Belmore v. City Pages, Inc.

• Decision Date: 17 January 1995
• Docket Number: Civ. No. 3-94-604.
• Citation: 880 F. Supp. 673
• Parties: Edward R. BELMORE, Plaintiff, v. CITY PAGES, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

880 F. Supp. 673

Edward R. BELMORE, Plaintiff, v. CITY PAGES, INC., Defendant.

Civ. No. 3-94-604.

United States District Court, D. Minnesota, Third Division.

January 17, 1995.

COPYRIGHT MATERIAL OMITTED

Ann E. Walther, Gregg G. Corwin & Associates, St. Louis Park, MN, for plaintiff.

Mark R. Anfinson, Minneapolis, MN, for defendant.

MEMORANDUM OPINION AND ORDER

KYLE, District Judge.

Introduction

Plaintiff Edward R. Belmore ("Belmore") commenced this action against Defendant City Pages, Inc. ("City Pages") alleging copyright infringement, misappropriation and conversion. Belmore seeks monetary damages and injunctive relief. This matter is currently before the Court on City Pages' Motion for Summary Judgment. For the reasons set forth below, the Court will grant that Motion.

Background

Belmore is a resident of Wyoming, Minnesota, and is employed by the city of Minneapolis as a police officer. He has served as a Minneapolis police officer at all times relevant to this action.

City Pages is a Minnesota corporation with its principal place of business in Minneapolis, Minnesota. City Pages publishes a local weekly newspaper entitled "City Pages."

The relevant facts in this case are not disputed by the parties. Belmore is a member of the Police Officers' Federation of Minneapolis ("Police Federation"). The Police Federation issues a monthly newspaper entitled "Show-Up." Belmore wrote a short article entitled "Tale of Two Islands." This article appeared in the September 1993 issue of "Show-Up." (See App. A.) "Tale of Two Islands" is written in the form of a fable.

On October 13, 1993, City Pages published "Tale of Two Islands" without Belmore's permission. "Tale of Two Islands" appeared in an article written by "City Pages" editor Steve Perry ("Perry") entitled "Hooligan's Island," with the subheading "Bedtime stories backed by Smith & Wesson." "Hooligan's Island" consists of an introductory commentary, the "Tale of Two Islands" reprinted in its entirety, and a follow-up commentary. (See App. B.) Perry contends that he reprinted "Tale of Two Islands" because he felt it was racist and inappropriate material for a Police Federation publication. (Perry Aff. ¶¶ 3-4.)

On November 23, 1993, Belmore applied for and received a certificate of copyright registration for "Tale of Two Islands" from the United States Patent Office. (Compl. Ex. C.) On May 13, 1994, Belmore commenced this action against City Pages.

Jurisdiction in this Court is based upon 28 U.S.C. §§ 1331 and 1338.

Discussion

I. Standard of Decision

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. Under that Rule:

summary judgment shall be rendered forthwith 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). Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

Initially, the movant bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In evaluating the movant's showing, the evidence offered by the non-moving party is to be believed and all justifiable inferences therefrom are to be drawn in a light most favorable to that party. Matsushita Elec. Indus. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986); Liberty, 477 U.S. at 255, 106 S.Ct. at 2513; Trnka v. Elanco Prod., 709 F.2d 1223, 1225 (8th Cir. 1983). Where a moving party, with whatever it provides the court, makes and supports a motion for summary judgment in accordance with Rule 56, a party opposing the motion may not rest upon the allegations or denials of its pleadings; rather, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 256, 106 S.Ct. at 2514; Fischer v. NWA, Inc., 883 F.2d 594, 599 (8th Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2205, 109 L.Ed.2d 531 (1990). However, the nonmovant is not obligated to prove in its favor an issue of material fact. Unigroup v. O'Rourke Storage & Transfer, 980 F.2d 1217, 1220 (8th Cir.1992) (citations omitted).

Ordinarily, the Court's task on a motion for summary judgment is not to weigh facts or evaluate the credibility of affidavits and other evidence. Rather, the Court need only determine whether the record, as identified by the parties, shows the existence of a real controversy over a material issue, such that the controversy must be resolved by the finder of fact at trial. Agri-Stor Leasing v. Farrow, 826 F.2d 732, 733 (8th Cir.1987). However, the nonmovant cannot avoid summary judgment in favor of the movant merely by pointing to some alleged factual dispute between the parties. Instead, any fact alleged to be in dispute must be "outcome determinative under prevailing law," that is, it must be material to an essential element of the specific theory of recovery at issue. See Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992) (citation omitted).

II. Analysis

Belmore claims that by reprinting "Tale of Two Islands" without his permission, City Pages infringed upon his copyright in violation of 17 U.S.C. § 501.¹ City Pages claims that it did not infringe upon Belmore's copyright because (1) its republication of "Tale of Two Islands" was permitted under the "fair use" provision of the Copyright Act, 17 U.S.C. § 107, and (2) Belmore abandoned or waived his copyright claim by failing to affix a copyright notice to "Tale of Two Islands" when it appeared in the September 13, 1993 issue of "Show-Up."

A. Fair Use

The fair use doctrine is an affirmative defense to a copyright infringement action. It confers a privilege to use copyrighted material in a reasonable manner without the owner's consent. Hustler Magazine, Inc. v. Moral Majority, 796 F.2d 1148, 1151 (9th Cir.1986). This doctrine is "a means of balancing the need to provide individuals with sufficient incentives to create public works with the public's interest in the dissemination of information." Id. The fair use doctrine is codified at 17 U.S.C. § 107, which provides:

Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonerecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107.

The United States Supreme Court recently considered the scope of the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., ___ U.S. ___, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (reversing the Sixth Circuit's² finding that a parody of a copyrighted song was not a "fair use" under § 107). In Campbell, the Court explained that there are no "bright line" rules for applying § 107, and that courts should tailor the fair use analysis to the specific facts presented in each case. Id. at ___, 114 S.Ct. at 1170; see 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 13.05A at 13-188 (1994). The Court also explained that no single fair use factor is dispositive, and that all four factors must be considered in light of the purposes of copyright. Id. at ___ - ___, 114 S.Ct. at 1170-71.

Whether a use qualifies as a permissible fair use under § 107 is a mixed question of law and fact. Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985). If, after applying the four factors, there are no material factual disputes, fair use may be resolved on summary judgment. Hustler, 796 F.2d at 1151; see also Wright v. Warner Books, Inc., 953 F.2d 731 (2nd Cir. 1991) (noting that summary disposition of copyright holder's claims is proper when fair use defense presents no material factual disputes); Consumers Union of U.S., Inc. v. New Regina Corp., 664 F.Supp. 753, 759 (S.D.N.Y.1987) (explaining that "when parties do not dispute the relevant historical facts underlying each of the fair use factors, courts have not hesitated to grant summary judgment on the basis of the fair use defense").

1. Purpose and Character of Defendant's Use

The first factor in a fair use inquiry is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 17 U.S.C. § 107. Belmore contends that because City Pages is a for-profit corporation, its use of "Tale of Two Islands" is presumptively unfair.

The Supreme Court has explicitly rejected using the presumption Belmore proffers. Campbell, ___ U.S. at ___, 114 S.Ct. at 1174. (stating that "if, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism ..." since these are typically done for profit). Instead, the Supreme...