On Sept. 29, 2018, Bill Murray joined the nearly 89,000 fans in attendance at Memorial Stadium Lincoln to watch the Nebraska Cornhuskers take on the Purdue Boilermakers. Murray’s appearance attracted local media attention as well as notice on social media. Videos and photographs of the now 70-year-old Academy Award-nominated actor were widely circulated.
One photo of Murray sparked a federal lawsuit involving an accomplished photographer and an international media company. Last year, Aaron Babcock—whose photographs have appeared in Sports Illustrated, ESPN The Magazine and other national publications and who founded Hail Varsity—sued Gannett Satellite Information Network, the operator of websites for USA Today and other publications, for copyright infringement. On Feb. 12, Judge Holly Brady of the U.S. District Court for the Northern District of Indiana issued a mixed ruling on Gannett’s motion to dismiss Babcock’s suit.
The gravamen of the case is straightforward. Four Gannett-operated websites (www.jconline.com; www.lohud.com; www.redding.com and www.amp.usatoday.com) published Babcock’s photo, which he initially published on Twitter and then registered with the U.S. Copyright Office, without his consent or license. Babcock claims illegal infringement of his exclusive rights in the photograph. He seeks damages, up to $150,000 per infringed work, as well as attorney’s fees and costs.
Gannett doesn’t dispute that it published the photo or that it did so without Babcock’s consent. It instead insists that it published the photo “pursuant to a valid sublicense from Twitter, where [Babcock] originally posted the image, thus making it publicly available and subject to Twitter’s Terms of Service.” The company maintains it did not infringe.
Babcock is represented by New York attorney Richard Liebowitz, while Gannett’s lead attorneys are Abigail Clapp and Gregory Herbert of Greenberg Traurig.
The case presents an interesting legal question for the sports industry: Does a media company have the right to publish a photo posted on Twitter without the consent of the Twitter user?
This question remains unanswered following Judge Brady’s order. The judge granted Gannett’s motion to dismiss claims related to three of the websites (www.lohud.com; www.redding.com and www.amp.usatoday.com). She did so, not on account of whether Gannett infringed but rather on lack of jurisdiction. None of those publications has “relation or connection” to the court’s jurisdiction—those websites are all based outside of Indiana—and the photo took place in Nebraska, not Indiana.
Yet Judge Brady denied Gannett’s motion to dismiss with regard to www.jconline.com, the website for the Lafayette Journal & Courier, a daily newspaper serving Lafayette, Ind., that covers nearby Purdue. The paper, and its relationship to Babcock’s claim, are within the court’s jurisdiction.
Judge Brady also reasoned the infringement question for www.jconline.com requires more analysis. She noted that Twitter’s terms of service (TOS) express that users agree to make their content “available to other companies, organizations or individuals for the syndication, broadcast, distribution, retweet, promotion or publication of such Content on other media and services.” Taken by itself, that language would suggest that Gannett possessed the right to publish a tweeted photo without Babcock’s permission. Yet the TOS, the judge stressed, go on to qualify that this right to reproduce is “subject to [Twitter’s] terms and conditions for such content use.” Judge Brady concluded that Gannett has not addressed that qualifier and therefore the issue of infringement remains unsettled.
The judge also drew attention to “factual disputes” about whether Gannett “reproduced the photos via Twitter’s embedded function or not.” Each side has presented conflicting visual accounts as to whether the embedded feature was used in the www.jconline.com reproduction. She noted that if Gannett failed to run an embedded photo, its action could have run afoul of Twitter’s TOS.
The ruling is significant: The case will proceed to pretrial discovery. Each side could be compelled to share emails, texts and other correspondences relating to the dispute. Witnesses, including website editors who made the decision to publish the story, could be required to answer questions under oath. It’s possible the case will settle, though if it continues, sports journalists who post photos on Twitter and sports-media companies who use those photos ought to pay close attention.
(This story has corrected the headline to the Big Ten as the conference in question.)