Tuesday, July 09, 2013

Copyright Law - Sixth Circuit: Can A Magazine Display Photos of A Journalist Who Entered A Wet T-Shirt Contest?

Fair Use Defense to Copyright Infringement, Use of Copyrighted Images for News Reporting, Reliance on Advice of Counsel to Avoid Finding of Willful Copyright Infringement, Jury Trial, Proving An Infringer’s Profits for Copyright Infringement, Apportioning Profits to Copyright Infringement, Attorneys Fees for Copyright Infringement, Post-Trial Motion for Judgment as a Matter of Law
Balsley v. LFP, Inc., 691 F.3d 747 (6th Cir. August 16, 2012).  Female news reporter goes on vacation to Florida.  Enters wet t-shirt contest.  Gets naked.  Gets photographed.  Photos on internet.   Gets fired or resigns.  Buys copyright in photos to keep them off the internet.  Finds new job. Three years later, Hustler magazine publishes photo without permission of female reporter (and now-copyright holder).  Publication was part of monthly “contest” highlighting sexy news reporter.  Hustler attorney gives written pre-publication opinion to Hustler that publication is covered by fair use defense.  Jury finds infringement and no fair use.  Awards 8.5% of Hustler’s profits for that issue.  Awards reporter attorneys fees.  Analyzing four fair use factors, court concludes that a reasonable jury could conclude that publication was not fair use.  Found that publication harmed market for future publication even though reporter had no intention of publishing.   A number of improper arguments made before jury were cured by the court or were not sufficiently prejudicial to warrant a new trial.  As a matter of first impression, Circuit court clarified that once plaintiff shows gross revenues for an activity reasonably related to publication, burden shifts to defendant to show portion of profits not attributable to infringing activity.  Rejected reasoning of other circuits imposing further burdens on plaintiff.  Thus proof of gross revenues of sales and advertising for entire magazine sufficient to shift burden of apportionment back to defendant Hustler.

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