Fair Use

Instagram: Uncharted Territory for Courts and Journalists

As a Los Angeles Superior Court prepares to break new ground concerning defamation on Instagram, journalists look towards the popular smart phone app as an alternative platform from which they can reach new audiences.

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Copyright in Tattoo Case: Escobedo v. THQ, Inc.

Excerpt from Escobedo v.

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Pinterest: Fair Use of Images, Building Communities, Fan Pages, Copyright

When using Pinterest (and Flickr and YouTube and Facebook and on and on), what copyright, fair use, trademark and other issues weigh on building communities and corporate use of fan pages and social media generally?  A hypothetical “Company” has plans for its Pinterest “community”, and in particular, wonders about these situations:

  • Using Images of Identifiable People
  • Fair Use and Images
  • Trademarks: When is a “Fair Use” Argument Strongest?
  • Why Attribution and Linking to Original Sources is Important

3 introductory questions:

Question #1: Someone used to be a paid Company sponsor or spokesperson.  They are no longer.  Can the Company continue to post a photo of the old sponsor to Pinterest? Short Answer: If the contract with the sponsor expressly permits it, yes.  Ordinarily, the contract would specify engagement for limited time, and that would prohibit rights to use images beyond the contract period.  But it really depends on what the contract says.

Question #2: Can the Company post a photo of a fan of the Company? Short Answer: Express consent is required, either through a release or the fan’s agreement (whenever the photo is submitted) to terms of service.  Exceptions are discussed below.

Question #3: Can the Company post a photo of a Coca-Cola bottle on its Pinterest page? Short Answer: If the use of the image does not suggest (implicitly or explicitly) endorsement or association, then yes.

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Olympic Citius Altius Fortius Pan-American: The U.S. Olympic Committee's Exclusive Rights

The U.S. Olympic Committee ("USOC") has a reputation for aggressively policing their exclusive rights to certain words, phrases, and symbols. And they have a special act of Congress to back them up.

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When Your Engagement Photo Becomes a Political Ad: Parody and Right of Publicity

The issue of same-sex unions is hotly debated, and the discussion is heating up this election year with the case on California’s Proposition 8 making its way to the Supreme Court, and with President Obama recently declaring that he is in favor of same-sex marriage.

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Much Ado About a DMCA Takedown Notice

Here is a story that would be an excellent fact pattern for a media law exam. Copyright! DMCA! Libel! Oh my…. Well, at least I hope it will be a topic of interest for the readers of this blog.

Background

Consider the following fact pattern, drawn from a series of blog posts by the parties to this dispute. (Each party has since made an effort to delete their respective posts, so this analysis will not refer to the parties by name.)

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White, et al. v. West Publishing Corporation, et al.

Threat Type: 

Lawsuit

Date: 

02/22/2012

Party Receiving Legal Threat: 

West Publishing Company; Reed Elsevier, Inc. (doing business as LexisNexis)

Type of Party: 

Individual
Organization

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, Southern District of New York

Case Number: 

1:12-cv-01340-JSR

Legal Counsel: 

Weil, Gotshal & Manges LLP (for Defendant West); Morrison & Foerster LLP (for Defendant Lexis)

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Website

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Pending

Description: 

On February 22, 2012, two attorneys and an associated law firm filed a class-action lawsuit against legal database companies West Publishing (proprietor of Westlaw) and Reed Elsevier (proprietor of LexisNexis). The plaintiffs allege that by including legal filings—such as motions, briefs, and memoranda—in their databases, the defendants are engaging in copyright infringement.

The complaint alleges that Westlaw and LexisNexis engage in "unabashed wholesale copying" of attorneys' copyrighted works, and also violate attorneys' distribution and derivative-work rights by maintaining the databases. Plaintiffs also allege that defendants' conduct does not "fall within any of the statutory exceptions to copyright infringement."

The complaint also argues that the case is properly handled as a class-action. Named plaintiff Edward White represents the subclass of attorneys who have registered copyrights in their legal documents; copies of White's copyright registrations are attached to the complaint. The other named plaintiff, Kenneth Elan, represents attorneys who have not registered their copyrights. The complaint alleges that between the two, the named plaintiffs adequately represent the class, defined as "all attorneys and law firms . . . authorized to practice law in the United States . . . that authored works . . . contained in the Defendants' searchable databases." The plaintiffs do not purport to represent any employees of any level of any government, nor do they represent the defendants' own companies and employees.

The complaint requests declaratory judgments of the defendants' copyright infringement, permanent injunctions, actual damages for all attorneys in the class, and, for attorneys that have registered their copyrights, statutory damages and disgorgement of defendants' profits.

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CMLP Notes: 

3/26/2012: JS creating

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Righthaven is no more! It has ceased to be! It's expired and gone to meet its maker!

If there is a polar opposite to organizations like ours, it is the intellectual property troll.  And in the IP troll heirarchy, one of the trolliest has long been Righthaven, the self-described "pre-eminent copyright enforcer" that sued hundreds of bloggers and other Internet denizens apparently as part of its business model.  If the DMLP, the EFF, Public Citizen, and the like are the Justice League, Righthaven would be in the Secret Society of Supervillians.

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NewsRight: Rest Easy, We Won't be Righthaven 2.0

Looking to make their brand “a little more memorable,” the News Licensing Group is now NewsRight – and is billing itself as an “easy rights clearinghouse for the best news reporting and original journalism on the Web.”

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Righthaven's Copyright Trolling is a Bankrupt Idea

It’s been several months since we last checked up on Righthaven.  How is everybody’s favorite copyright troll doing?

Well, they might be going bankrupt:

The Las Vegas copyright-trolling firm Righthaven told a Nevada federal judge Friday [September 9, 2011] it might file for bankruptcy protection, or cease operations altogether.

To prevent that, Righthaven is asking U.S. District Judge Philip Pro to stay his decision requiring Righthaven pay $34,000 in legal fees to an online commenter it wrongly sued for infringement.

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Newport Television, LLC v. Free Press

Threat Type: 

Correspondence

Date: 

07/01/2011

Party Receiving Legal Threat: 

Free Press

Type of Party: 

Media Company

Type of Party: 

Organization

Legal Counsel: 

Corie Wright (Policy Counsel for Free Press)

Publication Medium: 

Website

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Status: 

Pending

Description: 

Non-profit media reform organization Free Press recently created a brief video related to its "Change the Channels" campaign, a campaign to resist what it calls the "covert consolidation" of media companies. The video included a critique of Jacksonville, Florida stations WAWS-TV (a Fox affiliate) and WTEV-TV (a CBS affiliate), who share a common website. The video was posted on YouTube.

Newport Television, LLC, a television station holding company that is the owner of WAWS-TV and the operator of WTEV-TV, sent Free Press a cease-and-desist letter on July 1, 2011, demanding that Free Press remove all WAWS and WTEV content from the video, including the stations' logos. Newport alleges that Free Press's use of the  logos constitutes copyright infringement. The letter also suggests that use of the stations' logos was false and misleading. Newport further requested that YouTube remove the Free Press video under the notice-and-takedown procedures of the Digital Millennium Copyright Act. YouTube complied with this takedown request on July 7.

On July 8 Free Press responded to Newport's letter, rejecting Newport's copyright claim and its suggestion that any of the material in the video was false or misleading. Free Press further asserted that the DMCA takedown filed by Newport was without merit, constituting tortious interference with contract and a unlawful misrepresentation under the DMCA. Free Press also asserts that they have filed a DMCA counter-notice with YouTube, demanding that the video be reinstated.

The issue is still pending.

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Righthaven LLC v. BuzzFeed, Inc.

Threat Type: 

Lawsuit

Date: 

03/30/2011

Party Receiving Legal Threat: 

BuzzFeed, Inc; Gavin Laessig; Jonah Peretti

Type of Party: 

Media Company

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

United States District Court for the District of Colorado

Case Number: 

1:11-cv-00811

Legal Counsel: 

Kathryn Reed DeBord; Peter John Korneffel, Jr.

Publication Medium: 

Website

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Status: 

Pending

Description: 

Righthaven LLC, a Las Vegas company, filed a copyright infringement lawsuit in the U.S. District Court for the District of Colorado against BuzzFeed, Inc. (the operator of an internet news website), Jonah Peretti (the founder and CEO of BuzzFeed and the registrant of the domain name buzzfeed.com), and Gavin Laessig (an employee of BuzzFeed).  Righthaven alleges that the defendants reposted on the BuzzFeed website, without permission, a photograph of a TSA agent performing an enhanced pat-down check that was originally published in The  Denver Post.  In addition to seeking monetary damages, Righthaven has demanded that the court compel BuzzFeed’s domain name registrar to transfer control of the buzzfeed.com domain to Righthaven.

Defendants BuzzFeed and Peretti answered the complaint, denying Righthaven’s claims of copyright infringement and asserting numerous affirmative defenses to the complaint (including challenging Righthaven’s ownership of the copyright in the photo, claiming copyright abuse, asserting a lack of personal jurisdiction over the defendants and a lack of proper venue in Colorado, and objecting to transfer of the buzzfeed.com domain name as a remedy beyond the scope of the Copyright Act).  BuzzFeed and Mr. Peretti further asserted that valid service had not been made on the third defendant, Mr. Laessig.

Defendants BuzzFeed and Peretti also filed a class action counterclaim against Righthaven based upon its filing suit for copyright infringement in at least 275 cases, primarily in Nevada and Colorado.  The counterclaim seeks a declaratory judgment that the class/counterclaim plaintiffs’ use of the alleged copyrighted works was fair use and an injunction against Righthaven filing additional copyright lawsuits.  The counterclaim also includes claims for abuse of process and violation of Colorado’s unfair and deceptive trade practices statute, C.R.S. § 6-1-105, based upon Righthaven’s litigation history.  Specifically, the counterclaim alleges that Righthaven (1) failed to send the class/counterclaim plaintiffs any notice and takedown communication prior to filing suit, (2) sought relief to which it knew it was not entitled by seeking locking and transfer of domain names, (3) asserted ownership of copyrights that it did not own, (4) failed to investigate or adequately allege personal jurisdiction over the class plaintiffs, (5) failed to investigate whether the challenged uses of the copyrights were fair use, and (6) abused the legal system by using the threat of statutory damages and injunctive relief to extract monetary settlements.

Update:

5/19/2011:  After the filing of BuzzFeed’s answer and counterclaim, the court stayed the action (as well as all other Righthaven litigation in the District of Colorado) in response to a motion to dismiss in another Righthaven case in the district (Righthaven LLC v. Wolf et al., No. 1:2011-cv-00830) raising questions of subject matter jurisdiction.

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The Sound of Fury in Recent Righthaven Cases

Two legal developments in Nevada and Colorado last week make Righthaven (previous post here) a textbook example of how not to win a lawsuit.  In their cases against the Democratic Underground (of which details can be found in the CMLP legal threats database) and Brian Hill (whose case filings are available on Scribd), Righthaven appears to be suing without owning the copyright and picking a fight with the judge handling dozens of still-pending cases, respectively.

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Righthaven LLC v. Vote For The Worst, LLC

Date: 

06/28/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Vote For The Worst, LLC,, Nathan Palmer, David J. Della Terza

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

2:10-cv-01045

Legal Counsel: 

Marc Randazza and James M DeVoy of Randazza Legal Group; John L. Krieger and Nikkya G. Williams of Lewis and Roca LLP

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

On June 28, 2010, Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against the website company Vote for the Worst ("VFTW") LLC and two of its managers, David Della Terza and Nathan Palmer.  Righthaven sued VFTW after a user posted a Las Vegas Review-Journal article on the site's forum.

On August 16, 2010, VFTW moved to dismiss.  VFTW argued that the court lacked personal jurisdiction because none of the defendants are residents of or have sufficient contacts with Nevada.  The court denied VFTW's motion on March 30, 2011.

VFTW filed an answer on April 13, 2011, asserting defenses of fair use, lack of personal and subject matter jurisdiction, and innocent infringement. 

Update:

4/17/2011 - VFTW filed a motion to dismiss for lack of subject matter jurisdiction, based on the recently-unsealed agreement that purported to assign Stephens Media's copyright in various content to Righthaven.  Hoehn argued that the agreement, which was unsealed by the court hearing Righthaven LLC v. Democratic Underground LLC, shows that Righthaven lacks the standing to sue because Righthaven was not the exclusive holder of any rights in the copyrighted material at issue in the lawsuit.  Under Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881 (9th Cir. 2005), a plaintiff must be the exclusive holder in a copyright to sue.  Under the unsealed agreement, Stephens Media retained exclusive rights in the works, thereby preventing Righthaven from being able to sue on the copyright.

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The (Statutory) Damage is Done

A few days ago, I attended oral arguments before the First Circuit Court of Appeals in the case of Joel Tenenbaum, a graduate student being sued by various record labels for sharing music files via a peer-to-peer service over the Internet (Sony v. Tenenbaum, docket available here).  I’ve already written up some of my thoughts about the possible outcome of Joel’s lawsuit over at my regular blog, Legally Sociable.

Here, I’d like to expand my analysis somewhat to cover Tenenbaum’s broader implications.  Many CMLP blog readers may be asking themselves, “So what?  What could swapping MP3’s on the Internet possibly have to do with the activities of citizen journalists?”

Under an ideal intellectual property regime, the answer would doubtless be “very little.”  Non-commercial use of music for personal entertainment bears little logical resemblance to news reporting, analysis, and advocacy.  One might reasonably imagine that IP law treats P2P music downloading differently from blogging about the news.

Unfortunately, in the real world, the law ends up treating blogging almost exactly like file sharing because both activities primarily fall within the purview of copyright law.  Moreover, 17 U.S.C. § 504(c) provides extremely flexible statutory penalties “as the court considers just.”

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Is Righthaven Harming the News Industry?

Righthaven, a copyright-enforcement entity that sues first and asks questions later, comes up a lot here at the CMLP, both on the blog and in the legal threats database.  As a recent profile on CNN.com illustrates, Righthaven’s founder Steve Gibson thinks he is simply enforcing content owners’ rights within the digital landscape:

What really is happening here is a realization of the infringement community that the days of merely receiving a takedown letter are over, and that people will have a means to protect their ownership rights. Like you're taught in grammar school, it's not right to take someone else's work, whether it's cheating or plagiarizing. Whether the Internet permits you to do it, that doesn't make it right.

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Righthaven LLC v. Hoehn

Date: 

01/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Wayne Hoehn

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

2:11-cv-00050

Legal Counsel: 

Marc Randazza, James M DeVoy of Randazza Legal Group

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against Wayne Hoehn.  Righthaven alleged that Hoehn copied an article from the Las Vegas Review-Journal without permission and posted it to the forums of the website Madjack Sports.

In his answer, Hoehn argued that his use of the article was protected as fair use, and that the court lacked jurisdiction over the case, as Hoehn is a Kentucky resident, the website in question is hosted in California, and his comments concerned matters in California and Illinois. 

Hoehn filed a motion for summary judgment on February 2, 2011, arguing that his copying of the article was for a transformative purpose and educational use.  As such, Hoehn wrote, his copying is protected as fair use and as Righthaven failed to show otherwise, he is entitled to summary judgment.  In its response, Righthaven argued that there are too many genuine issues of fact regarding Hoehn's copying to warrant summary judgment, and that Hoehn's copying was not fair use.

Update:

3/24/2011 - Hoehn filed a response to Righthaven's opposition to his motion for summary judgment, arguing that the court has all the facts it needs to rule on summary judgment.  Hoehn's substantive argument relies heavily on U.S. District Judge James Mahan's March 18 decision to dismiss another Righthaven lawsuit, Righthaven LLC v. Center for Intercultural Organizing, on fair use grounds.  In that case, the defendant copied an entire article for educational purposes.  Hoehn argued that the facts of his case are analogous, and therefore deserving of the same fair use protection.

4/17/2011 - Hoehn filed a motion to dismiss for lack of subject matter jurisdiction, based on the recently-unsealed agreement that purported to assign Stephens Media's copyright in various content to Righthaven.  Hoehn argued that the agreement, which was unsealed by the court hearing Righthaven LLC v. Democratic Underground LLC, shows that Righthaven lacks the standing to sue because Righthaven was not the exclusive holder of any rights in the copyrighted material at issue in the lawsuit.  Under Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881 (9th Cir. 2005), a plaintiff must be the exclusive holder in a copyright to sue.  Under the unsealed agreement, Stephens Media retained exclusive rights in the works, thereby preventing Righthaven from being able to sue on the copyright.

6/20/2011 - Court granted Defendant's Motions to Dismiss for Lack of Subject Matter Jurisdiction and for Summary Judgement. 

CMLP Notes: 

More docs from Randazza - AAB 3/24/11

More docs from Jay - AAB 4/18/11

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2-Normal

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Righthaven LLC v. Democratic Underground

Threat Type: 

Lawsuit

Date: 

08/10/2010

Party Receiving Legal Threat: 

Democratic Underground, LLC; David Allen

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

2:10-cv-01356

Legal Counsel: 

Andrew P. Bridges, Winston & Strawn; Kurt Opshal, Electronic Frontier Foundation

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

On August 10, 2010, Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against the website Democratic Underground ("DU") and its owner, David Allen. 

As illustrated by an exhibit to the Complaint, a DU user going by the screen name "pampango" posted the first four paragraphs of a Review-Journal article entitled "Tea Party power fuels Angle" in the website's forums on May 13, 2010, with a link back to the remainder of the 34-paragraph article on the Review-Journal website. The Complaint seeks statutory damages for willful infringement, transfer of the democraticunderground.com domain name, and costs and attorneys' fees.

On September 27, 2010, attorneys for DU, including attorneys with the Electronic Frontier Foundation, filed an Answer and Counterclaims against Righthaven, seeking a declaratory judgment of noninfringement, as well as costs and attorneys' fees.  The counterclaims also named Stephens Media.

Update:

11/15/2010 - Righthaven moved to voluntarily dismiss with prejudice its complaint against DU.  Righthaven said that its decision was based on an intervening fair use ruling in Righthaven LLC v. Realty One Group, Inc., and argued that it would be unfair to force Righthaven to continue to litigate its present case.

11/17/2010 - Stephens Media moved to dismiss or strike DU's counterclaims against it.  Stephens Media argued that no controversy existed between it and DU, and that DU failed to state a claim against Stephens Media.  Stephens Media also partially joined Righthaven's motion to voluntarily dismiss its complaint.

12/7/2010 - DU filed briefs in opposition to both Righthaven's motion for voluntary dismissal and Stephens Media's motion to dismiss.  DU argued that Righthaven's complaint was meritless from the start, and that DU was entitled to seek attorneys fees even if Righthaven dropped the complaint.  DU also argued that its counterclaims against Righthaven did not depend on Righthaven's complaint, and thus still merited litigating.  Regarding the Stephens Media motion, DU argued that its counterclaim against Stephens Media did set out a controversy between the parties, and that the dismissal of Righthaven's complaint had no bearing upon that controversy.

3/4/2011 - DU filed a motion to for leave to file a supplemental memo addressing new evidence relating to various pending motions.  DU also moved to seal its motion as the evidence contained documents marked "Confidential Attorneys’ Eyes Only" by Stephens Media.  DU said it would seal the documents until it could discuss with opposing counsel which portions should be made publicly available.

3/29/2011 - DU moved to unseal the documents.  DU stated that Stephens Media and Righthaven refused to lift its designation of  "Confidential Attorneys’ Eyes Only" and did not reach a stipulated resolution with DU.  DU added that Stephens Media and Righthaven failed to file any justification with the court for keeping the documents sealed.  Thus, DU argued, they failed to meet their burden of showing why the documents should remain sealed, and so the documents should be made public.

4/11/2011 - The court granted DU's motion to unseal the documents.  The documents were revealed to include a "Strategic Alliance Agreement" between Stephens Media and Righthaven, describing the terms of copyright assignments for the purposes of litigation against infringers.  The agreement states among other things that Righthaven has no right to exploit the copyrights at issue, other than via recovery from lawsuits, and that Stephens Media retains control over who Righthaven sues.

6/14/2011 - Court concluded that there was no absolute transfer of any right within copyright, and that Stephens Media, the original copyright holder, retained actual control even over the right to sue for infringement. Finding that "[p]ursuant to Section 501(b) of the 1976 Copyright Act, 17 U.S.C. § 101, et. seq., only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement," the court held that Righthaven lacks the ability to bring the instant case. As such, it grants Democratic Undergound's motion for summary judgment, and dismisses as moot the Motions from Stephens Media and Righthaven. 

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Who's Afraid of the News Aggregators?

As anyone who has been following the debate regarding the "future of journalism" knows, there have been a lot of ink (and bytes) spilled arguing over the role news aggregators are playing in the "decline" of traditional journalistic models.  Rupert Murdoch has labeled the practice of news aggregation by entities like Google News "

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