Higgins v. Detroit Educational Television Found.

• Decision Date: 30 April 1998
• Docket Number: No. 97-CV-71198-DT.,97-CV-71198-DT.
• Citation: 4 F.Supp.2d 701
• Parties: Thomas HIGGINS, v. DETROIT EDUCATION TELEVISION FOUNDATION d/b/a WTVS, Channel 56, and Public Broadcasting Service, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

4 F.Supp.2d 701

Thomas HIGGINS, v. DETROIT EDUCATION TELEVISION FOUNDATION d/b/a WTVS, Channel 56, and Public Broadcasting Service, Defendants.

No. 97-CV-71198-DT.

United States District Court, E.D. Michigan, Southern Division.

April 30, 1998.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

ROSEN, District Judge.

I. INTRODUCTION

This is a copyright infringement action brought by Thomas Higgins (who also goes by the "stage name" of "Rocky Jackson") against Detroit Public Television (WTVS, Channel 56) and the Public Broadcasting Service. Plaintiff filed his Complaint in this Court on March 24, 1997.

Higgins claims to be the co-author and the holder of the copyright in a 3 minute and 35 second musical composition entitled "Under the Gun".¹ According to Plaintiff, 45 seconds of a performance of the song by the "Bradford Youth Gang" were used as background music to the introductory and ending sequences of a feature on the DEA in one episode of a Channel 56/Public Broadcasting half-hour teen-targeted TV series called Club Connect. Funding for the production was provided by the Corporation for Public Broadcasting, the Michigan Department of Education, and WTVS.

The Club Connect episode at issue was entitled "Stop the Fighting II" and was 27 minutes and 46 seconds in length.² Most of the show is a panel/quiz show format discussion of ways to handle dispute resolution. The show also contains several feature segments including one about staying out of street gangs, and a feature on the DEA, which lasts about 5 minutes. It was only during the DEA feature that the song "Under the Gun" is heard.

Not only was the episode shown on TV (on Channel 56 in Detroit), but also videotapes of the show were made available for purchase by educational institutions. According to Defendants, 41 videotapes of this program have been sold, the last sale having been made in June 1996.³ Thirteen of the videotape sales were made before March 24, 1994.

Defendants do not dispute that a portion of the Bradford Youth Gang's recording of "Under the Gun" was used as background music with narration superimposed over it in the "Stop the Fighting II" episode of Club Connect. However, Defendants contend that their use of the song in the program and in the subsequent videos of the program which were distributed solely for educational purposes constitute "fair use" under the Copyright Act, and, therefore, is not actionable as copyright infringement. Additionally, Defendants argue that Plaintiff's claims of infringement with respect to the 13 pre-March 24, 1994 video sales are barred by the three-year statute of limitations governing copyright actions.⁴

II. DISCUSSION

A. THE "FAIR USE" DOCTRINE

From the infancy of copyright protection, some opportunity for "fair use" of copyrighted material has been thought necessary to fulfill copyright's very purpose, "[t]o promote the Progress of Science and useful Arts...." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 1169, 127 L.Ed.2d 500 (1994), quoting U.S. Const., Art. I, § 8, cl. 8.

The fair use doctrine, codified in 1976 as a statutory exception to copyright infringement, 17 U.S.C. § 107, provides that, under certain circumstances, unauthorized copying of a copyrighted work is permissible and not actionable as infringement. As provided in the statute:

[T]he fair use of a copyrighted work, including such use by reproduction in copies ... 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 the 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 purpose;

(2) the nature of the copyrighted work;

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

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

Whether a use referred to in the first sentence of Section 107 is a fair use in a particular case depends upon the application of the determinative factors. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. 569, 578, n. 9, 114 S.Ct. 1164, 1170, n. 9, 127 L.Ed.2d 500 (1994), quoting S.Rep. No. 94-473, p. 62 (1975) U.S.Code Cong. & Admin.News 1976, p. 5659. However, the factors enumerated in § 107 are not meant to be exclusive: "Since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts." Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985), quoting H.R.Rep. No. 94-1476, p. 65, U.S.Code Cong. & Admin.News 1976, p. 5678; National Rifle Association v. Handgun Control Federation of Ohio, 15 F.3d 559, 561 (6th Cir.1994). Nor may the four statutory factors be treated in isolation, one from another. Campbell v. Acuff-Rose Music, supra, 510 U.S. at 577, 114 S.Ct. at 1170. All are to be explored and the results weighed together in light of the purposes of copyright. Id.

The Court, therefore, will examine each of the four statutory factors as they apply to the facts of this case.

1. THE PURPOSE AND CHARACTER OF THE USE

The evidence of record in this case establishes that the TV program, "Stop the Violence II," and the video of that program in which "Under the Gun" was used was produced for the purpose of teaching teenagers conflict resolution and the dangers of illegal drugs. "Stop the Violence II," thus, was made for educational purposes. The video of the program was not mass marketed; rather, the distribution of the video of the program was limited to educational institutions.⁵ Information on ordering the videotape was set forth at the end of the TV program and is set forth at the end of the videotape copies where it is clearly stated that a videotape of the program can be purchased "for educational use only." [See Affidavit of Dan Hamby, Senior Program Director, Program Acquisitions Learning Media of Public Broadcasting Service, ¶ 11.]

Defendants admit that 41 "Stop the Violence II" videos were sold. [Hamby Affidavit ¶ 18.] From these sales, PBS grossed $2,159.73, of which WTVS received $653.90. Id. According to Dan Hamby, although generally PBS makes a 6% profit on each video sold at the normal $59.95 price, in the case of "Stop the Violence II", because of discounts and the extremely low volume of sales, PBS made no profit whatsoever from the sales of the video in this case.⁶ [Hamby Affidavit, ¶ 21.] The money, if any, earned on the sale of PBS videos goes to fund other educational programs at PBS. Id. at ¶ 23. The fact that a charge is made for a work, or that a profit is anticipated, however, does not convert the use into a commercial one. Wright v. Warner Books, Inc., 953 F.2d 731, 736-737 (2d Cir.1991); Salinger v. Random House, Inc., 811 F.2d 90, 96 (2nd Cir.1987), cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987).

As the court observed in 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):

It is undisputed that Burtchaell was paid for his efforts and that his publishers were not motivated by purely charitable intentions. But the inquiry does not end there. We do not read Section 107(1) as requiring us to make a clear-cut choice between two polar characterizations, "commercial" and "non-profit". Were that the case, fair use would be virtually obliterated, for "[a]ll publications are operated for profit." ... The commercial nature of a use is a matter of degree, not an absolute....

Id. at 1262 (citations omitted).

Nor, in this case, does the fact that one non-educational sale was made convert the non-profit nature of the video into a commercial one. The sole non-educational purchase of "Stop the Violence II" was made by Plaintiff Higgins' lawyer. A plaintiff may not claim to have been damaged by reason of a defendant's sale of alleged infringing copies if the copies were sold to plaintiff's agent, because such a sale prevents the distribution of such copies to the general public. See Nimmer on Copyright, § 14.02[B], citing Shapiro, Bernstein & Co. v. Bleeker, 243 F.Supp. 999 (S.D.Cal.1965), modified on other grounds, 367 F.2d 236 (9th Cir.1966).

Relying on Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir.1996) (en banc), Plaintiff argues that while the tapes of "Stop the Violence II" might ultimately be used by the purchasers in teaching, this does not make Defendants' use one of "education" or "teaching." Plaintiff's reliance on Princeton University Press for this proposition is misplaced. At issue in the Princeton University Press case was the duplication of large portions of copyrighted materials. The copies at issue were undisputedly made "for sale by a for-profit commercial [copyshop] corporation that decided to maximize its profits, and give itself a competitive edge over other copyshops, by declining to pay the royalties requested by the holders of the copyrights." Id. at 1388. Copying copyrighted materials was the express business of the Princeton University Press defendant. It was because the defendant was in the business of making copies of copyrighted material for profit that the court refused to find an educational purpose simply because the copies made were ultimately used by university students. Defendants in this case, by contrast, are not for-profit commercial entities, nor are they in the business of making copies of copyrighted material.

As the foregoing discussion makes clear, the purpose and character of Defendants' use was a non-profit, teaching purpose. Therefore, the Court finds that this first factor weighs in favor of Defendants.⁷

This first factor also weighs...