Citation Edit

Bollea v. Gawker Media LLC, 2012 WL 5509624, 2012 U.S. Dist. LEXIS 185667 (M.D. Fla. Nov. 14, 2012) (full-text).

Factual Background:

Plaintiff entered into consensual sexual relations with a woman some years ago, and unknown to him, the encounter was videotaped. Plaintiff claimed that he would have objected to any recording had he be aware it. Plaintiff contended that he obtained and registered a copyright to the video. Excerpts from the video was posted on defendant's website and plaintiff claims giving no consent to this posting. Plaintiff sent numerous requests for removal but defendant refused to remove the post.

Plaintiff contended that the video would create substantial adverse and detrimental effects on his personal and professional life. After filing a suit asserting invasion of privacy, violation of his right of publicity, IIED, and negligent infliction of emotional distress, plaintiff amended his complaint adding a claim of copyright infringement. Plaintiff moved for a preliminary injunction.

District Court Proceedings Edit

The court held that a preliminary injunction will be granted only if (1) there is a substantial likelihood of success on the merits of plaintiff's copyright infringement claim or (2) that plaintiff will suffer irreparable harm in the absence of an injunction, (3) the harm suffered would exceed the harm suffered by defendant if the injunction is issues, and (4) an injunction would not disserve the public interest.

The court held that it was doubtful that plaintiff could establish a likelihood of success on the merits or that the balancing of harm and public interest warrant preliminary injunctive relief. The court found numerous issues relating to the validity and defendant's fair use of the video. Looking into his precedent, the court found that defendant published the video excerpts "in conjunction with the news reporting function." The court held that under copyright law "the fair use of a copyrighted work for purposes such as criticism, news reporting is not an infringement of copyright."

Plaintiff argued that there was a copyright infringement based on the fact that the posting increased traffic to the website and, in response, advertising revenue to defendant. The court rejected this argument holding that this alone was insufficient "to demonstrate a commercial use that would preclude a finding of fair use under copyright law." It reasoned that indirect gain from the increased traffic is distinguishable from selling access to the video solely for the purpose of commercial gain. Furthermore, the court held that plaintiff could not legitimately claim that he sought to publish the video and that defendant usurped plaintiff's potential market for the video by publishing the excerpts.

The court further held that First Amendment freedom of the press outweighed plaintiff's privacy interests given the fact that defendant played no role in "illegal reception." The court noted that the Eleventh Circuit recognized that the balance between the First Amendment and copyright is preserved by the doctrine of fair use.

Next, the court held that plaintiff produced no evidence demonstrating that he would suffer irreparable injury absent a preliminary injunction. The court reasoned that the evidence of plaintiff suffering harm personally or to his professional image did not constitute irreparable harm in the context of copyright law. The copyright law protects the commercial interest of the copyrighted work, "the protection of privacy is not a function of the copyright law."

Even though the private video portrayed plaintiff in a poor light and could potentially harm his personal relationships, mental well-being, and professional image, plaintiff could not claim that he was trying to protect the financial worth of his copyrighted work. There was no effect on the ownership value of the copyrighted work because of the impact that the posting would have on the commercial advantage of controlling the release of the video. Moreover, the court doubted that there was no other purpose of recovering the work than the purpose of destroying it.

The court denied plaintiff's motion for preliminary injunction.

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