Saturday, November 20, 2010

Palin Publisher Sues Gawker Over Alleged Copyright Infringement

This is a brief update on Chris Bird's post yesterday, Did Gawker Violate Sarah Palin's Copyright?

Associated Press reports today that Ms. Palin's publisher, Harper Collins, commenced legal action against Gawker Media yesterday in a Manhatan federal court.

According to AP, the Harper Collins complaint alleges copyright infringement over Gawker's publication of 21 pages of images from the new Palin book prior to the book's official release date:

...The lawsuit asks that Gawker be banned from what it terms "further copyright infringement" and that Gawker deliver the source material to the publisher so it can be destroyed. HarperCollins is also seeking financial damages.

Gawker did not immediately respond to e-mails seeking comment Friday evening, but an item published the day before and titled "Sarah Palin Is Mad at Us for Leaking Pages From Her Book" defended the blog's actions and linked to websites defining the fair use doctrine of copyright law.

The blog was not the first site to publish excerpts from the book, which has been billed as a tribute to American values, but it refused to take them down after receiving a letter demanding that it do so, the lawsuit said. The Associated Press bought a copy of the book ahead of its Nov. 23 release date [emphasis added].

Note the last sentence of the AP excerpt carefully - its inclusion in the article is not accidental - with this commentary from Chris Bird on the U.S. law of fair use in mind:
Under American common-law rules of fair use, publishing excerpts of a work before its publication date actively harms the case for fair use, as you are considered to be obliviating the creator's rights in publication of the work. The best example of this in American caselaw is Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), which is largely analagous to the Palin/Gawker incident given that both instances involve an unauthorized excerpt of not-yet-published writing by a public political figure - in Harper it was a memoir by Gerald Ford, excerpted without permission by The Nation magazine. In Harper, the publisher won specifically because the Supreme Court determined that a creator's right of first publication was an important right and any fair use defence would have to be extremely compelling to override it.
If advance copies of the publication were already for sale at the time of the November 17th Gawker publication, had the Palin book already been "published," within the meaning of the Harper test described above?

- Garry J. Wise, Toronto
Update: November 21, 2010

A federal judge on Saturday ordered Gawker Media to pull leaked pages of Sarah Palin's forthcoming book "America by Heart: Reflections on Family, Faith and Flag" from its blog.

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