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Fair Use Victory as to Blogger's Use of Photos of the Businesspeople He Crticizes:

The case is Sedgwick Claims Management Servs., Inc. v. Delsman (decided July 17, 2009):

Defendant Robert A. Delsman, Jr. ... runs a "blog" in which he has strongly criticized the business practices of Sedgwick [Claims Management Services, Inc.] and its management. In addition, Defendant has mailed postcards styled as "WANTED" posters bearing the photographs of two of Sedgwick's executives, again with critical commentary. Sedgwick ... alleges that Defendant engaged in copyright infringement by using the two photos. In addition, Sedgwick alleges various state law causes of action, including defamation, based on the content expressed in the blogs....

C. FAIR USE FACTORS

1. First Factor--Purpose and Character of the Use

The first fair use factor addresses "whether the new work merely 'supercedes the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message, in other words, whether and to what extent the new work is 'transformative.'" Among the various forms of "transformative use" is parody, which is a "'literary or artistic work that imitates the characteristic style of an author or a work for comic effort or ridicule, ...'" ...

Sedgwick argues that there can be no fair use [as to the unaltered photos on the postcards] where, as here, Defendant did not alter the photographs of North and Posey.... [But] the salient inquiry is whether the use of the photos, in the specific context used, was transformative.... "[M]aking an exact copy of a work may be transformative so long as the copy serves a different function than the original work[.]"

Here, there can be no legitimate dispute that Defendant's use of North and Posey's photographs was transformative. Both images originally were used by Defendant for promotional reasons. Defendant, however, used the photographs as a vehicle for criticizing the Company. Specifically, both photographs are superimposed on postcards that mimic "WANTED" posters. Above each picture is the heading, in a large font, which states: "WANTED FOR HUMAN RIGHTS VIOLATIONS." The copy accompanying the photographs criticizes Sedgwick and its management's alleged mistreatment of claimants and questionable practices, and urges the public to report any misdeeds to the U.S. Department of Justice and state Attorney Generals. When viewed in context, it is clear that Defendant used North and Posey's photographs for a fundamentally different purpose than they were originally intended by transforming them into a vehicle for publicizing and criticizing Sedgwick's alleged business practices. In view of the above, the Court finds that the first fair use factor weighs strongly in favor of fair use.

[Footnote: Given the transformative nature of Defendant's use of the photographs, the matter of whether the use was commercial is less significant. Nevertheless, the Court notes that there is no claim that Defendant used the photographs for commercial gain. Rather, all of the facts presented indicate that the photographs were used as part of Defendant's overall endeavor to educate, publicize and warn the public about Sedgwick. The lack of commercialism also weighs in favor of fair use.]

2. Second Factor--Nature of Plaintiff's Work ... Neither party makes any argument regarding this factor. The Court therefore considers the second factor to be neutral.

3. Third Factor--Amount of the Work Used.... [T]he reuse of an entire image may be reasonable if it serves the defendant's intended purpose.... [T]he Court concludes that this factor is neutral.

4. Fourth Factor--Effect of the Use on the Potential Market

The fourth and final statutory factor is "the effect of the use upon the potential market for or value of the copyrighted work." ... [Sedgwick] argues that "the fourth factor weighs in [its] favor because Delsman's alteration, public display of altered photographs and public distribution of the same have injured Sedgwick's potential ability to continue to use the photos of its CEO and CFO (sic) for future marketing purposes." However, the relevant question is not whether the work itself has lost value, but rather, whether the secondary use has usurped the commercial demand for the original. Here, there is no such demand, since there is no commercial market for them. And even if there were, Defendant's use of the photographs is sufficiently transformative that it would not be a "substitute" for the original.

Moreover, the possibility that Defendant's use of the photographs has undermined Sedgwick's ability to use them in the future is not remediable under the Copyright Act. As the Supreme Court explained ..., "when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act." The Court finds that the fourth fair use factor favors Defendant.

5. Summary

Taking all of Sedgwick's allegations as true, the Court finds that two of the fair use factors weigh strongly in favor of Defendant and two are neutral. Defendant's uses of the photographs of North and Posey are highly transformative and serve an entirely different function than originally intended. It was reasonable for Defendant to use the entire photograph in order to evoke the image of a "WANTED" poster. His use could not have had impacted the market for the photographs because no such market is alleged to have existed. But even if it did, Defendant's use was sufficiently transformative that it could not be deemed to be a substitute for the original. Allowing Defendant to use the photographs in the context of publicly criticizing and warning the public regarding Sedgwick's business practices is precisely the type of activity the fair use doctrine is intended to protect.

The fair use analysis strikes me as quite right. As to the state law claims, the court concluded that "Sedgwick fails to adduce any evidence to meet its burden of showing a probability of prevailing on any of its claims. Rather, Sedgwick simply recites the elements of each of its state law causes of action and cites to various allegations of the Amended Complaint." It therefore ruled for Delsman on those as well.

By the way, Delsman, who is apparently not a lawyer, represented himself -- something that rarely leads to victory, but did so this time.

Tatil:
I guess the company did not file the lawsuit confident that it was going to win, they probably filed it to make life more difficult for the blogger and even create a financial burden for him. (He represented himself, so the financial hit may not be that much.) If that's the case, "victory" is too strong a word to use here. However, if he is planning to apply to law school, I'd say this should definitely count in his favor.
7.23.2009 7:52pm
wunderola:
This case is why SLAPP [Strategic Lawsuit Against Public Participation] laws exist. Too bad not all states have such a law on the books.
7.23.2009 8:24pm
SeanF:
Sedgwick argues that there can be no fair use where, as here, Defendant did not alter the photographs of North and Posey...

... [Sedgwick] argues that "the fourth factor weighs in [its] favor because Delsman's alteration, public display of altered photographs and public distribution of the same...

Is Sedgwick arguing that Delsman altered the photographs or not?
7.24.2009 11:45am
Jeff Walden (www):
Is Sedgwick arguing that Delsman altered the photographs or not?


Yes!
7.25.2009 4:48am
Eugene Volokh (www):
The photos on the postcards were unaltered, the photos on the blog were altered.
7.25.2009 11:11am
eamarquardt (mail):
The bigger issue here is how the Employment Retirement Income Security Act of 1974 (ERISA) allows Employers, Insurers, and third party administrators (like Sedgwick CMS)to defraud and cheat sick and disabled employees out of the benefits they have worked for, earned, and been promised! Rob and I have worked hard to expose their crimes against basic human rights!

Visit sedgwickcms.blogspot.com to learn more. Read the AT&T travel policy that was sent to me and learn how AT&T held me prisoner and made it difficult, at best, and impossible to obtain their "permission" to go beyond 60 miles from home or spend the night away from home.

Sedgwick treats the sick and disabled they are well paid to serve, worse than convicted felons are treated in this country! Why aren't more people upset? By my estimate (if 1/2 of 1% of AT&T employees are out on short term or long term disability at any one time, then 1500 people are being held under house arrest. These are probably all citizens of the USA and have worked hard for AT&T and this country. Why the furor over the 300 enemy combatants held at Gitmo when AT&T and Sedgwick (and perhaps other companies) are holding law abiding disabled workers prisoner?

We have a lot more in stock for Sedgwick and AT&T!!! Stay tuned!!!!! Check the blog frequently!!!

Eric A. "Gus" Marquardt
Grandson of WWI Soldier
Son of Naval Officer (mother, Navy Nurse)
Son of Marine Corps Officer (father, Raider and Recon)
Marine Corps Officer (infantry)
Father of United States Marine (rifleman in Iraq)
We've done our part
(805)526-5277H
(805)791-0287C
eamarquardt@sbcglobal.net

Why I'm fighting AT&T and Sedgwick CMS:

In Germany, they came first for the Communists, And I didn't speak up because I wasn't a Communist;
And then they came for the trade unionists, And I didn't speak up because I wasn't a trade unionist;
And then they came for the Jews, And I didn't speak up because I wasn't a Jew;
And then . . . they came for me . . . And by that time there was no one left to speak up."

I am able to get by without AT&T's promised money. They have cheated and abused far too many people to get away with it. I've made it my "cause" to see that this abuse is stopped.
7.25.2009 12:09pm
Rob Delsman (mail):
This has been a real "Mr. Toads wild ride" and I am happy that I can rest for the moment. It is not uncommon for me to receive numerous communications daily from sick, injured or disabled people daily. Many of these people are in a really tight spot, some losing their families, health, homes and all the rest.
This "victory" is well deserved for those that are unable to protect themselves against the truly despicable characters at Sedgwick CMS…. And Sedgwick can always appeal to the 9th Circuit.

Through all of this my wife has stood by my side the entire time(actually holding me up when I was too sick to do so myself)I love you Kelli, thanks for being my best friend!

Rob Delsman
7.25.2009 8:06pm
David M. Nieporent (www):
Visit sedgwickcms.blogspot.com to learn more. Read the AT&T travel policy that was sent to me and learn how AT&T held me prisoner and made it difficult, at best, and impossible to obtain their "permission" to go beyond 60 miles from home or spend the night away from home.

Sedgwick treats the sick and disabled they are well paid to serve, worse than convicted felons are treated in this country! Why aren't more people upset? By my estimate (if 1/2 of 1% of AT&T employees are out on short term or long term disability at any one time, then 1500 people are being held under house arrest. These are probably all citizens of the USA and have worked hard for AT&T and this country. Why the furor over the 300 enemy combatants held at Gitmo when AT&T and Sedgwick (and perhaps other companies) are holding law abiding disabled workers prisoner?
Yes, and just like at Gitmo and "house arrest", you'll be shot if you try to leave! Oh, no, wait. All they'll do is stop paying a fraudulent disability claim.
7.26.2009 4:56pm

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