Hustler Magazine, Inc. v. Moral Majority, Inc.

• Decision Date: 23 April 1985
• Docket Number: No. CV 84-6399 RG.,CV 84-6399 RG.
• Citation: 606 F. Supp. 1526
• Parties: HUSTLER MAGAZINE, INC., a California corporation, Plaintiff, v. MORAL MAJORITY, INC., a District of Columbia corporation; Old Time Gospel Hour, a Virginia corporation; Jerry Falwell, an individual; and Does 1-20, inclusive, Defendants.
• Court: U.S. District Court — Central District of California

606 F. Supp. 1526

HUSTLER MAGAZINE, INC., a California corporation, Plaintiff, v. MORAL MAJORITY, INC., a District of Columbia corporation; Old Time Gospel Hour, a Virginia corporation; Jerry Falwell, an individual; and Does 1-20, inclusive, Defendants.

No. CV 84-6399 RG.

United States District Court, C.D. California, Los Angeles Division.

April 23, 1985.

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COPYRIGHT MATERIAL OMITTED

Cooper, Epstein & Hurewitz, Beverly Hills, Cal., for plaintiff.

James E. Merriman, Pacific Palisades, Cal., for defendants.

OPINION AND ORDER GRANTING SUMMARY JUDGMENT

GADBOIS, District Judge.

This is an action for copyright infringement by Hustler magazine ("Hustler"), the pornographic publication perhaps known best for its controversial publisher, Larry Flynt. The defendants are some of the plaintiff's staunchest critics: the Reverend Jerry Falwell, the fundamentalist minister of national repute; the Moral Majority, a political lobbying group for conservative causes; and the Old Time Gospel Hour, the corporate sponsor of television and radio broadcasts of religious services originating in Lynchburg, Virginia. Plaintiff seeks both an injunction and an award of damages based on defendants' unauthorized dissemination of hundreds of thousands of copies of a single page from Hustler's November, 1983 issue.

This court has jurisdiction over this action under 28 U.S.C. § 1338(a) (1982). Venue is proper.

The copyrighted work in question is a parody of an advertisement for Campari liquor and prominently features a photograph of Falwell. Entitled, "Jerry Falwell talks about his first time," Hustler's parody patterns itself on the genuine Campari ads, which consist of interviews with famous persons about their "first time" with Campari. The satire incorporates the advertisements' layout and design (including Campari's copyright notice), the same format in its text, and the same general tone of double entendre. In Hustler's version, however, Falwell's "first time" involves not only Campari but also an outright sexual experience—with his mother and in an outhouse —and the "interview" is appropriately replete with scatological attempts at humor. A purported disclaimer, reading, "AD PARODY—NOT TO BE TAKEN SERIOUSLY," appears at the bottom of the page in very small print.

The Copyright Office registered the copyright certificate for Hustler's November issue on October 3, 1983, and the issue would have been available for purchase on the newsstands in early October. On October 7, 1983, the chairman of Campari's advertising agency wrote a letter to Hustler publisher Larry Flynt and his wife Althea, complaining with "great shock and dismay" of the ad parody and demanding that the magazine cease using the Campari label in any manner. Hustler republished the parody in its March, 1984 issue.

The Reverend Falwell's response to the "ad and personality parody," as the magazine calls it, included both swift legal action and a series of impassioned communications with his constituents. On October 31, 1983, Falwell commenced a lawsuit against Hustler, Larry Flynt, and Flynt Distributing Company, in the United States District Court for the Western District of Virginia, asserting claims for libel, invasion of privacy and intentional infliction of emotional distress. On December 8, 1984, the jury returned a verdict against Hustler on the emotional distress claim, awarding Falwell $200,000 in general and punitive damages. The jury found for Hustler, however, on the defamation claim, specifically finding as part of a special verdict that the Hustler publication could not reasonably be understood as describing actual facts about Falwell or actual events involving him. The trial court had earlier directed a verdict for Hustler on the invasion of privacy claim.

The communications said to infringe Hustler's copyright occurred in a barrage of letters and television appeals. On November 15, 1983, Falwell sent out two mass mailings to members of the Moral Majority. One set of letters was directed to some 458,370 "rank-and-file donors," who were asked to contribute amounts up to $50; the other went to some 26,980 "major donors," who were asked for $500.

The contents of the two sets of letters mailed November 15 were very nearly identical. Falwell reported the "tasteless and libelous attack on my mother and me" by "`Porno King' Larry Flynt" and sought contributions to wage a legal battle against him in federal court. He also included a copy of a photograph of his mother. The two mailings differed, however, in that the rank-and-file solicitation merely described the ad pardoy, while the major-donor version actually included a copy of the item, with several particularly objectionable words edited out. The letter asked that the recipient destroy the copy after reading it. The major-donor solicitation brought in nearly $45,000 in donations.

On November 18, 1983, Falwell sent out another mailing, this time to 725,586 followers of the Old Time Gospel Hour. This letter also included a similarly edited copy of the Campari ad parody. The Old Time Gospel Hour appeal, however, did not seek funds for a legal battle but rather for a "survival fund" Falwell had established to finance his television and radio network. Old Time Gospel Hour received more than $672,000 in response to this appeal.

Finally, on December 4 and 11, 1983, Falwell continued his response to Flynt's parody in the course of his weekly sermon on the Old Time Gospel Hour. At several points Falwell held up Hustler's November issue, with the offending page revealed, and made financial pitches for his survival fund. No figures were provided to the court as to the amount of money received as a result of these television appeals.

The parties do not disagree about the facts but only about what inferences can be drawn from them as to the nature of the copyrighted work and the character of Falwell's use of the ad. From the point of view of Falwell, the "ad" was a searing personal attack that he had to take seriously because, as he stated in his deposition, "what Mr. Flynt has done has not attacked my philosophy to which I do not object but he has attacked me, my morality, my decency, my sincerity." Falwell claims he needed to send his followers a copy of the ad to give them information necessary to rebut the statements it contained, in case the faithful happened to be confronted by someone who had seen it. The appeal for money was no more than an ancillary motive, a regular request that would be made in the course of any such communication.

According to Hustler, however, the "ad" was clearly a parody and so obvious a one that there was nothing to "rebut." Thus, plaintiff points out that Falwell and his aides could not identify a single person who had believed the "charges" in the parody. Moreover, Old Time Gospel Hour's chief executive officer, DeWitt H. Braud, admitted in his deposition that sending along an actual copy of the parody was part of Falwell's "marketing approach" to fund-raising; Moral Majority's executive vice-president Ron Godwin similarly agreed that one purpose of the letter sent out was to raise money. Hustler thus characterizes Falwell's use as commercial, part of a money-making scheme.

The matter is before the court on the parties' cross-motions for summary judgment and for the imposition of sanctions. As there is no dispute that Hustler is the registered owner of the copyrighted work or that Falwell copied it without permission, the court must find that plaintiff has made out a prima facie case of infringement. See Walker v. University Books, Inc., 602 F.2d 859, 862 (9th Cir. 1979). Hustler, as the owner of the copyright, had the exclusive right to reproduce and distribute copies of the work and to display it publicly by means of television or other media. See 17 U.S.C. §§ 101, 106, 501(a) (1982). The only question, therefore, is whether defendants have established any valid defense as a matter of law. As explained below, the court concludes that defendants' reproduction of the ad parody constituted "fair use" as a matter of law.

DISCUSSION

The doctrine of fair use confers a "`privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner'" Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir.1983) (quoting Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967)). Although developed at common law, the defense of fair use was incorporated in the Copyright Act of 1976 ("the Act"), 17 U.S.C. §§ 101-810 (1982).

Section 107 of the statute provides:

Limitations on exclusive rights: Fair use

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords 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.

The legislative history of section 107 makes it clear that the statute provides only a guideline, leaving the court considerable latitude in determining whether in a given case an alleged infringement is a fair use or not. The Report of the Committee on the Judiciary of the House states:

Although the courts have considered

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