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 
 

     

The Star-Ledger 3, The Record A Big Fat 0

Image via Wikipedia

The Pulitzer Prize Gold Medal.

"I should never have listened to them! I should never have listened to them!" Editor Francis Scandale wailed as he pounded his desk in the Woodland Park newsroom, recalling 9/11 and the night he blew winning a Pulitzer Prize for The Record.

"Now, Frank, there's always next year," head Assignment Editor Deirdre Sykes -- Mother of All Editors -- said soothingly as she tried to comfort the boss.

Scandale was reacting to Monday's news that The Star-Ledger of Newark won its third Pulitzer Prize since January 2001, when he took over at The Record (A-7). 

'Pull It, Sir'

Instead of winning journalism's biggest prize for The Record, Scandale has become "Pull It, Sir," in the colorful vernacular of Jerry DeMarco, former Breaking News editor.

About eight months after Scandale arrived in Hackensack, he faced the biggest story of his career -- the 9/11 attack on America, which was visible from the newsroom -- and blew it big time when he put a potentially Pulitzer Prize-winning photo on a back page.

Of course, I can only guess at the reasoning of Pulitzer board members. but why give a prize to a photo even the newspaper didn't think worthy of the front page?

Unique image

Photographer Thomas E. Franklin's image of firefighters defiantly raising the American flag over the ruins of the World Trade Center would have advanced the story and made The Record's front page unique among the world's newspapers.

Bowing to pressure from the business side -- he was told it would be "too expensive" to re-make A-1 -- Scandale slunk away with his tail between his legs, marking the first of his many failures in the job.

And it was a job he probably got because he had helped The Denver Post win a Pulitzer for its coverage of the Columbine massacre in 1999.

In 2008, The Record's coverage of the EnCap golf-resort project was a finalist in the local news category of the Pulitzer competition -- in other words, an also-ran. 

Today's paper

Oh no. A verklempt Scandale allowed Staff Writer Deena Yellin to hijack the front page today for a another story and big photo about those crazy Orthodox Jews and their obscure rituals (and she's one of them). 

This reminds me of how Scandale always assigned two Castro-hating Cuban exiles to write about Cuba for The Record.

Does even 1 out of every 1,000 Jews burn bread and other chametz before Passover? And the photo of a rabbi in a fire helmet doesn't even show any bread being burned. Can Scandale get any more desperate than this?

Readers shouldn't hold their collective breath for Yellin stories on Orthodox Jews who are trying to take over municipal councils and school boards in Englewood and Teaneck, so they can cut the taxes they pay for public schools their kids don't use. 

Screwing the middle class

Despite an A-3 story on protests over big companies not paying taxes on billions of profits, the clueless Business staff fails to come up with a story on how they do it.

Also on A-3, Governor Christie is so busy trying to find new ways of destroying the middle-class way of life in New Jersey, he didn't pay his taxes on time.

Arrogant judge

Editorial Page Editor Alfred P. Doblin deserves rare praise for an A-10 editorial calling a non-custodial sentence for former baseball player Dwight Gooden "absurd" and criticizing Superior Court Judge Donald Venezia for ignoring the "public's interest."

Two Ridgewood stories appear in Sykes' Local section today, but none from Hackensack. Still, Sykes has to use another one of those gee-whiz, non-fatal accident photos to fill space (L-6).

Rubbing salt in wounds

With gasoline heading for $4 a gallon amid record unemployment and housing foreclosures, doesn't Restaurant Reviewer Elisa Ung's lavish meal at a restaurant in far off Red Bank sound a lot like fiddling while Rome burns (Better Living front)?