Fair Use

LA Times v. Free Republic

Date: 

09/28/1998

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Los Angeles Times; The Washington Post Company; Washington Post Newsweek Interactive Company

Party Receiving Legal Threat: 

Free Republic; Electronic Orchard; James Robinson; John Does 1-10

Type of Party: 

Media Company

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California; United States Court of Appeals for the Ninth Circuit

Case Number: 

98-CV-7840 (trial), 00-57211 (appeal)

Verdict or Settlement Amount: 

$10,000.00

Legal Counsel: 

David Flyer, Brian Buckley (Brian L Buckley Law Offices)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued
Settled (total)
Verdict (plaintiff)

Description: 

On September 28, 1998, the Los Angeles Times sued the Free Republic website for copyright infringement in federal court in California. Users of Free Republic, a conservative internet forum founded and operated by James Robinson, frequently posted copies of articles of interest for discussion on the site. According to the complaint, articles from the Times and the Washington Post were copied verbatim and in their entirety.

Free Republic asserted that the copies constituted fair use under copyright law and were a mode of free speech under the First Amendment, and moved for summary judgment on those grounds on October 19, 1999. The Times filed a cross-motion for partial summary judgment on the question of infringement. The court denied Free Republic's motion and granted the Times' motion, ruling that the fair use doctrine's factors weighed in favor of the Times and that enforcing the plaintiffs' copyright claims did not impermissably restrict the speech of Free Republic users.

On November 16, 2000, the court entered final judgment in favor of the Times, and ordered Free Republic to remove all of the plaintiffs' copyrighted material from its website and enjoined Free Republic from posting any new copyrighted material in the future. (The court did note that Free Republic could post copyrighted material if it met the requirements of the fair use doctrine.) The court also awarded the Times $1 million in statutory damages from Robinson and Free Republic. Electronic Orchard, an Internet programming and design company owned by Robinson, was not found liable for damages.

Free Republic appealed the decision to the Ninth Circuit Court of Appeals. While on appeal, the parties agreed on a modified version of the district court's judgment and settled the case. The modified judgment still retained the injunction but reduced the damage award from $1 million to $5,000 to the Times and $5,000 to the Post. The Court of Appeals remanded the case back to the trial court for the purposes of entering the modified judgment.

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Highlights from the Legal Guide: An Overview of Copyright

This is the ninth in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on copyright, which provides an overview of this important area of law and offers practical advice to citizen media creators on how to use the copyrighted works of others and protect their own work from exploitation.

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Crazy Legal Battle Between Newspapers Settles, But Leaves Worrisome Fair Use Decision Intact

Many readers are probably familiar with the meltdown of the Santa Barbara News-Press, a local daily newspaper in Santa Barbara, California. Starting in 2006, reporters and editors of the newspaper clashed with now-infamous Wendy McCaw, controlling shareholder of Ampersand Publishing LLC, which owns the paper. Tensions swirled around McCaw's perceived intervention in editorial and reporting judgments, traditionally left to the paper's professional staff.

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Ampersand Publishing v. Santa Barbara Independent

Date: 

10/26/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

The Santa Barbara Indpendent, Inc.

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California, Western Division

Case Number: 

2:06-cv-06837

Legal Counsel: 

Louis P. Petrich, Robert S. Gutierrez, Thomas J. Peistrup - Leopold, Petrich & Smith, P.C.

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (total)

Description: 

In October 2006, Ampersand Publishing LLC, the company that owns the Santa Barbara News-Press, filed a lawsuit against Santa Barabara Independent, Inc., publisher of the Santa Barbara Independent, another local newspaper. The case arose out of Independent editor Nick Welsh's posting of a draft News-Press article in connection with a post on his "Angry Poodle" blog on the Independent's website. The facts are a bit complicated.

Welsh's post appeared on July 14, 2006, during the turmoil following the resignation of several of the News-Press's top editors and a leading columnist because of conflicts between the newspaper staff and Wendy McCaw, the local billionaire who controls Ampersand and essentially owns the News-Press. On July 6, 2006, News-Press reporter Scott Hadley wrote an article about the resignations, but the News-Press chose not to publish it, and instead published a "note to readers" written by McCaw, which discussed the resignations and the departing staff members' supposed motivations for leaving. Apparently in response to this decision, Scott Hadley also resigned from the News-Press. (Since then, over fifty more employees have either quit or been fired. The whole crazy drama is chronicled in the documentary film, Citizen McCaw.)

Welsh's July 14 post reported on Hadley's resignation and criticized the News-Press for publishing McCaw's "note to readers" instead of Hadley's article. Crucially, Welsh included a hyperlink in the blog post to a copy of Hadley's draft article, which an unknown person had sent to the Independent's office the day before. (The link in Welsh's post led to a scanned PDF of the article hosted on the Independent's site). Welsh and the Independent contend that Welsh posted the draft in order to expose and comment upon what he saw as the censorship of an unflattering article. In court documents, they also argue that Welsh's use of the draft "contrasted its fact-based account of the News-Press resignations with the defensive editorializing published by the News-Press." The link and the draft article remained online from July 14 to July 19, at which point the Independent removed them after Ampersand threatened legal action.

Ampersand sued the Independent in federal court in California, claiming that Welsh's posting of the draft article constituted copyright infringement. Ampersand also alleged that Welsh had misappropriated its trade secrets by acquiring and publishing the draft article and by acquiring another draft News-Press article relating to the paper's arbitration proceeding against a former editor. (Welsh and the Independent deny ever obtaining a copy of this latter arbitration article.) Ampersand argued that although the draft articles contained publicly available facts, they also embodied confidential processes and information because they reflected the reporters' labors and ideas of how to investigate and report on an issue. Ampersand also brought claims for unfair competition under California law, intentional interference with propsective economic advantage and contract, and negligent interference with prospective economic advantage and contract.

In September 2007, both parties moved for summary judgment. Among other things, the Independent argued that Welsh's publication of Hadley's draft article for purposes of commentary and criticism was a fair use, that the draft article was not a trade secret, and that it never acquired or published a copy of the arbitration article. Ampersand argued that it was entitled to judgment as a matter of law on its copyright infringement claim. In November 2007, the court granted Ampersand summary judgment on its copyright infringement claim, holding that Welsh's posting of Hadley's draft article was not fair use. The court dismissed Ampersand's trade secret claim based on the Hadley article, finding that the draft was not a trade secret. It reserved decision on the trade secret claim relating to the arbitration article, pending resolution of Ampersand's motion to compel Welsh to answer questions about his source of information about the article. (Welsh had refused to answer these questions, relying on the federal reporter's privilege.) The court also dismissed the unfair competition and tortious interference claims, finding that they were preempted by federal copyright law and the California Uniform Trade Secrets Act.

After this ruling, the only issues remaining were the amount of damages to be awarded to Ampersand on the copyright infringement claim and whether Ampersand had a valid trade secret claim based on Welsh's alleged acquisition of the arbitration article. Related to this latter issue, the parties fought bitterly over Ampersand's motion to compel Welsh to reveal the source of his information about the arbitration article, presenting a bizarre and unprecedented legal battle between two newspapers over application of the reporter's privilege. Before the court resolved the motion to compel or ruled on the final trade secret claim, the parties settled the case. As part of the settlement, the Independent agreed not to challenge the court's ruling that it had violated federal copyright law. The financial terms of the settlement are not public.

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Rowling v. RDR Books: Harry Potter Lexicon Trial Starts Today

The trial in Rowling v. RDR Books starts today in the United States District Court for the Southern District of New York. The New York Times reports that Rowling herself will take the witness stand.

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GreatSchools, Inc. v. Maura Larkins

Date: 

03/13/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Maura Larkins

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Description: 

Maura Larkins, who maintains the San Diego Education Report website and writes about education attorneys in San Diego, created a page on her website where she reproduced material from a forum thread from SchwabLearning.org's Parent-to-Parent message board. Her purpose in doing so was to explain and illustrate her suspicion that a pseudonymous poster to the message board, "asearchers," was an attorney posting comments in an effort to discredit special education parents who had complained that their children were not receiving appropriate educations.

On March 13, 2008, a representative of GreatSchools, Inc., the company that owns SchwabLearning.org, emailed Larkins, demanding that she cease and desist from using SchwabLearning.org's content on her site. The email stated that reproducing message board content without permission was a violation of the GreatSchools Terms of Use. It further indicated that GreatSchools would take legal action if Larkins failed to remove the content within two business days.

Larkins has not removed the material (as of 3/19/08), citing a fair use notice that appears on the homepage of her website.

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CMLP Notes: 

Status checked on 6/4/2008, updated link to asearchers pages on Larkins' site.  No mention of new threats from GreatSchools on her site. (AAB)

YouTube Removes “Shred” Parody Videos; WIRED Puts Them Back Up

Earlier this month, some of the most creative and entertaining parody videos on the Web were pulled from YouTube over dubious copyright claims. The disputed works, known as the “shred” videos, are a series of parodies in which Finnish media artist Santeri Ojala overdubs performances of legendary guitarists such as Steve Vai, Carlos Santana, and Eric Clapton. Ojala replaces the audio tracks of the guitarists' performances with his own (intentionally) bad guitar playing.

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Three Unnamed Guitar Heroes v. Ojala

Date: 

02/01/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Santeri Ojala

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Description: 

Finnish media artist Santeri Ojala created a series of popular YouTube videos that parody legendary guitarists such as Steve Vai, Carlos Santana, and Eric Clapton. In the videos, Ojala overdubbed the guitarists' performances with his own (intentionally) bad guitar playing. The combination of the guitarists' rock-star stage antics and Ojala's amateurish noodling was humorous and well-executed enough to warrant attention from Wired, Guitar Player magazine, and the Jimmy Kimmel Live! television show, among others. Guns N' Roses guitarist Slash, who was a guest on the same episode of Jimmy Kimmel's show, jammed with Ojala after Ojala performed a live parody of a Slash concert video on the show.

In early 2008, YouTube recieved three complaints regarding the videos, which appear to have come from artists that Ojala had parodied. YouTube disabled Ojala's account in response. According to Listening Post, a Wired.com blog, YouTube parent company Google has a policy of disabling accounts that have "multiple copyright infringement claims filed against them." At this point Ojala has not taken action to reinstate his account; the Listening Post quotes Google as saying that this would require that Ojala "hire a lawyer and appeal the artists' infringement claims."

It remains to be seen whether YouTube will reactivate Ojala's account or whether the videos will result in liability.

Update:

Ojala still is producing shred videos, as can be seen at his website.

Wired.com, which has covered the situation in a number of articles and blog posts, now hosts some of the videos.

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CMLP Notes: 

6/09/2008 (JMC) - No developments found.

ABC v. Spocko

Date: 

12/21/2006

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Spocko

Type of Party: 

Organization
Large Organization

Type of Party: 

Individual

Legal Counsel: 

Matt Zimmerman (Electronic Frontier Foundation)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Blogger "Spocko" posted audio clips from a talk radio program on San Francisco-based KSFO-AM on his blog in order to criticize what he viewed as racially insensitive and religioulsy intolerant rhetoric on the part of the radio hosts. In December 2006, ABC, Inc., which owned the radio station and the copyrights to the radio show content, sent a letter to Spocko's hosting service, 1&1 Internet Inc., claiming that the posted audio clips violated its copyrights and demanding that 1&1 direct Spocko to remove the content immediately.

After receiving ABC's letter, the hosting service shut down Spocko's blog, but Spocko moved the blog to a different provider. The Electronice Frontier Foundation took on the case and responded to ABC's letter on Spocko's behalf in January 2007. EFF's letter articulated in detail why Spocko's use of the audio clips for purposes of criticizing the radio program was a fair use protected by U.S. copyright law and the First Amendment. The letter warned ABC that its claim that Spocko had violated its copyright could subject the company to liability for knowing, material misrepresentation of a claim of copyright infringement in violation of section 512(f) of the DMCA and for violations of Cal. Bus. & Prof. Code § 17200, a California law prohibiting unlawful, unfair, or fraudulent business practices.

Neither side filed a lawsuit.

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Geller v. Sapient (Letter)

Date: 

10/02/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Brian Sapient

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

US District Court for the Northern District of California

Case Number: 

3:07-cv-02478 VRW

Legal Counsel: 

Corynne Mcsherry, Jason Schultz, Marcia Hofmann (Electronic Frontier Foundation)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

Brian Sapient, a member of the "Rational Response Squad," a group which seeks to debunk what it considers irrational beliefs, posted a video on YouTube from the NOVA television program "Secrets of the Psychics," in which magician James Randi challenges the performance techniques of famous spoon-bender Uri Geller. The clip allegedly incorporated images from a film of Geller performing at a charity event in England, the copyrights to which were assigned by the film-maker to Geller's company, Explorologist. According to Sapient, this portion of the NOVA clip lasts only eight seconds.

Geller sent a DMCA takedown notice to YouTube, alleging that the NOVA clip infringed his copyrights in the charity performance film. As a result,
YouTube removed the video from its website and suspended Sapient's account.

On May 8, 2007, Sapient, with the help of the Electronic Frontier Foundation, filed a lawsuit alleging that Geller's takedown notice knowingly, materially misrepresented a claim of copyright infringement in violation of section 512(f) of the DMCA because no reasonable person could believe that the NOVA clip's use of the excerpted footage was not fair use. Sapient seeks damages, a declaratory judgment the video does not infringe Geller's copyrights, and an order restraining Geller from bringing further actions against Sapient in respect of the video.

(See also CMLP's entry for the related case, Explorologist v. Sapient, a suit brought by Geller's company against Sapient in Pennsylvania alleging that the publication of the footage breaches Explorologist's copyrights under UK law.)

UPDATE: Defendants filed a motion to dismiss the case due to lack of subject-matter jurisdiction, lack of personal jurisdiction, and insufficiency of allegations surrounding the content of the takedown notice. The defendants also moved to change venue to the Eastern District Pennsylvania, where the Explorogist v. Sapient case is being heard. On Feb. 4, 2008, the court granted the motion to dismiss as to personal jurisdiction, primarily because the DMCA takedown notice was sent from outside the United States. The court noted that Sapient may now bring his misrepresentation claim against Geller as a counterclaim in the Explorologist case.

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Universal Music Group v. Malkin

Date: 

05/03/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Michelle Malkin

Type of Party: 

Large Organization

Type of Party: 

Individual

Publication Medium: 

Podcast

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Michelle Malkin, a political commentator and columnist, publishes a daily video podcast called "Vent with Michelle Malkin." The video podcast appears on Malkin's conservative Internet broadcast network Hot Air and is also regularly posted on YouTube. In the May 2, 2007 edition of Vent, entitled "Akon's Assault," Malkin criticized hip hop artist Akon for being a mysogynist and supported her arguments with excerpts from Akon's music videos and video footage from a concert in Trinidad.

On May 3, 2007, YouTube removed "Akon's Assault" in response to a claim of copyright infringement by Universal Music Group (UMG), the company that distributes Akon's albums and other content.

Malkin, with the help of the Electronic Frontier Foundation, responded by sending a counternotice to YouTube, asserting that the video did not infringe UMG's copyright and was protected under the fair use doctrine. Youtube restored the video, and UMG retracted its claim of copyright infringement.

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Viacom v. MoveOn.org and Brave New Films

Date: 

03/13/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

MoveOn.org; Brave New Films, LLC

Type of Party: 

Large Organization
Media Company

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California (lawsuit in response)

Legal Counsel: 

Fred von Lohmann, Lawrence Lessig, Anthony T. Falzone (MoveOn and Brave New Films)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

MoveOn.org, a progressive political organization, and Brave New Films, LLC, a politically oriented film company, created a video parodying Comedy Central's Colbert Report. The video, entitled "Stop the Falsiness," shows clips of the Colbert Report interspersed with tounge-in-cheek "commentary" from MoveOn activists and other political personalities, including liberal pundit Al Franken and Democratic sentator Russ Fiengold. MoveOn and Brave New Films uploaded the video to YouTube in August 2006. They also published it on a separate website, Stop the Falsiness.

On or about March 13, 2007, Viacom, the corporate parent of Comedy Central, delivered a takedown notice to YouTube pursuant to section 512(c) of the Digital Millennium Copyright Act, apparentl asserting that "Stop the Falsiness" violated its copyright and requesting that it be taken down. (Although Viacom later disputed sending the takedown demand, a notice appeared on YouTube on March 13, 2007 indicating that the video had been removed due to a copyright claim by Viacom, and Viacom ultimately relented.)

MoveOn and Brave New Films responded by suing Viacom under section 512(f) of the DMCA for knowing, material misrepresentation of its claim of copyright infringement with regard to the video. The suit was based on the argument that the video was so clearly a fair use that Viacom could not have asserted in good faith that the clip infringed its copyright. Viacom responded with a letter to the lawyers for MoveOn and Brave New Films, indicating that Viacom could not confirm sending the takedown notice and stating that Viacom had "no problem with your client's continued use of [the video] on its website or on YouTube."

That did not completely satisfy MoveOn and Brave New Films, and further negotiations took place between the lawyers. Eventually, Viacom agreed to adopt new policies enabling YouTube users to complain directly to Viacom about mistaken takedown notices and affirming the company's respect for fair use of its copyrighted materials. MoveOn and Brave New Films then dismissed the suit.

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Savage v. CAIR: The Council on American-Islamic Relations Asks Court to Dismiss Michael Savage's Lawsuit

I've blogged before about the Savage v. CAIR lawsuit, in which the conservative talk show host claims that CAIR violated his copyright (and the Racketeer Influenced and Corrupt Organizations Act!) by posting and commenting critically on an audio clip from one of his shows, in which Savage makes all sorts of hateful and inaccurate claims about Muslims and the Islamic faith.

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Primer on Copyright Liability and Fair Use

As a lead up to the launch of the Citizen Media Law Project's Legal Guide later this month, we are putting up longer, substantive blog posts on various subjects covered in the guide. This post is the second in our series of legal primers. The first addressed the subject of immunity and liability for third-party content under section 230 of the Communications Decency Act.

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Mashups, DVD Ripping, and Fair Use

Chris Soghoian at CNET Blogs published an interesting post yesterday -- Did Slate violate copyright law? It talks about a hilarious mashup video that Slate posted a few days ago called Hillary's Inner Tracy Flick, which juxtaposes images from the 1999 film Election and current footage of presidential hopeful Hillary Clinton.

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Comparative Analysis of Copyright Fair Use in Canada, United Kingdom, and United States

Giuseppina D'Agostino, a law professor at Osgoode Hall Law School in Toronto, has a new paper coming out entitled "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use." Here is the abstract:

As a result of the March 4, 2004 Supreme Court of Canada decision in CCH Canadian Ltd v Law Society of Upper Canada for the first time in Canadian copyright history, the court determined that Canadian law must recognize a "user right" to carry on exceptions generally and fair dealing in particular. This paper compares the Canadian fair dealing legislation and jurisprudence to that of the UK and the US. It is observed that because of CCH, the Canadian common law fair dealing factors are more flexible than those entrenched in the US. For the UK, certain criteria have emerged from the caselaw consonant to Canada's pre-CCH framework and in many ways there is now a hierarchy of factors with market considerations at the fore.
The real differences, however, ultimately lie in the policy preoccupations held by the respective courts, with Canada's top court alone concerned in championing user rights above all other rights. The paper concludes that Canadian fair dealing does not require too much healing but would benefit from some remedies outside (and complimentary to) the law and the courts. While doing nothing does not seem to be the appropriate response, legal intervention as many advocate may not be warranted either. Rather than, or at the very least together with, reforming the law, establishing fair dealing best practices is most promising. The parties directly affected in a specific industry can together develop these guidelines to ultimately aid in clearer and ongoing fairer fair dealing decision-making in the courts. It is here that US initiatives can serve as most fruitful to emulate.

It's nice to see some scholarly attention paid to the differences between the Canadian, U.K., and U.S. approaches to this important subject.

You can download the entire article from the Social Science Research Network.

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Gawker Defies Demand from Church of Scientology to Remove Creepy Tom Cruise Video

Earlier this week, a promotional/inspirational video for the Church of Scientology featuring Tom Cruise began circulating online. The video is bizarre -- against the background of what sounds like the Mission Impossible theme, Cruise extols the virtues of Scientology and urges viewers to embrace its ethics and worldview. Among many, many other things, he drops gems like "We are the authorities on getting people off drugs. We are the authorities on the mind.

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Fitzgerald v. CBS Broadcasting

Date: 

10/12/2004

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Christopher Fitzgerald

Party Receiving Legal Threat: 

CBS Corporation

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts

Case Number: 

04cv12138 and 06cv11302

Legal Counsel: 

Jonathan Albano, Mary Murrane

Publication Medium: 

Broadcast
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (total)

Description: 

Christopher Fitzgerald, a freelance photographer who was working on assignment for the Boston Globe, photographed well-known mobster Stephen Flemmi on January 6, 1995 while Flemmi was being transferred shortly after his arrest. Fitzgerald was the only photographer at the scene, and thus his are the only known publicly-available photographs of Flemmi’s arrest. In June 2004, two CBS affiliate stations in Boston, CBS-4 and UPN-38, broadcast one of Fitzgerald's photographs without permission and CBS-4 put the photo on its website.

On October 12, 2004, Fitzgerald sued CBS for copyright infringement. Fitzgerald also filed a second, nearly identical copyright action (06-11302) against CBS based on the same set of facts, seeking to collect double statutory damages because the broadcast at issue went out over two of CBS’s Boston affiliate stations.

Several years prior to this action, Fitzgerald had sued CBS over the use of the same photographs in its show "60 Minutes." That lawsuit ended in a settlement, and CBS took steps to ensure that the photographs were not accidentally broadcast again. However, at least one copy of a photograph was not destroyed, and it was used in 2004 by the CBS affiliate stations.

On September 1 and 20, 2006, the parties filed cross motions for summary judgment, with CBS asserting that its use of the photograph constituted fair use under copyright law. The district court granted partial summary judgment for Fitzgerald as to CBS's liability, but denied Fitzgerald's claim for summary judgment as to willfullness. The court also consolidated the two lawsuits because they were based on the same set of facts.

Two final determinations are left to the jury: (1) whether CBS's use of the photograph was willful copyright infringment and (2) the extent of Fitzgerald's damages.

Update:

4/14/2008 - Judge dismissed the case after parties reached a settlement.

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CMLP Notes: 

Status checked on 6/4/2008 (AAB)

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