A federal district court in Florida has declined to throw out an infringement claim against Hachette Filipacchi Media for publishing a photo of a custom motorcycle from a press kit . The publisher asked the court to dismiss the case on fair use grounds, but the court ruled on September 21 that a fair use determination depended on questions of fact that only a jury could decide.

At issue are five beauty shots of Kawasaki’s high-performance ZX-14 motorcycle that photographer Tod Latimer shot in early 2006. Latimer, who had been documenting the construction of a custom version of the motorcycle for 2 Wheel Tuner magazine, shot the images as a favor to the custom motorcycle shop. The shop owners provided the images to Kawasaki.

Kawasaki included the images in a press kit. Hachette’s Cycle World magazine published the images, scooping its competitors (and Latimer’s original client). Latimer sued Kawasaki, the motorcycle shop and Hachette in in 2006, claiming that his images had been distributed without permission.

But Latimer had little paperwork to back up his claim. It was thrown out in the first legal round on the grounds that Latimer gave Kawasaki and implied license to distribute the images, and that Hachette’s use of his images was fair use.

Latimer appealed, and last Spring, an appeals court in Atlanta, Georgia restored his claim–at least in part–by ruling that Kawasaki may have over-stepped the the terms of its implied license. The appeals court also threw out the lower court’s fair use finding in Hachette’s favor, because Hachette hadn’t ever raised that issue.

The case went back to the lower court, where Hachette finally raised a fair use defense and asked the court to dismiss the case again. But the court, more cautious this time, said fair use in this case was a question for a jury. At the same time, though, the lower court limited Latimer to actual damages on any claims he wins because he failed to prove a connection between the use of his images and any profits earned by Kawasaki or Hachette.

In short, some of Latimer’s claims remain standing after several legal rounds, but the court has lowered the stakes, putting pressure on Latimer to settle out of court.

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