Los Angeles News Service v. Tullo, 90-56101

• Decision Date: 27 August 1992
• Docket Number: No. 90-56101,90-56101
• Parties: 1992 Copr.L.Dec. P 26,981, 24 U.S.P.Q.2d 1026, 20 Media L. Rep. 1626 LOS ANGELES NEWS SERVICE, Plaintiff-Counter-Defendant-Appellee, Robert Tur, Counter-Defendant-Appellee, v. Frank TULLO; Charles Bickert; Defendants-Appellants, Audio Video Reporting Services; Defendant-Counter-Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 791

973 F.2d 791

1992 Copr.L.Dec. P 26,981, 24 U.S.P.Q.2d 1026,

20 Media L. Rep. 1626

LOS ANGELES NEWS SERVICE, Plaintiff-Counter-Defendant-Appellee Robert Tur, Counter-Defendant-Appellee, v. Frank TULLO; Charles Bickert; Defendants-Appellants Audio Video Reporting Services; Defendant-Counter-Claimant-Appellant.

No. 90-56101.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1991.

Decided Aug. 27, 1992.

Jeffrey L. Graubart, Los Angeles, Cal., for defendant-counter-claimant-appellant.

Elliot S. Ganezer, Ganezer Law Firm, Santa Monica, Cal., for plaintiff-counter-defendant-appellee.

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

Before: BROWNING, ALARCON and T.G. NELSON, Circuit Judges.

JAMES R. BROWNING, Circuit Judge.

I. Overview

Los Angeles News Service ("LANS") records newsworthy events on videotape and licenses television stations and networks to use all or segments of the unedited ("raw") footage in edited broadcast news stories. Audio Video Reporting Services ("AVRS") provides a video "news clipping" service: It monitors television news programs, records them on videotape and sells copies of all or segments of the tapes to interested individuals and businesses.

LANS videotaped the sites of an airplane crash and a train wreck, registered its copyrights to the tapes, and licensed certain Los Angeles-area television stations to use them on news programs. AVRS made video recordings of these news programs, which included portions of LANS's footage, and marketed the recordings.

LANS sued, claiming copyright infringement. AVRS counterclaimed, alleging LANS had fraudulently induced AVRS to provide LANS with copies of AVRS recordings by falsely promising to pay for the tapes. ¹ After a bench trial, the district court entered judgment for LANS on the copyright infringement claims and awarded statutory damages of $10,000 for each infringement, a total of $20,000. The court found for AVRS on its fraud claim and awarded AVRS $346.13.

AVRS appeals, making the following claims: (1) the raw videotapes are not sufficiently original to merit copyright protection; (2) the public's First Amendment right of access to videotapes of newsworthy events, such as the crash and the wreck, precludes copyright protection for the tapes; (3) even if the tapes are copyrightable, AVRS made "fair use" of them and is therefore shielded from liability for copyright infringement; (4) even if AVRS would otherwise be liable for copyright infringement, LANS's "unclean hands" barred recovery; (5) having found AVRS liable for copyright infringement, the court should have permanently enjoined AVRS from copying LANS's copyrighted material without license from LANS, fixed the terms of a license that would permit AVRS to copy LANS's copyrighted material, and required LANS to notify AVRS when LANS's copyrighted material was broadcast; (6) the damage award was excessive; and (7) a videotape of the train wreck should not have been admitted into evidence. We affirm.

II. Raw Videotapes as Original Works of Authorship

AVRS claims LANS's raw videotapes, as opposed to the edited news stories in which portions of those tapes were combined with other footage, narrative, interview excerpts and graphics to form a television news "package," are not "original works of authorship" and thus do not merit copyright protection under § 102(a) of the Copyright Act of 1976, 17 U.S.C. §§ 101-914. Whether the raw tapes are sufficiently original to merit copyright protection is a mixed question of law and fact that we examine de novo. See Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 201 (9th Cir.1989).

AVRS argues LANS's tapes merely captured whatever was before the camera, involved no creativity or intellectual input, and so are not original works deserving copyright protection. The Supreme Court rejected a similar argument more than 100 years ago. In Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S.Ct. 279, 28 L.Ed. 349 (1884), the plaintiff argued a photograph of the author Oscar Wilde was not original and therefore not copyrightable because a "photograph is the mere mechanical reproduction of the physical features or outlines of some object animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture." Id. at 59, 4 S.Ct. at 281. The Court did not decide whether all photographs reflected the necessary originality, id., but held the Wilde photograph clearly was original because of the creative and intellectual decisions involved in producing it:

[The court below found that the photograph was] a "useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same ... entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, [and] suggesting and evoking the desired expression...."

These findings, we think, show this photograph to be an original work of art, the product of plaintiff's intellectual invention, of which plaintiff is the author

....

Id. at 60, 4 S.Ct. at 282.

Thirty-seven years later, Judge Learned Hand suggested the question left open in Burrow-Giles--whether all photographs are sufficiently original by their nature to merit copyright protection--had been answered in the affirmative by Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct. 298, 47 L.Ed. 460 (1903), which held that chromolithographs that depicted real scenes and people, as photographs do, were copyrightable because they were "the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright...." Id. at 250, 23 S.Ct. at 300. In Jewelers' Circular Publishing Co. v. Keystone Publishing Co., 274 F. 932, 934 (S.D.N.Y.1921), aff'd, 281 F. 83 (2d Cir.1922), Judge Hand said, "Burrow-Giles [Lithographic] Co. v. Sarony ... left open an intimation that some photographs might not be protected.... I think that ... Bleistein v. Donaldson Lithographing Co. ... rules, because no photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike."

Professor Nimmer's treatise reports that Judge Hand's statement of the law "has become the prevailing view, so that [almost] any ... photograph may claim the necessary originality to support a copyright merely by virtue of the photographers' personal choice of subject matter, angle of photograph, lighting, and determination of the precise time when the photograph is to be taken." 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright ("Nimmer") § 2.08[E], at 2-126.3 (1992 ed.) (footnote omitted). ² We have stated before that the courts have recognized repeatedly that the creative decisions involved in producing a photograph may render it sufficiently original to be copyrightable and "have carefully delineated selection of subject, posture, background, lighting, and perhaps even perspective alone as protectible elements of a photographer's work." United States v. Hamilton, 583 F.2d 448, 452 (9th Cir.1978); see also Time, Inc. v. Bernard Geis Assocs., 293 F.Supp. 130, 142-43 (S.D.N.Y.1968) (amateur photographer's raw footage of the assassination of President John Kennedy was sufficiently original because of the creative effort involved in selecting type of camera, film, lens, area in which to shoot, time to film, and position of camera).

Whether or not every photograph or raw videotape is original and therefore copyrightable, it is clear from the record in this case that the preparation of the two videotapes at issue required the intellectual and creative input entitled to copyright protection. ³ The district court so concluded after hearing testimony, from the operator of the video camera and the pilot of the helicopter in which the camera operator flew, regarding the production of LANS's news videotapes in general and the tapes in this case in particular. The witnesses described the initial decisions about the newsworthiness of the events and how best to tell the stories succinctly and effectively; the selections of camera lenses, angles and exposures; the choices of the heights and directions from which to tape and what portions of the events to film and for how long. The camera operator described herself as "an artist. I use a paintbrush. I use the camera to tell a story."

AVRS's reliance on Cable News Network, Inc. v. Video Monitoring Services of America, Inc. ("CNN"), 940 F.2d 1471, vacated, 949 F.2d 378 (11th Cir.1991), to support its contention that under Feist Publications, Inc. v. Rural Telephone Service Co., Inc., --- U.S. ----, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991), the videotapes did not possess the required originality, is misplaced. ⁴ Feist stated the "requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, 'no matter how crude, humble or obvious' it might be." Feist, --- U.S. at ----, 111 S.Ct. at 1287 (citation omitted). Feist held only that a "garden-variety" telephone directory listing subscribers alphabetically by surname was not sufficiently original because the selection and arrangement was "entirely typical" and "devoid of even the slightest trace of creativity." Id. --- U.S. at ----, 111 S.Ct. at 1296-97. The Court did not disavow the century-old proposition that photographs may be copyrightable as the original products of creative and...