Copyright and First Amendment Collide over Minneapolis Skyline
Chris Gregerson, an individual professional photographer representing himself in Minneapolis federal court, fails in obtaining an injunction against a financial institution that appropriate his photograph of the Minneapolis skyline; but succeeded in eluding a defamation counterclaim.
Defendants use the allegedly infringing photograph in their real estate web ads, print ads, brochures and in third party business directory advertisements, changed only by the elimination of Gregerson’s copyright notice.
Gregerson, after learning of the infringement and finding no satisfaction in his demand that defendants stop infringement, posted on his own website to make his accusation of copyright infringement more public and explicit. The defendants in Chris Gregerson v. Vilana Financial Inc. et al (No. 06-1164, D. Minn.) counterclaimed that Gregerson’s website constituted defamation and trademark infringement. Specifically, the defendants claim that the organic search engine results are skewed as a result of the defendant’s trademarks depicted in Gregerson’s website.
Gregerson defended claiming a first amendment right to state his criticism of defendants.
This is another in a long line of cases where the First Amendment trumps intellectual property causes of action; and it especially predictable when the First Amendment claim includes a criticism.
Now with YouTube allowing 90,000 new videos to be posted daily, this action is remarkable not for the controversy but because Gregerson knew, could locate and serve the parties that are making allegedly unauthorized use of his photographs. Take a look at the YouTube site and especially the most popularly viewed. None of the photographs, music or other third party copyright is authorized on YouTube; and we haven’t see a spate of law suits. What a boon that safe harbor clause of the DMCA is for us all, right?