Jackson v. MPI Home Video
| Decision Date | 16 August 1988 |
| Docket Number | No. 88 C 6476.,88 C 6476. |
| Citation | 694 F. Supp. 483 |
| Parties | Jesse L. JACKSON, Plaintiff, v. MPI HOME VIDEO, Maljack Productions, Inc., and Fusion Video, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Henry L. Mason, III, Sidley & Austin, Chicago, Ill., for plaintiff.
Robert Breisblatt, Welsh & Katz, Chicago, Ill., for defendants.
Findings of Fact
Plaintiff Jesse L. Jackson ("Jackson") is a resident of Chicago, Illinois, and Defendant Maljack Productions, Inc. ("Maljack") is an Illinois corporation also doing business as MPI Home Video with its principal place of business in Oak Forest, Illinois.
The Democratic National Committee believes that Jackson is a major spokesman for the party. He delivered an address on July 19, 1988 at the 1988 Democratic National Convention, held in Atlanta, Georgia, on July 18-21, 1988. He wrote the speech himself in his hotel room on July 19, the day of its delivery.
The address was carried live by four television networks, A.B.C., N.B.C., C.B.S. and C.N.N., as part of their scheduled prime time coverage of the Democratic National Convention. Over 2,000 news organizations attended the convention. Copies of the address (Exhibit 1 without Jackson's handwritten additions) were provided to the press at the convention prior to its delivery on July 19, 1988. Between 100 and 150 copies of the address which were distributed to the press and the Democratic National Committee did not contain a copyright notification but did contain the following statement: "NOT FOR PUBLIC USE UNTIL DELIVERED."
On July 25, 1988, Maljack purchased from Sherman Grinberg Film Libraries, Inc., New York, New York, a license to use the A.B.C. news archive tape of Jackson's convention speech. Maljack paid $6,750.00 for the license. Shortly thereafter defendants began marketing a tape for home video use containing the complete A.B.C. news coverage of the convention speech given by Jackson.
The packaging of defendants' videotape displays among other items (1) a photograph of Jackson and his name, (2) two quotations from the speech, (3) a description of the tape as containing the "entire stirring Democratic National Convention speech, uncut and unedited" and (4) the name of MPI Home Video.
During the period from July 25-27, 1988 Waleed Ali, the President of Maljack, was interviewed on television news programs in Chicago. As part of the news story, the programs showed MPI Tape package and also showed excerpts of the plaintiff's convention speech.
The Democratic National Committee received a copy of Jackson's speech from Jackson's campaign headquarters which copy lacked a copyright notice. The Democratic National Committee received copies of speeches given by other speakers at the convention. Not a single copy received from any speaker bore a copyright notice. The Democratic National Committee has received numerous requests from political groups and news media around the country for video tape copies of Jackson's speech. Copies of those speeches have been distributed without copyright notice. So too Democratic National Committee has distributed copies of the speech received from Jackson's campaign headquarters.
The Democratic National Committee received $9.22 million from the federal government for the convention.
An application for copyright in the speech was filed with the Register of Copyrights on July 28, 1988.
Maljack's Ali heard Jackson's speech as it was being broadcast and, before it was over, formed an opinion that it would sell. He caused a license to be purchased from Grinberg Film Libraries which sent a master copy of the A.B.C. coverage of the Jackson speech and secured a photo of Jackson from Wide World Photos to be used on the videotape package or sleeve. Commercials and other extraneous materials were edited from the A.B.C. master, and packaging artwork was prepared. About eight thousand tapes and sleeves were prepared. Prior to the act of this Court restraining distribution, about 7,100 units (tapes in sleeves) were shipped and about 1,000 remain with Maljack. Ali believed he could ship at least 25,000 units and, at most, 50,000 units. The list price of a unit is $14.95, Maljack sells it to its wholesalers and others for about $7.50. Maljack's profit is about $3.00 a unit. Maljack publicized release of the tape with announcements to general newspapers and the trade press.
Maljack had prior dealings with Grinberg Film libraries because it distributes some A.B.C. video cassettes and other material secured from the library. Indeed, Maljack sought a lower price for the Jackson speech since in a previous transaction Maljack paid a large fee for material that had poor sales. Maljack's catalogue is wide ranging including feature films, concert films, film classics, television series, and children's features. There are cassettes explaining public issues. These include works on political figures, the Vietnam conflict, World War II, the various branches of the United States armed forces, the 1960's, the exploration of space, and a series of one-hour presentations of the speeches of King, Roosevelt, Churchill, Eisenhower and Kennedy. Ali credibly testified that he had distributed at least one film because he believed it contained an important message on poverty in America though he expected little or no profit. The catalogue also lists films whose titles suggest a more esoteric appeal.
The license contract received from Grinberg contained in capital letters the legend:
LICENSED FOR VCS ........ HOME VIDEO CASSETTES ************************************ SRC ROLL KEY SCENE NO. NUMBERS DESCRIPTION --- ---- ------- ------------ 01 ABC JESSE JACKSON CONVENTION SPEECH
In smaller letters near the bottom of the contract it was written: "The film footage licensed hereunder may be used only for the purpose specified ... The Licensor warrants nothing except its title to the footage licensed and that the licensee assumes full responsibility for any use which it may make of such footage."
The Wide World Photos, Inc. sales form states in large letters:
Toward the bottom of the form, in small letters, it is written of the picture sold:
The intended meaning of the Grinberg contract is subject to dispute. A.B.C. licenses Grinberg to license others. A.B.C. may withhold whatever it wishes, but unless it specifically restricts use, Grinberg may license whatever A.B.C. gives them. The written agreement between them provides that Grinberg "shall have the right ... to make duplicates of A.B.C. film/cassettes and license said duplicates to third parties for stock footage purposes." In a deposition taken after the filing of this lawsuit and after discussions about the issue with an A.B.C. lawyer, Chertok, who runs Grinberg, said that he had never told Maljack that there were any limitations on the use of the tape. Chertok then testified This may be Chertok's sincere belief today, but as a statement of what the parties believed at the time of the transaction, it appears incredible. Absent some license to the content, the transaction was the right to use a copy of A.B.C. footage for over $6,000, an unaccountably high price for a single video cassette and a marked departure from their prior dealing.
Under the circumstances here it is clear that Maljack thought it bought and Grinberg thought it sold a valid license to duplicate and sell copies of the A.B.C. tape.
Ali testified that were a royalty to be paid on a tape such as this one it would be 50 to 75 cents a unit with an outer limit of one dollar. He noted that a tape including Jackson's 1984 speech at the Democratic National Convention sold about 4,000 units. Jackson stated in testimony that in 1984 he had authorized the distribution of such a tape for which he had received compensation.
The Democratic National Committee claims no copyright for the nominating convention. There are no agreements with the media covering the event that allocate rights with respect to the use of films or reports of the speeches and other occurrences at the convention. The Committee has no role in the accreditation of news correspondents to the convention (save for minor exceptions not relevant here). Its only agreements with A.B.C. dealt with physical locations and accommodations at the convention. Advance texts of speeches, which are in common use for news media at the convention, are not copyrighted.2 The Jackson speech was originally given in the form of a computer disc to the Committee press office before the speech; the Jackson staff wanted quick distribution and gave no direction as to whom copies might be given.
The Democratic National Committee considers its conventions to be public events of political and historical significance. It sends out copies of speeches to news persons and others requesting them, and has sent out copies of Jackson's speech and is still doing so. It also has tapes of the convention and intended to prepare and distribute a highlights film. This project is delayed pending the outcome of this case. So, too, the Committee has not distributed tapes of Jackson's speech in response to requests for them from the news media.
Jackson testified that the "essence" of his speech was "news" occurring at an "historical event." He imposed no restrictions on its use by the news media including some which printed all of the speech. He desired the speech to receive the widest possible audience. He has not objected...
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