Walsh v. Townsquare Media, Inc.

Background

Townsquare published an online article about Cardi B’s partnership with Tom Ford on a lipstick. The article embedded Cardi B’s official Instagram post about the lipstick selling out and discussed that post. The post included text, a photograph of the lipstick, and a photograph of Cardi B taken by Rebecca Fay Walsh. Walsh’s copyright claims were based on Townsquare’s use of that photograph.

In an earlier opinion, the court granted Townsquare’s motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) and dismissed the action after finding that the use qualified as fair use. The court found, among other things, that the use was transformative because the article reported on Cardi B’s dissemination of the Instagram post, rather than merely displaying the photograph for its original purpose. The court also found that the photograph’s inclusion in the post made it implausible that Townsquare’s use competed with Walsh’s business or affected the photograph’s market value.

Motion for Reconsideration

Walsh moved for reconsideration of the earlier opinion. Reconsideration is an unusually limited request to change an existing decision based on an intervening change in controlling law, new evidence, or a clear error or manifest injustice. It is not a way to present new arguments or relitigate issues already decided.

Walsh argued that Townsquare’s use could not be transformative because the article did not comment specifically on the photograph. She also argued that the use could be considered part of the market for photographs depicting Cardi B. The court rejected the motion. It held that Walsh had not raised these arguments in her earlier briefing, had not identified controlling law or overlooked facts, and had not shown that the earlier fair-use analysis contained a clear error or caused manifest injustice. The court also stated that the arguments were unpersuasive under existing fair-use law, including decisions recognizing that news reporting may incidentally include copyrighted material.

Attorneys’ Fees

Townsquare moved for attorneys’ fees under Section 505 of the Copyright Act, which permits a court to award reasonable fees to the prevailing party. The court explained that the decision depends on the total circumstances, including whether the losing party’s claims or conduct were frivolous, improperly motivated, or objectively unreasonable, as well as whether fees would advance compensation or deterrence.

Townsquare argued that Walsh had pursued the lawsuit improperly and pointed to settlement communications in which it said it made reasonable offers while Walsh’s counsel maintained inflated settlement demands. Townsquare offered to submit materials supporting its account under seal or for the court’s private review. Walsh responded that the reasonableness of her settlement demands was subjective.

The court concluded that the parties’ negotiations could bear on the fee decision, including whether there was a substantial discrepancy between the damages demanded and the claim’s reasonable value. The court noted that similar Cardi B photographs could be licensed from Getty Images for standard editorial fees ranging from $175 to $499, depending on image size. It did not decide whether Townsquare was liable for attorneys’ fees or the amount of any fees. Instead, it held the fee motion in abeyance and directed Townsquare to file the requested negotiation materials under seal, following the judge’s filing rules, within 30 days of the opinion’s entry.

Disposition

The court denied Walsh’s motion for reconsideration. It held Townsquare’s motion for attorneys’ fees in abeyance. The clerk was directed to terminate the reconsideration motion and maintain the fee motion in abeyance.