Plaintiff Leveyfilm, Inc., is operated by photographer Don Levey and is the owner of copyrights to a 1985 photograph of Chicago Bears football players that was used as the album and DVD cover for the rap song “Super Bowl Shuffle” (the “Levey Photo”). Plaintiff sued defendants Fox Sports Interactive Media, LLC, and Fox Sports Net Chicago Holdings, LLC (collectively “Fox”), which own and operate the website Yardbarkers, for direct copyright infringement, contributory infringement, vicarious infringement, and violation of the Digital Millennium Copyright Act (DMCA). Leveyfilm alleged that Fox allowed its users to access the Levey Photo through its Yardbarkers website without permission and without attribution.
Fox moved for summary judgment, arguing, among other things, that the Levey Photo was never posted on any of Fox’s websites or stored on any of its servers. Rather, the Levey Photo was included in an article posted on a Fox affiliate website, thejerseychaser.com (“Jersey Chaser”). Pursuant to an affiliate and advertising agreement between Fox and Jersey Chaser, Fox agreed to link to Jersey Chaser articles on Yardbarkers, and Jersey Chaser agreed to link to Yardbarkers. Yardbarkers could select which Jersey Chaser articles it would link to and could unilaterally discontinue the advertising and affiliate agreement. Although the Jersey Chaser article could be viewed along with the Levey Photo on Yardbarkers’s website, Fox argued that the Levey Photo was never uploaded to or stored on Fox’s servers. Fox further argued that Yardbarkers modified its RSS feed such that no third-party images (as opposed to text) could be uploaded to Yardbarkers’s servers.
The court granted Fox’s summary judgment motion. The court found no evidence that the Levey Photo ever appeared on Fox’s websites and that Fox therefore could not be liable for direct copyright infringement. The court rejected plaintiff’s claims of contributory infringement, finding no evidence that Fox knew that infringing material was available through its websites. Similarly, the court rejected plaintiff’s argument that Fox was vicariously liable for Jersey Chaser’s infringement because Fox’s affiliate and advertising agreement did not give Fox control over the content of the Jersey Chaser website.
In any case, the court found, Fox was entitled to a fair-use defense. Applying the four statutory factors, the court first found that Jersey Chaser’s use of the Levey Photo was transformative and superseded the original because Jersey Chaser used the photograph to report news on a lawsuit concerning the “Super Bowl Shuffle” DVD. Second, plaintiff used the photo to serve as an album cover or similar commercial uses, not for news reporting. Third, Jersey Chaser did not publish a full, high-resolution copy of the Levey Photo and used only a copy, obtained from the Internet, formatted for marketing the original. Finally, Jersey Chaser’s use of the Levey Photo, although commercial, did not in any way diminish the market for the Levey Photo.
Finally, the court held that because plaintiff provided no evidence that Fox “possessed” a copy of the Levey Photo on its website or servers, Fox could not be liable under the DMCA for “providing,” “distributing,” “removing,” or “altering” copyright management information.