BOSTON – In an order issued Thursday, Judge Patti B. Saris, presiding over the case in which artist Leah Bassett has sued Mile High Distribution and a variety of people associated with the company on claims ranging from trespass to civil RICO violations, denied Bassett a sweeping injunction ostensibly designed to keep the company from continuing to distribute any videos or photographs which include her copyrighted-protected artworks.

In the order, Saris notes several weaknesses in the basis for Bassett’s injunction request, opining that these defects undermine the urgency the plaintiff asserted in moving for the injunction.

“Now, nearly a year and a half after first filing this lawsuit, Bassett asks the Court for a preliminary injunction enjoining Defendants from ‘continuing to display images of [her] copyright-protected artworks in any manner or form by any person, entity and/or Internet site that falls within their legal means to prevent such continued displays’,” Saris writes, followed by a footnote.

In the footnote, Saris observes that in her original motion, “Bassett also sought an injunction preventing ‘Defendants from creating, marketing, and/or selling adult entertainment/pornographic materials of any kind or description for commercial purposes within the United States…. during the pendency of this lawsuit.’ In her reply brief and at the hearing held on October 16, 2019, however, she waived that request for relief.”

The footnote may seem unremarkable on its face, but consider the request Saris has just described: Bassett wanted her to shut down Mile High’s U.S. operations entirely, for the duration of the case. While Bassett later amended the request and narrowed her request to cover just videos depicting her artwork, it’s clear the court still considered it an extraordinary level of relief to request, particularly in the form of a preliminary injunction.

Saris also noted that the copyright-protected works at issue are not works that are being commercially distributed or publicly displayed, further undermining the urgency of the plaintiff’s request.

“[Bassett] alleges that Defendants’ films and photographs feature items from her home which are subject to copyright protection,” Saris writes. “Bassett owns three copyrights for ‘unpublished collections’ covering more than 50 different items, like the fireplace and pillowcases in her home. She sought copyright protection after she learned the filming took place in her home. Bassett now claims that at least 33 of the covered items appear in Defendants’ films, in some cases in multiple films on multiple occasions.”

In explaining her decision to deny Bassett’s request for a preliminary injunction, Saris notes that when considering a motion for preliminary injunction, “the Court must consider ‘(1) the movant’s likelihood of success on the merits; (2) the likelihood of the movant suffering irreparable harm; (3) the balance of equities; and (4) whether granting the injunction is in the public interest.’”

Saris then wastes no time and leaves no doubt on where Bassett’s motion stands with respect to that four-part test.

“Here, Bassett’s motion must fail because she has not presented any evidence of irreparable harm that will result from the continued distribution of pornographic films and photographs shot in her home,” Saris writes. “There are multiple reasons why Bassett cannot make the requisite showing. First, she has disavowed any claim to actual damages and is instead pursuing statutory damages against Defendants. Second, all of the copyrighted items were her personal belongings; they were not for sale nor is there any evidence that she is in the business of selling or marketing similar items. In other words, the types of irreparable harm that are most common in intellectual property cases — i.e., reputational harm, tarnishment, dilution — are not present.”

Saris then reiterates that Bassett “delayed three years in filing this lawsuit and then another year and a half in seeking a preliminary injunction,” adding that the delay “undercuts any argument she is at risk of suffering irreparable harm.”

Saris also describes the nature of the asserted copyright violations, the severity of which doesn’t seem to have impressed the judge.

“Only a handful of the screenshots included with her motion feature copyrighted items, and those that do only show de minimis copying,” Saris wrote, adding that the defendants “have voluntarily agreed to remove from distribution all films and photographs that were shot at Bassett’s home and are within their control.”

While Saris acknowledges that the removal of the content within the defendants’ control “does not extend to third parties who continue to distribute unauthorized versions of the films and photographs,” she adds that it is “as much as the Court could achieve by entering a preliminary injunction against Defendants.”

Other orders recently filed in the case suggest Saris has referred the parties to another judge, Edward F. Harrington to engage in alternative dispute resolution. In any event, it appears the court is not inclined to provide Bassett with the sort of dramatic, sweeping injunctive relief she has sought at various phases of the litigation.

Moakley Courtroom stock photo courtesy Massachusetts District Court