866 F.2d 278 (9th Cir. 1989), 86-5641, Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc.

Docket Nº:86-5641, 86-5664 and 86-5677.
Citation:866 F.2d 278
Party Name: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. Irw
Case Date:January 17, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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866 F.2d 278 (9th Cir. 1989)

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.

Nos. 86-5641, 86-5664 and 86-5677.

United States Court of Appeals, Ninth Circuit

January 17, 1989

Argued Jan. 9, 1987.

Reargued and Submitted March 22, 1988.

Page 279

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"

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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 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...

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