Time Incorporated v. Bernard Geis Associates

• Decision Date: 24 September 1968
• Docket Number: No. 67 Civ. 4736.,67 Civ. 4736.
• Citation: 293 F. Supp. 130
• Parties: TIME INCORPORATED, Plaintiff, v. BERNARD GEIS ASSOCIATES, Bernard Geis, Josiah Thompson, and Random House, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

293 F. Supp. 130

TIME INCORPORATED, Plaintiff, v. BERNARD GEIS ASSOCIATES, Bernard Geis, Josiah Thompson, and Random House, Inc., Defendants.

No. 67 Civ. 4736.

United States District Court S. D. New York.

September 24, 1968.

Cravath, Swaine & Moore, New York City, for plaintiff; Harold R. Medina, Jr., New York City, of counsel.

Brown, Cross & Hamilton, New York City, for defendants Bernard Geis Associates, Bernard Geis and Random House, Inc.

Weil, Gotshal & Manges, Horace S. Manges, E. Douglas Hamilton, Edward C. Wallace, John D. Kousi, Marshall C. Berger, New York City, of counsel.

WYATT, District Judge.

This is a motion by plaintiff for summary judgment "interlocutory in character" on the issue of liability alone, as authorized by Rule 56(c) of the Federal Rules of Civil Procedure.

Time Incorporated (Time Inc.), the plaintiff, is a corporation which, among other things, publishes "Life", "Time" and "Fortune" magazines; it also publishes books; and it has "Broadcast divisions" (Hardy affidavit, p. 7), the operations of which are not explained but presumably involve radio or television broadcasting or both. The events in suit principally concern "Life" magazine, which is an activity or division of Time Inc. and is not a separate corporation. For simplicity, however, the word "Life" is hereafter often used in describing or in referring to events when the more technically correct expression would be "Time Inc.", the plaintiff.

When President Kennedy was killed in Dallas on November 22, 1963, Abraham Zapruder, a Dallas dress manufacturer, was by sheer happenstance at the scene taking home movie pictures with his camera. His film—an historic document and undoubtedly the most important photographic evidence concerning the fatal shots—was bought a few days later by Life; parts of the film were printed in several issues of the magazine. As to these issues and their contents (including, of course, the Zapruder pictures) and as to the film itself, Life has complied with all provisions of the Copyright Act (17 U.S.C. § 1 and following; the Act).

Defendant Thompson has written a book, "Six Seconds in Dallas" (the Book), which is a study of the assassination. It is a serious, thoughtful and impressive analysis of the evidence. The Book contains a number of what are called "sketches" but which are in fact copies of parts of the Zapruder film. Defendant Bernard Geis Associates (Associates), a partnership, published the Book on November 18, 1967 and defendant Random House, Inc. has been distributing the Book to the public. Defendant Bernard Geis is the only general partner of Associates.

This action was commenced on December 1, 1967. The complaint in a single count charges that certain frames of the Zapruder film were "stolen surreptitiously" from Life by Thompson and that copies of these frames appear in the Book as published. The complaint avers that the conduct of defendants is an infringement of statutory copyrights, an unfair trade practice, and unfair competition.

While the word "frame" with respect to motion picture film is generally understood, it may be advisable briefly to explain it. A motion picture consists of a series of photographs showing the objects in a scene in successive positions slightly changed. When the series is presented in rapid succession, the optical effect is of a picture in which the objects move. Each separate photograph in the series is called a "frame". Webster's Third New International Dictionary, pp. 902, 1475.

There is jurisdiction of the claims in the complaint. 28 U.S.C. § 1338.

There is jurisdiction of the persons of defendants, except for Thompson, an assistant professor of philosophy at Haverford College in Pennsylvania who has not been served with process in New York as required (Fed.R.Civ.P. 4(f)) and who has not appeared. As used hereafter, the word "defendants" does not include Thompson unless the context indicates otherwise.

Defendants answered on January 15, 1968 and on the same day served a demand for trial by jury. Fed.R.Civ.P. 38(b).

The answer in substance denies that plaintiff has any claim, then pleads nine affirmative defenses, and then pleads the nine affirmative defenses as a partial defense. The affirmative defenses are as follows: first, consent; second, that the Zapruder film could not be the subject of copyright because not original; third, that the Zapruder film could not be the subject of copyright because it could be made "in only a limited number of ways" and to allow copyright would result in the appropriation of the subject matter * * * by a limited number of copyright proprietors"; fourth, through seventh, fair use; eighth, that the Book is protected by the First Amendment and on that account an injunction cannot issue; and ninth, that an injunction will cause defendants irreparable harm.

After answering and in January 1968, defendants took the depositions of four Life employees: Loudon Wainwright, a writer; Edward Kern, an associate editor in the Department of Special Projects; Richard O. Pollard, Director of Photography; and Richard Billings, until 1964 Bureau Chief in Miami, then until early 1966 (and in New York) Assistant Director of Photography, and since then an associate editor in the Department of Newsfronts.

Apparently in contemplation of a motion for summary judgment and under date of May 1, 1968, the parties made a fourteen page stipulation of facts to which there are numerous exhibits.

The motion is based on the stipulation and also on affidavits of Pollard, Billings, Kern and Wainwright (all identified above), of John F. Dowd, Editorial Counsel of Time Incorporated, and of Jerome S. Hardy, Publisher of Life.

Defendants submit in opposition affidavits of Thompson, of Geis, of Don Preston (executive editor of Associates), of E. Douglas Hamilton (an attorney for Associates), of David S. Butterworth (an assistant of Thompson), of Theodore B. Hetzel (a Professor at Haverford), and of Benjamin F. Price (a picture editor).

The parties filed statements under General Rule 9(g) of this Court.

Life states that the only issue to be tried is that of damages.

Defendants state that there are two issues to be tried: (1) whether Billings had authority to consent to the use in the Book of sketches of the Zapruder frames; and (2) whether defendants reasonably understood that the consent of Billings was to their use of the sketches which are in the Book.

In the memorandum submitted for defendants, it is asserted that they are entitled to summary judgment but, if found not so entitled, that there should be a trial of the issue whether plaintiff consented to use of the sketches in the Book. If defendants are entitled to summary judgment, it may properly be granted by the Court even without a written or formal motion. 6 Moore's Federal Practice (2d ed.) 2241-2246.

There is no genuine issue as to any material fact on the issue of liability alone. Some of the questions of law, ably argued on both sides, are difficult. The conclusion is that there must be summary judgment for defendants.

I

The facts are almost entirely established beyond any dispute and without any dispute, except as expressly noted in the following recital.

A. Making of the Film and its Purchase by Life

On November 22, Zapruder decided to make a motion picture film of the President passing by. He had an 8 millimeter color home movie camera with a "telephoto" lens. At first he thought to take the pictures from his office in an office building at 501 Elm Street, at the corner of Elm and Houston Streets where the President's car would make a left turn from Houston into Elm Street. Then he felt he could get better pictures on the ground, so he went down with several others from his office and walked along Elm Street toward a triple underpass trying to pick the best spot for his camera. He tried several places and finally settled on a pedestal of concrete about 4 feet high on a slope; from this point he could look up Elm Street away from the underpass and see the corner where the left turn would be made, after which the President's car would come toward and pass directly in front of him on its way to the underpass; it was a "superb spot" (the Book, p. 4) for his pictures. He tried out the camera, felt that he was not steady, and then had his receptionist come up on the pedestal and steady him while he ran the camera.

The procession came into view and with the speed control at "Run" (about 18 frames per second) Zapruder started his camera, not knowing the horror it would record. When the car came close to Zapruder, there were the sudden shots and the reactions of those in the car—all caught on Zapruder's color film.

On the same day—November 22— Zapruder had the original color film developed and three color copies made from the original film.

(There are about 480 frames in the Zapruder film, of which 140 show the immediate events of the shooting and 40 are relevant to the shots themselves. While working with the film, agents of the Secret Service or of the Federal Bureau of Investigation identified each frame with a number, beginning with "1" for the frame showing the lead motorcycles coming into view on Houston Street and continuing the numbers in sequence for the frames following; these numbers have since been used to identify the frames.)

On the same or the next day, Zapruder in his Dallas office turned over two copies of the film to the Secret Service, specifying that it was strictly for government use and not to be shown to newspapers or magazines because he expected to sell the film.

Life then negotiated with Zapruder and on November 25 by written agreement bought the original and all three copies of the film (two of which were noted as then in the possession of the Secret Service) and all rights therein, for $150,000 to be paid in yearly instalments of $25,000.

B. Use of the Film by Life and by the Warren Commission

In its next edition (cover date November 29,...