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American Society of Media Photographers, Inc. v. Google, Inc.

United States District Court, Seventh Circuit

May 6, 2013

THE AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC., GRAPHIC ARTISTS, GUILD, PICTURE ARCHIVE COUNCIL OF AMERICA, INC., AMERICAN NATURE PHOTOGRAPHY ASSOCIATION, PROFESSIONAL PHOTOGRAPHERS OF AMERICA, LEIF SKOOGFORS, AL SATTERWHITE, MORTON BEEBE, ED KASHI, JOHN SCHMELZER, SIMMS TABACK, LELAND BOBBE, JOHN FRANCIS FICARA, and DAVID W. MOSER, on Behalf of Hon. Harry D. Leinenweber Themselves and Others Similarly Situated, Plaintiffs,
v.
GOOGLE, INC., Defendant.

MEMORANDUM OPINION AND ORDER

HARRY D. LEINENWEBER, District Judge.

Before the Court is non-party Tribune Media Services, LLC's, Motion to Quash Subpoena. For the reasons stated herein, the Motion is granted.

I. BACKGROUND

This matter is before the Court because a subpoena was issued by the U.S. District Court for the Northern District of Illinois to Tribune Media Services, LLC ("TMS"), a non-party in a civil case. That civil case is now pending in the Southern District of New York. See American Soc. of Media Photographers, et al. v. Google, Inc., No. 10-CV-02977 (DC), (S.D.N.Y. 2010).

In Google, Inc., book photographers, artists, and associations that represent book photographers (the "Plaintiffs") filed a class action suit against Google, Inc. ("Google") claiming copyright infringement. Specifically, Plaintiffs allege Google infringed upon Plaintiffs' copyrighted works when Google entered into agreements with several major research libraries in 2004 to copy books and other writings digitally to develop a comprehensive online library. Plaintiffs claim Google illegally copied illustrations from books and periodicals because Google failed to obtain copyright permission from the artists or photographers. In response to the Complaint, Google has asserted the statutory defense of fair use. The case is currently in discovery.

In December 2012, Plaintiffs issued a subpoena to TMS, a non-party in the underlying litigation. TMS is a business involved in the compilation of television programming information and other related content. It distributes and solicits its compilations to various print, online, and onscreen television entertainment guides and publications. In conjunction with the editorial information TMS provides regarding the time a television show airs and the show's content, TMS also provides TV Showcards. TV Showcards include photographs of a television show's cast and characters and a television show's logo and/or custom banner.

Plaintiffs subpoenaed TMS because they believe TMS is a licensing intermediary that publishes copyrighted information from television shows. Plaintiffs believe TMS's history and current licensing practices will provide evidence that a similar licensing scheme would have been created for the online book and periodical illustration market but for Google's misappropriation of Plaintiffs' images. Plaintiffs contend that to assert this argument they needs a plethora of information regarding TMS' business. Specifically, the subpoena demands information regarding:

1. TMS' business model;
2. TMS' annual revenues and profits
3. The types of materials TMS sells and/or licenses;
4. The types of licenses TMS sells;
5. TMS' pricing guides for its services and/or products;
6. The sources of the images sold and/or licensed by TMS;
7. TMS' selling and/or licensing of images, including, but not limited to the resolution of such images and the prices charged for their license and any ...

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