In May of 2016, a Facebook Live user named Kali Kanongataa offered the world something uplifting, graphic and intimate: the birth of his son for all the world to see. According to Kanongataa, he had originally attempted to share the live broadcast only with his Facebook connections, but mistakenly broadcast to all of Facebook — which includes every major news outlet in the world — 45 minutes of his partner giving birth.
Not surprisingly, several news outlets reported on this delivery over Facebook Live, not because childbirth (which happens all over the world with some frequency) was a newsworthy event, but because this form of a birth announcement was a sign of the times. At least five different media outlets took the story, all of which eventually were sued by Kanogataa for, you guessed it, copyright infringement. While a few of the outlets settled before trial (which may have been his goal, as noted by the court), plaintiff underestimated the resolve and resources of the familiar media outlets ABC and NBC, as well as a relatively new media company called COED Media Group.
In Kanongataa v. American Broadcasting Companies, Inc. et al., plaintiff argued that by rebroadcasting images from his public feed, the defendants infringed on his copyright in the video. (It’s not clear whether the new mother consented to the world watching her at this rather vulnerable event, or whether Kanogataa obtained from her a signed release of her rights to publicity/privacy/HIPPAA...). It is worth noting the rather minimal extent to which the defendants used the video in their reports: ABC showed 30 seconds; NBC showed 22 seconds; and COED Media used a single frame.
The defendants countered that their rebroadcast of the material amounted to a classic example of fair use and moved to have the case dismissed. In February, Judge Lewis Kaplan of New York’s Southern District granted the motion, holding that it was fair use because (a) the media companies were reporting news; (b) the amount of material used by them was no more than what was necessary; and (c) the fact that Kanongataa kept posting the video for free on Facebook — even up to the date of the decision — indicates that the alleged infringement had not impacted the commercial value of the video.
More recently, in addressing a joint motion for attorneys’ fees, Judge Kaplan did not speculate as to Kanogataa’s integrity or intentions in bringing his flurry of lawsuits, but in a manner befitting Marc Antony, noted that other people had their doubts. He went on to write that the purpose of awarding fees in copyright cases is to encourage claims that have merit to be brought and, conversely, to discourage claims without merit from being brought. Accordingly, he awarded the fees, scheduling a hearing at a later date to determine the amount.
On June 22, Judge Kaplan awarded the defendants a total of over $120,000. The defendants went further and wanted to sanction the attorneys and the plaintiff for bringing the case, but Judge Kaplan declined, citing a lack of clear and convincing evidence of bad faith. It may have been foolish, but it was not necessarily in bad faith.
Certainly a moral of this story is to avoid posting on Facebook or any other social media intellectual property that you want to monetize because giving it away for free wholly undermines any claim you might have that it’s worth good money. But from a more lawyerly perspective, this seems to be one more disturbing example of trying to make a business from lawsuits that are of questionable merit. A lot of lawsuits seem to be brought on the cynical assumption that fighting them would be more expensive than settling them. The defendants in those cases often have to swallow a bitter pill. So, it’s nice to see that defendants succeeded in this instance, winning the attorneys’ fees that the frivolous complainant forced them to incur — but they probably succeeded only because they could afford to litigate and defend themselves in the first place.
Mark S. Kaufman
Kaufman & Kahn
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