Illustration at issue in latest Righthaven copyright lawsuits

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Newspaper maps, graphics and illustrations deserve copyright protection, too.

That's the lesson that may be gleaned from two of the latest copyright infringement lawsuits filed in federal court in Las Vegas by Righthaven LLC, the Las Vegas Review-Journal's copyright enforcement partner.

Righthaven detects online infringements of Review-Journal material, obtains copyrights to the infringed material from Review-Journal owner Stephens Media LLC and then sues the allegedly offending website and blog owners.

The lawsuits usually involve Review-Journal stories, columns or editorials -- or portions of this material.

But in two of the newest suits, filed Wednesday, a Review-Journal map/graphic from Sept. 25 illustrating the Las Vegas Strip's Vdara hotel "death ray" at CityCenter is central to the litigation.

One of the suits was filed against Leighton Law P.A., a law firm with offices in Miami and Orlando; and managing partner John Leighton.

Righthaven alleges it's the owner of the copyright in the Vdara death ray illustration and that the illustration was reproduced without authorization Sept. 30 on Leighton's website

"The defendants did not seek permission, in any manner, to reproduce, display, or otherwise exploit the work (illustration)," Righthaven charges in its lawsuit. "The defendants were not granted permission, in any manner, to reproduce, display, or otherwise exploit the work."

A post by Leighton on his blog credits the Daily Mail in the United Kingdom for information about what Leighton calls Vdara's "dangerously powerful sun reflections."

A court exhibit shows the Review-Journal illustration on Leighton's website with this credit line: "Image included in the Daily Mail article, provided by Mike Johnson of the Las Vegas Review-Journal."

Another suit over the Review-Journal's Vdara death ray illustration was filed Wednesday against Carbon Athletics LLC and Cody Faeth, allegedly associated with the website, which describes itself as a site for "strange, obscure and funny news from around the world."

A court exhibit indicates that on Sept. 28, someone posted an MSNBC story about the Vdara ray along with the Review-Journal illustration, with the illustration credited to the Review-Journal.

Two more unrelated Righthaven suits filed Wednesday were against:

• Recess Mobile Inc. and Vitaliy Levit, who allegedly are associated with the website A Review-Journal sports story about a Green Valley High School tennis match allegedly was posted without authorization there.

• and David Walker, allegedly associated with the website, where a Review-Journal story about Allegiant Air allegedly was posted.

Wednesday's filings lifted to at least 176 the number of Righthaven copyright infringement lawsuits filed since March in U.S. District Court for Nevada. As usual, Righthaven seeks damages of $150,000 apiece and forfeiture of the defendants' website domain names.

Messages for comment were left with the newest defendants.

In another Righthaven development, the nonprofit Virginia Citizens Defense League Inc. (VCDL) on Nov. 19 filed a motion for dismissal of the Righthaven case against it.

The league, which advances the Second Amendment right to keep and bear firearms, sought dismissal on jurisdictional grounds many other Righthaven defendants have asserted.

The league has no members in Nevada and does no business in Nevada; and the defendants have done nothing to warrant jurisdiction of the Nevada court, their attorneys argued.

Its president, Philip Van Cleave, was accused by Righthaven of reproducing, posting and displaying on the VCDL website a July 12 Review-Journal story about Las Vegas police shooting and killing armed Army veteran Erik Scott.

Van Cleave, however, said a link to the story was emailed to him by a VCDL member "who thought the article was germane to VCDL's goals."

"Mr. Van Cleave did not copy the article from the website of the Las Vegas Review-Journal or from any other Nevada source," the motion to dismiss says. "Upon reading the article, he thought that it was something that would be educational for VCDL's members."

The VCDL also noted the Review-Journal's online stories include buttons inviting readers to "save this" and "email this" and "click to print."

"By inviting readers to email the article, and to copy it electronically, either express or implied permission was given to reproduce it," the dismissal motion said.

The VCDL filing noted Righthaven had filed at least 172 lawsuits as of Nov. 19.

"The vast majority of those suits are against non-Nevada defendants, for whom litigation in Nevada is inconvenient and expensive. Many of these suits settle and are dismissed within a short period after filing, presumably by defendants who will pay money to avoid the cost of litigation in a distant forum," the motion says.

While Nevada judges hearing Righthaven cases have upheld the Nevada court's jurisdiction over out-of-state defendants in at least three cases in preliminary litigation motions, the VCDL said these rulings were based on outdated case law.

VCDL's attorneys said new case law involving "passive (noncommercial) websites" like the VCDL site backs up their contention the Nevada court lacks jurisdiction in the VCDL lawsuit because the VCDL defendants have not been involved in "continuous, systematic general business contacts that approximate a physical presence within Nevada;" nor did the VCDL defendants "purposefully direct" their actions toward Nevada.

VCDL attorneys also complained that Righthaven, even with the copyright assignment from Stephens Media, did not allege in its lawsuit that it has standing to sue for the alleged infringement that occurred prior to it obtaining the copyright.

However, at least three of the Nevada federal judges hearing Righthaven cases have, at least in preliminary litigation motions, upheld Righthaven's right to sue for infringements that occurred prior to it obtaining the copyrights from Stephens Media.

VCDL attorneys also argued the suit should be dismissed on fair use grounds, noting the VCDL posting of the story included two links back to the Review-Journal website.

"Thus, provision of these links was transformative, changing the material from not just being a news article, but also acting as a 'pointer' to the Las Vegas Review-Journal’s website, and directing Internet traffic there," the dismissal motion said.

Also backing up the fair use claim, VCDL attorneys wrote, is that the nature of the article was that of a "news report," making it informational as opposed to creative.

They also wrote that the value of the story at issue wasn't affected by the alleged infringement.

That's an argument that has been made by other Righthaven defendants and critics who have noted people for the most part will not pay for local online news and that the very stories Righthaven sues for remain available for viewing and copying for free on the Review-Journal website.

"The 'potential market for or value of the copyrighted work' would be affected insignificantly, if at all, by the alleged reproduction in this case. This was a topical news story, not a novel, movie, or musical recording that could be expected to have enduring value or generate sales over time," the filing said. "In fact, the chances that there would even be a 'market' for this work by itself, after initial publication, are minimal. In addition, the complaint alleges that the alleged infringement did not occur until 10 days after publication. By that time, this news was, for most people, 'yesterday’s news.'"

"Further, any distribution by VCDL of the article was not for its current news value. It is not in the newspaper business. Instead, VCDL is an educational organization, and the purpose here was clearly to inform members about the dangers that can be faced by those who legally carry concealed firearms and to present a cautionary example," the filing said. "Any distribution in this fashion would not change the market or value of the article to Righthaven, if any. In fact, it is unclear that Righthaven uses the articles to which it acquires copyrights for any marketable purpose at all, but instead apparently uses those rights simply to bring lawsuits."

The VCDL is represented in the litigation by Fairfax, Va., attorneys Richard Gardiner and Dan Peterson and by Reno attorney Robert DeLong of the firm Parsons, Behle & Latimer.

Righthaven has not yet responded to the dismissal motion.