Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., s. 86-5641

Decision Date17 January 1989
Docket Number86-5664 and 86-5677,Nos. 86-5641,s. 86-5641
Citation866 F.2d 278
Parties, 1989 Copr.L.Dec. P 25,375, 9 U.S.P.Q.2d 1653 COLUMBIA PICTURES INDUSTRIES, INC.; Embassy Pictures; Paramount Pictures Corporation; Twentieth Century-Fox Film Corporation; Universal City Studios, Inc.; Walt Disney Productions; Warner Bros., Inc.; CBS, Inc., Plaintiffs- Appellants, v. PROFESSIONAL REAL ESTATE INVESTORS, INC., dba La Mancha Private Club & Villas; Kenneth F. Irwin, Defendants-Appellees. COLUMBIA PICTURES INDUSTRIES, INC.; Paramount Pictures Corporation; Twentieth Century-Fox Film Corporation; Universal City Studios, Inc.; Walt Disney Productions; Warner Bros., Inc.; CBS, Inc.; Embassy Pictures, Plaintiffs- Appellants, v. PROFESSIONAL REAL ESTATE INVESTORS, INC., dba La Mancha Private Club & Villas; Kenneth F. Irwin; Erland Kyllonen, Defendants-Appellees. COLUMBIA PICTURES INDUSTRIES, INC.; Paramount Pictures Corporation; Twentieth Century-Fox Distributing Corporation; Universal City Studios, Inc.; Walt Disney Productions; Warner Bros., Inc.; CBS, Inc.; Embassy Pictures, Plaintiffs-Appellants, v. PROFESSIONAL REAL ESTATE INVESTORS, INC., dba La Mancha Private Club & Villas; Kenneth F. Irwin, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Stephen A. Kroft, Rosenfeld, Meyer & Susman, Beverly Hills, Cal., for plaintiffs-appellants.

Jeffrey W. King, Collier, Shannon, Rill & Scott, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON, ALARCON and O'SCANNLAIN, Circuit Judges. *

O'SCANNLAIN, Circuit Judge:

Columbia Pictures, Inc. and other appellants, all of which are motion picture producers, appeal the district court's grant of summary judgment in favor of Professional Real Estate Investors, Inc. and Kenneth Irwin, operators of La Mancha, a hotel resort in Palm Springs, California. The district court (William P. Gray, Senior United States District Judge, presiding) concluded that a hotel did not violate the Copyright Act by renting videodiscs for viewing on hotel-provided video equipment in guests' rooms. We affirm Judge Gray's decision.

FACTS AND PROCEEDINGS

La Mancha hotel guests may rent movie videodiscs from the lobby gift shop for a $5 to $7.50 daily fee per disc, which can be charged on the hotel bill. Each guest room is equipped with a large screen projection television and videodisc player. Hotel employees are available upon request to answer questions by guests about operating the in-room equipment. Guests view the videodisc movies projected on the television screens in their rooms.

After learning of these activities at La Mancha, Columbia Pictures, Inc. and six other motion picture studios ("Columbia") filed suit to prevent La Mancha 1 from renting videodiscs to its guests, alleging copyright infringement. La Mancha counterclaimed, alleging unfair competition and violation of antitrust laws. Cross-motions for summary judgment concerning the copyright infringement claim were thereafter filed.

The district court granted La Mancha's motion for summary judgment, concluding as a matter of law that the movies were not performed "publicly" within the meaning of the Copyright Act when hotel guests viewed them in their own hotel rooms. Columbia timely appealed.

Because this case was decided on summary judgment, our review is de novo. Cohen v. Paramount Pictures Corp., 845 F.2d 851, 852 (9th Cir.1988).

DISCUSSION

We are asked to determine whether La Mancha has violated Columbia's exclusive right under the Copyright Act, 17 U.S.C. Secs. 101-702 (the "Act"), to control the public performance of its copyrighted motion pictures. Because it is uncontroverted that the motion pictures have been "performed" A performance may be characterized as public under the Act through application of two clauses which define the term "perform or display a work 'publicly.' " Under clause (1), a performance is public if it occurs "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." 17 U.S.C. Sec. 101 (1977) (the "public place" clause). Under clause (2), a performance is public if someone "transmit[s] or otherwise communicate[s] a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." Id. (the "transmit" clause). Columbia argues that when La Mancha permits hotel guests to rent videodiscs for in-room viewing on hotel provided equipment, such actions constitute a public performance under either definitional clause of the Act. 4

within the meaning of the Act, 2 the narrow issue before us is whether La Mancha performed copyrighted works "publicly" 3 within the meaning of 17 U.S.C. Sec. 106(4).

A. Does the Public Place Clause Apply?

Columbia bases its copyright infringement claim against La Mancha upon section 106, which provides, in pertinent part:

Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

* * *

(4) in the case of ... motion pictures ... to perform the copyrighted work publicly.

Applying the public place clause of section 101, Columbia argues that because La Mancha's hotel rooms can be rented by members of the public, they are "open to the public," and therefore, movies viewed in a guest's room at La Mancha are "performed ... publicly." The plain language and the legislative history together lead us to conclude that hotel guest rooms are not "public" for purposes of the Act.

Columbia largely relies upon two Third Circuit cases for its position. In Columbia Pictures Industries v. Redd Horne, 749 F.2d 154 (3d Cir.1984), the Third Circuit held that private viewing rooms would not escape the "public place" clause because the pertinent place was the entire store--which was public. Id. at 159. That court In Columbia Pictures Industries, Inc. v. Aveco, Inc., 800 F.2d 59 (3d Cir.1986), the court noted that "[o]ur opinion in Redd Horne turned not on the precise whereabouts of the video cassette players, but on the nature of Maxwell's stores. Maxwell's, like Aveco, was willing to make a viewing room and video cassette available to any member of the public with the inclination to avail himself of this service." Id. at 63 (emphasis added).

                drew its conclusion after determining that "[t]he services provided by Maxwells [the video stores] are essentially the same as movie theaters."    Id
                

La Mancha's operation differs from those in Aveco and Redd Horne because its "nature" is the providing of living accommodations and general hotel services, which may incidentally include the rental of videodiscs to interested guests for viewing in guest rooms.

While the hotel may indeed be "open to the public," a guest's hotel room, once rented, is not. See Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893-894, 11 L.Ed.2d 856 (1964) (constitutional protection from unreasonable searches and seizures in hotel rooms); United States v. Winsor, 846 F.2d 1569 (9th Cir.1988) (en banc) (same). This conclusion is further supported by common experience. La Mancha guests do not view the videodiscs in hotel meeting rooms used for large gatherings. The movies are viewed exclusively in guest rooms, places where individuals enjoy a substantial degree of privacy, not unlike their own homes.

Consideration of pertinent legislative history also compels our rejection of appellant's claim. The House Commentary on the 1976 version of the Act attempted to clarify the meaning of "perform the copyrighted work publicly":

Under Clause (1) of the definition of "publicly" in Sec. 101, a performance ... is "public" if it takes place "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." One of the principal purposes of the definition was to make clear that, contrary to the decision in Metro-Goldwyn-Mayer Dist. Corp. v. Wyatt, 21 C.O. Bull. 203 (D.Md.1932), performances in "semi-public" places such as clubs, lodges, factories, summer camps and schools are "public performances" subject to copyright control. The term "a family" in this context would include an individual living alone, so that a gathering confined to the individual's social acquaintances would normally be regarded as private. Routine meetings of businesses and governmental personnel would be excluded because they do not represent the gathering of a "substantial number of persons." 5

H.R.Rep. No. 1476, 64, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5677-78. This passage from the legislative history reveals that Congress intended neither the number of persons at a performance nor the location of the performance to be determinative of the public character of a performance. Nevertheless, to the extent that a gathering of one's social acquaintances is normally regarded as private, we conclude that in-room videodisc movie showings do not occur at a "place open to the public."

B. Does the Transmit Clause Apply?

Columbia also argues that La Mancha's rentals result in a public performance under the "transmit" clause. We disagree.

The crucial words of the transmit clause provide that a nonprivileged individual cannot "transmit or otherwise communicate" a copyrighted work. Columbia admits that Irwin's activities do not violate the "transmit" portion of this clause. The question then is whether La Mancha "otherwise communicate[s]" movies "to the public."

We hold that La Mancha does not "communicate" the in-room performances at all....

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