In Jacobs et al v. The Journal Publishing Company et al, 1-21-cv-00690, District Judge Martha Vazquez of the District Court of New Mexico recently held Plaintiffs’ twenty-two-month delay in filing suit rebutted any presumption of irreparable harm for alleged copyright violations, and accordingly denied Plaintiffs’ motion for a preliminary injunction.
In the case, Plaintiffs were arrested for white collar crimes, and shortly thereafter the Albuquerque Journal published an online article discussing Plaintiffs’ indictment and details of the alleged crimes. Plaintiffs objected to several aspects of the article, especially a photograph it contained. Plaintiffs claimed that two of the Defendants trespassed onto their property and stole a physical copy of the photograph for use in the article. Plaintiffs’ also claimed that the Albuquerque Journal’s subsequent use of the photograph was a copyright violation.
Plaintiffs filed for a preliminary injunction to remove the article from all websites within the Albuquerque Journal’s control, notify all other sites using the allegedly stolen image that the Albuquerque Journal did not have copyright and request that those sites remove the image, to maintain all financial records pertaining to the photograph and other unauthorized photographs, to halt any ongoing or upcoming activities related to the photograph, and to provide Plaintiffs with documentary evidence that the Albuquerque Journal has complied with these requirements.
In support for their request for a preliminary injunction, Plaintiffs argued that reputational damage and likelihood of confusion can constitute irreparable injury. However, reputational harm is not inherently irreparable. And, while copyright infringement can itself be a form of irreparable harm absent evidence of lost sales or other concrete economic damages, a rebuttable presumption of irreparable may also apply in copyright cases. In other words, the Court reasoned copyright infringement itself could constitute irreparable harm in some case, but that presumption can be rebutted by other factors such as a delay in filing suit as in this case.
Specifically, the Court found Defendants rebutted any presumption of irreparable harm by pointing out the twenty-two-month delay between when Plaintiffs allege that they discovered the article and the time that they filed suit. The Court also reasoned that the reputational harms that Plaintiffs allege mostly take the form of lost business opportunities, which are compensable, and that Plaintiffs gave no indication that further harm will occur in the future.
For these reasons, the Court found that if any presumption of irreparable harm applies for the alleged copyright violations, Defendants have rebutted it. Thus, the Court found that Plaintiffs cannot meet the irreparable harm element necessary for a preliminary injunction, and denied Plaintiffs’ request for a preliminary injunction.
This case acts as a strong reminder to not delay in filing suit, particularly if one wishes to seek preliminary relief or otherwise establish irreparable harm as even a one to two-year delay in filing suit may be sufficient to rebut any presumption of irreparable harm.