Brittney Gobble Photography, LLC v. Sinclair Broad. Grp.

• Decision Date: 17 November 2021
• Docket Number: SAG-19-00559,SAG-19-00606,CIVIL SAG-18-03403,SAG-18-03384
• Parties: BRITTNEY GOBBLE PHOTOGRAPHY, LLC Plaintiff, v. SINCLAIR BROADCAST GROUP, INC., et al., Defendants/Third-Party Plaintiffs, v. USA ENTERTAINMENT NEWS, INC. d/b/a “WENN” and “WORLD ENTERTAINMENT NEWS NETWORK”, Third-Party Defendant.
• Court: U.S. District Court — District of Maryland

BRITTNEY GOBBLE PHOTOGRAPHY, LLC Plaintiff,
v.
SINCLAIR BROADCAST GROUP, INC., et al., Defendants/Third-Party Plaintiffs,
v.
USA ENTERTAINMENT NEWS, INC. d/b/a “WENN” and “WORLD ENTERTAINMENT NEWS NETWORK”, Third-Party Defendant.

CIVIL Nos. SAG-18-03403, SAG-18-03384, SAG-19-00559, SAG-19-00606

United States District Court, D. Maryland

November 17, 2021

MEMORANDUM OPINION

Stephanie A. Gallagher United States District Judge

Brittney Gobble Photography, LLC (“BGP” or “Plaintiff”) filed these lawsuits against Sinclair Broadcast Group, Inc. (“Sinclair”) and several of its subsidiaries and affiliate stations (individually, the “Station Defendants” and collectively with Sinclair, “Defendants”) for copyright infringement and violations of the Digital Millennium Copyright Act (“DMCA”) under 17 U.S.C. §§ 1202(a) and (b). Sinclair also filed a Third-Party Complaint against USA Entertainment News, Inc. d/b/a “WENN” and “World Entertainment News Network” (“WENN”). ECF 19. The parties have filed cross-motions for summary judgment, which are now fully briefed. ECF 168 (BGP's Motion), ECF 171 (Defendants' Opposition and Cross-Motion), ECF 183 (BGP's Reply and Opposition to Defendants' Cross-Motion), ECF 185 (Defendants' Reply).

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Each side has also filed a Daubert motion-BGP's seeks to exclude Defendants' proposed expert, Gary Elsner, and Defendants' seeks to exclude BGP's proposed expert, Jeffrey Sedlik. ECF 163 (Defendants' motion to exclude Mr. Sedlik), ECF 166 (BGP's motion to exclude Mr. Elsner). Those motions are now fully briefed. ECF 169, 170, 181, 182. The Court has considered all of the pending motions, oppositions, replies, and the exhibits attached thereto. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the reasons explained below, BGP's motion for summary judgment, ECF 168, will be DENIED except with respect to its argument on the Defendants' Fraud on the Copyright Office affirmative defense, which will be held in abeyance. Defendants' motion for summary judgment, ECF 171, will be GRANTED in part and DENIED in part as set forth herein. Further, the Court will GRANT in part and DENY in part Defendants' motion to exclude Mr. Sedlik's testimony and DENY BGP's motion to exclude Mr. Elsner's testimony.^[1]

I. FACTUAL BACKGROUND

Johnny Gobble, a veterinarian, and his wife Brittney Gobble, a photographer, were among the first people to successfully breed a Lykoi cat. ECF 168-1 at 1; ECF 171-1 at 2. The Lykoi breed is a relatively new breed of cat with a distinctive, werewolf-like appearance. ECF 168-4 at 37-38 (Dr. Gobble Deposition); Second Am. Compl. ¶ 33 (Lykoi Cat Photographs). As the Gobbles began selling their Lykoi cats, Ms. Gobble would photograph them in order to advertise and promote the breed. ECF 168-4 at 37-38 (Dr. Gobble Deposition). In October, 2015, Ms. Gobble received copyright protection for various groups of photographs she had taken of the Lykoi

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cats. ECF 168-5-8. According to BGP, that copyright protection covered 50 of the 51 photographs at issue in this case. ECF 168-1 at 2. Ms. Gobble assigned her rights to the photographs to BGP. ECF 171-36.

On November 2, 2015, Clare Penn, on behalf of WENN, contacted the Gobbles by email. ECF 168-13. Ms. Penn's email stated:

I am contacting you on behalf of the World Entertainment News Network. One of the world's leading press agencies, with offices based in London, New York, LA and Germany, we syndicate news/features/images to publications worldwide

I source photographers/images/features/news for WENN's A Different World of Photos department; here we focus on stories that are strong pictorially

I recently came across information regarding the Lykoi breed of cats; I would like to create a feature/news item for press regarding this unique breed . . . and wondered if it would be possible to get a selection of hi-res images to accompany editorial text? . . .

Any images published are used in an editorial context only and accompanied by the relevant information regarding the breed; we do not allow images to be used out of context.

Id. Dr. Gobble responded with the following email:

I am writing for my wife's photos. Here is what she sends to all requests for pictures:

Here is a link to an album of some of my hi-res images that I give permission to be used. I do not give permission for these images to be distributed, or to be used in an article (or other media) that is purposefully derogatory toward our breed .... Whenever possible, please credit images to “Brittney Gobble”....

If you are going to use our photos, I would like you to state that we are breeding for health, the breed is a natural occurrence in the feral domestic cat population, the first w[]ere born in Vonore, TN or Sweetwater, TN (the towns are real close), and we love the public[']s positive response to the new breed.

ECF 168-14. Ms. Penn responded: “Many thanks Johnny . . . I shall take a look at your website and let you know if I need any more information.” ECF 168-15.

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WENN took the photographs in the Dropbox link Dr. Gobble sent to Ms. Penn and made them available to its network of paying subscribers, including Sinclair. On November 4, 2015, Scott Sistek, a reporter for KOMO News, downloaded copies of the photographs in the Drobpox folder. ECF 168-16 at 26-27 (Sistek Deposition). Mr. Sistek testified that WENN often put large amounts of substantive content in photographs' metadata fields, and that it was his practice to edit out that content to “put the text content of the story in a body field.” Id. at 21. He did that here using a content management system called “Clickability” and published an article on the KOMO News website, ECF 171-35 (KOMO News Article), along with 12 other websites associated with stations that Sinclair had acquired from Fisher Communications. ECF 168-16 at 33-37. The article included an accompanying gallery of photographs that were credited to “WENN.com.” ECF 171-35.

On November 8, 2015, Ms. Gobble emailed KOMO's email address, writing:

These images were not to be used without proper credits per the contract with which I allowed a stock website to use my images. I expect that the proper by line credit be given, or my images removed as all these images are registered with the copyright office and my copyright is being violated.

ECF 168-19. Mr. Sistek responded:

I apologize for that, we truncated the caption and turned it into a news article on the site which does credit your work, but I see the truncation it took your name off the photo captions. I will go back and add in credit on each photograph caption. If that is not sufficient, please let me know and again I apologize for truncating too much in the gallery caption[.]”

Id. Ms. Gobble responded: “I understand! That is absolutely fine! Thank you!” Id. Mr. Sistek replied, thanking Ms. Gobble, and indicating that he “added your credit and put a link to your Facebook page on all the captions now.” Id. Ms. Gobble saw the revised captions. ECF 168-10 at 143 (BGP 30(b)(6) Deposition).

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On November 9, 2015, Amanda Ota, a producer at Sinclair's National Desk, emailed the Gobbles requesting permission for Sinclair to use Ms. Gobble's photographs. She wrote:

My name is Amanda Ota and I'm an online news writer at Sinclair Broadcast Group. I'm working on a write-up of your cats and was wondering if I may have permission to use the photos shared on your site across all platforms please? We will be sure to credit you.

ECF 171-33. Dr. Gobble responded the same day:

You can use any photos from our face book and web page as long as your article portrays the Lykoi and the breeders in a positive way. My wife has the photos copyrighted, and will refuse any usage if the article is negative toward us or the breed in any way.

Id.

On November 9, 2015, Ms. Ota published an article to the websites of fifty Sinclair stations using the same body text and photographs that had appeared in Mr. Sistek's article. ECF 168-35. Thus, according to BGP, Ms. Ota used the photographs from the Dropbox link, rather than the watermarked, low-resolution, photographs from BGP's Facebook page or website. Id. Sixteen of the photographs included credit to “Brittney Gobble Photography via WENN.com[, ]” and the remaining photographs credited “WENN.com.” ECF 171-39.

On November 10, 2015, Elizabeth Faugl, an employee of Sinclair Communications, LLC, independently re-published the same article Ms. Ota had published to two Sinclair station websites. ECF 168-43. These articles included four of the photographs with credit to “Brittney Gobble Photography via WENN.com.” Id.

On November 12, 2015, the Gobbles wrote to WENN, demanding that WENN cease its infringement. ECF 168-25. Shortly thereafter, WENN sent a “kill notice” email to a list of “undisclosed recipients” directing “WENN Agents” to remove the images. ECF 168-26. The parties dispute whether any of the Defendants received this email. Ultimately, BGP sued WENN

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in the United States District Court for the Eastern District of Tennessee and was eventually awarded a default judgment in the amount of $5, 754, 941.88. Brittney Gobble Photography, LLC v. WENN Limited, No. 3:16-CV-306-HSM-DCP, 2019 WL 2446997, at *11 (E.D. Tenn. Feb. 19, 2019). In November, 2018, BGP sued the Defendants here in four separate lawsuits, which are now consolidated.

II. ANALYSIS

The Court will first resolve the parties' Daubert motions before turning to the motions for summary judgment. At the outset, however, the Court recognizes that Defendants have raised a host of evidentiary objections (separate from their Daubert motion). See ECF 185-14. Because none of this Court's analysis relies on or references those contested pieces of evidence, however, the Court declines to address them at this time. The parties are, of course, free to raise these...