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
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.
Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here
Tuesday, July 09, 2013
Copyright Law - Sixth Circuit: Can A Magazine Display Photos of A Journalist Who Entered A Wet T-Shirt Contest?
Labels: apportionment of profits, attorneys fees, copyright infringement, copyright law, damages, fair use defense, news reporting, wet t-shirt contests
Partner in law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2018-2019). The New York Law Journal called it "an indispensable guide". Board of Directors of the Fordham Law Alumni Association, former General Counsel & Director Federal Bar Association, FBA Chair of the Circuit VPs, ViP for Second Circuit. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.