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Judge Considers Question In Google Lawsuit: How Is A Press Conference Like Napster?

In case that involves launch of Google Music, "Mr. Brainwash," and Jimi Hendrix, a judge looked at what happens when a company authorizes something that helps enable more infringement.

Google has failed in its first attempt to dismiss a lawsuit by the estate of Jim Marshall, a photographer who shot influential images of famous musicians ranging from John Coltrane to Jimi Hendrix.

The circumstances of this lawsuit are highly unique yet touch upon some of the most controversial aspects of copyright law. The lawsuit connects Thierry "Mr. Brainwash" Guetta, star of the Oscar-nominated documentary Exit from the Gift Shop, with the launch of the Google Music Service late last year. In a decision last week, a judge considered whether a press conference had any similarities to the way file-sharing platforms like Napster and Grokster once operated.

Here's what Jim Marshall's estate is alleging in its lawsuit against Guetta and Google:

Last November, Google announced a new music service meant to allow users to discover, purchase and share songs. To launch the service, Google held a press event in Los Angeles that put its executive on a stage in front of a music-themed backdrop created by Guetta. After being hired to create the art, Guetta found photographs of Hendrix and Coltrane to make that backdrop. The event was captured by photographers, and ran prominently in news outlets like the Los Angeles Times:

brainwash

Guetta allegedly created his art from Marshall's photographs. But Google was sued too -- because the web search giant was accused of aiding in the creation and the subsequent spread of the images. Now a judge had to consider what happens when a company holds an event and authorizes the press to photograph something that might be a copyright infringement, thus enabling more infringement.

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The lawsuit deals with questions of contributory infringement, which have come up frequently in the past decade. The Ninth Circuit has interpreted the Supreme Court's ruling in MGM v. Grokster to mean that "an actor may be contributorily liable for intentionally encouraging direct infringement if the actor knowingly takes steps that are substantially certain to result in such direct infringement."

Marshall's estate argued that Google "knew or should have known [the art pieces] were infringing works," perhaps by googling Mr. Brainwash's reputation and coming across stories about how Guetta's brand of appropriation art has gotten him into copyright trouble.

Judge S. James Otero doesn't accept the "should have known" framework, saying that "specific knowledge on infringing activity" is required. However, insofar as Marshall might be able to prove that Google knew the work would infringe copyright when it hired Guetta to create it, the judge will entertain that possibility.

Next comes the question of whether Marshall's estate can show that Google materially contributed or induced some of the infringement. Google argues that it hadn't. The company deals in 1's and 0's, not paintbrushes. In turn, the plaintiffs pointed to adult entertainment publisher Perfect 10's lawsuit against Amazon over thumbnails of images that "assists a worldwide audience of users to access infringing materials."

The judge sides with the Estate, saying it has alleged facts sufficient to demonstrate material contribution by Google including that "Google displayed Guetta's work at a promotional event, allowed and encouraged attendees to take pictures of this artwork, and made videos showing this artwork available online."

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But did Google have the right and ability to supervise news photographers' infringing activities? And did Google have direct financial interest in any underlying copyright infringement? Those are two factors in determining the company's vicarious liability.

Judge Otero is partly skeptical, but partly open-minded.

On one hand, the judge rules that "Google did not have practical control over the photographers' subsequent sale of their photographs on the internet." He adds, "Any successful showing of vicarious infringement through photographers' actions must be based on event photographers' photography of the event, and not on resale of pictures online."

As to whether Google has financially benefited from the infringements, the judge must consider the "difficult question" of Google's invitation to the press, and "whether promotion and publicity for a commercial service constitutes a direct financial benefit."

The judge says "yes," but only barely. Interestingly, a non-exact comparison is drawn to the way that Napster once attempted to expand the number of people who once used the file-sharing service in its illegal heyday.

"The step between an increased customer base (from Napster) and increased publicity leading to an increased customer base (here) is extremely fine; businesses have for years demonstrated that publicity can and does lead directly to an increased customer base," Judge Otero writes. "This Court is bound to follow the example set in Napster and therefore finds that Google's increased publicity constitutes a financial benefit for purposes of determining vicarious liability."

The estate of Jim Marshall still has hoops to jump through in order to satisfy Judge Otero, but the plaintiff is getting another opportunity to amend the complaint to deal with the judge's points. The unique case that doesn't have much to do with the Internet -- and yet has everything to do with the Internet -- continues. Read the full decision on the next page.

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner