Fitzgerald v. CBS Broadcasting

Christopher Fitzgerald, a freelance photographer who was working on assignment for the Boston Globe, photographed well-known mobster Stephen Flemmi on January 6, 1995 while Flemmi was being transferred shortly after his arrest. Fitzgerald was the only photographer at the scene, and thus his are the only known publicly-available photographs of Flemmi’s arrest. In June 2004, two CBS affiliate stations in Boston, CBS-4 and UPN-38, broadcast one of Fitzgerald's photographs without permission and CBS-4 put the photo on its website.

On October 12, 2004, Fitzgerald sued CBS for copyright infringement. Fitzgerald also filed a second, nearly identical copyright action (06-11302) against CBS based on the same set of facts, seeking to collect double statutory damages because the broadcast at issue went out over two of CBS’s Boston affiliate stations.

Several years prior to this action, Fitzgerald had sued CBS over the use of the same photographs in its show "60 Minutes." That lawsuit ended in a settlement, and CBS took steps to ensure that the photographs were not accidentally broadcast again. However, at least one copy of a photograph was not destroyed, and it was used in 2004 by the CBS affiliate stations.

On September 1 and 20, 2006, the parties filed cross motions for summary judgment, with CBS asserting that its use of the photograph constituted fair use under copyright law. The district court granted partial summary judgment for Fitzgerald as to CBS's liability, but denied Fitzgerald's claim for summary judgment as to willfullness. The court also consolidated the two lawsuits because they were based on the same set of facts.

Two final determinations are left to the jury: (1) whether CBS's use of the photograph was willful copyright infringment and (2) the extent of Fitzgerald's damages.

Update:

4/14/2008 - Judge dismissed the case after parties reached a settlement.