Schnapper v. Foley

• Decision Date: 01 October 1981
• Docket Number: No. 79-1848,79-1848
• Citation: 215 U.S.App.D.C. 59,667 F.2d 102
• Parties: , 212 U.S.P.Q. 235, 1981 Copr.L.Dec. P 25,315 M. B. SCHNAPPER, Public Affairs Press (A corporation of the State of Delaware), Appellants, v. William E. FOLEY, Director, Administrative Office of the U.S. Courts of the Supreme Court, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 102

667 F.2d 102

215 U.S.App.D.C. 59, 212 U.S.P.Q. 235,

1981 Copr.L.Dec. P 25,315

M. B. SCHNAPPER, Public Affairs Press (A corporation of the State of Delaware), Appellants, v. William E. FOLEY, Director, Administrative Office of the U.S. Courts of the Supreme Court, et al.

No. 79-1848.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 27, 1981.

Decided Oct. 1, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-2119).

Eric Schnapper, New York City, with whom Seymour S. Guthman and George R. Douglas, Jr., Washington, D. C., were on the brief for appellants.

Thomas J. Byrnes, Atty., Dept. of Justice, Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. and Alice Daniel, Asst. Atty. Gen., Washington, D. C., were on the brief for appellees, Foley and Ringer.

Theodore D. Frank, Washington, D. C., with whom Mania K. Baghdadi, Elizabeth L. Shriver and Eric H. Smith, Washington, D. C., were on the brief, for appellees, Public Broadcasting Service, et al. Rodney F. Page, Washington, D. C., also entered an appearance for appellees, Public Broadcasting Service, et al.

Murray Drabkin, Washington, D. C., was on the brief for appellee, Metropolitan Pittsburgh Public Broadcasting, Inc.

Before ROBINSON, Chief Judge, McGOWAN, Senior Circuit Judge, and PARKER ^*, United States District Judge for the District of Columbia Circuit.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

Appellants M. B. Schnapper and the Public Affairs Press challenge the arrangements among government agencies and public broadcasters for the filming and dissemination of the television series "Equal Justice Under Law." Although the complaint states numerous legal grounds for relief, appellants' central contention is that one commissioned by the Government to create a literary or artistic work cannot obtain a copyright in that work. The District Court granted defendants' motion to dismiss. Schnapper v. Foley, 471 F.Supp. 426 (D.D.C.1979). For the reasons appearing below, we affirm.

I

The complaint names five defendants who, it is alleged, had some role in the series: William E. Foley, Director of the Administrative Office of the United States Courts (AO), the Register of Copyrights, then Barbara H. Ringer and now David Ladd, seek 46 Fed. Reg. 12,705 (1981), the Public Broadcasting Service (PBS), Metropolitan Pittsburgh Public Broadcasting, Inc., the series' producer and proprietor of television station WQED, and Greater Washington Area Educational Telecommunications Association, Inc., which broadcast part of the series over its television station, WETA.

The complaint also alleges that the contract "required" WQED to copyright the films, and to assign such copyright to the Government. Complaint, P 13. At oral argument and in later correspondence, both counsel for WQED and counsel for the federal appellees stated that, although WQED did copyright the films, there was never an assignment of the copyright to the Government, and counsel for appellants has not contested the point. According to a March 20, 1981 letter sent to appellants' counsel by counsel for the federal appellees, no government agency has any copyright interest in the films. However, for the purposes of this appeal from the District Court's dismissal of the complaint under Fed.R.Civ.P. 12(b)(6), we are constrained to regard the allegations of the complaint as true, and will proceed on the assumption that an assignment took place. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1358 (1969). Accord-

To put this allegation in context, we take judicial notice of certain indisputable facts. See Fed.R.Evid. 201(b), (c). The series, commissioned by the Judicial Conference as a bicentennial project, dramatized four cases arising in the early years of the Republic that established constitutional law principles of enduring significance: Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824); and, in two parts, the trial of Aaron Burr. Swindler, Equal Justice Under Law, 63 A.B.A.J. 1099 (1977).

The stated goal of the project was to increase public understanding of the judicial process and to this end the films were broadcast over the PBS network in September of 1976. Id. The government agencies did exercise some supervision over the scripts, with a subcommittee from the judicial agencies involved reviewing the stories for "accuracy and authenticity." Id. at 1100.

The appellants further complain that the films were transmitted by PBS to its affiliates, including WETA, and by them broadcast without any disclosure of the government's control over their content. Complaint, P 15. This, it is alleged, caused injury of an unspecified nature to the class of persons who watch WETA, a purported class whose interests appellant Schnapper states he is qualified to represent. Id., P 8. The nature of the injury is difficult to fathom because the class comprises not those who actually watched the programs, but anyone who ever viewed any of WETA's televised offerings, even those who never knew of the series at issue. Id.

In paragraph 16, the complaint asserts that the existence of the copyright severely hampers public access to the films because PBS, WQED, and the AO have refused to permit their commercial broadcast, thus injuring those who do not live within range of a public television station. Since appellant Schnapper had previously stated that he is not so situated, but rather a viewer of WETA, this purported denial of access has apparently not injured him. The injury of which appellants chiefly complain is that the copyright prevents them from publishing the text of the films. Id., P 17.

The complaint alleges that the defendants have violated the First and Fifth Amendments, the Property Clause, art. IV, sec. 3, and the Copyright Clause, art. 1, sec. 8 of the Constitution, as well as the new and old Copyright Acts, 17 U.S.C. § 105 (1976), 17 U.S.C. § 8 (1970), various portions of the Communications and Public Broadcasting Acts, and "the public policy of the United States." Complaint, PP 18-19, 25, 30. The complaint seeks both injunctive and declaratory relief not only to void the copyright subsisting in "Equal Justice Under Law" but also to prevent the defendants from committing in the future acts that appellants contend are unlawful.

The District Court granted the defendants' motion to dismiss, and therefore never ruled upon the legitimacy vel non of the purported classes. The court held that (1) injunctive relief was not available against the sovereign, (2) the copyright law allows the copyrighting of a work commissioned by the Government, (3) there is no danger of government censorship because the stations were under no compulsion to either produce or air these films, and (4) there is no conflict between the First Amendment and copyright. Schnapper v. Foley, 471 F.Supp. 426, 429 (D.D.C.1979).

At oral argument before this court, counsel for WQED expressed the opinion that the station would be willing to permit appellants to print the text of the films. Accordingly, on February 20, 1981, this court issued an order suspending consideration of the appeal for several weeks and stating in part that,

... it appearing that arguably the only significant injury in fact of which appellant Schnapper has complained was the alleged denial to him of commercial publication rights to the script ..., and it further appearing ... that the appellees ... would consider granting such rights, ... or had no control over them, and that counsel for all parties would promptly confer in order to explore the question of the possible availability to appellant of such rights.

The parties were unable to settle the controversy. Counsel for appellants requested WQED to waive any copyright or ownership claims it might assert not only against appellant but against any commercial television station seeking to broadcast the films. There being considerable difference between a license and a waiver of rights in a literary or artistic work, counsel for WQED stated that they had no intention of waiving its rights in "Equal Justice Under Law." After we were apprised that no settlement would be forthcoming, we were compelled to decide the legal issues of the instant case, and we do so now by affirming the District Court with respect to each question presented save that of sovereign immunity.

II

At the threshold, ¹ we are confronted with the District Court's ruling that the United States and its officers, including officials of the Administrative Office of the United States Courts and the Register of Copyrights, are insulated from suit for injunctive relief by the doctrine of sovereign immunity. Schnapper v. Foley, 491 F.Supp. 426, 427 (D.D.C.1979). In support of this proposition the court cited Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

We do not think that the District Court's application of Larson to the instant case can be considered correct in light of the amendments to 5 U.S.C. §§ 702 & 703 made by P.L. 94-574, 90 Stat. 2721, 94th Cong., 2d Sess. (1976). That statute enacted into law this language:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States ...

5 U.S.C. § 702 (1976). The legislative history of this provision could not be more lucid. It states that this language was intended "to eliminate the defense of sovereign immunity with respect to any action in a court of the United States seeking relief other than money...