Barcroft Media, Ltd. v. Coed Media Grp., LLC
297 F. Supp. 3d 339
S.D. Ill.2017Background
- Plaintiffs Barcroft Media and FameFlynet own copyrights in a set of paparazzi and human-interest photographs (12-images at issue) registered with the Copyright Office; CMG displayed those Images on its gossip websites without authorization.
- CMG conceded ownership and unauthorized use for all Images except it admitted liability for one (Deschanel); it argued waiver/implied license for some Images and fair use for most.
- CMG received a FameFlynet cease-and-desist in May 2015; negotiations followed but no license was consummated; CMG removed certain Images in August 2015.
- CMG is a small, largely unprofitable ad-supported web publisher that habitually used images via subscription services or unlicensed screenshots and thumbnails to drive traffic.
- The district court held a bench trial, found infringement, rejected waiver/implied-license and fair-use defenses for eleven Images, and awarded injunctive relief plus $10,880 in damages (combination of actual and statutory damages).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver / implied license for certain Images | FameFlynet did not waive rights; it sent a C&D and sought to negotiate a license. | CMG contended FameFlynet’s agent said “not to worry,” creating waiver or an implied nonexclusive license. | No waiver or enforceable implied license: stray comment lacked knowledge, intent, essential terms, and parties negotiated a license later. |
| Fair use — purpose/character (transformative & commerciality) | Plaintiffs: Images used in their original commercial/news context; not fair use. | CMG: uses were news/commentary, thumbnails/banners were transformative and aimed to direct users; sites are not profit-making so noncommercial. | Factor favors Plaintiffs: uses were non-transformative, commercial, and intended to serve the same purpose as originals. |
| Fair use — amount/substantiality & nature of work | Plaintiffs: Images factual and often short-lived, so fair use more likely. | CMG: cropped/thumbnail uses or brief screenshots reduced amount used; content is newsworthy. | Amount/substantiality weighed against CMG (most images used whole or core portions); nature of works slightly favored CMG (factual) but carried little weight. |
| Fair use — market effect | Plaintiffs: CMG’s unlicensed uses usurped the market, harming licensing value. | CMG: used lower-resolution copies, limited market impact, and sites are small. | Market-effect favored Plaintiffs: unlicensed display would, if widespread, supplant licensing market; this factor was decisive against fair use. |
Key Cases Cited
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (copyright requires ownership and copying)
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (fair use framework; transformation central)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (commercial exploitation and market harm weigh against fair use)
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (amount/substantiality and market effects in fair use analysis)
- Authors Guild v. Google, Inc., 804 F.3d 202 (scope of protection for factual works)
- Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471 (waiver requires intentional relinquishment with knowledge and intent)
- TCA Television Corp. v. McCollum, 839 F.3d 168 (copyright’s purpose and limits; fair use as exception)