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In a case that could have far-reaching implications for copyright infringement law, a federal judge on Friday denied class action status to a Tennessee photographer suing the San Jose Mercury News for publishing a picture without permission. U.S. District Judge Charles Breyer, acknowledging the large media interest surrounding the dispute, set the case for jury trial June 12. The case stems from a 2004 complaint filed by Christopher Harris, a digital media communications professor at Middle Tennessee State University, who accused the Mercury News of reprinting one of his photos in a 2003 book review without Harris’ written approval. The photo originally appeared in the book. The newspaper is claiming fair use. Harris, however, says he is sick of newspapers and magazines using this defense whenever they print work without permission. “It’s not a game for me,” Harris said in an earlier phone interview, adding that he isn’t looking to collect damages. “I am not suing over $600 or $1,000. I am suing over the principle.” The photographer, who has shot for Time magazine and Newsweek, says he simply wants this matter adjudicated in federal court so it can be used in case law and cause newspapers across the nation to think twice before publishing something without permission. Harris’ suit, however, specifies he is seeking $30,000 in statutory damages and $150,000 in enhanced statutory damages, as well as attorney fees. Robert Spanner, an attorney with Menlo Park’s Trial & Technology Law Group who is representing Harris on a contingency fee, admits that while the judge’s rejection of class action status “does hurt,” it won’t affect the trial. “Judge Breyer was down on this case pretty much from the first status conference,” Spanner said earlier. “Then, when he looked at the evidence, he swung the other way.” The photo in question is a 1982 image by Harris of author Walker Percy. The Mercury News ran the photo alongside an April 2003 book review of Paul Elie’s “The Life You Save May Be Your Own: An American Pilgrimage.” Harris’ complaint said the newspaper intentionally removed the copyright notice from the photograph. Mercury News attorney James Chadwick, a partner at the East Palo Alto office of DLA Piper Gray Cary, said the newspaper has since streamlined its photo policy and said “there really doesn’t seem to be much point to [Harris'] claims.” Breyer disagreed, denying the newspaper’s request for summary judgment in early January. On Friday, the judge also denied the newspaper’s motion for interlocutory appeal, noting, “I can get this case tried a lot faster than you can get an appeal resolved.” “Everyone looks like they are in shock,” Breyer said after dismissing requests for later court dates and instead setting the likely weeklong trial for mid-June. “I’ll move this case along lickety-split,” the judge assured attorneys. “I am sensitive to this issue … [and] a great champion of the press.” When one attorney suggested bringing in a settlement negotiator, Breyer was firm: “I don’t even want to talk about settlement. I’ve walked down that road.” After the hearing, Chadwick said he was pleased Breyer denied Harris’ class action status request, adding that he will be ready to go to trial in June. “The practice that the Mercury News was using is something that major news [organizations] have done across the country,” Chadwick said. Harris said he is eager to clear up the legal questions surrounding his case. “I am not after shoving it in [the newspaper's] face,” Harris said. “Basically, we are trying to get them to pay attention. “Had this been with print,” Harris added, “it would have been plagiarism.” The trial comes as the Mercury News readies itself to be placed up for sale again. McClatchy Co. last month announced its $4.5 billion purchase of the Mercury News‘ parent company, Knight Ridder. Shortly after the sale was disclosed, McClatchy said it planned to sell 12 of the papers, including the Mercury News. Spanner said he doesn’t think the sale will affect his client’s copyright infringement case. “I’m pretty confident that this will go to trial before the Mercury News is bought,” Spanner said. The case is Harris v. San Jose Mercury News, C 04-05262 CRB.

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