Gaylord v. United States, (Fed. Cir. 4/22/11)

A 37 cent stamp is at the heart of this copyright dispute that has been percolating through the courts like coffee in an old stovetop pot. It began in the Court of Claims; went up to the Court of Appeals for the Federal Circuit (CAFC); was remanded and is now issuing from the Court of Claims again, but narrowly this time, solely on a determination of damages.

For those who have not been following this case here is a thumbnail summary: This is a case that arose from a sort of fairy tale with a twist. An amateur photographer visiting the Korean War Veterans’ during a snowstorm took a terrific picture. To the amateur photographer’s delight, the U.S. Postal Service paid him $1,500 for that photograph to be the subject of a stamp. Up to that point, it is sort of a sweet story of an amateur photographer getting a bit of recognition and reward.

But, then the story takes on a darker tone in that the photographer sued the postal service claiming copyright infringement; and the postal service raised the usual battery of defenses including VARA, Fair Use and others.

The photographer claimed that he was owed damages in the amount of $3,024,276.20 (three million dollars and change) as representing ten percent on the 86.8 million 37-cent stamps and related merchandise that the postal service sold in the two years between 2003 when the stamp was issued, and 2005 when the stamp was retired. The CAFC found that the postal service’s use was not protected by the fair use defense; and the issue of damages was remanded for calculation to the lower court.

The court addressed two questions. First what damages are owed to the photographer; and second, whether pre-judgment interest applies?

As to question 1, the court found that $5,000 was the amount owed. The court was governed by the relevant statute that provides for a ‘zone of reasonableness’ to determine the actual damages; and the court found compelling the testimony of U.S. Postal Service management that the postal service is barred from paying royalties by long standing policy; and that the absolute top amount ever paid in the one-time negotiations was $5,000 dollars. The court ruled that $5,000 was the amount owed to the plaintiff photographer as that amount represents the top amount that the plaintiff would have obtained in the one-time negotiations with the postal service.

Question 2 was answered in the negative. The court noted that while pre-judgment interest may be possible in private copyright suits, there is no provision for pre-judgment interest in claims against the United States unless specifically permitted by contract or by act of Congress. Pre-judgment interest on the $5,000 award was denied.

An open question is whether the plaintiff photographer is entitled to a new amount of $5,000 from the postal service or whether the postal service can offset the $1,500 paid to the plaintiff photographer in 2002.

RightHaven, LCC, v. Center for Intercultural Organizing, 2:10-CV-1322 JCM (LRL) (DC Nev., 2011)

The word ‘blog’ began as a typo, and now it’s a genre all on its own. And with the emergence of a new genre comes a category of case law that arises specifically from that genre. April 22, 2011, RightHaven failed in its effort to get a copyright infringement judgment, and instead succeeded in getting a judge to find, even a 100% republications, can be fair use.

Consistent with RightHaven’s pattern of eschewing what might be solved by a simple DMCA Take Down request, and instead, precipitously filing a federal copyright infringement action, this action was intended to halt defendant’s 100% republishing of a newspaper article discussing the Las Vegas alleged focus on minorities as illegal immigrants. The website is owned and run by the defendant non-profit and begun when a Somalian Muslim leader, the head of a mosque, was arrested in the airport. Based in Portland, Oregon, “At CIO, we are not talking about black and brown, we are talking about Somalis and Ethiopians, Congolese and Liberian, Mexican, Korean, Palestinian and Afghani community leaders working with other Latino leaders, African American leaders, and progressive white folks.” http://www.interculturalorganizing.org/

The court carefully analyzed the four factors of Section 107 Fair Use finding without reservation that fair use applies:

a. Purpose and character of the use: transformative and noncommercial.

b. Nature of the copyrighted work: informational and factual;

c. Amount and substantiality of the work used: “…although the defendants posted the work in its entirety, the amount used was reasonable in light of the purpose of the use, which was to educate the public about immigration issues.”

d. Effect on the market: “… the plaintiff has failed to allege that a “market” exists for its copyright at all, and the court declines to simply presume the existence of a market.”

Concluding, the court emphasized the fair use defense applicability and then went on to comment negatively on the plaintiff’s business model:

“The court finds that the defendant’s use of the copyrighted article in this case constitutes fair use as a matter of law. The article has been removed from its original context, it is no longer owned by a newspaper, and it has been assigned to a company that uses the copyright exclusively to file infringement lawsuits. Plaintiff’s litigation strategy has a chilling effect on potential fair uses of RightHaven-owned articles, diminishes public access to the facts contained therein, and does nothing to advance the Copyright Act’s purpose of promoting artistic creation.”

Kenneth M. Stern v. Does, et al., C.D.Ca., No. CV 09-01986 DMG (April, 2011)

A single sentence sent to a list serve formed the basis of the copyright infringement action in this case.

Specifically, an attorney sent a single sentence seeking information regarding a certified public accounting firm which he suspected had over-billed his client. One of the recipients of the single sentence email forwarded it to the CPA firm in question. The author lawyer took umbrage that his under cover effort was revealed; filed and obtained a copyright registration and filed a copyright infringement action naming the ‘Does’ of the entire list serve as the defendants.

The single sentence, in its entirety, is this: “Has anyone had a problem with White, Zuckerman . . . CPAs including their economist employee, Venita McMorris, over-billing or trying to churn the file?”

The court in the Central District of California held that the single sentence was uncopyrightable; and went further to say that if it had been copyrightable, then the forwarding of the email would have been protected by the Fair Use Doctrine.

“This is unsurprising. In an age of blogs, listservs, and other online forum, a person’s short comment in cyberspace is frequently quoted in its entirety as others reply or forward it elsewhere. It would be strange, dangerous even, if such quotation subjected the copier to liability and a federal lawsuit. Such heavy-handed tactics are akin to using a cannon to kill a mosquito; they carry the same attendant risk of collateral damage by chilling free speech. A free and vibrant democracy depends upon the unfettered exchange of ideas.”