July 01, 2018 Landslide

Decisions in Brief

By John C. Gatz


Destruction of Aerosol Paintings—$150,000 per Work

Cohen v. G&M Realty LP, 125 U.S.P.Q.2d 1708 (E.D.N.Y. 2018). Plaintiffs, 21 “aerosol artists,” sought a preliminary injunction under the Visual Artists Rights Act of 1990 (VARA) against the defendants (real estate entities G&M Realty) to prevent the planned demolition of their warehouse buildings, and consequent destruction of the plaintiffs’ paintings on the walls of the buildings. The district court had previously denied preliminary injunctive relief, stating that a written opinion would soon be issued. Rather than wait for the opinion, G&M Realty destroyed the art by whitewashing the walls.

VARA has codified the right to integrity, which includes the right “to prevent any destruction of a work of recognized stature.” The district court reiterated that these buildings had become the repository of the largest collection of exterior aerosol art in the United States, and this litigation was one of first impression for a court to determine if the work of an exterior aerosol artist is protectable under the law. The defendants here permitted the artists to rent studio space in the warehouse buildings, and the artists took it upon themselves to clean up the area, install lighting, and make the area inviting. Eventually the site became a major attraction to the public. The district court therefore found that G&M Realty violated the aerosol artists’ rights under VARA, and given the willful violation of rights, awarded the maximum statutory damages totaling $6,750,000 for the 45 works destroyed.

Embedding Viral Photograph of Tom Brady Implicates Photographer’s Exclusive Display Right

Goldman v. Breitbart News Network, LLC, 125 U.S.P.Q.2d 1778 (S.D.N.Y. 2018). Justin Goldman took a picture of New England Patriots quarterback Tom Brady, showing Brady helping the Boston Celtics basketball team to recruit Kevin Durant. Goldman uploaded the photo to his Snapchat account, and the photo went viral. Eventually, it was uploaded to Twitter by several sources, and the defendants’ news sources embedded the photo into news stories about the attempted recruitment. In the embedding process, the photo is not physically copied by the defendants for storage on their servers; rather, the defendants constructed web pages that retrieved the image from third-party servers, thereby displaying the photo to users of the defendants’ sites. Goldman sued the media outlets for infringing his copyright in the photo, and the defendants moved for partial summary judgment of the suit. The defendants urged adoption of the Ninth Circuit’s “server test,” whereby they would be liable for copyright infringement only if the photo were stored on their servers. Here, the district court noted that most courts of appeal have neglected to adopt that test. Finding for the plaintiff and denying the defendants’ motion for summary judgment, the district court declined to apply the server test. The district court also noted that there is a very serious and strong fair use defense that was not the subject of the motion.

Ticketmaster Fails to State Copyright Claim in Battle over Bots

Ticketmaster L.L.C. v. Prestige Entertainment, Inc., 125 U.S.P.Q.2d 1540 (C.D. Cal. 2018). Ticketmaster sells tickets to entertainment events via its website, mobile app, and telephone. Prestige is a company that allegedly used bots and dummy accounts to purchase large amounts of tickets in a manner that a human user could not match and subsequently resold these tickets on the secondary market for profit. Ticketmaster alleged that Prestige purchased 30–40 percent of tickets to some events. Ticketmaster’s terms of use (TOU) prohibit the use of bots to purchase tickets, or to request access to more than 1,000 pages of the site in a 24-hour period. Ticketmaster sent Prestige a cease and desist letter, and subsequently sued Prestige and asserted many claims, including copyright infringement and violations of the Digital Millennium Copyright Act (DMCA). Prestige moved to dismiss.

The district court granted Prestige’s motion to dismiss the copyright claim, but denied the motion to dismiss the DMCA claim. The district court determined that Prestige was a nonexclusive limited licensee, and could only infringe Ticketmaster’s copyright if it exceeded the license’s scope in a manner that implicates one of the licensor’s exclusive statutory rights. The terms must be conditions that if met terminate or enlarge the obligation of the parties, and there must be a nexus between the condition and the licensor’s exclusive right of copyright. The district court determined Ticketmaster’s terms were merely covenants, because the license said Ticketmaster “may” take action if the terms of the license were breached, so neither party’s obligations are terminated or enlarged if a violation occurs because the parties’ interests do not change unless and until Ticketmaster acts.

The district court denied Prestige’s motion to dismiss the DMCA claim, as Ticketmaster’s allegations involved Prestige using bots to bypass technological measures to access copyrighted information. The district court rejected Prestige’s arguments that CAPTCHA is not a technological measure under the DMCA, since a user may not access copyrighted materials without utilizing CAPTCHA.

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