Another media meme is created. Plus — some legal lessons.
A lawsuit filed late on Friday, September 13, 2013, by North Jersey Media Group (NJMG) against SarahPAC and Sarah Palin for copyright infringement garnered the expected media attention firestorm. While the media has been all over the case, no one seems to have obtained the actual Complaint — we did and it’s embedded at the bottom of the post.
As reported in various places, the lawsuit sought to stop Palin from using the famous photo of three firemen raising the flag at Ground Zero.
The copyright to the photo is owned by NJMG, whose photographer took the photo. NJMG has licensed the image to many groups with the proceeds donated to 9/11 related charities, including The Bravest Fund.
NJMG has been fairly aggressive in the past in filing suit, but almost always suit was filed against people who used the image to sell merchandise. I located the following lawsuits: Image Source (Sale of photo prints), Cafe Press (sale of merchandise), Nunn (sale of photo prints), Italian Charms (sale of merchandise); Hand (sale of pins); Sasson (former employee posted photo on the website he set up soon after being laid off to criticize owners of NJMG).
The photo was used by Palin on Facebook on September 11, 2013 (screenshot via Alaska Dispatch):
By September 14, NJMG had filed suit in federal court in Manhattan (copy of complaint embedded at bottom of post). The suit alleged use not only on Facebook, but on the SarahPAC website:
10. Defendants have, without permission, posted a copy of the WTC Flag Raising Photograph on their web pages, including at least www.sarahpac.com, a copy of which is annexed as Exhibit C, and www.facebook.com/sarahpalin, a copy of which is annexed as Exhibit D….
14. Defendants have infringed NJMG’ s WTC Flag Raising Copyright in violation of 17 U.S.C. § 501 by using it to promote Sarah Palin, and to raise money for SarahPAC.
The Exhibits to the Complaint, however, do not show the image being used for fundraising, except perhaps in a very indirect way at most that anything that appears under Palin’s name with the SarahPAC logo could be construed as fundraising. Certainly, there are no exhibits to the Complaint showing solicitation using the photo. Also, the inclusion on the SarahPAC website appears to be through a Facebook feed widget; it’s unclear if it was used elsewhere on the website.
Not surprisingly, the media is reporting the fundraising angle with reckless abandon:
This is the meme that will live on forever:
So why did this get to a lawsuit?
We have not found anything to indicate that the owners of NJMG are politically hostile to Palin or to Republicans.
NJMG says that it sent a demand letter but received no response:
Jennifer A. Borg, vice president, corporate secretary and general counsel for North Jersey Media Group, said the lawsuit was filed Friday when neither Palin nor the PAC responded to a letter. “It is important to enforce our copyright on this iconic photo,” Borg said. “When neither Ms. Palin nor representatives from her PAC responded to our demand letter to remove the photograph, we were left with no choice but to seek redress in court.”
NJMG declined to provide me with a copy of the Demand Letter, which would indicate to whom and how it was sent. In any event, suit was filed very quickly — within two business days.
It is unclear if SarahPAC or Palin ever actually received the demand letter. Once the suit was publicized in the media, Palin took down the Facebook entry.
Neither NJMC nor SarahPAC would speak on the record about whether SarahPAC/Palin received the demand letter prior to suit or whether the parties were close to resolving the issue.
What we might have here is a failure to communicate.
I’m guessing this will settle, probably with some donation to charity and statements from each side, respectively, (a) noting NJMG’s rights in the photo and insistence that it not be used for gain, and (b) SarahPAC’s insistence that it all was an unintentional and regrettable misunderstanding.
Some Legal Lessons:
I asked Ron Coleman, a well-known copyright and intellectual property attorney who represents many media entities and bloggers (including Legal Insurrection) some general questions which readers might find informative:
Q. “What’s the significance of the copyright being registered?”
A. It’s critical. Under modern copyright law, you don’t need a registration to own a copyright; it is effective as soon as your creative idea is made tangible in some form. But without a registration, you can’t enforce that copyright, meaning you can’t sue for damages or for an injunction. If you did not register and then the need for legal action to enforce the copyright arises later, you can still get a registration. That allows you to file a lawsuit. But if you waited more than 90 days after the first publication of your original work to get your registration, you’re closed out on both the option of statutory damages and attorneys’ fees provided for the statute. That’s the tradeoff Congress made in return for the presumption of “notice” on the whole world that comes with copyright registration: You have to register promptly to get the full benefit.
Q. “What lessons does this hold for use of photos on Facebook and elsewhere on the internet?”
A. Not a very new lesson. It’s so easy to grab the perfect photograph or other graphic element to enhance a blog post or website we often forget that even very famous images — often, especially very famous images — are protected by copyright. The lesson here is that even if “everyone else” seems to be using an image, your use may not go unnoticed by the rights holder. Also, what you think is ubiquitous free use may not be: Sometimes you’re only seeing limited, permissible fair use that does not require permission, or you’re seeing a licensed use. Assume that what is not explicitly permitted, in terms of anything remotely recent, is prohibited.
Q. “What is the standard to obtain statutory damages for social media use of copyrighted photos?”
A. There isn’t a different standard for social media use — which is itself a very broad category of types of use — that differs from non-social media use. Ultimately the award of statutory damages lies with the discretion of the court, or the jury if there is a trial, which is very rare.
Q. “Does it matter whether monetary profit was made from use of the photo?”
A. Profit and revenue in general are considerations that courts are required to consider. There is a split of authority as to whether statutory damages are meant as penalties or whether their purpose is to “stand in” for actual damages when actual damages cannot be assessed. If the latter is the case, courts usually link the amount of statutory damages to some estimate of what actual damages would be, based on factors such as the infringer’s “wrongful” profits (i.e., profits linked to use of the copyrighted material) or, in some cases, the lack thereof. Where you have a defendant that is readily amenable to process, participates in the proceedings, and is cooperative, it virtually never comes to a judicial award anyway. Typically, in fact, the copyright owner seeks to settle the case with a monetary settlement that is reasonably related to what the license fee for the unauthorized use would have been if the work had been licensed.
Note that this general rule, however, doesn’t usually apply to music file-sharing cases, which operate in a judicial and commercial twilight zone for all kinds of special reasons having to do with the music industry’s approach to maintaining control over its distribution methods. There the awards or settlements are way out of proportion to what the cost of a music download would be..
Q. “Does it matter whether use continued after being told to stop?”
A. It should, and it usually does.
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