on the face of a complaint, courts must be cautious about raising non-jurisdictional affirmative defenses sua sponte for defaulting defendants. Fair use is an affirmative defense, and by default Amilus forfeited it.
  3. Default judgment in Romanova’s favor should have been entered. The complaint adequately pleaded copyright ownership and unauthorized reproduction of the Work.

The Circuit therefore reversed and remanded with instructions to grant default judgment.

Analysis

1. Precedents Cited

  • Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) – Pleading and incorporation standards for Rule 12(b)(6).
  • Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) – Transformation and justification test under the first fair use factor.
  • Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) – Reaffirming that fair use must serve a valid purpose and cannot merely “supersede the objects” of the original work without justification.
  • Google Books, Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) – Fair use burden, affirmative defense, and the scope of “transformative” and “market impact” factors.
  • Grace v. Bank Leumi Trust Co., 443 F.3d 180 (2d Cir. 2006) – Default by corporation requires representation by counsel.
  • City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. 2011) – Court may refuse to grant default judgment if plaintiff fails to state a claim, but must distinguish that from improper entry of defenses.
  • Arizona v. California, 530 U.S. 392 (2000) – Caution against sua sponte affirmative defenses in the adjudicatory process.

2. Legal Reasoning

A. Fair Use as an Affirmative Defense
Section 107 of the Copyright Act sets out the four fair use factors. The Supreme Court in Campbell identified two key inquiries under the first factor:

  1. Transformative Purpose – Does the secondary use add new expression, meaning, or message to the original? Parody—criticism or commentary on the original—is the paradigmatic transformative use.
  2. Justification – Beyond transformation, does the copier have a valid rationale (e.g., news reporting, scholarship, informational service) for the taking?

Warhol reaffirmed that fair use requires both transformation and justification. A copying that merely replaces or competes in the same market as the original, without comment or valid rationale, fails fair use even if it alters color or cropping.

B. The District Court’s Errors

  • Misapplication of “Transformation” – The court accepted Amilus’s separate caption stating “we have some pet snakes thrown in for good measure” as proof of a new message—namely, an “ever-increasing trend in pet photography online.” But neither Campbell nor Warhol allows a copier to declare a distinct purpose independent of what the copied work itself communicates.
  • No Recognized Justification – Amilus offered no rationale that courts have accepted as fair use (e.g., criticism, news reporting, thumbnail indexing, archival access, blind-accessible formats). Instead it copied the entire work and monetized it in the same market Romanova licensed.
  • Sua Sponte Defense – By defaulting, Amilus forfeited the opportunity to assert fair use. The district court had no jurisdictional duty to raise a non-jurisdictional affirmative defense on Amilus’s behalf, nor to shift the burden of disproving fair use to Romanova. Fair use remains the defendant’s burden.

3. Impact

Romanova v. Amilus Inc. establishes two important precedents in the Second Circuit:

  • Procedural Limitation – District courts should not sua sponte invoke non-jurisdictional affirmative defenses (like fair use) against defaulting defendants. A default judgment motion must be decided on the plaintiff’s prima facie claims, not on defenses the defendant has forfeited.
  • Fair Use Clarity – Reaffirms that transformative purpose must be evident in the copying itself, and that fair use demands a concrete justification recognized at law. Copiers cannot rely on separate statements of intent to escape infringement liability.

Future litigants will find guidance on both proper default judgment practice and the limits of the fair use doctrine. Copyright holders gain stronger protection against unauthorized uses, particularly when defendants fail to appear and assert their defenses timely.

Complex Concepts Simplified

Default Judgment: If a defendant doesn’t respond to a lawsuit, the court can accept the plaintiff’s allegations as true and enter judgment without a trial. But the court still must ensure the complaint states a valid claim.

Affirmative Defense: A legal argument that, if proven, bars the plaintiff’s recovery even if the allegations are true. Fair use in copyright law is an affirmative defense: the defendant has to raise it and prove it.

Fair Use Factors:

  1. Purpose & Character: Was the use transformative (added new expression)? Was it commercial?
  2. Nature of the Work: Are we dealing with a highly creative, unpublished work or a factual work?
  3. Amount Used: How much of the original was taken?
  4. Market Effect: Did the taking harm the original’s potential licensing market?

Sua Sponte: Latin for “of one’s own accord.” When a court does something without a party asking for it. Here, the court raised fair use on its own, overburdening the plaintiff with disproving an unpleaded defense.

Conclusion

In Romanova v. Amilus Inc., the Second Circuit corrected two fundamental errors:

  • District courts may not sua sponte raise substantive affirmative defenses like fair use against defendants who have defaulted; and
  • A copier’s assertion of a new purpose separate from what the copied work itself conveys does not satisfy the transformation and justification requirements of fair use.

The decision restores predictability in default judgment practice and reinforces copyright authors’ exclusive rights. Defendants must appear, raise fair use affirmatively, and carry their burden of proof. Meanwhile, copyright owners can be confident that their rights will not be undermined by unpleaded defenses conjured sua sponte.