United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
THOMAS M. DURKIN, District Judge.
Leveyfilm, Inc. ("Leveyfilm")-a corporate vehicle for the business of photographer Don Levey-alleges that Fox Sports Interactive Media, LLC, and Fox Sports Net Chicago Holdings, LLC (collectively, "Fox"), used a photograph for which Leveyfilm holds the copyright without Leveyfilm's permission in violation of the Copyright Act of 1976, 17 U.S.C. § 501, and the Digital Millennium Copyright Act, 17 U.S.C. § 1202. See R. 1. Fox has moved for summary judgment on all counts in the complaint as they pertain to Fox. R. 31; R. 60. For the following reasons, Fox's motion is granted.
In December 1985, the month prior to their victory in Super Bowl XX, several Chicago Bears football players participated in the creation of a rap song and related video entitled the "Super Bowl Shuffle." R. 73 at 2-3 (¶¶ 5-6). Levey took a group photo of the players that was used as the cover of the record album recording of the song and a 20th Anniversary, DVD edition of the video. Id. at 3 (¶¶ 7-8); see R. 1-1 at 2-3, 5-6.
On December 2, 2010, one of the owners of the copyright of the video filed a complaint against certain defendants for unauthorized use of the video. R. 73 at 3 (¶ 9). Four days later on December 6, Danielle Wysocki, the creator and sole owner of the website www.thejerseychaser.com ("Jersey Chaser"), id. at 8 (¶¶ 24-26), posted an article on the website commenting on the lawsuit. Id. at 5 (¶ 14); see R. 1-1 at 5-6. Wysocki included a photo of the Super Bowl Shuffle DVD cover (which incorporates Levey's group-shot photo of the players) next to her article. R. 73 at 5 (¶ 16). Wysocki testified that she acquired the photo by downloading it from Google. R. 74-1 at 16-17 (57:19-58:1). Wysocki started the Jersey Chaser website in 2008 as entertainment for her friends and sorority sisters in college. R. 61-2 at 7 (26:20-27:1). Wysocki testified that she never made any money from the website, R. 61-2 at 14 (52:7-8); R. 74-1 at 38 (94:8-11), and she last posted an article on the website in January 2013. R. 74-1 at 45 (109:4-9). Wysocki explained that she no longer posts articles to Jersey Chaser, testifying, "It was a passion project, a hobby, and I just don't have the time." Id. (109:13-14).
In the month prior to posting the article on Jersey Chaser, Wysocki signed an "Affiliate and Advertising Agreement" that affiliated the Jersey Chaser website with a website called Yardbarker. R. 73 at 11 (¶ 36). Yardbarker is owned by Fox. Id. ¶ 35. The Yardbarker website contains links to articles on its affiliated websites such as Jersey Chaser. Id. at 9 ¶ 30. The Court's examination of Yardbarker's website reveals that it also sometimes displays text and photos from the articles produced by its affiliates.
The affiliate agreement between Wysocki and Yardbarker provides, in sum, that Yardbarker will include links to certain Jersey Chaser articles, R. 74-1 at 5 (§ 1(c)(iv)), in exchange for Wysocki installing a frame on the Jersey Chaser website that includes links to Yardbarker and Fox Sports. Id. at 5 (§ 2(c)-(d)). The agreement also obligates Yardbarker to provide advertising for Jersey Chaser to include on its website, id. § 1(a), and provides that Yardbarker and Wysocki will share the advertising revenue attributable to viewers of Jersey Chaser's articles. Id. at 5 (§ 1(a)-(c)). The affiliate agreement further provides that the "Affiliate publisher shall have control over the content and look and feel' of the Affiliate websites." Id. at 6 (§ 2(h)). Yardbarker, however, has the "sole discretion" to determine which Jersey Chaser articles Yardbarker will link to, id. at 5 (§ 1(c)(iv)), and Yardbarker can unilaterally discontinue the affiliate agreement. Id. at 6 (§ 3).
Peter Vlastelica, a co-founder of Yardbarker and now "senior vice-president of digital" at Fox Sports Interactive, R. 77-3 at 6 (20:14-16), testified that "Yardbarker does not control, police or oversee any of the content that's published at any of the [affiliate] sites. Yarbarker's editorial role with respect to its affiliates is that [Yardbarker] from time to time, and when Yardbarker determines it's appropriate, link[s] to sites in the Yardbarker network from the Yardbarker homepage...." Id. at 19 (70:7-12). Additionally, Vlastelica testified that the "content [of Yardbarker affiliate websites] was published on someone else's website. Not [Yardbarker's]." Id. at 24 (93:15-16). According to Vlastelica, the content on Yardbarker's affiliate websites "does not reside on a server that belongs to Yardbarker or Fox Sports or any site that is owned or operated by Yardbarker or Fox Sports." Id. at 27 (102:7-9). Vlastelica explained further that "at most [the content] would have been linked to with [Yardbarker's] headline and maybe some excerpt of the text. But the article itself and the image... would only exist on the jerseychaser.com." Id. at 102:15-19.
Leveyfilm submitted a declaration from Gary Sigman, a website development professional in response to Fox's motion for summary judgment. See R. 74-3 at 4-13. Sigman reviewed documents Yardbarker provided to its affiliates like Wysocki. Sigman notes that these documents provide, "You will not have to manually post any content to Yardbarker.com. All of your content is automatically entered into our syndication system via an RSS feed from your site." Id. at 11. Sigman states that "RSS feeds are constructed so that all elements of Ms. Wysocki's article would have been part of the feed to Yardbarker, including but not limited to URL, headline, article and photographic images." Id.
In response, Fox has submitted an affidavit from Mark Johns, a co-founder of Yardbarker and currently a consulting engineer for Yardbarker. See R. 77-2. Johns "architected Yardbarker's technical infrastructure, managed the engineering and product teams, and wrote much of Yardbarker's code." Id. ¶ 1. Johns states, "Since the inception of Yardbarker to the present, Yardbarker has maintained and followed, through its software code, a strict policy of never uploading images (as opposed to text or text-based markup, such as HTML) that were contained in articles that Yardbarker's affiliate websites publish." Id. ¶ 3. Johns also states that "RSS users such as Yardbarker can configure their RSS feed reader so that only certain types of information are uploaded to its servers. From Yardbarker's inception through December 2010, ... Yardbarker's RSS feed reader was configured in such a way that it would not accept the upload of images onto its computer system." Id. ¶¶ 5-6. According to Johns, "Yardbarker... [did] not upload the 20th Anniversary Commemorative Edition of the Super Bowl Shuffle video... that Danielle Wysocki used in connection with a news article published on December 6, 2010." Id. ¶ 8.
In response to Johns's affidavit, Leveyfilm submitted another report from Sigman stating that Johns "suggests a false dichotomy between text or text-based markup' on the one hand, as opposed to images' on the other." R. 82 at 11 (¶ 5). Sigman states further that Johns's assertion that "Yardbaker's RSS feed reader' was somehow modified to not allow upload of images' as opposed to text or text-based mark-up' is also technologically imprecise, " and Johns's "use of the word upload' as a possible function that was somehow disabled in Yardbarker's RSS feed reader is misleading." Id. at 12 (¶ 6).
In addition to the evidence in the record, a visit to the page of Yardbarker's website displaying Wysocki's article and the photo at issue reveals that although it is possible to view Wysocki's article and the DVD cover photo on Yardbarker's website at http://www.yardbarker.com/nfl/articles/super_bowl_shuffle_writer_take_ mtv_and_vh1_to_court/3741964, the web address for the photo itself is a Jersey Chaser address at http://thejerseychaser.com/wp-content/uploads//superbowl-300x429.jpg. While none of the parties have raised this fact, the Court takes judicial notice of the fact that these are the correct web addresses for (1) Yardbarker's web page displaying the article and photo, and (2) the DVD cover photo itself. These facts are proper subjects of judicial notice because they "can be accurately and readily determined" by using well-known, non-party web browsers "whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).
Fox argues that it cannot be liable for any illegal copying of the DVD cover photo because Wysocki admitted that she copied the photo, and Vlastelica and Johns stated that the photo was never contained on a Fox-owned server. Alternatively, Fox argues that Wysocki used the photo to report news, which is a use that is protected by the "fair use" exception to copyright law.
Leveyfilm argues that Fox can be held liable for Wysocki's actions because "the Fox Defendants maintained substantial control over the Jersey Chaser website.... [and] Fox Sports Interactive was contractually in control of material aspects of Wysocki's website and its activities." R. 72 at 14. Leveyfilm argues, further, that "although Defendants claim they never posted, hosted or otherwise allowed Leveyfilm's Photograph to reside on Fox's servers, that too is a disputed issue which remains to be resolved by a jury." Id. Leveyfilm also argues that Wysocki's article does not constitute "bond fide" news reporting and thus is not protected by the fair use exception. Id. at 8-9.
Fox initially requested leave to file this motion on September 3, 2013, R. 26, but briefing was delayed because Leveyfilm sought additional discovery in order to respond to the motion. See R. 29; R. 30; R. 33; R. 45. Specifically, Leveyfilm sought the following:
▪ the deposition of Wysocki;
▪ a Rule 30(b)(6) deposition of Fox;
▪ depositions of Fox "personnel... in order to explore issues which relate to [the fair use defense], and the factor of the Defendants' behavior, including but not limited to... the state of mind of internal Fox personnel with respect to the purpose of the blog post"; and
▪ the production of documents regarding Fox's policies regarding use of and payment of fees for reproductions.
See R. 33 at 11-13. The Court gave Leveyfilm permission to take discovery relating to the relationship between Fox, Yardbarker, Jersey Chaser and Wysocki, including document discovery and depositions of Wysocki and Vlastelica. See R. 43 at 42:21-25; R. 58 at 16:21. The Court also instructed Leveyfilm that if it felt this discovery was insufficient to respond to Fox's motion, Leveyfilm could incorporate such an argument into its opposition to Fox's summary judgment motion. See R. 66 at 9:4-9. In its opposition papers, Leveyfilm argues that additional discovery is needed regarding
the nature and extent of all the uses made of Plaintiff's work by Defendants, and the effect of the infringement on the market for Plaintiff's work. Also, intertwined throughout the [fair use] analysis, is the true intent and motive behind the Defendants' conduct including with respect to the "willfulness" aspect applicable to whether statutory damages and/or DMCA violations may proceed to trial....
Because "state of mind" and "motive" are at issue in many of these inquiries, and because information pertaining to a defendant's state of mind and/or motive is generally within the exclusive knowledge of defendants, plaintiffs should have an opportunity to engage in completion of discovery before the Court renders its decision on summary judgment, if at all.
R. 72 at 5-6. Leveyfilm argues further, that
[a]ll of the issues raised by Fox in defense, e.g., fair use, lack of DMCA intent, no ownership or control, no copying, are fact intensive inquiries, and therefore, not properly resolved on premature summary judgment proceedings.... [And] at the end of Mr. Vlastelica's deposition Defendants opened the door to matters not merely involving the relationship between the parties, but the nuanced and highly technical underpinnings of the Yardbarker Network and its technological operations.
R. 82 at 4.