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| Chilling Effects Clearinghouse > Weather Reports > Sedgwick Appeals Case Over Wild West Wanted Posters | 
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|  Sedgwick Appeals Case Over Wild West Wanted PostersRebecca Schoff, Chilling Effects Clearinghouse, September 18, 2009 Abstract: In July 2009, blogger Robert Delsman, representing himself in court, won a rousing victory against Sedgwick, a large claims management company that had sued him, among other things, for copyright infringement over his use of modified corporate promotional photos in mailings that were critical of the company. The judge ruled that Delsman’s use of the promotional photographs, which had been transformed to look like “wanted” posters out of the Wild West, qualified as fair use and threw out Sedgwick’s remaining claims under California’s Anti-SLAPP statute. Now Sedgwick has appealed the ruling to the 9th Circuit, setting the stage for a major review of the application of fair use analysis and Anti-SLAPP legislation in similar contexts—and raising questions about whether the “Streisand Effect” really discourages litigiousness. In an effort to voice criticism of Sedgwick, Delsman maintains a blog and gripe site. He also mailed postcards featuring promotional photographs of two Sedgwick executives superimposed onto a Wild West “wanted” poster, with the caption, “Wanted for Human Rights Violations.” A copy of the image featuring Sedgwick’s COO can be found on Delsman’s blog, here. Judge Brown, a federal judge in the Northern District of California, concluded that Delsman’s modification and use of the photos was a fair use, and thus not liable for any infringement of copyright. The opinion emphasizes that “allowing Defendant to use the photographs in the context of publicly criticizing and warning the public regarding Sedgwick’s business practices is precisely the type of activity the fair use doctrine is intended to protect.” (For more information on a fair use defense, see Copyright and Fair Use.) Judge Brown’s analysis has been praised by Eric Goldman here and by Eugene Volokh here. The Court dismissed the remaining claims, including a state-law based claim of defamation, by granting a motion to strike under California’s anti-SLAPP statute. The opinion notes that the purpose of the statute is "to provide a procedure for a court ‘to dismiss at an early stage nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue.’" Judge Brown goes on to explain that “the archetypal SLAPP [Strategic Lawsuit Against Public Participation] is a ‘generally meritless suit [ ] brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so.’” The full opinion has been posted here. It is worth noting that the Court found “this matter suitable for resolution without oral argument.” Presumably, the decision to mark this suit as a SLAPP without merit was not a close one. That makes Sedgwick’s decision to appeal all the more surprising to commentators. Eric Goldman suggested readers “put this one in the ‘Are you kidding me?’ file.” Michael Masnick over at Techdirt notes that the appeal is an indication that corporate legal representation may be paying less attention to the "Streisand Effect" (in which an attempt to suppress information on the internet results in widespread dissemination) than was previously thought. He remarks: “Remember that discussion a few months ago about how most lawyers apparently understood the Streisand Effect, and knew better than to file bogus lawsuits against individuals putting up ‘gripes’ sites about their business? We've already seen that's not quite true, but it takes a special level of thoughtlessness to lose such a bogus lawsuit (badly) and then file an appeal.” California’s Anti-SLAPP statute does include a requirement that plaintiffs who bring SLAPP suits cover reasonable legal fees for defendants. (For more information, however, see the California Civil Code of Procedure at the California Anti-SLAPP Project, indicating that a recent amendment will soon limit the kinds of cases that award costs to defendants in California.) If the Streisand Effect is not perceived as costly by such plaintiffs, perhaps the costs of litigation will be.
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