Decisions in Brief

AuthorJohn C. Gatz
PositionJohn C. Gatz is a member of the firm Nixon Peabody in Chicago, Illinois. Column contributors include the following writers: Copyrights: Zachary J. Smolinski, Smolinski Law PC; Michael N. Spink, Brinks, Hofer, Gilson & Lione; and Mark R. Anderson, Akerman LLP. Patents: Cynthia K. Barnett, Johnson & Johnson; R. Trevor Carter, Daniel M. Lechleiter...
Published in Landslide® magazine, Volume 10, Number 6, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2018 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Decisions in Brief
Destruction of Aerosol Paintings—
$150,000 per Work
Cohen v. G&M Realty LP, 125 U.S.P.Q.2d 1708 (E.D.N.Y.
2018). Plaintiffs, 21 “aerosol artists,” sought a prelimi-
nary injunction under the Visual Artists Rights Act of 1990
(VARA) against the defendants (real estate entities G&M
Realty) to prevent the planned demolition of their warehouse
buildings, and consequent destruction of the plaintiffs’ paint-
ings on the walls of the buildings. The district court had
previously denied preliminary injunctive relief, stating that
a written opinion would soon be issued. Rather than wait for
the opinion, G&M Realty destroyed the art by whitewashing
the walls.
VARA has codied the right to integrity, which includes
the right “to prevent any destruction of a work of recognized
stature.” The district court reiterated that these buildings
had become the repository of the largest collection of exte-
rior aerosol art in the United States, and this litigation was
one of rst impression for a court to determine if the work
of an exterior aerosol artist is protectable under the law. The
defendants here permitted the artists to rent studio space in
the warehouse buildings, and the artists took it upon them-
selves to clean up the area, install lighting, and make the area
inviting. Eventually the site became a major attraction to the
public. The district court therefore found that G&M Realty
violated the aerosol artists’ rights under VARA, and given the
willful violation of rights, awarded the maximum statutory
damages totaling $6,750,000 for the 45 works destroyed.
Embedding Viral Photograph of Tom Brady
Implicates Photographer’s Exclusive Display Right
Goldman v. Breitbart News Network, LLC, 125 U.S.P.Q.2d
1778 (S.D.N.Y. 2018). Justin Goldman took a picture of
New England Patriots quarterback Tom Brady, showing
Brady helping the Boston Celtics basketball team to recruit
Kevin Durant. Goldman uploaded the photo to his Snap-
chat account, and the photo went viral. Eventually, it was
uploaded to Twitter by several sources, and the defendants’
news sources embedded the photo into news stories about the
attempted recruitment. In the embedding process, the photo
is not physically copied by the defendants for storage on their
servers; rather, the defendants constructed web pages that
retrieved the image from third-party servers, thereby display-
ing the photo to users of the defendants’ sites. Goldman sued
the media outlets for infringing his copyright in the photo,
and the defendants moved for partial summary judgment of
the suit. The defendants urged adoption of the Ninth Circuit’s
“server test,” whereby they would be liable for copyright
infringement only if the photo were stored on their serv-
ers. Here, the district court noted that most courts of appeal
have neglected to adopt that test. Finding for the plaintiff and
denying the defendants’ motion for summary judgment, the
district court declined to apply the server test. The district
court also noted that there is a very serious and strong fair use
defense that was not the subject of the motion.
Ticketmaster Fails to State Copyright Claim in
Battle over Bots
Ticketmaster L.L.C. v. Prestige Entertainment, Inc., 125
U.S.P.Q.2d 1540 (C.D. Cal. 2018). Ticketmaster sells tick-
ets to entertainment events via its website, mobile app, and
telephone. Prestige is a company that allegedly used bots and
dummy accounts to purchase large amounts of tickets in a
manner that a human user could not match and subsequently
resold these tickets on the secondary market for prot. Tick-
etmaster alleged that Prestige purchased 30–40 percent of
tickets to some events. Ticketmaster’s terms of use (TOU)
prohibit the use of bots to purchase tickets, or to request
access to more than 1,000 pages of the site in a 24-hour
period. Ticketmaster sent Prestige a cease and desist letter,
and subsequently sued Prestige and asserted many claims,
including copyright infringement and violations of the Digi-
tal Millennium Copyright Act (DMCA). Prestige moved to
The district court granted Prestige’s motion to dismiss
the copyright claim, but denied the motion to dismiss the
DMCA claim. The district court determined that Prestige
was a nonexclusive limited licensee, and could only infringe
Ticketmaster’s copyright if it exceeded the license’s scope
in a manner that implicates one of the licensor’s exclusive
statutory rights. The terms must be conditions that if met ter-
minate or enlarge the obligation of the parties, and there must
be a nexus between the condition and the licensor’s exclusive
right of copyright. The district court determined Ticketmas-
ter’s terms were merely covenants, because the license said
Ticketmaster “may” take action if the terms of the license
were breached, so neither party’s obligations are terminated
or enlarged if a violation occurs because the parties’ interests
do not change unless and until Ticketmaster acts.
The district court denied Prestige’s motion to dismiss the
DMCA claim, as Ticketmaster’s allegations involved Pres-
tige using bots to bypass technological measures to access
copyrighted information. The district court rejected Prestige’s
arguments that CAPTCHA is not a technological measure
under the DMCA, since a user may not access copyrighted
materials without utilizing CAPTCHA.

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