Judge dismisses NJMG suit against blogger

The original World Trade Center during construction. (Wikipedia)

Editor's note: A federal judge has dismissed a lawsuit alleging that Victor E. Sasson and "Eye on The Record" infringed on The Record's copyrights when the blog published photographs and a news article from the paper, even though full credit was included in both instances. Here is the story from the New Jersey Law Journal, with bracketed material that corrects several factual errors.

Pending Copyright Application Held

Not Enough To Sue for Infringement

By Mary Pat Gallagher 

Weighing in on an issue that has split the federal courts, a District of New Jersey judge says a copyright infringement suit cannot be brought without an existing copyright registration. A pending application will not suffice.

The Jan. 4 ruling, in North Jersey Media Group v. Sasson, 12-cv-3568, is a setback for the owner of The Record of [Woodland Park] in its suit alleging a former reporter infringed on its copyrights in an article and three photographs.

One of the photos is an iconic image taken on Sept. 11, 2001, by Record photographer Thomas Franklin, showing three, dust-covered firefighters raising the American flag at Ground Zero, against the backdrop of the World Trade Center wreckage.

North Jersey Media alleges that in October 2009, Victor Sasson posted the image on Eye on the Record — a blog that is highly critical of the newspaper — without permission or copyright notice and without mentioning Franklin, the Record or North Jersey Media [Group].

[A link to the blog post in question appears below, and the text clearly gives credit to Franklin and The Record.]

The newspaper sent Sasson a cease-and-desist letter, to which Sasson responded the same day with a promise that he would limit his blog entries to critiques of Record articles, according to the complaint.

Three other works were allegedly posted on the blog, on May 17, 2012: a news story reporting the misconduct and fraud conviction of [former] Hackensack Police Chief Ken Zisa one day earlier, and accompanying photos of Zisa and his former girlfriend, Kathleen Tiernan, who was convicted at the same trial of filing a false insurance report.

North Jersey Media [Group] sued on June 13, seeking injunctive relief and statutory damages, plus legal fees and costs.

It claimed Sasson used its Ground Zero photo "to attract and sustain attention to his blog" and his actions irreparably damaged it and would continue to do so, absent an injunction.

On July 10, Sasson moved to dismiss the claims about the Zisa article and related photographs.

Unlike the Ground Zero photograph, for which the Record had a registered copyright, a copyright application was still pending for those works.

In his ruling, U.S. District Judge William Martini discussed the split among courts over what rule should govern infringement actions: the "application approach," under which a pending copyright application provides a basis for suit, or the "registration approach," under which a certificate of registration from the U.S. Copyright Office is a prerequisite.

Sasson cited the U.S. Court of Appeals for the Third Circuit's ruling in Dawes-Lloyd v. Publish America, No. 10–3781 (2011), which affirmed dismissal of a copyright suit over a children's book because the plaintiff author presented no evidence of copyright registration.

But Martini said Dawes-Lloyd did not squarely address the question, noting the plaintiff there apparently never attempted to register her copyright.

In opting for the registration approach, Martini relied on Patrick Collins v. Doe, 1-26, 11-cv-7247, decided by U.S. District Judge Legrome Davis in the Eastern District of Pennsylvania on Dec. 30, 2011.

Davis read Dawes-Lloyd as suggesting that the Third Circuit would adopt the registration approach.

He also construed the language of 17 U.S.C. § 411(a), which says no copyright infringement suit shall be instituted "until preregistration or registration of the copyright claim has been made" but also allows it where a properly filed application has been refused.

Davis reasoned that the reference to a refused application would be rendered "nonsensical" if suit were allowed without registration.

He wrote, "If mere submission of a complete copyright application constituted registration under § 411(a), then logic tells us that the Copyright Office could never 'refuse' registration of such an application — registration would be automatic."

Agreeing with Davis' construction, Martini dismissed without prejudice the three infringement counts relating to Zisa, stating that until North Jersey Media [Group] holds a certificate of copyright registration for them, it cannot state a prima face case of copyright infringement. Once it does, it can file an amended complaint, he said.

North Jersey Media [Group's] lawyers, in-house counsel Jennifer A. Borg and William Dunnegan of Dunnegan & Scileppi in New York, did not return calls. Neither did Sasson's attorney, Joshua Weiner of Weiner & Weiner in Morristown.

It is not known when North Jersey Media [Group] applied for copyright on the Zisa materials or how soon the application process will be concluded.

The Copyright Office website indicates that processing times vary and that the current average is 5.6 months, but only 2.5 months for electronically filed applications.

Sasson's blog posts were an issue in prior litigation, his age-discrimination suit over his termination in 2008, at age 63, after [29] years at The Record.

The trial judge allowed North Jersey Media [Group] lawyers to use two blog entries in cross-examining him and during summation, a ruling upheld by a state appeals court in Sasson v. North Jersey Media Group, No. A-4024-09.



Here is a link to the original October 2009 post from "Eye on The Record" that was cited in the NJMG lawsuit:

Major detour on the road to a Pulitzer Prize 
 

     

Sasson loses appeal in NJMG age-bias case

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The media ignored the trial, held in Superior Court, Hackensack.

The unfavorable jury verdict in Victor E. Sasson's age-bias lawsuit against North Jersey Media Group has been affirmed by the Appellate Division of state Superior Court.

In a 20-page decision released this morning, a three-judge panel agreed with the verdict -- that Sasson wasn't discriminated against because of his age in the 2006 selection of the food editor, and that his 2008 firing didn't constitute retaliation by Record managers and editors upset that he filed suit several months earlier.

The appeal court said Superior Court Judge Joseph L. Conte in Hackensack didn't commit reversible error. Sasson represented himself at the trial.

Joshua L. Weiner, the plaintiff's Morristown lawyer, argued during a March 16 hearing that Conte improperly permitted the use of posts from Eye on The Record during cross-examination to impeach the plaintiff's credibility.

He also said Conte should have barred defense use of performance reviews dating to 1985 that weren't relevant to events of 2006-08.

Weiner believes Conte should have instructed the jurors to use the blog entries only for the purpose of judging the plaintiff's credibility -- and to disregard Sasson's views the paper kept on older, white male columnists, while silencing older black, Hispanic and female columnists.

At the 5-day trial in April 2010, Sasson was barred from presenting evidence of age-bias against many other employees, including Patricia Mack, The Record's food editor, who was hounded into retirement by her editor, Barbara Jaeger.

See previous post on Thursday's paper

 

Judges hear appeal in age-bias case

Image by joseph a via Flick

Courthouses on West Market Street in Newark.

Three appeals court judges heard oral arguments today in a bid by Victor E. Sasson to overturn an unfavorable jury verdict in his age-discrimination case against North Jersey Media Group, publisher of The Record.

Joshua L. Weiner, the Morristown lawyer who represents Sasson, and Samuel J. Samaro of the Pashman Stein law firm in Hackensack were given about 15 minutes each to supplement written briefs submitted to the court, along with a transcript of the five-day trial.

The judges asked the attorneys a number of questions, and took the appeal under advisement, giving no indication of when they will issue a decision.

When Sasson got up to leave the Newark courtroom, he saw Jennifer A. Borg, NJMG vice president and general counsel, but she didn't greet him. NJMG is paying an estimated $400 an hour for Samaro, who also defended the company at trial.

Sasson sued The Record after features Editor Barbara Jaeger chose Bill Pitcher, who was half his age and far less qualified, to replace Patricia Mack as food editor in 2006. 

He alleged age-discrimination under the state Law Against Discrimination. He also alleged retaliation, because he was fired in May 2008, several months after the suit was filed.

The Superior Court jury disagreed. Sasson represented himself at the trial in April 2010. He is arguing the judge, Joseph S. Conte in Hackensack, twice committed reversible error:

Conte permitted the use of posts from the Eye on The Record blog during cross-examination to impeach the plaintiff's credibility, and he allowed into evidence performance reviews dating to 1985 that weren't relevant to events of 2006-08.

Sasson believes Conte should have instructed the jurors to use the blog entries only for the purpose of judging the plaintiff's credibility -- and to disregard his views the paper kept on older, white male columnists, while silencing older black, Hispanic and female columnists. 


Here are excerpts from the Jan. 22, 2010, post in Eye on The Record:

"Reading The Record of Woodland Park today made me realize just how wrong all the numbers are. Not only do at least two stories contain confusing numbers, but it's clear the paper favors older white men as columnists over blacks, Hispanics and women.


"How many older male columnists does The Record need? Today, columns by Kevin DeMarrais, Harvy Lipman, Mike Kelley, John Cichowski and Peter Grad appear in the former Hackensack daily, which got rid of its only black and only Hispanic columnists, and one of its early female columnists. A Personal Finance column by veteran reporter Kathy Lynn appears today on the first Business page, making her the paper's third female columnist. Congratulations, Kathy. But when you count unfunny humor columnist Bill Ervolino, there are twice as many older males as females."

In another post, on Nov. 17, 2009, Sasson wrote:

"This paper also contains columns by Road Warrior John Cichowski and Mike Kelly, both of whom are so far over the hill, you can no longer see the hill. And to think the paper kept these turkeys, but silenced its only black columnist, its only Latino columnist and the only columnist writing about the heroics of  police officers, firefighters and EMTs."

During his oral argument, Samaro brought up a 2008 e-mail Sasson had sent Publisher Stephen A. Borg, replying to Borg's e-mail notifying the staff of awards The Record had won. 

Samaro noted that Sasson told the publisher the paper wouldn't be winning any awards for how it treated older workers. During the trial, NJMG cited that e-mail and others as the reason Sasson received a final warning letter.

Today, before the Appellate Division, Samaro's tone tried to convey, What a nerve this guy had e-mailing the publisher. That's why he was fired.

But Judge Victor Ashrafi, head of the three-judge panel, said, "You can't make that argument." 

The judge noted victims have a right to complain about discrimination without retaliation.

'Great pride in ... responsible journalism'

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Want to know what the Borgs think of the journalism being practiced at The Record of Woodland Park? I didn't think they were paying attention to the decline of the newspaper, but a letter from their attorney says otherwise:

"My client's commitment to the First Amendment is paramount and plainly evident in the way it conducts its reporting and business," attorney Samuel J. Samaro said. "North Jersey Media Group takes great pride in getting the facts right and practicing responsible journalism."

Do you agree? Is the virtual blackout on Hackensack municipal and development news "responsible journalism"? Or is this obviously a case of an attorney who will say anything, if you pay him his inflated hourly fee?

The letter, sent Friday to my attorney, Joshua L. Weiner of Weiner & Weiner in Morristown, demands that I retract references in "Eye on The Record" to the Borgs, editors and others. Samaro calls them "misstatements of facts and defamation."

My lawyer defended the accuracy of the references and replied that none of them would be deleted.

"Please be advised," he wrote, "that any legal action taken against my client regarding his constitutionally protected blog entries will be construed as a selective lawsuit against public participation (SLAPP) attempting to burden and intimidate my client into foregoing his criticisms and opposition to NJMG."

Jury: No cause for action in age-bias case

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A Superior Court jury said this afternoon there was no age discrimination in the selection of The Record's food editor in 2006 or retaliation in the firing of Victor E. Sasson for filing a lawsuit against executives and managers.

Sasson, author of "Eye on The Record," represented himself at the trial, in consultation with Joshua L. Weiner, the plaintiff's Morristown attorney since last summer. (Photo: Bergen County Courthouse in Hackensack.)

Jennifer A. Borg, a defendant, and Malcolm A. "Mac" Borg were in court to hear the 8-0 verdict shortly after 5 p.m. The jury of four women and four men, all of whom were allowed to deliberate, returned their decision after only an hour of discussion.

The elder Borg, chairman of North Jersey Media Group, is over 70. During breaks, he was asked about his childhood in Hackensack, where he lived in a home at Summit and Fairmount avenues. He said his father bought the house and many  acres of land behind it during the Depression. He was born in 1938.

Jennifer Borg, who attended the trial every day and testified, would not allow Mac to comment on the color photo that ran in the Woodland Park paper yesterday showing a woman making an obscene gesture at the photographer.

At trial, NJMG was represented by Samuel J. Samaro, a veteran litigator who heads the employment practice of Pashman Stein in Hackensack. He said he billed "in the vicinity" of $300 to $400 an hour, and boasted of a $1 million settlement he won in a sex-bias case filed by two women who were William Paterson University professors. His said his fee exceeded the money paid to the plaintiffs.

"You're in my house now," he said during a break in the proceedings this week, referring to the courtroom.

Judge Joseph S. Conte in Hackensack said the plaintiff did a "fine job" for a pro se, but noted it was a "tough case." The eight-day trial began March 29.

The judge preserved NJMG's right to file suit against "Eye on The Record," about the fourth or fifth time such an action has been threatened. Samaro alleged recent comments in the blog about the elder Borg constituted "a threat."

Weiner said he looked forward to defending Sasson, a former news copy editor and freelance food writer for The Record, and the blog. Sasson's lawsuit was served on the defendants in January 2008.