Copyright Owner Out-Hustles Flynt

When Ohio newscaster Catherine Bosley (aka Catherine Balsley) entered a wet t-shirt contest and danced nude at a bar while on vacation in Florida in March 2003, she didn’t realize that an amateur photographer was taking photographs of her.  Bosley lost her job as a news anchor when the amateur photographer posted photos of Bosley on the photographer’s website.  Bosley and her husband acquired all rights to the photos from the photographer and registered the copyrights with the Copyright Office in August 2004.

LFP, Inc. (aka Larry Flynt Publications) publishes Hustler magazine, which “contains graphic images and stories about sex.”  “Hot News Babes” is a recurring item in the magazine.  A Hustler reader nominated Bosley as a “hot news babe” in August 2005.  The reader did not provide Hustler with photos of Bosley, but told Hustler that it could find photos on the Internet.  One of the photos Hustler obtained online was a photo for which Bosley and her husband owned the copyright.  The photo included a visual copyright notice.  Hustler’s editors knew that the photo was copyrighted, but published the photo in the February 2006 edition without locating the copyright owner and without obtaining a license.  Hustler’s attorney advised Hustler that it could publish the photo as a fair use.  Bosley found out about the publication and filed suit against LFP for copyright infringement and other claims in February 2008.

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Harlequin Authors File E-Book Class Action Case Against Harlequin Over “Who’s the Publisher?”

Harlequin novel authors Barbara Keiler (aka Judith Arnold), Mona Gay Thomas (aka Gayle Wilson) and Linda Barrett sued Harlequin Enterprises and Harlequin’s Swiss registered companies, collectively Harlequin Switzerland, for breach of their publishing agreements.  The litigation centers on whether Harlequin Enterprises or Harlequin Switzerland is the e-book publisher for the purpose of paying royalties to the authors.

The complaint alleges that Harlequin Enterprises, based in Toronto, Canada, set up Harlequin Switzerland for tax purposes.  Harlequin Enterprises forced its authors to sign publishing agreements with Harlequin Switzerland as the publisher, when in reality Harlequin Enterprises performs all of the traditional publishing functions (e.g., receiving submitted manuscripts and editing manuscripts) and Harlequin Switzerland performs none of those functions.  The authors claim that under the publishing agreements, they are to receive 50% of the net receipts of the publisher on the e-book publications.  Harlequin Enterprises claims that Harlequin Switzerland is the publisher and that Harlequin Enterprises must license the right to publish e-books from Harlequin Switzerland, thereby decreasing the amount owed to the authors.  As a result, the authors receive only 3% to 4% of the cover price of the e-books.  The authors argue that they should receive a much greater share of the cover price, around 25%, since Harlequin Enterprises receives net receipts of 50% or greater on the cover price of e-books.

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Framing Infringing Videos is Not Copyright Infringement, Rules Seventh Circuit

Flava Works, Inc. (Flava) produces and distributes videos of black men performing erotic homosexual acts.  People must pay to view Flava’s videos online.  Users are allowed to download Flava’s videos, but not to upload them.   myVidster is an online social bookmarking service that allows people to bookmark online materials so that other people with similar tastes can find those materials easily.  myVidster does not host videos on its website.  People who access a video through a bookmark on myVidster’s website see the video through a frame that myVidster puts around it.  The video remains on the server it was uploaded to.  Flava sued myVidster for copyright infringement.  The discussion focused on whether myVidster is a contributory infringer when someone uses its website to bookmark a video and then someone else clicks on the bookmark and watches the video.

The district court judge granted Flava’s motion for a preliminary injunction based on his analysis of Flava’s likelihood of successfully establishing copyright infringement at trial.  myVidster appealed to the Seventh Circuit Court of Appeals.  In an opinion written by Judge Richard A. Posner, the Seventh Circuit vacated the grant of preliminary injunction.  The Seventh Circuit ruled that the district court judge erred by considering Flava’s likelihood of success on the merits as the only factor.  The Seventh Circuit further ruled that, on the basis of the record before it, myVidster did not copy or distribute copyrighted works, that it was not a contributory infringer and that there was no basis for the preliminary injunction to be granted.

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