- Court grants HarperCollins a temporary restraining order to prevent publishing of excerpts of Sarah Palin’s new book, America By Heart, finding excerpts posted on defendant’s gawker.com blog did not constitute fair use.
In determining whether to grant plaintiff a temporary restraining order pending a preliminary injunction hearing, the court considered (1) plaintiff’s likelihood of success on the merits, and (2) the likelihood of irreparable harm in the absence of such an order. Plaintiff contended that there was a sufficient showing of a violation of copyright and injury to justify the restraining order. Defendant argued that its use of the excerpts, particularly the decreased number of pages defendant posted after plaintiff filed suit, was fair use, and there was an insufficient showing of injury to justify a restraining order.
Under the Copyright Act, a court considers four factors in determining whether a use of a copyrighted work is a fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit or educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
The court concluded that all four factors weighed against defendant’s claim of fair use. As to the first factor, the court found that defendant had not used the copyrighted material to help create something new, but merely copied the material in order to attract viewers to gawker.com. The court emphasized that the copyrighted material was placed alongside links to advertisements, and the court noted that defendant’s revenue from advertisers may increase based on increased clicks on the links and increased numbers of visitors to defendant’s website.
Regarding the second factor – the nature of the copyrighted work – the court said that defendant’s use of excerpts that came from an unpublished work substantially weakened defendant’s fair use claim. The court also weighed the third factor against fair use because defendant published a “substantial portion of the book regardless of whether one considers defendant’s initial posting of 21 full pages or the subsequent posting of excerpts from 12 pages.” The court nevertheless concluded that the fourth factor – the effect of the use upon the potential market – was a matter of speculation as the book had not yet been published. In balancing all four factors, the court concluded that plaintiff had a likelihood of success on the merits in connection with its claim of copyright infringement.
On the issue of irreparable harm, the court examined the injury that plaintiff would “suffer if he or she loses on the preliminary injunction but ultimately prevails on the merits.” Here, the court emphasized that plaintiff was in the “home stretch” of a carefully orchestrated promotional campaign for the book that, at the time of the application for injunctive relief, was to be released in a few days. If plaintiff could not exercise its rights under copyright law to control the release of the book, stated the court, a commercial advantage would be lost, for which plaintiff could not realistically be compensated in some later attempt to recover damages. Accordingly, the court granted plaintiff’s request for a temporary restraining order and set a hearing and briefing schedule for plaintiff’s motion for a preliminary injunction.
Prior to the preliminary injunction hearing, the plaintiff stipulated to the voluntary dismissal of the action with prejudice and defendant agreed not to republish, distribute or otherwise transmit portions of the book and to use its best efforts to ensure that excerpts of the book are not available in any search engine caches. However, plaintiff acknowledged that defendant has the right to comment on the book.