Pro Arts, Inc. v. Hustler Magazine, Inc.

Decision Date25 March 1986
PartiesUnpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. PRO ARTS, INC., Plaintiff-Appellee, Cross-Appellant, v. HUSTLER MAGAZINE, INC.; SLAM MAGAZINE, INC.; LEASURE TIME PRODUCTS AND ASSOCIATED COMPANIES; LARRY FLYNT DIST. CO.; LARRY FLYNT DISTRIBUTING; LARRY FLYNT PUBLICATIONS; LARRY C. FLYNT; ALTHEA FLYNT; DANNER PRESS CORP.; WISCONSIN CUNEO PRESS, INC., Defendants-Appellants, Cross-Appellees. 85-3022, 85-3041
CourtU.S. Court of Appeals — Sixth Circuit

REVERSED AND VACATED

S.D.Ohio

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: CONTIE and MILBURN, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

PER CURIAM.

This appeal and cross-appeal (sic) involves an action under the Copyright Act of 1976, 17 U.S.C. Sec. 101 et seq. Plaintiff, Pro Arts, Inc., brought this action against defendants, numerous entities associated with the publication and distribution of Hustler and Slam Magazines, alleging copyright infringement of a poster of celebrity Farrah Fawcett which plaintiff created and copyrighted in 1976. Although finding that application of the four factors set forth in 17 U.S.C. Sec. 107 for determining what constitutes fair use supported defendants' claim of a fair use defense, the district court nevertheless held that defendants' activity constituted copyright infringement in violation of 17 U.S.C. Sec. 501 and awarded plaintiff $5,000.00 in statutory damages. Additionally, the district court, pursuant to 17 U.S.C. Sec. 505, awarded plaintiff attorneys' fees in the amount of $5,850.68. Because we held that fair use constitutes a valid defense to plaintiff's suit for copyright infringement, we reverse.

I.

Prior to June, 1978, defendant LFP, Inc., created a single-page advertisement soliciting subscriptions for Slam Magazine. The advertisement depicted a teenage boy in his room and the advertisement's heading stated, 'Save This Child From The Seventies.' On a wall behind the teenager appeared a shelf having on it a backgammon board, a small doll and a pair of bookends in the form of two fists; a second shelf having on it five volumes of a book entitled 'Jaws' and a football; and two posters, a poster of John Travolta dancing in a scene from the film 'Saturday Night Fever,' and plaintiff's poster. Defendants' reproduction of plaintiff's poster was the approximate size of a postage stamp and thus comprised only a small portion of the content of the advertisement. The advertisement appeared in the July 1978 issue of Slam Magazine and the August 1978 issue of Hustler Magazine. (See Appendix A.)

Plaintiff brought this action alleging that defendants' use of its poster constituted copyright infringement. However, defendants asserted that their conduct constituted fair use of the poster. The parties stipulated to the facts and agreed to have the district court decide the merits of the action. The district court initially concluded that consideration of the four factors delineated in 17 U.S.C. Sec. 107 for determining what constitutes fair use 'favor[ed] application of the fair use doctrine to defendants' . . . activity.' The district court, however, held that because defendants' use was commercial in nature and because defendants knew that they could not have secured plaintiff's consent to use the poster, the defendants should not receive the benefit of the fair use defense.

II.

Fair use is often defined as the "privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner . . .." Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir. 1983) (quoting Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967)). See also Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1048 (2d Cir. 1983), cert. denied, 105 S. Ct. 100 (1984); Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1174 (5th Cir. 1980). The Copyright Act of 1976 (the 'Act') codified the fair use defense. In determining whether the use made of a work in any particular case is a fair use, four factors are to be considered. 17 U.S.C. Sec. 107.

The first factor is 'the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.' As the district court noted, the primary motive underlying defendants' use of plaintiff's poster was commercial. Contrary to the district court's analysis, however, commercial motivation, while relevant to the fair use inquiry, is not conclusive. See Sony Corp. v. Universal City Studios, Inc., 104 S. Ct. 774, 792 (1984); Consumers Union, 724 F.2d at 1049; MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981); Triangle Publications, 626 F.2d at 1175. See generally 3 Nimmer on Copyright Sec. 1305[A] at 13-69 (1985). The commercial character of defendants' use must be weighed along with the other factors relevant to the fair use issue.

The facts of the instant case caution against according too much weight to this factor. While the primary purpose of defendants' use of the poster, which was reduced to the approximate size of a postage stamp, was commercial gain, it is apparent that a secondary purpose of the advertisement was to parody the culture of the seventies. In Berlin v. E. C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964), the court stated that where 'the parody has neither the intent nor the effect of fulfilling the demand for the original, and where the parodist does not appropriate a greater amount of the original work than is necessary to 'recall or conjure up' the object of his satire, a finding of infringement would be improper.' See also Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252, 253 (2d Cir. 1980). In the instant case, the district court found that defendants' activity did not impact upon plaintiff's sales of the poster. Moreover, duplication of the entire poster reduced to the approximate size of a postage stamp was used to 'recall or conjure up' the object of the parody.

The second factor we must consider is 'the nature of the copyrighted work.' 'In so doing, the court may consider, among other things, whether the work was creative, imaginative, and original, . . . and whether it represented a substantial investment of time and labor made in anticipation of financial return.' MCA, 677 F.2d at 182 (citation omitted). In the instant case, the district court found that plaintiff's poster is 'purely commercial' in nature and concluded that this factor 'neither supports nor hurts' defendants' claim of fair use. The district court did, however, find that defendants' activity did not, in any way, reduce plaintiff's financial return on its investment in the poster. Cf. Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 96 (2d Cir. 1977), cert. denied, 434 U.S. 1014 (1978) (court held that where the copyrighted material is commercial in nature, the fair use defense is...

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  • Acuff-Rose Music, Inc. v. Campbell
    • United States
    • U.S. District Court — Middle District of Tennessee
    • January 14, 1991
    ...1 No published Sixth Circuit opinion addresses this type of copyright infringement question. Compare Pro Arts, Inc. v. Hustler Magazine, Inc., 787 F.2d 592 (6th Cir.1986) (per curiam) (unpublished text in Westlaw). Accordingly, this Court relies on opinions from other circuits, notably the ......

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