Sometimes, it doesn't pay to sue....
Defendants Awarded
Attorney's Fees
in Frivolous Copyright
Infringement Litigation





         The issue of whether a defendant can recover legal fees in a successful defense to a copyright infringement suit is, of course, of paramount interest to all photographers contemplating such litigation.

         A recent decision from the United States District Court for the Southern District of New York, in
 
Video-Cinema Films Inc. V. Cable News Network, Inc., helps to clarify what constitutes acts beyond acceptable norms.

         When movie actor Robert Mitchum died in July 1997, television news networks, among others, ran obituaries of his acting career. CNN, ABC and CBS used a clip of scenes from the 1945 movie, The Story of G.I. Joe, for which Mitchum received an Academy Award nomination for best supporting actor.

BUY AND THEN SUE

         The plaintiff's President, Larry Stern, bought the copyright in the movie after Mitchum's death. Stern thought he could make money from the known uses by the Networks and others, of film clips of Mitchum from the film. According to the Court's opinion, before Stern acquired the copyright he spent 10 hours watching televison to search for "as many potential targets of litigation as possible." Once he owned the copyright, Stern sent letters to various news organizations, including some who had not even used footage from the film, demanding payment for the alleged copyright infringement.

IT'S FAIR USE

         CNN, ABC and CBS refused to pay on the grounds of fair use. Stern then sued them for copyright infringement. The Court granted summary judgment to the defendants and dismissed the case in
September 2002. It found the use was "transformative" and thus a fair use. The Court also found the position taken by Stern "objectively unreasonable".

         The Court has now ruled that the defendants are entitled to attorneys fees, because "fees are appropriate in this case to deter future copyright owners from using the threat of litigation to chill other fair uses." The amount of the fees has yet to be determined, but, according to the defendants' counsel, they will be "substantial."

         This decision will be welcomed to those who face copyright infringement litigation which lacks any sound basis. It may also be an ominous warning to those who willfully pursue suspect claims. However, it should not impact to any great extent those cases where legitimate claims are made, whether successful or not.

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: Heckeresq@aol.com.


           


           

Tommy Thompson

Kerry Kolb

Jon Saban

Jake Nelson