Marcus v. Rowley

• Decision Date: 06 January 1983
• Docket Number: No. 80-5222,80-5222
• Citation: 695 F.2d 1171
• Parties: , 1983 Copr.L.Dec. P 25,486, 8 Ed. Law Rep. 258 Eloise Toby MARCUS, Plaintiff/Appellant, v. Shirley ROWLEY and San Diego Unified School District, Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1171

695 F.2d 1171

217 U.S.P.Q. 691, 1983 Copr.L.Dec. P

25,486, 8 Ed. Law Rep. 258

Eloise Toby MARCUS, Plaintiff/Appellant, v. Shirley ROWLEY and San Diego Unified School District Defendants/Appellees.

No. 80-5222.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 4, 1982.

Decided Jan. 6, 1983.

Rex Perschbacher, USD Legal Clinics, San Diego, Cal., for plaintiff/appellant.

Ernestine Douglas Littlejohn, San Diego, Cal., for defendants/appellees.

Appeal from the United States District Court for the Southern District of California.

Before POOLE and BOOCHEVER, Circuit Judges, and PFAELZER ^*, District Judge.

PFAELZER, District Judge:

This is an appeal from a dismissal on the merits of a suit for copyright infringement brought by a public school teacher who is the owner of a registered copyright to a booklet on cake decorating. The defendant, also a public school teacher, incorporated a substantial portion of the copyrighted work into a booklet which she prepared for use in her classes. Both parties moved the district court for summary judgment. The district court denied both motions and dismissed the action on the merits on the ground that defendant's copying of plaintiff's material constituted fair use. We reverse.

I. FACTUAL BACKGROUND

From September 1972 to June 1974, plaintiff, Eloise Toby Marcus was employed by the defendant, San Diego Unified School District ("District") as a teacher of home economics. Plaintiff resigned from the District's employ in 1974 and taught adult education classes intermittently from 1975 to 1980. Shortly after leaving her teaching position with the District, she wrote a booklet entitled "Cake Decorating Made Easy". Plaintiff's booklet consisted of thirty-five pages of which twenty-nine were her original creation. The remaining six pages consisted of material incorporated with the permission of the authors of the materials for which the authors were given appropriate credit.

Plaintiff properly registered the copyright for "Cake Decorating Made Easy" with the Register of Copyrights, and one hundred and twenty-five copies of the booklet were published in the spring of 1975. All of the copies of plaintiff's booklet contained a designation of copyright as evidenced by an encircled "c" followed by "1975 Eloise Marcus." This designation appeared on the table of contents page, the first page, and the page following the cover-title sheet.

Plaintiff sold all but six of the copies of her booklet for $2.00 each to the students in the adult education cake decorating classes which she taught. Plaintiff's profit was $1.00 on the sale of each booklet. Copies of plaintiff's booklet were never distributed to or sold by a bookstore or other outlet. Plaintiff never authorized anyone to copy or reproduce her booklet or any part of it.

Defendant, Shirley Rowley ("Rowley"), teaches food service career classes in the District. In the spring of 1975, she enrolled in one of plaintiff's cake decorating classes and purchased a copy of plaintiff's book. During the following summer, Rowley prepared a booklet entitled "Cake Decorating Learning Activity Package" ("LAP") for use in her food service career classes. The LAP consisted of twenty-four pages and was designed to be used by students who wished to study an optional section of her course devoted to cake decorating. Defendant had fifteen copies of the LAP made and put them in a file so that they would be available to her students. She used the LAP during the 1975, 1976 and 1977 school years. The trial court found that sixty of Rowley's two hundred twenty-five students elected to study cake decorating. The trial court further found that neither Rowley nor the District derived any profit from the LAP.

Rowley admits copying eleven of the twenty-four pages in her LAP from plaintiff's booklet. The eleven pages copied consisted of the supply list, icing recipes, three sheets dealing with color flow and mixing colors, four pages showing how to make and use a decorating bag, and two pages explaining how to make flowers and sugar molds. Four additional pages in defendant's LAP also appear in plaintiff's booklet, but these pages primarily contain information collected by and used with the permission of the Consumer Service Department of the American Institute of Baking. ¹ Twenty pages of plaintiff's booklet were not included in Rowley's LAP. ² Rowley did not give plaintiff credit for the eleven pages she copied, nor did she acknowledge plaintiff as the owner of a copyright with respect to those pages.

Plaintiff learned of Rowley's LAP in the summer of 1977 when a student in plaintiff's adult education class refused to purchase plaintiff's book. The student's son had obtained a copy of the LAP from Rowley's class. After examining Rowley's booklet, the student accused plaintiff of plagiarizing Rowley's work. Following these events, plaintiff made a claim of infringement against Rowley and the District. Both denied infringement and the plaintiff filed suit.

The parties filed cross-motions for summary judgment. The trial court denied both motions for summary judgment and dismissed the case on the merits. ³ The ground for dismissal was that the defendant's copying of the plaintiff's material for nonprofit educational purposes constituted fair use.

II. THE APPLICABLE COPYRIGHT ACT

Congress revised the statutory law of copyright on October 19, 1976 in Public Law 94-553, 17 U.S.C. Sec. 101 et seq. (1976). The revised Copyright Act provides that causes of action which arose prior to January 1, 1978 are governed by the Copyright Act in existence when the claim arose. 17 U.S.C. Sec. 501, note, referring to Section 112 of Pub.L. 94-553. Walt Disney Productions v. Air Pirates, 581 F.2d 751, 754 (9th Cir.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979).

Defendant compiled her LAP during the summer of 1975 and first made it available to her students during the 1975-1976 school year. Plaintiff was apprised of the possibility that her book had been copied in the summer of 1977. Although it is therefore clear that the revised Copyright Act does not govern this action, which version of the Act applies would not affect the outcome of this case since its resolution turns entirely on the application of the doctrine of fair use.

The doctrine of fair use was a judicially articulated concept until Congress recognized its importance and incorporated it into section 107 of the revised Copyright Act. The legislative history states that "[s]ection 107 is a restatement of this judicially developed doctrine--it neither enlarges nor changes it in any way." 122 Cong.Rec. 3144 (1976) (statement of Sen. Tunney). See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 66, reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5680 [Hereinafter cited as H.R.Rep. (1976) ]. Thus, the cases dealing with the doctrine of fair use under the common law and those under section 107 both give consideration to the same factors in analyzing whether the doctrine should apply. Section 107 codifies the factors developed under the prior case law. ⁴

III. THE DOCTRINE OF FAIR USE

Fair use is most often defined as the "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 ...." 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). [citations omitted]. This doctrine was judicially created to "avoid rigid application" of the copyright laws when that application would defeat the law's original purpose which was the fostering of creativity. Iowa State University Research Foundation Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir.1980). Because the doctrine was developed with a view to the introduction of flexibility and equity into the copyright laws, it has evolved in such a manner as to elude precise definition. Universal City Studios, Inc. v. Sony Corp., 659 F.2d 963, 969 (9th Cir.1981), cert. granted, --- U.S ----, 102 S.Ct. 2926, 73 L.Ed.2d 1328 (1982). It is, as Professor Nimmer has stated, a "most obscure doctrine." 3 Nimmer on Copyright, Sec. 13.05 at 13-54.1 (1982). It is clear, however, that "assuming the applicable criteria are met, fair use can extend to the reproduction of copyrighted material for purposes of classroom teaching." H.R.Rep. No. 83, 90th Cong., 1st Sess. 33 (1967) [Hereinafter cited as H.R.Rep. (1967) ]. Thus, a later House Report listed, among examples of fair use, the "reproduction by a teacher or student of a small part of a work to illustrate a lesson...." H.R.Rep. (1976) at 65, U.S.Code Cong. & Admin.News 1976, p. 5679.

A. The Purpose and Character of the Use

The first factor to be considered in determining the applicability of the doctrine of fair use is the purpose and character of the use, and specifically whether the use is of a commercial nature or is for a nonprofit educational purpose. It is uncontroverted that Rowley's use of the LAP was for a nonprofit educational purpose and that the LAP was distributed to students at no charge. These facts necessarily weigh in Rowley's favor. Nevertheless, a finding of a nonprofit educational purpose does not automatically compel a finding of fair use. ⁵

This court has often articulated the principle that a finding that the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used is strong indicia of no fair use. Jartech, Inc. v. Clancy, 666 F.2d 403 (1982); Universal City Studios, Inc. v. Sony Corp., 659 F.2d 963 at 969. See also Iowa State University v. American Broadcasting Cos., 621 F.2d 57 (the scope of fair use is constricted when the original and the copy serve the same function).

This same function test is addressed in the House of Representatives' 1967 Report, specifically in...