Ringgold v. Black Entertainment Televison, Inc.
| Decision Date | 16 September 1997 |
| Docket Number | D,No. 1736,1736 |
| Citation | 44 U.S.P.Q.2d 1001,126 F.3d 70 |
| Parties | 150 A.L.R. Fed. 813, 235 Copr.L.Dec. P 27,693, 44 U.S.P.Q.2d 1001, 25 Media L. Rep. 2387 Faith RINGGOLD, Plaintiff-Appellant, v. BLACK ENTERTAINMENT TELEVISION, INC., Home Box Office, Inc., Defendants-Appellees. ocket 96-9329. |
| Court | U.S. Court of Appeals — Second Circuit |
Barbara Hoffman, New York City, for Plaintiff-Appellant.
Kim J. Landsman, New York City (David M. Levin, Patterson, Belknap, Webb & Tyler, New York City, on the brief), for Defendants-Appellees.
(Dorothy M. Weber, Judith A. Kaminsky, Shukat Arrow Hafer & Weber, New York City; Michael D. Remer, Cowan, DeBaets, Abraham & Sheppard, New York City, submitted brief for amici curiae The Artists Rights Society, Inc. and The Picasso Administration).
Before: MESKILL and NEWMAN, Circuit Judges, and McAVOY, * Chief District Judge.
This appeal primarily concerns the scope of copyright protection for a poster of an artistic work that was used as set decoration for a television program. Faith Ringgold appeals from the September 24, 1996, judgment of the District Court for the Southern District of New York (John S. Martin, Jr., Judge) dismissing, on motion for summary judgment, her copyright infringement suit against Black Entertainment Television, Inc. ("BET") and Home Box Office, Inc. ("HBO"). The District Court sustained defendants' defense of fair use. We conclude that summary judgment was not warranted, and we therefore reverse and remand for further consideration of plaintiff's claim.
1. The copyrighted work. Faith Ringgold is a successful contemporary artist who created, and owns the copyright in, a work of art entitled "Church Picnic Story Quilt" (sometimes hereafter called "Church Picnic" or "the story quilt"). 1 "Church Picnic" is an example of a new form of artistic expression that Ringgold has created. She calls the form a "story quilt design." These designs consist of a painting, a handwritten text, and quilting fabric, all three of which Ringgold unites to communicate parables. The painting is a silk screen on silk quilt. "Church Picnic" is an example of this unusual art form, conveying aspects of the African-American experience in the early 1900's. The painting component of the work depicts a Sunday school picnic held by the Freedom Baptist Church in Atlanta, Georgia, in 1909. Above and below the painting are twelve numbered panels containing a text written in the idiomatic African-American dialect of the era.
The text relates the thoughts of a parishioner who attended the picnic and is waiting to tell her daughter about it when the daughter comes home. The parishioner's daughter is in love with the church pastor, but, as depicted in the painting, the pastor is in love with another woman, and he soon will ask that other woman to marry him. Because the young woman was born out-of-wedlock, the pastor's "high-brow" family is dismayed by the prospect of the imminent engagement. Surrounding the text and painting is a quilted border, consisting of multi-colored triangular shapes of fabric. The very edge of the work is finished with a thin red welt.
Although Ringgold has retained all rights in the copyright in "Church Picnic," the work itself is owned by the High Museum of Art (the "High Museum") in Atlanta, Georgia. Since 1988 the High Museum has held a non-exclusive license to reproduce "Church Picnic" as a poster (" 'Church Picnic' poster" or "the poster"), and to sell those reproductions. The "Church Picnic" poster sells for $20.00 a copy and was not produced as a limited edition. Thousands of copies of the poster have been sold since 1988. Although the license to reproduce poster copies of "Church Picnic" has terminated, copies of the poster remain available for sale.
Below the portion of the poster that displays "Church Picnic" are several identifying words. "High Museum of Art" appears in letters 1 1/4 inches high. Below these words is the phrase "Faith Ringgold, Church Picnic Story Quilt, 1988, gift of Don and Jill Childress" in letters 1/8 inch high. Below this line, in smaller type, appears
2. The alleged infringing use. HBO Independent Productions, a division of HBO, produced "ROC," a television "sitcom" series concerning a middle-class African-American family living in Baltimore. Some time prior to 1992, HBO Independent Productions produced an episode of ROC in which a "Church Picnic" poster, presumably sold by the High Museum, was used as part of the set decoration.
The title character of "ROC" lives with his wife, Eleanor, his adult brother, Joey, and his father. In the episode in question, Roc pressures Joey, a jazz trumpeter, into giving trumpet lessons to some children in the church congregation, so that Joey, a perpetually unemployed gambler, can earn money to repay a debt he owes to Roc. After the children have taken some lessons, the minister of the church suggests that they give a recital in the newly-remodeled church hall. A five-minute scene of the recital concludes the episode. The "Church Picnic" poster was used as a wall-hanging in the church hall.
As the church audience waits to hear the recital, Roc and Eleanor are standing in the background of the scene, next to the audience and slightly to the left of the poster. The minister is also standing in the background, slightly to the right of the poster. The children play very poorly, and it is evident to Roc and Eleanor that Joey has not taught them anything. The scene and the episode conclude with parents of some of the children thanking Joey for the lessons, each set of parents believing that their child played on key but was drowned out by the other children.
In the scene, at least a portion of the poster is shown a total of nine times. In some of those instances, the poster is at the center of the screen, although nothing in the dialogue, action, or camera work particularly calls the viewer's attention to the poster. The nine sequences in which a portion of the poster is visible range in duration from 1.86 to 4.16 seconds. The aggregate duration of all nine sequences is 26.75 seconds. We describe these sequences in more detail below.
The copy of the poster used in the episode was framed without the identifying wording that appears beneath the artwork. As framed, the poster includes a notice of copyright, but the type is too small to be discernible to a television viewer.
A broadcast television network first televised the episode in 1992, and in October 1994 BET aired the episode for the first time on cable television. In January 1995, Ringgold happened to watch the episode on BET (apparently a repeat showing), and at that time became aware of the defendants' use of the poster as part of the set decoration.
3. District Court proceedings. Ringgold sued the defendants, alleging infringement of her copyright in "Church Picnic Story Quilt," in violation of 17 U.S.C. § 106 (1994), because of the unauthorized use of the poster as part of the set decoration for the episode of "ROC." The complaint also alleged common law unfair competition and a violation of New York's statute protecting artistic authorship rights. See N.Y. Arts & Cult. Aff. Law § 14.03 (McKinney Supp.1995).
Prior to discovery, the defendants moved for summary judgment, contending (i) that they were not liable for copyright infringement, because their use of the story quilt was either de minimis or a fair use, (ii) that the unfair competition claim was preempted by the Copyright Act, and (iii) that either (a) the plaintiff had not stated a claim under the Artists' Authorship Rights Law, or (b) the Court should decline to exercise supplemental jurisdiction over that state law claim. Ringgold cross-moved for a preliminary injunction to prevent further displays of her art in the sitcom episode.
The District Court denied the plaintiff's motion for a preliminary injunction, granted defendants' motion for summary judgment, and dismissed the complaint. Apparently accepting, or at least assuming, that the plaintiff had sufficiently alleged a claim of copyright infringement, Judge Martin rejected her infringement claim on the ground that undisputed facts established the defendants' fair use defense. He then dismissed her unfair competition claim on the ground of preemption, which she did not dispute, and declined to exercise supplemental jurisdiction over her remaining state law claim.
The Copyright Act grants certain exclusive rights to the owner of a copyright, see 17 U.S.C. § 106 (1994), including the right to make and distribute copies and derivative works based on the copyrighted work, and the right to display the copyrighted work publicly, id. § 106(1)-(3), (5). In the absence of defenses, these exclusive rights normally give a copyright owner the right to seek royalties from others who wish to use the copyrighted work. See American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 929 (2d Cir.1994, as amended, July 17, 1995) ("American Geophysical "); see also DC Comics, Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 28 (2d Cir.1982) (). Ringgold contends that the defendants violated this licensing right by using the "Church Picnic" poster to decorate the set of their sitcom without her authorization.
The caselaw provides little illumination concerning claims that copyright in a visual work has been infringed by including it within another visual work. Compare Woods v. Universal City Studios, Inc., 920 F.Supp. 62 (S.D.N.Y.1996) (), with Monster Communications, Inc. v. Turner Broadcasting System, Inc., 935 F.Supp. 490 (S.D.N.Y.1996) (). The Nimmer treatise posits the...
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