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Suit over "Super Bowl Shuffle" photo proceeds as judge denies Chicago Tribune's dismissal request

By Kenneth Lowe | Mar 31, 2014

The Chicago Tribune Co. will have to face claims it took liberties with one of the city's most sacred rituals.

U.S. District Judge Thomas M. Durkin last week denied the Tribune's motion to dismiss one of the counts leveled against it in a June 2013 suit that accuses it of using and taking credit for photos Don Levey took of the hallowed Super Bowl Shuffle rap video that was released nearly three decades ago.

The suit, which was filed in Chicago's federal court, names the Tribune and its interactive entity collectively doing business as as defendants, as well as Fox Sports Net Chicago Holdings and its interactive entity, collectively doing business as, and a few unnamed individuals.

Levey of Leveyfilm Inc., formerly known as Don Levey Studio Inc., took photographs of the Super Bowl Shuffle victory dance, which, as legend has it, the Chicago Bears football team performed prior to beating the New England Patriots in Super Bowl XX in 1986.

Dick Meyer, who produced the video, retained Levey's services during the production, according to the recent ruling that denied the Tribune defendants' request to dismiss one of two counts alleged against them in the four count suit.

"Meyer hired Levey to take still photographs of the players and used a group photo that Levey took as a record cover of the album recording of the song," Durkin wrote in his March 25 decision. "The Super Bowl became a part of American (or at least, Chicago's) popular culture lore."

The Tribune defendants in August moved to dismiss the count alleging it removed information crediting Levey with the photo in question and instead credited the photo to itself in violation of the Digital Millennium Copyright Act (DCMA).

Levey maintains he retained all rights to the photo and its use, and that he was credited with the photo on the back of the album cover when it released in 1985. He claims he discovered in April 2013 that the Tribune had published the photo on its website.

"The Tribune did not include any of the credits from the back cover of the album," Durkin wrote in his 12-page opinion and order. "Instead, the Tribune included the following credit line under the photo: '(Tribune file photo.)'

The Tribune defendants moved to dismiss that count, arguing the credits on the back cover of the album did not constitute copyright management language.

In rejecting that argument, Durkin explained that "the credit line on the back cover of the album plainly indicates that Levey was the photographer, and thus was the author of the work at issue."

The Trib defendants also claimed in its motion to dismiss that Levey's allegations contained no factual content on the conduct or intent of their alleged removal of his name from the photograph.

"Levey has not alleged how the Tribune came to be in possession of the photo or the specific factual circumstances of Levey's name being removed from the photo," Durkin wrote.

"But," the judge added, "[Levey's company] has alleged that it always includes Levey's name when distributing it and that the Tribune published the photo without Levey's name attached. These two facts make it plausible that the Tribune received the photo with Levey's name attached and removed it, and are enough to raise a reasonable expectation that discovery will reveal evidence of illegal conduct by the Tribune."

The Trib defendants' August motion to dismiss did not seek the dismissal of the copyright infringement count included in the suit. The suit will now proceed with both counts following Durkin's ruling.

The suit states Levey's company is entitled to damages from both defendants. It notes the Copyright Act provides for an award of up to $150,000 for each willfully, infringed work and DCMA violations can be punishable with awards up to $25,000 for each violation.

Levey's company is suing the Fox defendants for the same two counts. The Fox defendants have filed a motion for summary judgment, which court records show was presented to the court earlier this month and remains pending.

In their motion, the Fox defendants claim fair use under the federal Copyright Act, arguing that their "limited use of the photograph was fair because it was for purposes of news reporting and, in any event, in no way affected the photograph's commercial value."

As such, they assert they are entitled to summary judgment on both counts.

Court records show that Levey's company has until April 15 to respond to the request for summary judgment and that the Fox defendants have until April 29 to respond with a status hearing slated for late May.

Chicago attorneys Mark H. Barinholtz and Melinda H Schramm represent Leveyfilm; Stephanie J. Harris and A. Colin Wexler of Goldberg Kohn Ltd. represent the Tribune defendants; and John David Fitzpatrick and Steven P. Mandell of Mandell Menkes LLC represent the Fox defendants.

Bethany Krajelis contributed to this article.

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