UPDATE: Harper Collins settled its lawsuit with Gawker Media Tuesday ending the war over the pages of Sarah Palin's America by Heart they posted before its publication. Harper Collins sought financial damages from Gawker, but they declined to give further details of the settlement only revealing that Gawker had agreed to keep the pages off its website. The publisher, which had sought financial damages, said Tuesday that Gawker had agreed to keep the images off its website. HarperCollins declined to give further details of the settlement, but said in a statement that it was "gratified." What are the chances of Sarah Palin’s publisher HarperCollins winning their lawsuit against Gawker? Shushannah Walshe talks to lawyers on the battle over Palin’s book.
Last week, HarperCollins sued the website Gawker because they posted 21 pages of Sarah Palin’s book, America by Heart, which hits store shelves today. A day later, a federal judge ordered the site to take down the unauthorized excerpts.
The case pits Gawker’s claim of fair use against HarperCollins’ argument of copyright infringement. Although fair use is a complicated and subjective issue, copyright lawyers say Gawker has a tough case ahead of them.
Ian Ballon, an Internet law and copyright lawyer with Greenberg Traurig, said the amount of pages Gawker excerpted is probably one of the site’s biggest problems legally.
“Taking 20 pages of a book not released yet is less likely to be deemed fair use,” Ballon said. “Fair use is decided by quantity and quality. It’s not only how many pages, but how important those pages are.”
“What’s really driving this? Copyright infringement? Freedom of the press? It’s really money,” Werbin said.
All of the copyright lawyers The Daily Beast spoke with immediately brought up a case that will surely serve as ammo for HarperCollins when they head to court on Nov. 30th. A similar Supreme Court case from 1985: Harper & Row (one half of what is now HarperCollins) v. Nation Enterprises. In this case, The Nation newspaper published an unauthorized excerpt from the memoirs of Gerald Ford before publication. The portion was the most newsworthy section of the book, where Ford writes about Richard Nixon’s resignation and explained why he decided to pardon him. Barry Werbin, the chairman of the New York City Bar Copyright and Literary Property Committee, says this victory for Harper & Row is what HarperCollins will try to use as precedent in court.
• Tunku Varadarajan: Palin Paranoia Decoded• Meghan McCain: Palin’s Media Strategy• Palin’s Handbook for 2012“One of the key factors is the amount and nature of what’s being used. It’s not only how much, but what the essence of [the book] is taken. With President Ford’s memoirs, it was a very small amount relative to the book,” said Werbin. “But, it was hot news. No one knew the inside scoop, the key parts and that’s what completed the court’s decision. Gawker slapped up the text because it is juicy and it is Sarah Palin and all the pundits will be talking about it… I think you are going to see HarperCollins rely heavily on the President Ford case and hang its hat on that to a large extent.”
In determining a ruling on whether it was fair use or not, a judge will consider factors including the purpose of Gawker posting the pages, how much material was posted related to the entire manuscript, and if the unauthorized posted material could have a harmful effect on the sales of America by Heart.
None of those factors are black and white in the case, especially because in the Ford memoir case it was clear this was the section of the book everyone wanted to read, while the excerpted sections of Palin’s book have no one part that is the essence of the entire work.
Also, media critique is part of the assessment and it doesn’t have to just be serious critique, parody can also be a valid fair-use claim and one Gawker may use because they did post commentary with the intention of being snarky and humorous at the top of each portion, but whether a judge will see that as a critique is Gawker’s job to prove.
Another potential problem for Gawker: posting the portions before, but very close to the publication date. Michael Grygiel, a lawyer who represents news and entertainment companies in copyright-infringement cases, says the timing could hurt Gawker.
“I think clearly one of the critical facts is the temporal proximity to the publication date of the book and that would tend to support an inference there, which could have an adverse commercial impact in the market for the published work, but that is a burden that HarperCollins will have to demonstrate,” Grygiel said.
And that’s really what this lawsuit is about. Will people be less likely to buy Palin’s second book because they read the excerpts on Gawker or could the press around the lawsuit boost sales? This is the part of the case that might be most difficult to prove for either party.
“What’s really driving this? Copyright infringement? Freedom of the press? It’s really money,” Werbin said. “If you scoop the big story, its got value. Maybe it gives the book less value or there is an argument that it has increased value because people are more aware of it. Now it is an evening news story, it’s all over the Web so more people may want to read it.”
Although it looks good for them, it’s far from a slam-dunk case for HarperCollins. But their star author was clearly in favor of the litigation. The day before the lawsuit was filed Palin tweeted, “The publishing world is LEAKING out-of-context excerpts of my book w/out my permission? Isn't that illegal?” A win for HarperCollins would not only be a victory for Palin and a blow to a site that enjoys antagonizing her, it would also be a bit of revenge for some of Palin’s Mama Grizzlies that have felt Gawker’s wrath.
Shushannah Walshe covers politics for The Daily Beast. She is the co-author of Sarah From Alaska: The Sudden Rise and Brutal Education of a New Conservative Superstar. She was a reporter and producer at the Fox News Channel from August 2001 until the end of the 2008 presidential campaign.