Sinclair, photographer resolve copyright dispute over polar bear video

Polar bears look on in their enclosure at Schoenbrunn Zoo in Vienna
Polar bears look on in their enclosure at Schoenbrunn Zoo on a sunny day in Vienna, Austria June 17, 2021. REUTERS/Leonhard Foeger
  • Paul Nicklen accused Sinclair of violating copyright by embedding video
  • Manhattan judge denied Sinclair's attempt to dismiss case
  • Court rejected 9th Circuit's "server test" for internet infringement

(Reuters) - Sinclair Broadcast Group has resolved its copyright dispute with Canadian photographer Paul Nicklen, who had accused the company of unlawfully embedding his video of a starving polar bear in an article about it going viral.

A Tuesday filing in Manhattan federal court says the parties agreed to dismiss their claims with prejudice, which means they can't be refiled. U.S. District Judge Jed Rakoff had denied Sinclair's bid to toss the case in July.

Nicklen and his attorneys James Bartolomei of the Duncan Firm, Robert Kaplan of Kaplan Fox & Kilsheimer and Bryan Hoben of Hoben Law didn't immediately respond to a request for comment, nor did Sinclair or its attorney Thomas Sullivan of Ballard Spahr.

Nicklen – a nature photographer, filmmaker and marine biologist – posted a video in 2017 to his Instagram and Facebook accounts that he took of an emaciated polar bear wandering the Arctic. Nicklen sued Hunt Valley, Maryland-based Sinclair and dozens of its local affiliates for copyright infringement, after Sinclair's websites embedded the video in an article.

Sinclair had argued that under the 9th U.S. Circuit Court of Appeals' so-called "server test," simply embedding the video from social media without storing a copy on its server and displaying it didn't infringe Nicklen's copyright.

But Rakoff had said in his July ruling that the server test is "contrary to the text and legislative history of the Copyright Act," becoming the second judge in the Manhattan court to reject it.

The case is Nicklen v. Sinclair Broadcast Group Inc, U.S. District Court for the Southern District of New York, No. 1:20-cv-10300.

For Nicklen: James Bartolomei of the Duncan Firm; Robert Kaplan of Kaplan Fox & Kilsheimer; and Bryan Hoben of Hoben Law

For Sinclair: Thomas Sullivan of Ballard Spahr

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets, for Reuters Legal. He has previously written for Bloomberg Law and Thomson Reuters Practical Law and practiced as an attorney. Contact: 12029385713