Jartech, Inc. v. Clancy
| Decision Date | 25 January 1982 |
| Docket Number | 80-5010 and 80-5016,Nos. 79-3087,s. 79-3087 |
| Parties | , 1982 Copr.L.Dec. P 25,356, 8 Media L. Rep. 1404 JARTECH, INC., Anatuna, Inc., Cinema 7, Inc., and Mooks, Inc., all California Corporations, Plaintiffs-Appellants, v. James J. CLANCY, Gordon Bricken, James E. Ward, David L. Brandt, David F. Ortiz, Defendants-Appellees. JARTECH, INC.; Anatuna, Inc.; Cinema Seven, Inc.; and Mooks, Inc., all California Corporations, Plaintiffs-Appellants, v. James J. CLANCY; Gordon Bricken; James E. Ward; David L. Brandt; David F. Ortiz, Defendants-Appellees. James J. CLANCY, Gordon Bricken, James E. Ward, David L. Brandt, David F. Ortiz, Counter-Claimants/Appellants, v. JARTECH, INC., Anatuna, Inc., Cinema 7, Inc., and Mooks, Inc., all California Corporations, James Mitchell, Artie Mitchell, Mitchell Brothers Film Group, a general partnership, Counter-Defendants/Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James J. Clancy, Sun Valley, Cal., argued, for Clancy; David A. Depew, Alhambra, Cal., on brief.
Appeal from the United States District Court for the Central District of California.
Before HUG and SKOPIL, Circuit Judges, and MUECKE, District Judge. *
This series of appeals raises for the first time in this circuit the issue of whether obscenity is a defense to a copyright infringement claim. This court has also been asked to determine whether use of copies of a copyrighted work by a local government in a nuisance abatement action is within the fair use exception to the copyright laws. Review is also sought of the trial court's award of attorney's fees upon the finding that the initiation of the suit was vexatious, and its dismissal of a counterclaim which sought a declaration that the copyrighted movies involved herein were obscene as a matter of law.
James and Artie Mitchell are the producers, distributors and displayers of adult movies. The plaintiffs below (hereinafter, "Mitchells"), are entities, controlled by the Mitchells, which perform these various functions. The defendants in the trial court were attorney James Clancy, and four individual members of the Santa Ana City Council (hereinafter, collectively referred to as "the Council").
On January 19, 1976, Clancy entered into a contract with the City of Santa Ana to act as special counsel to the city for the drafting, adoption and implementation of a public nuisance abatement ordinance aimed at ridding the city of its adult movie theatres. Subsequently, the Council adopted a city ordinance which declared that certain cinematic depictions of sexual activities constituted a nuisance. Later, an amendment to the ordinance provided a procedure for the abatement of such nuisances. On October 26, 1976, the Council adopted a resolution declaring a Mitchell Brothers' theatre to be a nuisance for exhibiting such On October 12, 1976, the Mitchells filed a suit against the Council for copyright infringement of five properly copyrighted motion pictures. The complaint alleged that an agent of the Council surreptitiously entered their theatre in Santa Ana and employed a process perfected by Clancy, whereby photographs were taken every few seconds of the visual screen images while a tape recorder recorded the entire soundtrack of the films. The photographs were subsequently reproduced in small prints of fifty per page, with the dialogue from the tape recordings printed underneath. These materials were used by the Council in determining that the theatre was a nuisance and in the subsequent abatement proceedings against the Mitchell theatre.
films. The City Attorney was ordered to abate the nuisance and all of the Mitchells' licenses and permits were revoked.
The Mitchells' copyright infringement suit proceeded to trial and on December 14, 1978, the jury returned special verdicts which found that: "(1) each defendant was responsible for the copying of five movies to which the plaintiffs held a copyright; (2) the use made by the defendants of the copy of the films was a fair use; (3) each film was obscene; and, (4) the profits realized by the defendants as a result of the infringement of the copyright for each film was 'none.' "
On June 29, 1979, the trial court considered a counterclaim filed by the Council, which sought a declaratory judgment that the five pictures were obscene as a matter of law and should be seized as contraband. The court found that the action had been rendered moot by the determination made in the case-in-chief and that there no longer existed a case or controversy between the parties. Upon these findings, the court concluded that it lacked jurisdiction to render a declaratory judgment on the issue of the obscenity vel non of the films, that it lacked the jurisdiction to authorize the forfeiture of materials found to be outside the copyright laws, and that federal copyright law made no specific provision for the exclusion of "immoral articles" or "obscene matter" from its protection.
On October 31, 1979, the trial court entered judgment for the Council and against the Mitchells for $23,157.11 in attorney's fees. This judgment was based upon the conclusion that the copyright infringement suit brought by the Mitchells was vexatious and brought to harass the defendants. The court noted that essentially the same plaintiffs had unsuccessfully tried the issue in the United States District Court in Texas. The court felt that the timing of the suit suggested that it may have been instituted to intimidate the Council members in their consideration of the nuisance action pending against the plaintiffs. The court also questioned the plaintiffs' intent in bringing the suit against some, but not all, of the Council members in their individual capacities and in naming special counsel Clancy as a defendant, but not including the actual agent who made the film and sound reproductions.
From these actions, the Mitchells have appealed the special verdicts returned by the jury, finding that obscenity is a defense to a copyright infringement action and that the Council's use was a fair use. They have also appealed the award of attorney's fees. The Council has appealed the court's dismissal of its counterclaim.
Throughout pretrial proceedings and at trial, the Mitchells unsuccessfully asserted that obscenity was not a valid defense to a claim of infringement.
The Constitution authorizes the granting of copyrights "(t)o promote the Progress of Science and useful Arts," U.S.Const. art. 1, § 8, cl. 8. In response, Congress has authorized the copyrighting of "original works of authorship." 17 U.S.C. § 102 (1976). The Council argues that Congress may not grant copyright protection to obscenity as that would defy the constitutional mandate of promoting the progress of science and useful arts. The Mitchells assert that Congress has reasonably sought to effectuate the constitutional directive by enacting a content-free statute.
This Court, in considering the copyrightability of fraudulent materials in Belcher v. Tarbox, 486 F.2d 1087 (9th Cir. 1973), stated:
There is nothing in the Copyright Act to suggest that the courts are to pass upon the truth or falsity, the soundness or unsoundness, of the views embodied in a copyrighted work. The gravity and immensity of the problems, theological, philosophical, economic and scientific that would confront a court if this view were adopted are staggering to contemplate. It is surely not a task lightly to be assumed, and we decline the invitation to assume it. 486 F.2d at 1088.
The Belcher decision was relied upon by the Fifth Circuit in rejecting obscenity as a defense to copyright infringement in a case which also involved the Mitchells. Mitchell Brothers Film Group v. Cinema Adult Theatre, 604 F.2d 852 (5th Cir. 1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1277, 63 L.Ed.2d 601 (1980). That opinion traced the history of copyright laws, and in it the Fifth Circuit observed that any time a content-based statute had been passed by Congress, it has shortly thereafter been replaced with a content-free law.
The leading treatise on copyright has called the Fifth Circuit's Mitchell Brothers case "the most thoughtful and comprehensive analysis of the issue." Nimmer on Copyright, § 2.17, p. 2-194.2 (1980). Nimmer also considers Mitchell Brothers to represent the prevailing view on this issue. Id. While the case dealt with the now repealed Copyright Act of 1909, specifically 17 U.S.C. § 4, the language of the present statute requires the same interpretation. Prior law referred to "all writings of an author," while the current statute employs the similar phrase "original works of authorship." 17 U.S.C. § 102 (1976).
Pragmatism further compels a rejection of an obscenity defense. Under the dictates of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether. Paris Adult Theatres I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); United States v. 2,200 Paper Back Books, 565 F.2d 566, 569-70 (9th Cir. 1977). Acceptance of an obscenity defense would fragment copyright enforcement, protecting registered materials in a certain community, while, in effect, authorizing pirating in another locale.
In returning one of its special verdicts, the jury found that the use made by the Council of the copies of the films was a "fair use." Fair use is a statutory defense to copyright liability. 17 U.S.C. § 107.
In its presentation to the jury, the Council had argued that because it had not commercially exploited the Mitchells' copyright, but had used it in a nuisance abatement proceeding, its use was within the safe harbor of fair use. The Mitchells...
To continue reading
Request your trial
-
Sony Bmg Music Entertainment v. Tenenbaum
...Compaq Computer Corp. v. Ergonome Inc., 387 F.3d 403, 410-11 (5th Cir.2004) (upholding the jury's fair use finding); Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir.1982) (upholding special jury verdict finding that defendants' use of films was fair use); July 14, 2009 Order (document # 880)......
-
Stern v. Does
...in litigation or potential litigation is generally fair use, even if the material is copied in whole. For instance, in Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir.1982), the defendant city council copied five motion pictures by photographing the screen images every few seconds and record......
-
Kanekoa v. City and County of Honolulu
...by the Kanekoas. Thus, the Kanekoas invited any possible error. In this circumstance, they cannot now complain. Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 58, 74 L.Ed.2d 62 (1982). We hold that the district court did not abuse its discretion......
-
Cooling Systems and Flexibles, Inc. v. Stuart Radiator, Inc.
...Corp., 745 F.2d 142 (2d Cir.1984), we predicate an award under 17 U.S.C. Sec. 505 (1982) on such a finding. See Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 175, 74 L.Ed.2d 143, reh'g denied, 459 U.S. 1059, 103 S.Ct. 477, 74 L.Ed.2d 624, secon......
-
'The Weakest Infringement Claims Of All Time'??? Patent Prosecution And The Physics Of Fair Use
...(and thereby make available to the public) material evidence that happens to be copyrighted. For example, in Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982), likely the first case addressing this issue, the Santa Ana City Council sent an agent to surreptitiously record a pornographic ......
-
Can Victims of Child Sexual Abuse Material Use Copyright as a Method of Full Restitution from Possessors and Distributors?
...8, cl. 8. (76.) See generally Mitchell Bros. Film Grp. v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979); Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. (77.) See, e.g., Eldar Haber, Copyrighted Crimes: The Copyrightability of Illegal Works, 16 YALE J.L. & TECH. 454 (2014). (78.) 1......