Home Civil Law Blogger’s Photo Republication Isn’t Fair Use-Golden v. Grecco – Technology & Marketing...

Blogger’s Photo Republication Isn’t Fair Use-Golden v. Grecco – Technology & Marketing Law Blog


This case includes a photograph of Lucy Lawless as Xena. The TV studio employed Michael Grecco to take the picture and paid him $25ok for his companies. Grecco retained the picture’s copyright, and he made the picture obtainable for licensing by way of Getty. It was licensed 11 occasions over time, producing a complete of $3.94 in licensing charges.

Golden runs a popular culture weblog referred to as “Film Combat Syndicate.” He blogged about rumors that Xena could be rebooted and included the Xena picture, which he copied from a Tumblr weblog. Golden says he thought the picture was “a free, promotional photograph of Xena on Tumbler [sic] posted with permission and free to use.”

Grecco’s legal professional notified Golden of the alleged infringement. Golden eliminated it and apologized. The legal professional despatched a requirement for a $25ok settlement. Golden sued for a declaratory judgment (to regulate venue). Grecco counterclaimed for infringement.

Grecco simply established a prima facie case of infringement. Golden primarily defended on honest use:

  • Nature of Use. Golden claimed that his use of the picture to debate a attainable reboot is transformative. The courtroom says that is nothing like a information reporting scenario; Golden simply needed a visible as an instance his weblog publish.
  • Nature of Work. “A portrait photograph that is the clear product of the photographer’s artistic choices, like the Xena Photograph, falls close to the core of copyright protection.”
  • Amount Taken. Golden took your entire picture, unaltered.
  • Market Effect. The indisputable fact that Grecco earned $3.94 in licensing charges appears to counsel there isn’t much of a market. However, Grecco did have a secondary marketplace for licensing the picture, and that market could be meaningless if Golden’s use is honest.

With respect to damages, “Golden is not an innocent infringer because it was not objectively reasonable under the circumstances to believe that the Xena Photograph was free for any person on the internet to copy and repurpose.” Nevertheless, the courtroom units the statutory damages on the $750 minimal. The courtroom doesn’t award attorneys’ charges. “Golden has acted in good faith, immediately removed the offending post upon notice, and likely caused little or no actual damages, a statutory damages award in Grecco’s favor is more than sufficient to advance the purposes of the Copyright Act.”

Despite successful the important thing doctrinal points, Grecco will get solely $750 in whole to compensate him for litigating the case to abstract judgment. This is a foul financial consequence for Grecco. It makes me surprise if Grecco’s $25,000 demand was an excessive amount of. What if he had demanded a extra affordable quantity–say, $1,000? Maybe Golden would have taken that deal on the spot, and Grecco would have pocketed extra money with none of the litigation prices. Or maybe sufficient frightened defendants settle for the $25ok deal (or some inflated fraction), and a lawsuit like this turns into a loss chief to supply these extra worthwhile settlements…?

A lawsuit like that is precisely what motivated the CASE Act’s new Copyright Claims Board (CCB). Grecco had a meritorious case, however the prices of litigating in federal courtroom made it uneconomic. As the courtroom acknowledged, “if every ‘troll’ lawsuit were litigated through summary judgment to recover $750, there would be little incentive to continue to bring those actions.” (It’s unclear if the courtroom sees that as an excellent or a foul factor). I anticipate we’ll see lots of of CCB circumstances a yr identical to this–photographers suing uneducated bloggers for small quantities. (Any refined defendant will opt-out of the CCB). But if the CCB awards solely $750 of damages to plaintiffs like Grecco, the CCB enforcement prices will make it unprofitable, so I don’t know that the CCB solves the enforcement price drawback underlying this case. (I anticipate the CCB adjudicators will probably be rightsowner-skewed and thus could award damages awards larger than courts would challenge). So this case previews the circumstances we will anticipate to see, lots of of occasions over, on the CCB. Yay…?

Case quotation: Golden v. Michael Grecco Productions, Inc., 19-CV-3156 (NGG) (RER) (E.D.N.Y. March 9, 2021). Note: though this seems loads like a Liebowitz case, Liebowitz wasn’t intertwined (because the plaintiff’s success suggests).


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