American Broadcasting Co. v. Maljack Productions, Inc.

• Decision Date: 09 December 1998
• Docket Number: No. 97 C 6510.,97 C 6510.
• Citation: 34 F.Supp.2d 665
• Parties: AMERICAN BROADCASTING COMPANY, a Delaware corporation, Plaintiff, v. MALJACK PRODUCTIONS, INC. d/b/a MPI Media Group and MPI Home Video, an Illinois corporation, Defendant, Maljack Productions, Inc. d/b/a MPI Media Group and MPI Home Video, an Illinois corporation, Third-Party Plaintiff, v. British Broadcasting Corporation, a foreign corporation organized under the law of the United Kingdom, Third-Party Defendant.
• Court: U.S. District Court — Northern District of Illinois

34 F.Supp.2d 665

AMERICAN BROADCASTING COMPANY, a Delaware corporation, Plaintiff, v. MALJACK PRODUCTIONS, INC. d/b/a MPI Media Group and MPI Home Video, an Illinois corporation, Defendant, Maljack Productions, Inc. d/b/a MPI Media Group and MPI Home Video, an Illinois corporation, Third-Party Plaintiff, v. British Broadcasting Corporation, a foreign corporation organized under the law of the United Kingdom, Third-Party Defendant.

No. 97 C 6510.

United States District Court, N.D. Illinois, Eastern Division.

December 9, 1998.

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David P. Sanders, William A. VanHoene, Jr., Jenner & Block, Chicago, IL, for plaintiff.

Craig M. White, John Sheldon Letchinger, Erin Leigh Bishop, Wildman, Harrold, Allen & Dixon, Chicago, IL, for defendants/third-party plaintiff.

Robert A. Filpi, Paul F. Stack, Stack, Filpi & Kakacek, Chicago, IL, Nancy J. Felsten, Kay, Collver & Boose LLP, New York City, for third-party defendant.

MEMORANDUM OPINION AND ORDER

COAR, District Judge.

This case involves a dispute over the rights to distribute a home videotape of Princess Diana's funeral services. This action was originally filed by American Broadcasting Company ("ABC"), seeking to enjoin Maljack Productions Inc. ("MPI") from releasing a home videotape containing footage from the funeral services on the ground that the release of the funeral footage would violate the British Broadcasting Corporation's ("BBC") copyright in a portion of the footage. On December 18, 1997, ABC's complaint against MPI was dismissed pursuant to the parties' settlement. The remaining claims before this court pertain to MPI's third-party claims against BBC, alleging that BBC intentionally interfered with MPI's contract with ABC (Count I); intentionally interfered with MPI's prospective economic advantage (Count II); made misrepresentations in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), (Count III); and violated the Illinois Consumer Fund and Deceptive Business Practices Act, 815 ILCS 505/2, and the common law bar on unfair competition (Count IV). Before this court is BBC's motion for summary judgment as to Count I. For the reasons stated below, BBC's motion is granted in part and denied in part. MPI's motion is denied.

I. Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir.1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.1995). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.1995). If the movant meets this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53. A "metaphysical doubt" with respect to the existence of a genuine issue of triable fact is not enough to preclude summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). "[T]here must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.

On cross-motions for summary judgment, each movant must individually satisfy the requirements of Rule 56. Proviso Association of Retarded Citizens v. Village of Westchester, 914 F.Supp. 1555, 1560 (N.D.Ill. 1996); Chicago Truck Drivers, Helpers and Warehouse Workers Union (Ind.) Pension Fund v. Kelly, 1996 WL 507258, *3 (N.D.Ill. 1996). Thus, the traditional standards for summary judgment still apply even though both parties have moved for summary judgment. Blum v. Fisher and Fisher, Attorneys at Law, 961 F.Supp. 1218, 1222 (N.D.Ill. 1997). The Court thus considers the merits of each cross-motion separately and draws all reasonable inferences and resolves all factual uncertainties against the party whose motion is under consideration. Chicago Truck Drivers, 1996 WL 507258 at *3. This "Janus-like perspective ... sometimes forces the denial of both motions," but only where there are material facts in dispute. Buttitta v. City of Chicago, 803 F.Supp. 213, 217 (N.D.Ill.1992), aff'd, 9 F.3d 1198 (7th Cir.1993).

II. Background¹

On August 31, 1997, Diana, Princess of Wales, was tragically killed in an automobile accident. In the five days that followed her death, extensive preparations were made for her funeral services and the broadcast thereof. On September 6, 1997, with the world watching, funeral services were held.² The funeral procession commenced at Kensington Palace, proceeded to Westminster Abbey where the funeral services itself was held, and then proceeded to Marble Arch and to Althrop, where Diana was buried. Some of the most memorable segments of the funeral occurred inside Westminster Abbey and included Elton John's tribute to Diana, "A Candle in the Wind," as well as a eulogy delivered by Diana's brother, Earl Spencer. The Westminster Choir and BBC Singers also sang at the funeral service.

The crux of this dispute relates to broadcast footage of the funeral services inside Westminster Abbey. Only two British news agencies, BBC and International Television News ("ITN"), were authorized to film the services from inside Westminster Abbey. As a result, the two news agencies agreed to license the live broadcast to a number of other news organizations, including ABC. As discussed below, the parties hotly dispute the nature of the arrangement between BBC and ITN and the other news agencies.

Across the Atlantic, MPI had an agreement with ABC to use footage of the funeral for a home video, which MPI intended to sell throughout the United States and elsewhere. (12(N) ¶¶ 39-40.)³ ABC received that footage from BBC. ABC testified that it erroneously believed it could grant MPI a video license, and that after BBC informed ABC of its copyright in the funeral footage⁴, it sought and obtained an injunction prohibiting MPI from distributing the video. (12(M) ¶¶ 58, 68, 71.)⁵ MPI maintains that ABC did have the right to grant MPI the video license and that MPI accordingly had the right to distribute the video. MPI also contends that by sending cease and desist letters to several members of the broadcasting industry including ABC, MPI and Reader's Digest, BBC Worldwide Americas, Inc. ("BBCWA"), BBC's agent in the United States, tortiously interfered with contract and prospective economic advantage and engaged in unfair competition. Finally, MPI alleges that because BBC did not own a copyright in the funeral coverage, its cease and desist letters falsely asserted copyright ownership, thereby violating § 43(a) of the Lanham Act.

The Copyright Allegations

MPI's claims against BBC hinge on its assertion that it had the right, through ABC, to distribute the video containing the funeral footage and that BBC falsely asserted an exclusive copyright interest in that footage. MPI bases its claim on its contention that there was a "pooling" arrangement among the agencies whereby all interested news organizations had an unlimited right to utilize the broadcast images as if its own cameras were within Westminster Abbey. (Second Amended Cplt. § 8-9). This fact is crucial because MPI contends that under the "pooling" arrangement, the other news agencies, including ABC, received all rights in the "clean feed" (video footage without BBC commentary) of the funeral footage and that BBC has only a copyright interest in the "dirty feed" (video footage with BBC commentary). BBC disagrees vigorously, stating that it merely licensed the live broadcast and has at all times asserted its copyright in and to the clean feed, as well as its commentary. (12(M) ¶ 36.)

In support of its pooling theory, MPI offers expert testimony regarding similar news situations wherein the video coverage was pooled, giving each news agency the unfettered right to subsequently utilize the film footage. (12(N) ¶¶ 22-37). MPI's expert provides examples of pooling arrangements such as the daily coverage of President George Bush's administration, U.S. presidential press conferences, Desert Storm coverage, the O.J. Simpson trial, the Louise Woodward interview, Princess Diana's wedding and coverage of Princess Diana's accident in Paris. (Id.) In addition, immediately after Diana's death, BBC sent an e-mail to its salespeople stating that the funeral would likely be "pooled coverage, i.e.: available at no license fee to all." (12(N) ¶ 15.) Notably, MPI offers no evidence of an actual agreement to this effect.⁶ Nor does it claim that it relied on the e-mail message (or even knew of its existence) before this lawsuit.

BBC contends that despite the initial e-mail, it ultimately determined that the video coverage from inside Westminster Abbey would not be "pooled," but licensed for live broadcast only. In support of its contentions, BBC points out that BBC and BBC Worldwide in fact received approximately $1 million from licensing the rights to...