It’s one of the proudest moments of your life. You sit down to breakfast, open the newspaper and there she is, your daughter looking back at you from the page, smiling proudly with her award in hand. Being a doting parent, you want to give her something special by which to remember this achievement and show her how proud you are. A quick search online and you find the perfect gift, that article, bright and shiny on a special plaque from That’s Great News!
Seems like a great business idea, but it’s almost exactly what’s gotten That’s Great News into some trouble with a news company called GateHouse Media. The only difference, the news clippings came from an online news site rather than a paper one.
Evan Brown over at Internet Cases has brought to our attention this new case in the US involving the infringement of Creative Commons licensed materials from one of GateHouse’s websites. Filed last Wednesday in the Northern District of Illinois (the area that includes Chicago) the complaint lists claims of copyright and trademark infringement, unfair competition and breach of contract. (Evan’s post questions why GateHouse chose to file a breach of contract claim. If you are interested in this discussion, see the comment section of his post.)
Without being able to see the complaint, we can only speculate about GateHouse’s arguments. The material that GateHouse claims Thats’ Great News! infringed was licensed under a CC NonCommercial NoDerivs license (BY-NC-ND). So we might suppose that GateHouse will argue that That’s Great News!’s use of GateHouse’s material was a derivative work and that it was commercial.
The problem with a derivative use argument in this case is that the facts closely resemble the facts of another case, a case of binding precedent in the 7th Circuit. (For non-US/non-attorneys, appeals from the Northern District of Illinois go to the 7th Circuit Court of Appeals.)
That’s Great News!’s use of putting newspaper articles on plaques and selling the plaques is very similar to putting notecards on tiles and selling the tiles. The 7th Circuit has already decided that putting notecards on tiles does not equal the creation of derivative works and does not result in copyright infringement. (Short Lee v. A.R.T. Company opinion here.)*
This leads into the problem with a commercial use argument. While That’s Great News! is making money selling the plaques with news stories, that does not necessarily mean That’s Great News! is violating the terms of GateHouse’s license. Creative Commons licenses do not affect any uses that are allowed under regular copyright, i.e. they do not prevent fair use, even commercial fair use. If the court follows the reasoning in Lee v. A.R.T. and decides that That’s Great News!’s use is not a derivative work and is not infringing, it will not matter that That’s Great News! makes money selling its plaques.
As Eric Goldman pointed out on Evan’s post, this is not the first time GateHouse Media has brought a suit for infringing uses of its CC-licensed materials. In 2008, Gate House sued The New York Times for copyright and trademark infringement, unfair competition and breach of contract, as well as false advertising, trademark dilution and unfair business practices.The two companies settled the case in early 2009.
Perhaps this case will settle, too.
*Note: There is a circuit split in the United States with respect to facts like the notecard-tiles and whether than is a derivative work. The 9th Circuit has held that it is a derivative work. See Mirage Editions v. Alburquerque Art.
(As always, my post here is for The 1709 Blog and is not on behalf of, or representing the opinions of, Creative Commons.)