Photo Attorney

Mar 14, 2009

Judge Orders Injunction to Stop Potential Copyright Infringement

Litigating a copyright infringement claim can take months or even years. In the meantime, the copyright owner may request a court to issue a temporary restraining order ("TRO") for 10 days and then a Preliminary Injunction (both of which are "equitable," rather than legal, remedies) to prevent the continued use of the copyrighted work.

To get the temporary injunction, the copyright owner must show irreparable injury from the use (that money damages alone won't be an adequate resolution) and that the owner is likely to succeed when the infringement case is fully litigated. A court also balances the hardships of the two parties, reviews the feasibility of enforcing the injunction, and considers any equitable defenses of the defendant. Further, the owner must post a bond to ensure the defendant is protected from financial loss due to the decision of the proceeding.

Such was the case when the The Arizona Daily Star ("The Star") newspaper learned that the rock band, "Awful Truth," had used a photograph, taken by a Star employee, of two police officers kneeling over Officer Erik Hite (who was killed in the line of duty) for the cover art of the band's CD, "Kill a Cop for God." The Star asked in its Complaint that the Awful Truth "be temporarily, preliminarily, and permanently enjoined from appropriating, using, copying and/or distributing any copyrighted work owned by Star Publishing, including the Photograph, without the prior written consent of Star Publishing."

As reported by The Star, one of the band members, Damon Pillsbury, doesn't think Awful Truth did anything wrong. He explained that, "We think this whole thing falls under fair use, and that something like that can only be determined on a case-by-case basis." As previously reported, this common excuse for unauthorized uses of copyrighted works can be decided only by a court. But when a judge thinks that the copyright owner is ultimately likely to succeed on the infringement claim, the judge can issue preliminary orders accordingly.

The Court granted The Star's motion for a TRO on February 25, 2009. In its Order, the Court held, among other things, that:

  • Defendants have infringed on Star Publishing's copyright by copying the Photograph and using the Photograph;
  • Star Publishing will suffer irreparable harm if Defendants continue to infringe on Star Publishing's copyright by Defendants' unlicensed commercial use of the Photograph, in a fashion which derogates the value of the Photograph;
  • Star Publishing has no adequate remedy at law (meaning that the award of money at the end of the lawsuit can not repair the damage that may occur in the meantime); and
  • Greater injury will be inflicted upon Star Publishing by the denial of the temporary injunctive relief than would be inflicted upon Defendants by granting of such relief.

The TRO was valid for 10 days or when the Court could render its decision on a preliminary injunction.  Note that the band members are representing themselves (a/k/a "pro se") and thus are likely at a disadvantage when litigating this matter.

On March 9, the Court heard arguments on The Star's request for a preliminary injunction. The Court granted the injunction and again found:

  • It is probable that Plaintiff will succeed in this matter;
  • That there is irreparable harm possible to Plaintiff;
  • Any balance of hardships tips in favor of the Plaintiff;
  • The Plaintiff is the exclusive owner of the copyright for the photograph and it is an original work of art;
  • The Defendants have violated the Plaintiff's copyright by copying and using the photograph for commercial purposes;
  • There is no fair use exception put forth by Defendants.

The Judge then ordered that the Defendants "are enjoined and restrained from either directly or indirectly using or copying the subject material during the pendancy of this case." At trial, the Defendants may be able to prove that the use was a fair use. In the meantime, though, the band can't use the photograph. Thus, injunctions are another powerful tool to use to fight copyright infringement.

Thanks to Joseph J. Beecher for submitting this topic.