Jackson v. Warner Bros., Inc., 96-CV-72976.

• Decision Date: 29 August 1997
• Docket Number: No. 96-CV-72976.,96-CV-72976.
• Citation: 993 F.Supp. 585
• Parties: Earl JACKSON, Plaintiff, v. WARNER BROS., INC., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

993 F.Supp. 585

Earl JACKSON, Plaintiff, v. WARNER BROS., INC., Defendant.

No. 96-CV-72976.

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

August 29, 1997.

Constance Y. Ross, Michigan Department of Attorney General, Health Care Fraud Division, Lansing, MI, for Earl Jackson, plaintiff.

J. Michael Huget, Butzel Long, Ann Arbor, MI, for Warner Brothers, Incorporated, a division of Time-Warner Entertainment Company LP, a Delaware Limited Partnership, defendant.

MEMORANDUM OPINION AND ORDER

HOOD, District Judge.

I. FACTS

Plaintiff Earl Jackson is an African-American artist whose works include two copy-righted paintings entitled "Following the Path" and "A Place of Crossing." Each painting depicts "rites of passage" of young Africans and traditional African ceremonies celebrating a youth's entrance into manhood and womanhood.¹ Plaintiff distributes his copyrighted art works throughout the country and particularly to Samuel Frederick, proprietor of Samuel's Art Gallery in Oakland County. Defendant Warner Bros. allegedly purchased "A Place of Crossing" and "Following the Path," two lithographs of Plaintiff's original works for use in a feature film entitled, Made In America. (See Def.'s Ex. D.)

In 1993, Warner Bros. released Made In America, a romantic comedy starring actors, Whoopi Goldberg and Ted Danson. Whoopi Goldberg portrays Sarah, a single mother and owner of "African Queen," a bookstore that sells African-American books and other cultural items. Her home is appropriately decorated with African art. During two scenes in the movie, Plaintiff's paintings are displayed in Sarah's living room and can be seen in the background.

Made In America tells the a story of a teenage girl, Zora, raised by her single mother, Sarah, who wants to discover the identity of her biological father. After a discussion with her mother, she learns that her mother went to a sperm bank in order to conceive her. Zora is surprised to find out that Hal Jackson, the name she found in the sperm bank's records, is that of a Caucasian car salesman. Initially, the discovery makes for a tense relationship between Sarah, Zora, and Hal. Later, Hal and Sarah fall in love and are content with the newly formed father-daughter relationship.

During a scene in Sarah's living room while Zora is away, Sarah and Hal kiss passionately and nearly knock Plaintiff's painting, "Following the Path" off the wall. The scene is suddenly interrupted after Zora returns home. The painting remains uneven on the wall. When Zora confronts Sarah about the romantic interlude between Sarah and Hal, the painting is again shown in the background. Plaintiff's paintings, if all of the camera shots are taken together, are not shown for more than 60 seconds. "Following the Path" is shown and is bumped by Goldberg and Danson. According to Plaintiff, "A Place of Crossing" can also be seen in the background.²

Plaintiff instituted this action against Defendant alleging that Defendant's use of his works in the film, Made in America, is a copyright infringement in violation of the Copyright Act, 17 U.S.C. § 107. Defendant never contracted with Plaintiff to obtain permission to use his art in its film and Plaintiff maintains that he would not have granted permission for Defendant's use even if he had been asked prior to the film's making. Plaintiff considers the movie "culturally exploitive."

Defendant argues that Plaintiff's art was only used as a prop and that the display of the art in the movie does not violate the Copyright Act. Defendant contends that the use constitutes a fair use, a defense from liability under the Copyright Act. Defendant brought this Motion for Summary Judgment alleging that there are no genuine issues of material fact for trial and that it is entitled to the fair use defense under the Copyright Act.

II. SUMMARY JUDGMENT MOTION

A. Standard of Review.

When ruling on a Rule 56 motion, this Court must determine whether there are issues of fact requiring a trial. In determining whether there are issues of fact requiring a trial "the inferences to be drawn from the underlying acts contained in the [affidavits, attached exhibits and depositions] must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus., Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). The party moving for summary judgment bears the initial burden of showing that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of production, the nonmoving party then must go beyond the pleadings and by affidavits, or by "depositions, answers to interrogatories and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Id. at 324. Thus, the nonmoving party must do more than show that there is some metaphysical doubt as to the material facts. Matsushita, supra at 586. It must present significant probative evidence in support of its complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

"Courts may resolve fair use determinations at the summary judgment stage." Amsinck v. Columbia Pictures Industries, Inc., 862 F.Supp. 1044, 1046 (S.D.N.Y.1994). However, due to the fact-driven nature of a fair use determination, "the district court should be cautious in granting a Rule 56 motion in this area ..." Id.

B. Fair Use Under the Copyright Act.

1. Factors

Congress grants exclusive rights to an owner of a copyright to reproduce copies, prepare derivative works, and distribute copies of the copyrighted work. 17 U.S.C. § 106(1), (2), and (3). Under Section 106(5), an owner has exclusive rights to display the copyrighted work publicly. 17 U.S.C. § 106(5).

Limitations on exclusive rights granted to owners are delineated in 17 U.S.C. § 107, which provides:

Notwithstanding the provisions of sections 106 and 106A, 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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

17 U.S.C. § 107.³

In order to successfully assert a claim of copyright infringement, Plaintiff must establish: (1) ownership of a valid copyright and (2) copying of the protected work by the alleged infringer. Amsinck, 862 F.Supp. at 1047. The Plaintiff's ownership of the copyrighted reproductions of the two paintings is not in dispute. Plaintiff's attorney, Constance Ross, submitted an affidavit indicating that she is solely responsible for registering Plaintiff's copyrights. "Following the Path" was copyrighted in 1991. (Ross Aff. at 2.) It is also not in dispute that Defendant copied Plaintiff's work in its movie. The issue is whether Defendant's use of the lithographs in the manner in which they are displayed in the movie constitutes a fair use. It is the Defendant's burden to prove that copying is justified under the fair use doctrine. College Entrance Examination Bd. v. Pataki, 889 F.Supp. 554 (N.D.N.Y.1995); Rubin v. Brooks/Cole Pub. Co., 836 F.Supp. 909 (D.Mass.1993); Association of American Medical Colleges v. Mikaelian, 571 F.Supp. 144 (E.D.Pa.1983). Fair use of copyrighted material presents mixed questions of law and fact which must be determined by considering the facts of each particular case in terms of the specific, nonexclusive criteria set forth in 17 U.S.C. § 107. See, Haberman v. Hustler Magazine, Inc., 626 F.Supp. 201 (D.Mass.1986).

2. Purpose and Character of the Use

Plaintiff argues strongly against the manner in which his paintings were used in Defendant's film, particularly because his works "depict the traditional African rites of passage from childhood to adulthood for young females and young males." (Pl.'s Mot. at 2.) Plaintiff makes it clear that he does not support the exploitation of the African-American culture and believes that the movie, Made in America, does just that. Defendant's movie is of a commercial nature. The United States Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) noted, "the fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use." Id. at 585. This Court must also keep in mind when viewing the first prong of the fair use doctrine that, "because nearly all authors hope to make a profit with their work, courts should be wary of placing too much emphasis on the commercial nature in a fair use determination." Robinson v. Random House, Inc., 877 F.Supp. 830, 840 (S.D.N.Y.1995).

In support of its fair use argument, Defendant relies upon Amsinck, supra and Ringgold v. Black Entertainment Television, Inc., No. 96 Civ. 0290(JSM), 1996 WL 535547, 40 U.S.P.Q.2d 1299 (S.D.N.Y. Sept.19, 1996). In Amsinck, plaintiff, a graphic artist, created the "Baby Bears Art work" which contains a design...