This past Monday, as the remaining NFL teams begin preparations for the next round of playoff football, BWP Media USA Inc. began an off-field battle with Bleacher Report, Inc. by filing a civil lawsuit against the sports and entertainment media company for copyright infringement. According to the lawsuit, the popular sports website run by Bleacher Report, Inc. “selected, copied, modified, stored and displayed Plaintiff’s copyright-protected photographs” without permission or authorization. This alleged infringement stems from the website’s reproduction of several photographs copyrighted by BWP Media of New England Patriots’ star tight end Rob Gronkowski.
BWP Media has been accused of being a “copyright troll” by several sources due to its propensity to file this type of copyright infringement claim and the belief that the company is interested only in obtaining settlements. However, BWP’s claims have not been wholly unsuccessful in court when defendants chose to fight back rather than settle.
One defense that Bleacher Report is likely to adopt in court is already pronounced on their website. On August 9, 2008, under the headline “Privacy Policy,” Eli Greenspan, a Senior Analyst of the website, wrote:
“This site contains images and excerpts the use of which have not been pre-authorized. This material is made available for the purpose of analysis and critique, as well as to advance the understanding of baseball, statistics, and visual culture. The ‘fair use’ of such material is provided for under U.S. Copyright Law. In accordance with U.S. Code Title 17, Section 107, material on this site (along with credit links and attributions to original sources) is viewable for educational and intellectual purposes.”
The fair use doctrine is an affirmative defense to a charge of copyright infringement. This means that in court Bleacher Report would bear the burden of raising the defense and proving that their use of the images was “fair” and not in fact an infringement. Greenspan, at least, appeared confident that such a defense would protect Bleacher Report’s use of the images at issue.
It is interesting to note that one of Bleacher Report’s co-founders has previously indicated less confidence in the “fair use” defense. In a Bleacher Report Writers Blog post on May 5, 2008, Dave Nemetz, co-founder of Bleacher Report, advised authors that:
“When uploading your own photos, you should either own the image or have permission from the copyright holder. If there is an image you’re dying to use that is copyrighted, you can usually find the contact info for the photographer or publication it was originally printed in and send a request for usage. Or you can take your chances and post the photo if you feel that the image falls under the doctrine of ‘Fair use’. Fair use is an ambiguous concept, but generally if you’re writing about a subject and the photo you want to use adds to and/or is necessary for the commentary, then fair use generally applies.”
Bleacher Report may also attack the complaint on more technical grounds pursuant to the Digital Millennium Copyright Act (DMCA). BWP Media does not indicate that it provided a DMCA takedown notice as required by 17 U.S.C. § 512(c)(3), but instead only alleges that Bleacher Report had knowledge of the infringing activities of the posting authors. BWP Media goes on to argue that Bleacher Report’s activities are “not safe harbored by the DMCA, in that none of the Infringements were posted at the direction of a ‘user’ as that term is defined in 17 U.S.C. § 512(c).” Bleacher Report will certainly consider attacking these conclusory statements if the litigation proceedings move forward.
It will be interesting to see whether Bleacher Report attempts to dispose of this complaint quickly with a settlement agreement or engages in the litigation process. A settlement may be more attractive in the short term, but could attract more claims of copyright infringement from organizations similar to BWP Media. We will continue to update with any relevant proceedings.
