Photographer sues Bleacher Report over 10 year old use of pictures. SCHATZ v. TBS

Photographer sues Bleacher Report over 10 year old use of pictures. SCHATZ v. TBS

A copyright is a set of exclusive rights granted to the creator of an original work of art when the art is fixed in a tangible form.  The creator of an original work of art is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative copies. Registering the work with the United States Copyright Office will strengthen the exclusive rights granted by copyright law, but is not necessary for a copyright to be granted.  If someone other than the copyright owner exercises one of the exclusive rights granted by copyright law, that is considered copyright infringement. A copyright owner can sue to stop copyright infringement with an injunction and to get monetary damages for infringement which has occurred.

Several defenses are available to those accused of copyright infringement.  Two defenses that can stop a copyright infringement suit in its tracks are statute of limitations and fair use.

Statute of limitations prescribes a period of time in which a lawsuit must be filed.  In the United States a copyright infringement case must be filed with the court within three years after the claim accrued.” 17 U.S.C. §507(b) A claim for copyright infringement accrues when the owner of the copyright knows or should have known of the infringement. If the copyright owner waits too long to file sue the defendant can request that the court dismiss the infringement suit because it was filed outside the statute of limitations.

The question then becomes when does a copyright infringement claim accrue on the internet? If a copyrighted photo is uploaded to a website does the statute begin running on the date that the file is uploaded or the last time that the website served a photograph to a user?  The United States Supreme Court has stated that when multiple or successive acts of infringement are alleged, the separate-accrual rule may be implicated. Each time an infringing work is reproduced or distributed, the infringer commits a new wrong.  This means each infringing act starts a new limitations period. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 633, 670 (2014).

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain activities that my qualify as fair use.  Those activities include  criticism, comment, news reporting, teaching, scholarship, and research.  However, those activities are just examples of things which may qualify as fair use, there is no guarantee that a court will determine that a use is a fair use.

HOWARD SCHATZ v. TURNER BROADCASTING SYSTEM, INC. 2:20-cv-07585 (C.D.CA 2020) illustrates a case where statute of limitations and fair use will be obstacles the plaintiff will need to overcome.

Plaintiff in this case is a photographer who has taken photographs of various famous athletes.  In March 2009 Plaintiff’s photograph of Albert Pujols was featured on the cover of sports illustrated.  The Plaintiff claims they registered the copyright for the photograph in March 2010.

Defendant in this case is a website called “Bleacher Report” which is operated by Turner Broadcasting System.  Defendant published two articles on its website about Albert Pujols in January  12, 2010 and February 16, 2011.  In the articles the Plaintiff’s photograph was reproduced.  In August 2020 Plaintiff filed suit against the Defendant for copyright infringement. In the complaint the Plaintiff provides URLs for the articles that contain the infringing photos.

This complaint presents a couple of issues.  First, statute of limitations may apply in this case.  The URLs that Plaintiff provides in its complaint do not contain any photographs.  The complaint references screen shots of the infringing content, but no screen shots are included in the exhibits.  While the Defendant could have removed the photographs when it was served with the complaint, if the images were actually removed from the website 3 or more years ago than the statute of limitations could apply.

Second fair use may apply.  Plaintiff’s image was used in an article about the subject of the image, Albert Pujols. An argument could be made that it was necessary to use the photo to illustrate the subject of the article.

It will be interesting to see how the Defendant response to this complaint.

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