Parker, Bloggers, and Fair Use

By John Trinidad

Lawyers for The Wine Advocate, the publication made famous by Robert Parker, recently fired off a letter to wine writer Tyler Coleman, demanding that he “immediately remove content on [his blog] that was copied from,” claiming that Coleman’s use of this material “blatantly infringes upon [The Wine Advocate’s] copyright protected content.” Under federal copyright law, Coleman’s use of that material may be protected by the “fair use” doctrine.

The recent kerfuffle between Parker and Coleman arose from a post on Parker’s website criticizing a tasting led by New York Times wine writer Eric Asimov and the San Francisco Chronicle’s Jon Bonné. In follow-up comments also posted to, Wine Advocate’s editor, Lisa Perrotti-Brown, added her critique of the tasting and the wines presented. Only paid subscribers can access the article and comment section. Coleman subsequently wrote a blog post quoting from the article and Perrotti-Brown’s comments, defending Asimov and Bonné panel topic, and criticizing the tone of the Wine Advocate post.

Even assuming that Parker’s content on his website is his copyright protected property, Coleman’s use of excerpts from the site may not constitute infringement. The federal Copyright Act protects against unauthorized copying of a copyright-protected work, but does not grant the copyright owner exclusive use of that work. Use of another person’s copyright protected work “for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.” This is often referred to as the “fair use doctrine.” Courts weigh four factors in considering whether an alleged infringing act qualifies as fair use:
1. The purpose and character of the alleged infringing use;
2. The nature of the copyrighted work;
3. The amount of the work used in relation to the overall work; and
4. The effect of the alleged infringing use on the market or value of the copyrighted work.

Congress and federal courts have recognized that “[c]riticism is an important and proper exercise of fair use.” If a copyright holder were allowed to raise infringement claims against any writer that quoted and then criticized its work, copyright law would have a corrosive and chilling effect on free expression. In other words, copyright protection “must yield to the right of persons to engage in full and free public discourse of ideas and issues protect by the First Amendment.” Maxtone-Graham v. Burtchaell, 631 F.Supp. 1432, 1435 (SDNY 1986). Thus, works that criticize or comment deserve protection against copyright infringement claims.

Without walking through all four fair use factors, it appears that Coleman’s use of excerpts from for comment and criticism falls squarely within the types of work that Congress intended to protect under the fair use doctrine.

John Trinidad ([email protected]).

TROs and Preliminary Injunctions: The Wine Advocate, Inc. v. Antonio Galloni

Much has been written about the lawsuit filed by Robert Parker’s company, The Wine Advocate, Inc. (“TWA”), against Antonio Galloni, specifically on the allegations of fraud, defamation and breach of contract. But buried on page 21 of this 26 page complaint may be one of the most intriguing aspects of this action: a request by TWA for a temporary restraining order (“TRO”) and preliminary injunction to enjoin Galloni from “publishing any and all articles and/or tasting notes relating to the Sonoma, Brunello, Barolo and Burgundy wines, and enjoining Defendants’ use of Plaintiff’s confidential subscriber information ….” Should the Court grant TWA a preliminary injunction, then any articles or tasting notes from Galloni’s visits to wineries in Sonoma and elsewhere may remain locked up until this case is resolved, which may take multiple months, if not years.TROs and preliminary injunctions are forms of injunctive relief. They are meant to preserve the status quo by (typically) preventing a party from taking certain actions that would cause irreparable harm to the party seeking injunctive relief. TROs and preliminary injunctions are considered “one of the most drastic tools in the arsenal of judicial remedies.”A party seeking a TRO must file an application requesting that the court preserve the status quo until the court has a chance to hold a hearing on the preliminary injunction motion. If issued, a TRO remains in place until the preliminary injunction hearing date. Time is usually of the essence: a court may conclude that a party that delayed in filing an application for a TRO has failed to demonstrate the urgent need for such extraordinary relief. If the moving party is able to prevail at the preliminary injunction hearing, the court will issue an order prohibiting certain actions by the non-moving party until the case is resolved.

Preliminary injunctions are considered an “extraordinary remedy,” and accordingly, moving parties must meet a high standard in order to prevail. A party seeking injunctive relief must show likelihood of success on the merits of its claim and irreparable harm in the absence of a preliminary injunction. The court will also take into consideration the hardship on defendants should an injunction be granted

TWA may not only seek an injunction to prevent Galloni from publishing the tasting notes, but may also demand a court order “forcing” him to produce those notes to TWA. This constitutes a request for “mandatory injunctive relief” – i.e., a court order directing specific conduct by the non-moving party. Courts exercise heightened scrutiny in such situations.

The complaint suggests that TWA will seek a TRO and preliminary injunction in the near future. Indeed, TWA is free to move the court for a TRO at anytime, even before the 21-day time period for defendants to file a formal answer to the complaint has expired. And given the need to show likelihood of success on the merits, TWA will need to provide evidence to support its allegations of wrongdoing and harm. In short, should TWA follow through with its stated plan to seek a TRO and preliminary injunction, it will need to present a preview of its case-in-chief.

A PDF of the complaint is available here: The Wine Advocate, Inc. v. Antonio Galloni.
For more information, please contact John Trinidad ([email protected])
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