| In SDNY Hearst Loses Bid To
Block Subpoena To Have CLO Eve Burton Testify
in Trump Photo DMCA Case
By Matthew
Russell Lee, Patreon,
Periscope
SDNY COURTHOUSE,
July 1 – Hearst
Communications, Inc. lost its
bid to block the issuance of a
subpoena for its chief legal
officer Eve Burton to have to
testify in a July 15 trial of
copyright claims to a photo of
President Donald J. Trump
crashing a wedding.
After oral
argument on July 1, in which
Hearst's lawyers told U.S.
District Court for the
Southern District of New York
Judge Gregory H. Woods that
Ms. Burton is simply too busy
to testify, and in any event
has no direct knowledge of the
copyright training program at
issue, Judge Woods issued an
oral ruling denying Hearst's
motion in limine.
First,
Judge Woods noted that the
so-called "Apex Witness"
doctrine Hearst relied on
applies to taking depositions
of senior officials, not to
trial testimony. Then, more
colloquially, he asked the
Hearst lawyer what it would
cost, beyond the cost of a
subway ride from 57th Street,
a short walk and an hour of
testimony.
The
Hearst lawyer said that these
things - presumably meaning
taking the stand in a trial -
have a way of eating up more
time than anticipated. The
case is Otto v. Hearst
Communications, Inc.
17-cv-4712 (Woods).
Plaintiff
photograph Jonathan Otto's
lawyer cited as precedent a
case in which a BuzzFeed
official had to testify.
Hearst's lawyer replied that
BuzzFeed is "tiny," noting
that Hearst has an investment
in it.
Ass
Inner City Press reported in
May 2019, BuzzFeed Media is
being sued, rather routinely,
for using a Florida
photographer's aerial shot of
Miami's American Airlines
Arena, see below. And on May
28 into the SDNY, otherwise occupied
with Michael Avenatti, came
the case of CollegeHumor.com's
use of a Himalayan Dog photo
by photographer Sebastian
Wahlhuetter. The publication
took place in 2016, in an
article entitled "20 Random
Reddit Photos Turned Into Epid
Movie Posters." But the
lawsuit was filed in February
2019. College Humor was
ordered by SDNY Judge Lorna G.
Schofield to respond by May
20, but there is no response
in the docket as of the May 28
hearing date. The case is
19-cv-2501, Jury Trial
Demanded. Now the demand is
for $3,000 in damages, $10,000
in statutory damages, $2037.50
in attorneys' fees and $475 in
costs and, of course,
interest. This
is the SDNY.
On
May 14 Gizmodo was sued, by
photographer David McGlynn,
for using his photo of Malcoln
Abbott which ran in the New
York Post on March 13, 2019,
in a story about the Varsity
Blues scandal.
L'affaire Gizmodo has
been assigned tp
U.S. District
Court for the
Southern
District of
New York Judge Alison
J. Nathan,
who recently
presided over
SEC v. Elon
Musk. Might
her approach
to DMCA claims
be different
than fellow
SDNY Judge
Vernon
Broderick?
On May 10
BuzzFeed's lawyer argued that
under the Digital Millennium
Copyright Act they can demand
attorney's fees from the
photographer, even if they
lose, if the judgment is less
than what they have
offered. That case is Myeress
v BuzzFeed Inc,
18-cv-2365 (VSB).
***
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