Colin Craig v Social Media Consultants Limited [2016] NZDC 24911

Published 15 March 2017

Breach of copyright — Copyright Act 1994, ss 42 or 225 — summary judgment application — whether publication was fair dealing — Copyright Licensing Ltd v University of Auckland & Ors [2002] 3 NZLR 76, 82 — Nora Beloff v Prestrand Limited [1973] FSR 33 (1972) — application to strike out — vexatious proceeding. Proceedings concerned the plaintiff suing the first defendant (Social Media Consultants Limited) and the second defendant (Jordan Williams) for breach of copyright after a poem and part of a letter he had written to Rachel MacGregor was published on the Whale Oil blog. The issue was whether or not the publication was "fair dealing" and if so for the purpose of reporting current events. Following "Copyright Licensing Limited", the case was to be assessed on its merits and according to whether: a) the alleged fair dealing is commercially competing with the copyright proprietor’s exploitation of the copyright work; (b) the work has already been published; (c) the amount and the importance of the work that has been taken. The Judge was uncertain on the issue of fair dealing and was satisfied that the summary judgment application of the first defendant should not succeed. However, the Judge accepted the first defendant's argument that the proceeding had not been brought in good faith by the plaintiff and thus the claim against the first defendant was struck out. Regarding the second defendant, the plaintiff had no arguable reply to the defences brought. The Judge thought it appropriate to exercise discretion and grant summary judgment to the second defendant. Judgment Date: 6 December 2016.