| In SDNY Hearst Substituted
For CLO Eve Burton in Trump DMCA Case Then
Mere $750
By Matthew
Russell Lee, Patreon,
Periscope
SDNY COURTHOUSE,
July 25 – Back on July 1 as reported
only by Inner City Press,
Hearst Communications, Inc.
lost its bid to block the
issuance of a subpoena for its
chief legal officer Eve Burton
to have to testify in a July
15 trial of copyright claims
to a photo of President Donald
J. Trump crashing a wedding.
But now after the plaintiff
accepted a substitute witness
Eva Saketkoo, he was awarded
only $750, something then
reported by others.
After oral
argument on July 1, in which
Hearst's lawyers told U.S.
District Court for the
Southern District of New York
Judge Gregory H. Woods that
Ms. Burton is simply too busy
to testify, and in any event
has no direct knowledge of the
copyright training program at
issue, Judge Woods issued an
oral ruling denying Hearst's
motion in limine.
First,
Judge Woods noted that the
so-called "Apex Witness"
doctrine Hearst relied on
applies to taking depositions
of senior officials, not to
trial testimony. Then, more
colloquially, he asked the
Hearst lawyer what it would
cost, beyond the cost of a
subway ride from 57th Street,
a short walk and an hour of
testimony.
The
Hearst lawyer said that these
things - presumably meaning
taking the stand in a trial -
have a way of eating up more
time than anticipated.
By July 11, the
Liebowitz Law Firm had agreed
to Hearst's substitution of
Eva for Eve. Then Judge Woods
awarded only $750 in statutory
damages, in an order that is
not yet live on the PACER
terminal at which Inner City
Press has been working for
months. The case is Otto v.
Hearst Communications, Inc.
17-cv-4712 (Woods).
Plaintiff
photograph Jonathan Otto's
lawyer cited as precedent a
case in which a BuzzFeed
official had to testify.
Hearst's lawyer replied that
BuzzFeed is "tiny," noting
that Hearst has an investment
in it.
Ass
Inner City Press reported in
May 2019, BuzzFeed Media is
being sued, rather routinely,
for using a Florida
photographer's aerial shot of
Miami's American Airlines
Arena, see below. And on May
28 into the SDNY, otherwise occupied
with Michael Avenatti, came
the case of CollegeHumor.com's
use of a Himalayan Dog photo
by photographer Sebastian
Wahlhuetter. The publication
took place in 2016, in an
article entitled "20 Random
Reddit Photos Turned Into Epid
Movie Posters." But the
lawsuit was filed in February
2019. College Humor was
ordered by SDNY Judge Lorna G.
Schofield to respond by May
20, but there is no response
in the docket as of the May 28
hearing date. The case is
19-cv-2501, Jury Trial
Demanded. Now the demand is
for $3,000 in damages, $10,000
in statutory damages, $2037.50
in attorneys' fees and $475 in
costs and, of course,
interest. This
is the SDNY.
On
May 14 Gizmodo was sued, by
photographer David McGlynn,
for using his photo of Malcoln
Abbott which ran in the New
York Post on March 13, 2019,
in a story about the Varsity
Blues scandal.
L'affaire Gizmodo has
been assigned tp
U.S. District
Court for the
Southern
District of
New York Judge Alison
J. Nathan,
who recently
presided over
SEC v. Elon
Musk. Might
her approach
to DMCA claims
be different
than fellow
SDNY Judge
Vernon
Broderick?
On May 10
BuzzFeed's lawyer argued that
under the Digital Millennium
Copyright Act they can demand
attorney's fees from the
photographer, even if they
lose, if the judgment is less
than what they have
offered. That case is Myeress
v BuzzFeed Inc,
18-cv-2365 (VSB).
***
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