Wednesday, April 21, 2010


NYLJ 6-8-07


3. The First Amendment once again clashes with Intellectual Property law, entering through the nebulous portals of Internet “Fair Use” provisions. However, it isn’t the law that is in dispute as much as everybody’s lack of form-filling.

The US-based website that published pictures of a French fashion show did so in full belief that a public event holds no particular rights to their images, especially when the suit against them included an unfair competition charge as well. While there is no mention made of Process of Service outside of the Hague Convention on the Service of Extra-judicial Documents in Civil or Commercial Matters, one assumes it must be good to have passed through to the present state of affair. That, in 1/01, the combined suit was filed against the website, and, having failed to respond to the complaint, the defendant’s had a default judgment found against them on 5/2/01. is four months too long or too short was never mentioned either, but it certainly was enough for the Court of Appeals for the 2nd Circuit to hang their first objection upon. “They had their opportunity to respond, but chose not to at their peril.”

When 12/04 rolled around and the Frenchies finally got down to filing in SDNY, a consolidation of the actions ended up in the usual attachment request. Now the Webbers responded fast and furious: motion to dismiss, motion for SJ and to vacate—all in one. It was the Fed judge who gave them their early victory, ruling the 1st leave no doubt about the issue of the plaintiff’s control of the way information is disseminated in the mass media, in regards public events. That, along with “fair use” rule, seemed to be all she wrote.

And that was the problem for the CoA; the Fed justice just didn’t write enough. Or “did not conduct the full analysis necessary…because the record before us [CoA] does not permit us to determine whether enforcement of the foreign judgments is repugnant to the public policy of New York.” Which may sound like: “Ugh! French justice is as ripe as their cheese! Icky!” But it was Ackerman v. Levine, 788 F.2d 830, 840 (2nd Cir. 1986), which was cited “by defaulting in a foreign adjudication, a defendant ensures that a judgment will be entered against it and assumes the risk that an irrevocable mistake of law or fact may underlie the judgment, and, while the 1st Amendment does provide categorical protection, Intellectual Property laws co-exist with it… The fact that an entity is a news publication engaging in speech activity does not, standing alone, relieve such entities of their obligation to obey the IP laws.”

In vacating the judgment and remanding it back to the Fed judge, it was, at very least, to do a more thorough analysis of whether fair use was in play and establish a clearer record as to “the manner of protection afforded plaintiff’s fashion shows by French law, as well as infringement.”

So—go upstairs and do your homework, SDNY!

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