Amsinck v. Columbia Pictures Industries, Inc., 92 Civ. 7796 (JFK).

• Decision Date: 25 July 1994
• Docket Number: 92 Civ. 7796 (JFK).
• Citation: 862 F. Supp. 1044
• Parties: Carola AMSINCK, Plaintiff, v. COLUMBIA PICTURES INDUSTRIES, INC., and RCA/Columbia Pictures Home Video, Defendants.
• Court: U.S. District Court — Southern District of New York

862 F. Supp. 1044

Carola AMSINCK, Plaintiff, v. COLUMBIA PICTURES INDUSTRIES, INC., and RCA/Columbia Pictures Home Video, Defendants.

92 Civ. 7796 (JFK).

United States District Court, S.D. New York.

July 25, 1994.

Russo & Burke, New York City (Joel L. Hecker, Laurence Desind, of counsel), for plaintiff.

Pryor, Cashman, Sherman, & Flynn, New York City (Tom J. Ferber, Kate M. Wheble, of counsel), for defendants.

OPINION AND ORDER

KEENAN, District Judge:

Before the Court is the defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Also before the Court is plaintiff's cross motion for partial summary judgment as to defendants' liability.

BACKGROUND

Plaintiff Carola Amsinck ("Amsinck" or "Plaintiff") is a self-employed graphic artist. In 1985, Amsinck created artwork consisting of pastel-colored teddy bears, which she calls the "Baby Bears Artwork."

Around July 29, 1986, Amsinck applied for a copyright registration for the Baby Bears design (along with two other similar designs).

Amsinck has licensed the Baby Bears Artwork to a number of entities for various household articles, including the item at issue, the "Baby Bears Musical Mobile" (the "Mobile"). The package containing the Mobile gives notice of copyright identifying Amsinck as the copyright owner of the work. The Mobile itself also bears notice of Amsinck's copyright.

In 1989, defendants Columbia Pictures Industries, Inc. and RCA/Columbia Pictures Home Video ("Defendants"), released a motion picture entitled "Immediate Family" ("the film"). The film is about a childless couple who, pained by their inability to conceive, decide to adopt the soon-to-be-born child of a pregnant young woman.

The film contains several scenes in which the Mobile appears in the bedroom where the couple is building a nursery for the baby they plan to adopt. In these scenes, the Mobile containing the Baby Bears Artwork can be seen for periods of time ranging from two seconds to twenty-one seconds, with a total exposure of approximately one minute and thirty-six seconds. In some instances, the Mobile appears only in the distance, with the artwork barely visible, while at other times the image is viewed in a close-up shot.

The defendants altered the Mobile in such a way that it would hang from the ceiling rather than from the crib. This made the Mobile, and thus the artwork, more easily visible in these scenes.

The film has been released to the public in movie theaters and through home video and has been shown on television. The defendants asked for, and obtained, permission to use several other copyrighted works in the film. They did not seek permission to display the Mobile bearing the plaintiff's copyrighted artwork, nor did they credit Amsinck as the creator and copyright holder of the design.

The plaintiff instituted this action in October of 1992, alleging that the defendants' use in the film of the Mobile bearing the Baby Bears Artwork constituted copyright infringement. Following document discovery and one session of plaintiff's deposition, the parties agreed that the issue of liability should be addressed on a motion for summary judgment. Summary judgment is appropriate in this case as both parties agree to the material facts.

DISCUSSION

Defendants move for summary judgment on the ground that they did not infringe upon plaintiff's copyright. Defendants alternatively argue that they are entitled to a fair use defense. Plaintiff moves for partial summary judgment for a determination of whether defendants are liable as infringers as a matter of law.

I. SUMMARY JUDGMENT STANDARDS

A. Summary Judgment Generally

Courts may grant summary judgment only if there is no genuine dispute as to any material fact and the moving party is thus entitled to judgment as a matter of law. See, e.g., Silver v. City University of New York, 947 F.2d 1021, 1022 (2d Cir.1991); Montana v. First Federal Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d Cir.1989); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987); Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 54 (2d Cir.1985).

B. SUMMARY Judgment and the Fair Use Defense

The defense of fair use enables others than the copyright owner to use the copyrighted item in a limited way. The fact-driven nature of fair use determination under copyright law suggests that the district court should be cautious in granting a rule 56 motion in this area; however, it does not protect a copyright holder from summary judgment where there are no material factual disputes. Wright v. Warner Books Inc., 953 F.2d 731, 735 (2d Cir.1991).

Courts may resolve fair use determinations at the summary judgment stage. See, e.g., Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987); Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir.1964), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964); Time Inc. v. Bernard Geis Assocs., 293 F.Supp. 130 (S.D.N.Y.1968). "The mere fact that a determination of the fair use question requires an examination of the specific facts of each case does not necessarily mean that in each case involving fair use there are factual issues to be tried." Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir.1991), quoting Maxtone-Graham, 803 F.2d at 1258 (quoting Meeropol v. Nizer, 417 F.Supp. 1201, 1208 (S.D.N.Y.1976), rev'd in part on other grounds, 560 F.2d 1061 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978)).

II. COPYRIGHT INFRINGEMENT

A. Standards

In order to prevail on a claim of copyright infringement, the plaintiff must establish two elements: (1) ownership of a valid copyright; and (2) copying of the protected work by the alleged infringer. See, e.g., 2 H.B. Abrams, The Law of Copyright, § 14.01A; Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.1986); Eckes v. Card Prices Update, 736 F.2d 859, 861 (2d Cir. 1984).

The term "copy" was defined in the old English case West v. Francis, 5 Barn. & Ald. 743; this definition has been cited with approval by the United States Supreme Court in White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 17, 28 S.Ct. 319, 323, 52 L.Ed. 655 (1908), and by this district in Mura v. Columbia Broadcasting System, Inc., 245 F.Supp. 587, 589 (S.D.N.Y.1965): "A copy is that which comes so near the original as to give to every person seeing it the idea created by the original."

To establish "copying", the plaintiff must prove that the defendant "mechanically copied the plaintiff's work." II Goldstein, Copyright, § 7.2, at 7. There must be some degree of permanence or the maxim "de minimis" applies, requiring a finding of no liability. Weil, American Copyright Law, at 1406. In determining whether a use constitutes a copy, the courts look to a functional test to see whether the use has "the intent or the effect of fulfilling the demand for the original." 3 M. Nimmer, Nimmer on Copyright, § 13.05B, 13-192, quoting Berlin v. E.C. Publications, Inc., 329 F.2d 541, 545 (2d Cir.1964).

B. Analysis

The defendants, arguing that their use of Amsinck's work has not infringed her copyright, have moved for summary judgment, while the plaintiff has cross-moved for partial summary judgment as to the defendants' liability. All parties agree that plaintiff has established the existence of a valid copyright protecting her design. All parties also agree that the defendants, without permission from Amsinck, used a mobile bearing her artwork in their film. The only disputes at issue are legal rather than factual. First, the parties dispute whether defendants' use in the movie of the Mobile bearing plaintiff's artwork constitutes a copy for the purposes of establishing copyright infringement. Secondly, the parties dispute whether the defendants' use would be protected by the fair use defense. Therefore, there are no disputed issues of material fact precluding summary judgment.

1. Ownership of a Valid Copyright

As described above, in order to establish a valid claim of copyright infringement, the plaintiff must prove ownership of a valid copyright and unauthorized copying by the defendants. In this case the existence and validity of the plaintiff's copyright is not challenged. Amsinck's certificate of registration is prima facie evidence of ownership. See Samet & Wells, Inc. v. Shalom Toy Co., 429 F.Supp. 895, 902 (E.D.N.Y.1977), aff'd, 578 F.2d 1369 (2d Cir.1978), quoting 17 U.S.C. § 410(c).

2. Reproduction in a Film as a Copy

The issue of whether the defendants' use of plaintiff's work constituted a copy is disputed in this action. While it is obvious that a copyright of a work of art may be infringed by reproduction of the object itself, see, Home Art, Inc. v. Glensder Textile Corp., 81 F.Supp. 551 (S.D.N.Y.1948) (oil painting reproduced on a scarf), that is not the nature of the copying here alleged. In this case, the defendants have not sold, manufactured, or even used an article simulating the copyrighted work. Rather, the defendants have used the genuine artwork (on the Mobile) in a film. The plaintiff argues that this use is an infringement of her copyright. The question is whether this use constitutes a copy.

In a situation similar to the one at bar, a court in this District has found that the broadcasting of copyrighted hand puppets on a television show was not a copy for the purposes of copyright infringement. Mura v. Columbia Broadcasting System, Inc., 245 F.Supp. 587, 590 (S.D.N.Y.1965). That Court determined that the act of broadcasting altered the copyrighted items to such a degree that they became so "different in nature from the actual copyrighted design" that the use was not a copy. See id. Here, as in Mura, the defendants' display of the Mobile bearing Amsinck's work is different in nature from her copyrighted design. In this matter, the...