Cable News Network, Inc. v. Video Monitoring Services of America, Inc.
| Decision Date | 04 September 1991 |
| Docket Number | No. 90-8798,90-8798 |
| Citation | 940 F.2d 1471 |
| Parties | , 1991 Copr.L.Dec. P 26,798, 20 U.S.P.Q.2d 1081, 19 Media L. Rep. 1289 CABLE NEWS NETWORK, INC., Plaintiff-Appellee, v. VIDEO MONITORING SERVICES OF AMERICA, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Christopher P. Bussert, Jerre B. Swann, Kilpatrick & Cody, Atlanta, Ga., Daniel J. Goldstein, Bruce P. Keller, DeBevoise & Plimpton, New York City, for defendant-appellant.
William T. Plybon, June Ann Kirkland, Troutmen, Sanders, Lockerman & Ashmore, Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before FAY and BIRCH, Circuit Judges, and HOFFMAN *, Senior District Judge.
The technologically-induced collision between the free speech doctrine and a broadcast media-owned copyright produced the dispute in this lawsuit. In this interlocutory appeal by Video Monitoring Services, Inc. ("VMS") from the grant of a preliminary injunction in favor of Cable News Network, Inc. ("CNN") predicated on a claim of copyright infringement, we are asked to review both the propriety of the remedy as well as its scope. After the United States District Court for the Northern District of Georgia ("the district court") entered the disputed injunction, the Supreme Court rendered its unanimous decision in Feist Publications, Inc. v. Rural Tele. Serv. Co., --- U.S. ----, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Our consideration of that decision, together with other authority in the law of copyright, requires us to REVERSE the grant of the preliminary injunction and to REMAND the case to the district court.
CNN is in the business of producing news reports which are broadcast and distributed via satellite to viewers throughout the United States and approximately sixty-five foreign countries. CNN licenses its broadcast services to cable television systems and others, who pay a fee to CNN for The Cable News Network programming, in addition to the basic coverage, also consists of supplemental broadcasts embracing a variety of special programming covering topics such as finance, health care, and consumer topics. Included in this category are such programs as "Crossfire", "Evans and Novak", "Your Money", and "Larry King Live." All of the transmission programming for CNN is taped each day in its entirety at the time that it is telecast. 2 Two recordings are made: one "air check" is made by a CNN production assistant, which is retained for one week and then erased; the other is made by the CNN engineering department and is retained for three and one-half years, then recycled. In addition to these two recordings, a number of specific programs are taped and retained by CNN. Included in the latter category are tapes of the "Crossfire" and "Larry King Live" segments. These reproductions are kept for one year, with certain selected segments retained indefinitely.
receipt of its transmission programs. 1 CNN's programming generally consists of live news reporting with the use of prerecorded videotape segments throughout. This programming, on a domestic level, is composed of two distinct presentations. The first, known as "Cable News Network," provides comprehensive up-to-the-minute coverage of domestic and international news, sports, business and weather ("the basic coverage"). The second programming service offered by CNN is known as Headline News, which provides a more concise version of the basic coverage on a periodic cycle ("Around the world in thirty minutes.")
Those portions of CNN's broadcast day which appear as prerecorded segments fall into several different categories relative to classification for the purpose of copyright analysis. First, there are commercial advertisements or messages which solicit the acquisition of some good or service by the viewer. These commercials are produced by an advertiser and supplied to CNN to be broadcast at certain times. The amount paid to CNN for presentation of these commercials depends in part on the day and hour displayed as well as the length of the commercial segment. Second, many newsworthy events captured on videotape (having an audio and video component or both) are displayed, typically with a commentator's CNN has licensed Radio TV Reports, Inc., one of VMS's competitors, to make and license to the public CNN's programming and transcripts of that programming. In addition, requests for copies of CNN programming are referred to CNN Library Tape Sales, a CNN unit which exists to license CNN programming to third parties. Turner Educational Services, Inc., a CNN affiliate, also distributes tapes of certain CNN programming to various licensees for use in the educational and public library markets.
voice audible contemporaneously. Such disparate events include: news conferences by the President or other government officials; natural disasters including fire, earthquake, flood or storm; warfare involving other nations as well as our own; a motorist taken into custody by police and subjected to a beating; the effects of disease and famine on the world's populations; the funeral or wedding of a public figure; a collegiate or professional sporting event; and a debate or hearing in Congress or in a state or local legislative body. Finally, certain segments, like the one at issue here, are entirely prerecorded; that is, they do not consist of a mix of "live" commentary contemporaneously delivered with prerecorded segments, with both being transmitted simultaneously.
Defendant VMS is a national video monitoring service that monitors television programming nationwide, including CNN's, and provides copies of program segments and other information requested by its clients. Before the preliminary injunction was issued, VMS taped all Cable News Network transmission programming, seven days a week, twenty-four hours a day. CNN represents that VMS's books and records disclose that during 1988, VMS's New York office recorded approximately 2,502 separate sales of CNN transmission programming generating approximately $300,000 in sales. This is not disputed by VMS. It is also undisputed that CNN has not licensed VMS to make or sell copies of its transmission programming. In an affidavit, CNN's deputy general counsel, Benita Baird, indicates that she made several oral requests of VMS to cease and desist from copying CNN's transmission programming. Attached to her affidavit is a copy of her March 12, 1985 letter, on the stationary of Turner Broadcasting System, Inc., on behalf of CNN wherein VMS is instructed to discontinue its practice of videotaping CNN's transmission programming. A copy of the Baird letter follows as Appendix A. 3
VMS's president, Robert J. Cohen, stated that an important aspect of its business is monitoring the programming that appears on the over-the-air and cable television networks and that VMS regularly provides its clients, which include Turner Broadcasting Services, Inc. and the Justice Department, with information gleaned from reviewing videotapes made as a part of the monitoring process. Cohen further stressed that "[w]ithout the ability to make videotapes, monitoring cable and over-the-air television programming nationwide, on a daily, around-the-clock basis, would be physically and economically impossible." R3-48-3 (Cohen affidavit). VMS is employed by the copyright owners of certain commercials and news releases who do business with CNN to record and monitor the use of their copyrighted work by CNN. This is done to provide those copyright owners with information and verification relative to the time of broadcast, the content of broadcast and the context in which the broadcast occurred.
This action was initiated on November 23, 1988 when CNN claimed ownership of a copyright in a certain thirty-minute television broadcast identified as the October 17, 1988 program segment, "Crossfire" ("the Segment"). CNN complained that VMS had copied the Segment and sold the copy. CNN alleged that it possessed "all rights of copyright" in the Segment. R1- The application 4 for registration of CNN's claim of copyright was signed by CNN vice president Steven W. Korn on October 17, 1988 and was received by the Registrar of Copyrights on October 17, 1988. A copy of that application and registration certificate follows as Appendix B. The copyrighted work was described by Korn as a "motion picture" entitled alternately as "Crossfire" or "Barry Goldwater: Mr. Conservative." R1-1-Exhibit A. The name of the author was given as "Cable News Network, Inc." and the work was identified as a "work made for hire." Id. Thus, the "entire work" was identified by Korn as the result of the efforts of, presumably, certain CNN employee(s). 5 Additionally, we observe that section 6 of the application form entitled "Derivative Work Or Compilation" was left blank. Id.
1-3. Evidencing CNN's claim of copyright in the Segment is a copy of CNN's certificate of registration, identification number PAu 1-136-813, which is attached to the complaint.
Under the first count of the complaint for "copyright infringement," 6 CNN stated that it was "entitled, pursuant to 17 U.S.C. Sec. 502, to injunctive relief to prevent VMS from selling or otherwise distributing videotapes, transcripts, or other copies, in any form, of any of CNN's programming, or any part or portion thereof, and from otherwise infringing any copyright interest of CNN ..." R1-1-6, p 21(a) (emphasis added). Thereafter, VMS filed a motion to dismiss and asserted a lack of personal jurisdiction and improper venue. That motion subsequently was denied by the district court. 7 While the motion was pending, however, CNN filed its motion for a preliminary injunction seeking an order enjoining VMS "from copying or selling copies of any of CNN's programming, either in whole or in part." R1-17-1. In...
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