Entertainment & Intellectual Property Law

Will Tarantino Be Able To Prove Copyright Infringement Against Gawker? The 411 on Copyright Infringement

In January 2014, Quentin Tarantino filed a contributory copyright infringement claim against Gawker.com for linking to his (as of yet) unproduced script, THE HATEFUL EIGHT.  Tarantino alleged that by making the link available to the script, Gawker was contributing to the infringement of his copyrighted work.

On April 22, 2014, a federal court dismissed Tarantino’s complaint holding that he had failed to establish that Gawker’s actions constituted copyright infringement. U.S. District Court Judge John F. Walter held that Tarantino failed to allege that anyone had seen the script because of the Gawker article.  Judge Walter noted, “Nowhere in these paragraphs or anywhere else in the Complaint does Plaintiff allege a single act of direct infringement committed by any member of the general public that would support Plaintiff’s claim for contributory infringement. Instead, Plaintiff merely speculates that some direct infringement must have taken place.”

On May 1, Tarantino amended his complaint to allege that “Gawker engaged in direct copyright infringement by their unauthorized download of a PDF copy of the leaked unreleased complete screenplay for Quentin Tarantino’s motion picture The Hateful Eight.”

Tarantino, like every copyright holder, is entitled to certain exclusive rights in his protected work.  These rights include the right to reproduce, distribute, display or perform the work, or to make derivative works.  Copyright infringement occurs when a third-party exercises one of these rights without permission from the copyright owner.  Contributory liability, based on a claim of secondary rather than direct liability, arises when a party knowingly and materially contributes to or is responsible for another party’s infringing acts. The most common form of direct copyright infringement occurs when a third-party improperly reproduces or copies a protected work.

To establish a claim of copyright infringement for improper copying, one must prove ownership of the work and unauthorized copying of the work or elements of the work.  As to the first element, a copyright registration certificate from the United States Copyright Office serves as prima facie evidence of ownership.   A plaintiff can establish the second element, improper copying, through direct or indirect evidence.  Examples of direct evidence of copying include a defendant’s admission or witness testimony of copying.  More likely, copying will be proved through indirect evidence by showing that the defendant had access to the work and that the works are substantially similar.

There are a number of defenses available in a copyright infringement action:

(1) Fair use – Allows for the limited use of copyrighted material without the copyright owner’s permission. Examples of fair use include research, commentary, criticism, news and parody.

(2) Copyright Invalidity – Argues the underlying work is not original or that it lacks copyrightable material.  Similarly, a defendant could argue that the plaintiff is not the owner of the copyright or that the work is now in the public domain.

(3) Consent – Arises when there is an express or implied grant of consent to use the protected material.

(4) Independent creation – Although a third-party’s independent creation is an absolute defense to copyright infringement, it is often difficult to prove.

(5) Statute of limitations – The statute of limitations for civil infringement is three years and five years for criminal infringement.  A majority of circuit courts apply the “discovery rule” to determine when the limitations period begins to accrue.  Under the discovery rule, the deadline to bring an infringement action accrues from the date that the plaintiff knew or should have known about the infringing activity.  A minority of circuits apply the “injury rule”, whereby the deadline begins to run from the date injurious conduct first began.

If able to establish copyright infringement, actual or statutory damages are available.  Statutory damages range from $750 – $30,000 per infringing work (left to the Court’s discretion).  If the infringement is willful, a court can assess statutory damages of $150,000 per infringing work.  In addition, attorney’s fees are available to the prevailing party.

Stay tuned for updating information as Tarantino and Gawker make their way through the legal system.

For more information on copyright infringement, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com