Friday, June 20, 2014

Magistrate Judge McAliley Recommends Summary Judgment in Favor of Miami Blogger!



The various state and federal permutations of the dispute between real estate mogul and minority Miami Heat owner Raanan Katz and a critical, gadfly blogger have been interesting to watch.

In a case before Judge King, in which Katz has sued the blogger for copyright infringement for posting a photo of Katz first published in Haaretz, Magistrate Judge McAliley has recommended summary judgment be granted to the blogger based on the fair use doctrine.

Consider how tenuous this argument is:
These blog posts all present unabashed criticism of, and commentary on Plaintiffs business and litigation practices. The Copyright Act expressly identifies criticism and commentary as fair uses that do not amount to copyright infringement. See 17 U.S.C. j 107. Plaintiff argues that Defendant's use is commercial, as shown by the March 4, 2012, post, in which Defendant declared her interest in writing a book titled ("Why RK Centers W as the Wrong Choice.'' (DE 92, p. 20; 96-10, p. 172. Defendant's singular statement that she intended to write a book about her experiences in business, even if one day acted upon, does not transform her blogs into a commercial venture.. . .Significantly, there are no advertisements on Defendant's U.S. blog and minimal advertisements on the U.K. version, and those appear to be for the benefit of the blog-hosting service. (DE 96-101. Defendant also testified that she has not made any money from her use of the Photo (DE 96-6, p. 181, and Plaintiff does not dispute this assertion.(DE 1 16, ! 2 1J. 0n this record, it simply cannot be said that Defendant used the Photo for commercial purposes.
Or this one:
Plaintiff also argues that Defendant stands to gain from the exploitation of the Photo "in other ways: namely, through notoriety within (sic) her peers, particular (sic) the Russian community. . . .'' (DE 92, p. 201). Plaintiff cites a single, general statement by Defendant at her deposition, to support this argument; it is entirely insufficient to establish his assertion.
What about this one, on whether the photo is creative or factual:
Plaintiff argues that the Photo managed to catch Katz in a candid position, which took some elements of creativity from the photographer.'' (DE 92, p. 232. The Photo, however, captured Plaintiff in a public setting and was used simply to identify him. (DE 96-51. There is no evidence that the photographer influenced, at all, the Plaintiffs activity, pose, expression or clothing. Also, it cannot be said that the Photo conveys the photographer's ideas or emotions. Because the Photo is a factual work that was previously published, I find that the second factor of the fair use inquiry weighs in favor of Defendant.
I could go on.

Ok, one more, on whether the market use of the photo has been damaged:
Plaintiff has made no showing that there is a potential market for the Photo. The possibility that Plaintiff may one day change his mind, and opt to publish the Photo he has worked so hard to suppress, is remote. There is no evidence that Defendant's use of the Photo had an impact upon any actual or potential market and, thus, I find that the fourth factor weighs in favor of fair use.
 Yikes!

12 comments:

  1. Wait a sec!! Am I a "gadfly"??? Oy vey.

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  2. And another:

    Plaintiff makes one final argument: that Defendant acted in bad faith, and this prevents a finding of fair use. (DE 1 15, p. 20). This argument has no merit. "Good faith" is not listed as a fair use factor in 9107 of the Copyright Act.

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  3. Happy Friday, SFL. Any World Cup favorites?

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  4. Bet he likes the Miami Colombia fans!

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  5. Down goes Kluger. Down goes Kluger. Soto voce: " i got spurs that jingle jangle jingle"

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  6. SFl -- you have a link to the photo?

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  7. The photo is here: http://blogs.miaminewtimes.com/riptide/2012/06/miami_heat_minority_owner_rana.php

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  8. He's done more to publicize it than anyone

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  9. http://abovethelaw.com/2014/06/non-sequiturs-06-20-14/

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  10. I went to Boston College Law School with Marc Burton, the attorney that wrote the blogger's Motion for Summary Judgment. Very good result for Marc!

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  11. A bully is a bully is a bully. Second big loss for Kluger. Third DCA reversed the injunction he obtained in February 2014. Great job Marc.

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