Fitzgerald v. Cbs Broadcasting, Inc.

491 F.Supp.2d 177

Christopher FITZGERALD, Plaintiff, v. CBS BROADCASTING, INC., Defendant.

Christopher Fitzgerald, Plaintiff, v. CBS Broadcasting, Inc., Defendant.

Civil Action No. 04cv12138-NG.

Civil Action No. 06cv11302-NG.

United States District Court, D. Massachusetts.

June 22, 2007.

COPYRIGHT MATERIAL OMITTED

Andrew D. Epstein, Barker, Epstein & Loscocco, Boston, MA, for Plaintiff.

Jonathan M. Albano, Bingham McCutchen LLP, Boston, MA, for Defendant.

MEMORANDUM & ORDER RE: SUMMARY JUDGMENT

GERTNER, District Judge.

I. INTRODUCTION

Christopher Fitzgerald ("Fitzgerald"), a freelance photographer, brings this copyright action (04-12138) against CBS Broadcasting, Inc. ("CBS") for its unauthorized broadcast of photographs he took of Stephen "the Rifleman" Flemmi. CBS argues that its broadcast of the photographs was fair use.

Fitzgerald has also brought a second, nearly identical copyright action (06-11302) against CBS on the same set of facts, seeking to collect double statutory damages because the broadcast at issue went out over two of CBS's Boston affiliate stations, CBS-4 and UPN-38.

CBS has moved to dismiss the second lawsuit and has moved for summary judgment in the first. Fitzgerald has moved for summary judgment as to liability in both lawsuits.

For the reasons set forth below, Defendant's Motion to Dismiss (document # 3) in the second lawsuit (06-11302) is GRANTED IN PART: Fitzgerald's statutory damage claims in that lawsuit are DISMISSED, and the remaining claim for actual damages is CONSOLIDATED with the first lawsuit (04-12138).

Further, Fitzgerald's motion for partial summary judgment (document # 24) in 04-12138 is GRANTED as to liability, but DENIED as to willfulness. The question of whether CBS's infringement was willful is for the jury to decide. Fitzgerald's motion for partial summary judgment in 06-11302 (document # 7) is MOOT, as the only surviving claims in that case are now consolidated with 04-12138.

Finally, Defendant's Motion for Summary Judgment (document # 32) in 04-12138 is DENIED.

II. BACKGROUND

A. Facts

1. The Photographs

Christopher Fitzgerald is a freelance photographer. On January 6, 1995, while on assignment for The Boston Globe, he photographed well-known mobster Stephen Flemmi while Flemmi was being transferred from the Framingham State Police barracks to an undisclosed location shortly after his arrest. Walking backwards as Flemmi was led out of the barracks by state police troopers, Fitzgerald took two photographs, one showing Flemmi facing forwards the left of the frame, and one showing him facing towards the right. Fitzgerald was the only photographer at the scene, and thus his are the only known publicly-available photographs of Flemmi's arrest. The left-facing photograph was published on the front page of the The Boston Globe on January 7, 1995. The Boston Globe paid Fitzgerald $150.00 for the assignment. Fitzgerald registered both photographs with the Copyright Office on February 10, 1998 (copyright # V au 411-320).

The photographs have been published multiple times since then (not including uses by defendant), including six times by The Boston Globe, twice by The New York Times, twice by the Boston Herald, and once by The American Lawyer. One of the photographs aired on America's Most Wanted in 1998. It is unclear which photograph was used in each of these instances. Fitzgerald has received $4,350 in fees for seventeen uses of the photographs, and has sued or threatened to sue six times for copyright infringement over unauthorized uses of the photographs, resulting in six settlements totaling $58,600.

2. The Television Stations

CBS Broadcasting Corporation owns two television stations in Boston, CBS-4 (previously known as WBZ-TV) and UPN-38 (now officially known as WSBTV, but still referred to popularly and by the parties by its old name). CBS-4 broadcasts over channel 4, and UPN-38 over channel 38. As is required for each separate frequency that an entity broadcasts over, each station has its own FCC license. The stations are not independently incorporated; they are assets of CBS, which is a publicly-traded corporation incorporated in Delaware.

The two stations share many resources: They have the same studio space, operate out of the same building, use the same video library, and share some staff, including writers, reporters, camera crew, and on-air news personalities. They broadcast the same news programs produced by the same employees. When a news segment is pre-produced, the tape is used on CBS-4's newscast and then re-used an hour later on UPN-38. For live news reporting and announcing, the anchors simply repeat their performance using the same notes an hour later with a different backdrop.

In other ways, the two stations operate as separate entities: They have different sales staffs and maintain their revenue separately (though all profit belongs to CBS and all staff are paid by CBS), and most of their non-news programming is different.

3. The Prior Suit

In 1998, CBS-4 (at that time called WBZ-TV) used the left-facing photo (taken from the front page of the January 7, 1995, Boston Globe ) in a broadcast without Fitzgerald's authorization. Fitzgerald filed a lawsuit for copyright infringement. Fitzgerald, v. CBS Corporation, U.S. District Court, District of Massachusetts, Docket Number 98-11510-JLT ("1998 action").

In March 1998, while the 1998 action was pending, CBS contacted Fitzgerald for permission to use the photographs on a broadcast of the television news show 60 Minutes. Fitzgerald and CBS signed a stock photography contract authorizing CBS to use each photo for one screen exposure, and expressly withholding permission for CBS to republish the photographs on other programs or in other media. When the 60 Minutes episode was aired, it included five separate screen exposures of the right-facing photo. Fitzgerald amended the 1998 complaint to include claims for the four extra exposures.

In November 1999, Fitzgerald and CBS settled the 1998 action for $15,000. In the written settlement agreement, CBS admitted to the uses alleged by Fitzgerald, but did not concede that these uses constituted copyright infringement. Defs.' Ex. 13 in Supp't. of Mot. for S.J. (document # 37-17).

After the settlement, CBS took several measures to ensure that it would not accidentally broadcast the photographs again: CBS-4/UPN-38's librarian was instructed to review all of the station's archive tapes and remove any images of the photographs; all internal staff were instructed by email to search their files and destroy any copies of the photographs that they found.

However, a copy of the 60 Minutes broadcast had been used by an unidentified CBS-4/UPN-38 staff person to create a "pitch reel" that included all five of the exposures. (A "pitch reel" is a tape of material organized by subject matter for later reference.) Four of the five exposures were purged following the settlement, but the fifth remained (defendant claims by accident; plaintiff does not offer evidence disputing this claim).

4. The 2004 Use of the Photographs

In 1995, John Martorano, a former member of the Winter Hill Gang, was arrested and agreed to cooperate with law enforcement officials in their investigation of Stephen Flemmi and Whitey Bulger. It was allegedly his cooperation that led in part to the arrest of Flemmi, which was the subject of Fitzgerald's photographs.

Martorano was sentenced on June 24, 2004. That day, CBS-4 reporter Christina Hager and video editor Scott Erdman prepared a news report on the sentencing. Erdman found the unpurged image of Flemmi on the pitch reel, cropped out the part of the photo showing the officers accompanying Flemmi, and used an exposure of the cropped image on the 11:00 news that evening on CBS-4. The report was broadcast again at 1:35 AM on June 25, and probably three times more, at 5:00 AM and 6:00 AM on CBS-4, and at 7:00 AM on UPN-38 that same day. The photograph was also posted on the CBS-4 website from June 25 to June 29.

B. Procedural History

Fitzgerald filed a complaint in the first action, 04-12138 ("'04 action"), on October 12, 2004 (document # 1) against CBS for copyright infringement based on the June 24-25 CBS-4 broadcasts. He moved for summary judgment as to liability on September 1, 2006 (document # 24). CBS cross-moved for summary judgment on September 20, 2006 (document # 32).

Fitzgerald also filed a complaint in a second action, 06-11302 ("'06 action"), against CBS on July 28, 2006 (document # 1). That complaint is absolutely identical to the '04 complaint, except that its copyright infringement claim is based on the broadcast over UPN-38. (This was a re-broadcast of the CBS-4 broadcast at issue in the '04 suit.) Fitzgerald seeks either actual or statutory damages in both actions. CBS moved to dismiss the second action on September 7, 2006 (document # 3).

C. Claims

In both the '04 and '06 actions, Fitzgerald raises a claim of copyright infringement, seeking either actual or statutory damages. He seeks to enhance any statutory damages based on a claim that CBS's infringement was willful.

III. DEFENDANT'S MOTION TO DISMISS IN THE 2006 ACTION

Plaintiff justifies filing two separate actions against this defendant — action # 04-12138, based on the broadcast of the photographs by CBS-4, and action # 06-11302, based on the broadcast of the photographs by UPN-38 — by the argument that CBS-4 and UPN-38 are separate infringers. As such, he claims that he is entitled to a separate statutory damage award for each. Defendant argues that the two stations are in fact only closelyrelated divisions of the same corporation, and therefore that they can neither be sued separately nor give rise to separate awards. Defendant's argument is correct.

A plaintiff in a successful action for copyright infringement may elect to collect either "actual damages and any additional profits of the infringer," or statutory damages. 17 U.S.C. § 504(...