Hustler Magazine, Inc. v. Moral Majority, Inc.

• Decision Date: 12 August 1986
• Docket Number: No. 85-5904,85-5904
• Citation: 796 F.2d 1148
• Parties: , 230 U.S.P.Q. 646, 1986 Copr.L.Dec. P 25,983, 13 Media L. Rep. 1151 HUSTLER MAGAZINE, INC., Plaintiff-Appellant, v. MORAL MAJORITY, INC., a District of Columbia Corporation; Old Time Gospel Hour, a Virginia Corporation and Jerry Falwell, an individual, Defendants- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1148

796 F.2d 1148

55 USLW 2151, 230 U.S.P.Q. 646, 1986

Copr.L.Dec. P 25,983,

13 Media L. Rep. 1151

HUSTLER MAGAZINE, INC., Plaintiff-Appellant, v. MORAL MAJORITY, INC., a District of Columbia Corporation;

Old Time Gospel Hour, a Virginia Corporation and

Jerry Falwell, an individual,

Defendants- Appellees.

No. 85-5904.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1986.

Decided Aug. 12, 1986.

David O. Carson, Cooper, Epstein, & Hurewitz, Beverly Hills, Cal., for plaintiff-appellant.

Jewel Bjork, Grutman, Miller, Greenspoon, Handler & Levin, New York City, for defendants-appellees.

An appeal from United States District Court for the Central District of California.

Before PREGERSON and POOLE, Circuit Judges, and SOLOMON, ^* Senior District Judge.

PREGERSON, Circuit Judge.

Hustler Magazine, Inc. published a parody featuring Reverend Jerry Falwell. Moral Majority, Inc. and Old Time Gospel Hour mailed hundreds of thousands of copies of the parody as part of a solicitation drive. Falwell also solicited contributions while displaying the parody on the Old Time Gospel Hour, a television show. Hustler Magazine, Inc. sued Moral Majority, Inc., Old Time Gospel Hour, and Falwell for copyright infringement. The district court granted the defendants' summary judgment motion, holding that their copying constituted "fair use," 606 F.Supp. 1526. Hustler appeals and both sides request costs and attorney fees. We affirm.

BACKGROUND

In the November 1983 and March 1984 issues of Hustler Magazine, appellant Hustler Magazine, Inc. ("Hustler") published a parody of Campari liquor advertisements. Campari advertisements consist of interviews with famous people about the first time they drank Campari. The advertisements use double entendres to give the reader the impression that the "first time" The Hustler Magazine parody featured Reverend Jerry Falwell, a nationally known fundamentalist minister, describing his "first time" as being incest with his mother in an outhouse, and saying that he always gets "sloshed" before giving his sermons. At the bottom of the page in small print is the disclaimer "AD PARODY--NOT TO BE TAKEN SERIOUSLY."

refers to the celebrity's first sexual experience.

On November 15, 1983, Moral Majority, Inc., a conservative political lobbying group, sent out two mailings signed by Falwell. One was directed to approximately 500,000 "rank-and-file" members. It described the parody without including a copy of the actual parody, and asked for a contribution to help Falwell "defend his mother's memory" in court. ¹ This first mailing is not involved in the suit. The second mailing was directed to about 26,900 "major donors" and included a copy of the parody with eight of the most offensive words blackened out. It also requested donations to help finance Falwell's suit against Hustler.

Three days later, Old Time Gospel Hour, a corporate sponsor of religious television and radio broadcasts, mailed a solicitation including a copy of the parody to approximately 750,000 supporters of its programs. This letter was also signed by Falwell, but focused on the need to keep Falwell's religious television stations open in order to combat people like Larry Flynt, Hustler's publisher. Within 30 days of the mailings, the Moral Majority received approximately $45,000 from the "major donors" letter and the Old Time Gospel Hour received approximately $672,000 from its letter. A Moral Majority executive admitted that the intent behind including copies of the parody was to raise money.

Finally, on December 4, 1983 and December 11, 1983, Falwell displayed the parody during nation-wide television broadcasts of his weekly sermon on the Old Time Gospel Hour. The amount of contributions generated from this broadcast is not in the record.

On August 8, 1984, Hustler sued Moral Majority, Inc., Jerry Falwell, and the Old Time Gospel Hour (the "Defendants") for infringing its copyright. In March 1985, the parties filed cross motions for summary judgment. The Defendants raised the defense of fair use. ² The district court held that Hustler had made out a prima facie case of infringement, but granted summary judgment for the Defendants. The court held that the mailings and television displays were permissible under the fair use doctrine.

Hustler timely appealed and this court has jurisdiction.

STANDARD OF REVIEW

"The task of this court is identical to that of the trial court when reviewing a grant of summary judgment." Continental Casualty Co. v. City of Richmond, 763 F.2d 1076, 1078 (9th Cir.1985). Accordingly, we determine de novo whether, viewing the evidence in the light most favorable to the party against whom summary judgment has been granted, the moving party has demonstrated that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 1079; Fed.R.Civ.P. 56(c).

"Fair use is a mixed question of law and fact." Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985); accord Pacific and Southern Co. v. Duncan,

                44 F.2d 1490, 1495 n. 8 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985). 3   If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.   See Diamond v. Am-Law Publishing Corp., 745 F.2d 142, 147 (2d Cir.1984)
                

DISCUSSION

I. Fair Use

"[T]here are only two elements necessary to the plaintiff's case in an infringement action: ownership of the copyright by the plaintiff and copying by the defendant." 3 M. Nimmer, Nimmer on Copyright Sec. 13.01 (1985). In the instant case, there is no dispute that Hustler is the registered owner of the copyrighted parody. Hustler, as the copyright owner, has the exclusive right to reproduce, distribute, and publicly display copies of the work. See 17 U.S.C. Sec. 106. Falwell copied the parody without Hustler's permission. Thus, the district court properly found that Hustler made out a prima facie case of infringement. See Walker v. University Books, Inc., 602 F.2d 859, 862 (9th Cir.1979).

Hustler's exclusive rights, however, are subject to statutory exceptions, including the exception for "fair use." See 17 U.S.C. Secs. 106, 107. Accordingly, Defendants seek to avoid liability by establishing the defense of "fair use." The fair use doctrine confers a privilege on people other than the copyright owner "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, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967)). The doctrine is a means of balancing the need to provide individuals with sufficient incentives to create public works with the public's interest in the dissemination of information. See Pacific and Southern Co., 744 F.2d at 1495. Congress incorporated this common law doctrine into section 107 of the Copyright Act of 1976, 17 U.S.C. Secs. 101-810.

Section 107 reads in pertinent part: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work ... for purposes such as criticism, comment, [or] news reporting, ... is not an infringement of copyright." 17 U.S.C. Sec. 107.

In addition, section 107 specifies four factors this court must consider in determining whether the use in a particular case is a fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. Sec. 107. ⁴ Courts balance these factors to determine whether the public interest in the free flow of information outweighs the copyright holder's interest in exclusive control over the work. See DC Comics, Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 27 (2d Cir.1982).

A. The Purpose and Character of the Defendants' Uses

The first factor listed in section 107 requires us to consider the character of the use and to weigh the commercial or nonprofit purpose of the use. If the work is used for a commercial or profit-making purpose, the use is presumptively unfair. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 449-451, 104 S.Ct. 774, 792-793, 78 L.Ed.2d 574 (1984). "The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 2231-32, 85 L.Ed.2d 588 (1985); see also Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc., 621 F.2d 57, 61 (2d Cir.1980) ("The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.").

The parties disagree about the purpose and character of the use. Falwell contends that he sent the parody to his followers to give them information to rebut the statements it contained, and that the appeal for money was ancillary. Hustler contends, however, that the advertisement was clearly a parody so there was nothing to rebut and thus the letters were purely fundraisers.

There is ample evidence that the defendants distributed copies of the parody as an integral part of a financial appeal. All of the...