Pacific and Southern Co., Inc. v. Duncan
| Decision Date | 13 October 1983 |
| Docket Number | Civ. No. C81-1106. |
| Citation | 572 F. Supp. 1186 |
| Parties | PACIFIC AND SOUTHERN COMPANY, INC., d/b/a WXIA-TV v. Carol DUNCAN, d/b/a TV News Clips. |
| Court | U.S. District Court — Northern District of Georgia |
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James C. Rawls, V. Robert Denham, Jr., Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for plaintiff.
Lynwood A. Maddox, Decatur, Ga., L. Ray Patterson, Emory School of Law, Atlanta, Ga., for defendant.
This copyright infringement action is before the Court for findings of fact and conclusions of law following a bench trial.
This case presents the question whether off the air video taping of live television news broadcasts by a TV news monitoring service, followed by the marketing and sale of news tapes to interested members of the public, infringes the broadcaster's copyright under federal law. 17 U.S.C. § 101 et seq. The Defendant, a television news "clipping service," argues that its activities constitute a permissible fair use under the copyright statute, 17 U.S.C. § 107, or alternatively, that the First Amendment to the United States Constitution prohibits interference with its activities notwithstanding an otherwise valid copyright.
After due consideration of the evidence and arguments of counsel, the Court hereby finds and concludes as follows:
I. FINDINGS OF FACT
Plaintiff WXIA-TV is a television station in Atlanta, Georgia. It is duly licensed by the Federal Communications Commission to operate as Channel 11. It broadcasts a 90-minute news program every evening at 5:30 p.m. A notice of copyright appears at the end of each newscast.
TV News Clips ("News Clips") is the name under which Ms. Carol Duncan conducts a for-profit television news monitoring and clipping service.1 News Clips videotapes Channel 11's news programs and the news programs of other stations. It contacts each person or company who is the subject of a newscast segment to see if they would like to purchase a copy. Customers pay $65 for an initial news clip purchase and $25 for subsequent purchases. The videotaping and sales of copies occur without WXIA's permission. Copies contain no notice of copyright, but the tape cassettes are labelled "For personal use only not for rebroadcast." News Clips informs purchasers that it is not affiliated with WXIA.
News Clips erases its tapes one month after the pertinent broadcast.
The instant litigation began with WXIA's discovery that News Clips had sold a tape of a feature from its March 11, 1981 evening newscast to Floyd Junior College in Rome, Georgia. The feature was a one minute, 45 second segment concerning a newly installed "fitness trail" at the junior college. The segment showed individuals jogging on the trail (at least one of whom was a WXIA employee) and depicted various athletic equipment along the way. An on-the-scene reporter made salutary comments about the trail and the health benefits to be derived from using it.
After effecting the copyright registration which is a prerequisite to bringing a copyright infringement action, WXIA instituted the within suit. WXIA seeks damages for the infringement of its copyright on the fitness trail feature. In addition, it seeks an injunction against News Clips to stop future unauthorized copying or sales of copies of its news programs, plus recovery of the costs of this action, including attorneys' fees.
As one would expect, WXIA's news programs are made up of a variety of elements. Some are pretaped; some are live. These elements include, inter alia, on-the-spot coverage of primary news events, e.g., a speech by a public official; "on-the-scene" comments by news reporters; news desk reports on the events of the day; feature stories such as the fitness trail sequence; weather reports; editorials; and miscellaneous commentary by the anchor persons at the news desk.
WXIA has made no effort to develop a market for sales of copies of its news casts or portions thereof. It receives infrequent requests for copies; however, when such requests are received they are accommodated as a public service. The charge is $100 a copy. However, from time to time requests are made under circumstances which cause the station to impose additional requirements and/or refuse the requests. The evidence showed at least one occasion in which the station required a subpoena to be obtained where the news segment was going to be used in litigation. Also, the station will not provide newscast copies to political candidates. This is because of a concern that the copy might be used inappropriately to suggest involvement of the station in a campaign.
No one from Floyd Junior College appeared at trial to testify as to its motive in purchasing the fitness trail sequence. However, testimony concerning the perceived reason for purchases of the film clips generally was given at trial by Ms. Duncan, News Clips' owner. She believes the majority of her customers purchase clips to study and thereby improve the image they are projecting to the public. She pointed out that she has a number of repeat customers who regularly appear in the news. These include a large public utility, high-level state and federal officials, a teachers' lobbying group, and a corporation which regularly contracts with the Department of Defense. Similar testimony was given by a professional associate of Ms. Duncan's who conducts a news taping business in Canada. The Canadian company has contracts with the Canadian government, including specifically, a contract with Canada's Nuclear Energy Commission.
News Clips also sells clips to lawyers involved in litigation to which a news story may be relevant. Ms. Duncan conceded that a certain percentage of her customers — she thought between five and ten percent — are individuals who simply wish to purchase a story as a souvenir.
WXIA, on the other hand, asserts that the evidence does not establish with sufficient certainty why News Clips' clients purchase the clips or what they are doing with them. The Court thinks it reasonable to infer — and does infer — that some of News Clips' clients — for example, the repeat customers specifically mentioned — do purchase the clips in order to analyze and improve self image. However, the Court rejects as speculative the estimates of what percentage of Ms. Duncan's clients purchase news clips for the purpose of self study.
II. DISCUSSION
Before turning to the substantive issues presented, there are unresolved preliminary issues concerning: (1) whether Plaintiff's March 11, 1981 newscast was "fixed" so as to be subject to copyright and (2) whether Plaintiff properly registered its claim of copyright so as to satisfy the statutory prerequisite for bringing suit. In order to rule on these issues, the Court must make certain further findings of fact. They are:
The fitness trail feature was pretaped.2 During the March 11 broadcast, there was a live introduction of the feature by the anchor person; also, superimposed graphics were added stating the on-the-scene reporter's name and the location. While the program was being aired, a videotape of the finished product was made from a television set in the studio. As is its custom, WXIA kept that videotape for a period of one week, after which it was destroyed. However, also in accordance with its customary practice, WXIA will retain the pretaped fitness trail feature for five to seven years. WXIA retains written scripts of its live broadcasts for a period of one year, and audio tapes of each broadcast for an indefinite period. Thus, WXIA still has a script of the anchor introduction to the fitness trail sequence, the pretaped fitness trail feature, and the audiotape of the entire March 11, 1981 program.
On May 13, 1981, WXIA deposited with the Register of Copyrights an audio tape and transcript of the entire March 11, 1981 broadcast, as well as the pretaped fitness trail feature. On July 24, 1981, WXIA's counsel further deposited a description of the entire March 11 news program. WXIA received a certificate of copyright for the fitness trail segment on May 18, 1981, and a certificate for the entire broadcast on November 3, 1981.
It is a fundamental requirement for copyright protection that a work be "fixed in any tangible medium of expression." 17 U.S.C. § 102.
A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
17 U.S.C. § 101.
The fitness trail sequence was fixed when it was pretaped. The March 11 program as a whole was fixed at the time it was aired and the studio videotape was made.
Except in certain cases not relevant here, no copyright infringement action may be brought until the claim of copyright is registered with the Register of Copyrights in Washington, D.C. 17 U.S.C. § 411(a). Proper registration is a necessary condition precedent to filing suit.3 A copyright owner may obtain registration of a claim by delivering to the Copyright Office an application, the specified fee, and an appropriate deposit of the work. 17 U.S.C. § 408(a). The deposit requirements are set forth generally in 17 U.S.C. § 408(b) and vary according to the nature of the work. As is discussed more fully below, the fitness trail feature is an "unpublished work"; hence, 17 U.S.C. § 408(b)(1) required that the deposit consist of "one complete copy or phonorecord." Additionally, special regulations applicable to a "transmission program," e.g., a television program, also permitted registration of the March 11 broadcast as a whole by depositing an...
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