Griping Blogger Gets Fair Use and Anti-SLAPP Win–Sedgwick v. Delsman

By Eric Goldman

Sedgwick Claims Management Services, Inc. v. Delsman, 2009 WL 2157573 (N.D. Cal. July 17, 2009). The Justia page.

Delsman had a big issue with Sedgwick. The details of his gripes aren’t all that important. To make his point, Delsman set up several griping blogs (e.g., 1, 2) and mailed out postcards styled as “WANTED” posters featuring photos of two Sedgwick executives. Delsman cut-and-paste those photos from the Internet. Sedgwick called out the big litigation guns to smush Delsman, who defended himself pro se. Fortunately, Delsman drew a sympathetic judge (Judge Brown) who clearly wasn’t interested in wasting time on Sedgwick’s overreaction to a small-time griper. Thus, she liberally construed Delsman’s imprecise filings to dismiss the case early.

Judge Brown concluded that the republication of the photos on the “WANTED” postcards was fair use. She summarized her analysis:

Defendant’s uses of the photographs of North and Posey are highly transformative and serve an entirely different function than originally intended. It was reasonable for Defendant to use the entire photograph in order to evoke the image of a “WANTED” poster. His use could not have had impacted the market for the photographs because no such market is alleged to have existed. But even if it did, Defendant’s use was sufficiently transformative that it could not be deemed to be a substitute for the original. Allowing Defendant to use the photographs in the context of publicly criticizing and warning the public regarding Sedgwick’s business practices is precisely the type of activity the fair use doctrine is intended to protect.

As Eugene Volokh says, the “fair use analysis strikes me as quite right.”

Judge Brown then tossed the rest of the claims on anti-SLAPP grounds. This isn’t the first time a blogger has won an anti-SLAPP motion (see, e.g., GTX v. Left), but it’s still nice to see.