Can't Litigate Copyright and Libel Case With Allegedly Infringed Photo and Allegedly Libelous Article Sealed

From Jacobs v. Journal Publishing Co., decided Wednesday by Magistrate Judge Steven Yarbrough (D.N.M.):

After Plaintiffs' indictment for white collar crimes, the Albuquerque Journal published an online article (the "Jacobs article") about the events. Plaintiffs allege that the material in the article was defamatory and placed them in a false light. Included in this material is a photograph (the "Cannes photograph") that depicts Plaintiffs in front of two yachts. Plaintiffs claim that this copyrighted photograph was "stolen from a frame in their home" after Defendants Nichole Perez and James Thompson trespassed onto Plaintiffs' property. Other newspapers and internet sources such as the Singapore [Straits] Times and the Sri Lanka Royal Turf Club Facebook site then used the Cannes photograph.

Plaintiffs filed for a temporary restraining order or preliminary injunction to remove the Jacobs article from the internet and take other steps to prevent the ongoing distribution of the Cannes photograph. Plaintiffs then sought to seal the exhibits attached to this motion, which included the Cannes photograph and the Jacobs article. I temporarily ordered the documents sealed pending further briefing on the merits of the issue from all parties….

Plaintiffs seek to seal the exhibits attached to Doc. 2, which contain either the copyrighted Cannes photograph, the allegedly defamatory Jacobs article, or both. In analyzing this matter, I begin—as a court must—with the presumption that the public should have access to these records.

The public's interest in the photograph and the article are, as Defendants point out, that these documents are the centerpiece of the present dispute. Disclosure is particularly compelling when the documents at issue are central to the litigation. See Colony Ins. Co. v. Burke (10th Cir. 2012) ("[W]here documents are used to determine litigants' substantive legal rights, a strong presumption of access attaches."). Although Plaintiffs argue that "[c]opyright infringement favors nondisclosure," they provide no support for this assertion.

Plaintiffs also argue that it is "in the public interest that Plaintiff Jacobs does not continue to suffer the violation of his copyright infringement by Defendants or by unsealed exhibits"—that is, it is in the public interest that Plaintiffs have their interests prioritized. Plaintiffs cite no authority for the proposition that a plaintiff's ordinary, unprivileged privacy is somehow a matter the public has any interest in. {Case law does recognize a public interest in maintaining strong protections over privileged information. However, neither party alleges that the information to be sealed in this case is privileged.} Indeed, other cases consistently frame the public's interest as disclosure and characterize it in opposition to a party's interest in privacy.

Plaintiffs also cite nothing uniquely private, embarrassing, or otherwise personal about these documents that justify sealing. Although Plaintiffs assert an interest in restricting access to a copyrighted image and an article they claim is defamatory, the already-public nature of these documents weakens that interest. Plaintiffs argue that there is a continuing harm in the "use of the Cannes photograph, together with the false statements in the Jacobs article," which "continue[s] to place the Plaintiffs in false light." It is true that "courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption." But the mere presence of allegedly libelous statements is not enough, on its own, to justify keeping matters secret from the public. See Parson v. Farley (N.D. Okla. 2018). Nor is the simple fact that the case involves copyright infringement sufficient, in and of itself, to place documents under seal; for example, other cases of copyright infringement that sealed records dealt with trade secrets, which are not at issue in this case.

Further, as Defendants point out, the information Plaintiffs seek to seal has been publicly available since December 15, 2016. Plaintiffs reply that the information is only available due to Defendants' "criminal acts." Plaintiffs do not explain how that assertion is relevant to the legal standard, nor do they provide any case law in which a court ruling on a motion to seal considered how the information came to be publicly available. In general, courts have declined to seal, or have unsealed, records when the information is already publicly accessible.

Nonetheless, the Court could envision sealing a photograph that depicts a person in a private situation in a private setting, particularly if the public airing of that photograph was made possible only through a defendant's criminal trespass or invasion of privacy. Such sealing might be appropriate even if the photograph had already been released publicly, as further dissemination of the photograph would cause a further invasion of privacy and further harm. The photograph at issue in this case, however, does not depict individuals in a private setting or in a private situation. Instead, the photograph depicts a smiling couple standing outside on a dock with two yachts in the background. Nothing about this photograph is inherently private.

In weighing the public's interest in disclosure against Plaintiffs' interest in sealing the documents, the public's right of access should prevail in this case. The documents are central to the litigation and have already been publicly accessible for years, they are not privileged, they do not contain trade secrets, and they are not uniquely personal or embarrassing. For these reasons, Plaintiffs have not met the "heavy burden" necessary to justify sealing.