United Artists Television, Inc. v. Fortnightly Corporation
| Decision Date | 23 May 1966 |
| Docket Number | Civ. A. No. 60-2583. |
| Citation | 255 F. Supp. 177 |
| Parties | UNITED ARTISTS TELEVISION, INC., Plaintiff, v. FORTNIGHTLY CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for plaintiff; Louis Nizer, Gerald Meyer, Gerald Phillips, Herbert N. Bobrow, Donald J. Wollins, John Daly, New York City, of counsel.
Cleary, Gottlieb, Steen & Hamilton, New York City, Smith & Pepper, Washington, D. C., for defendant; Robert C. Barnard, R. Michael Duncan, E. Stratford Smith, Washington, D. C., of counsel.
Rosenman, Colin, Kaye, Petschek & Freund, New York City, for amicus curiae Columbia Broadcasting System, Inc.; Samuel I. Rosenman, Sydney M. Kaye, Asa D. Sokolow, Joseph W. Gelb, New York City, Leon R. Brooks, Washington, D. C., and Philip E. Silberberg, New York City, of counsel.
Marshall, Bratter, Greene, Allison & Tucker, New York City, for amicus curiae Calvada Productions; Royal E. Blakeman and Charles H. Miller, New York City, of counsel.
Alexander & Green, New York City, for amicus curiae Jack Chertok Television, Inc.; Eugene Z. Du Bose, New York City, of counsel.
Graubard & Moskovitz, New York City, for amicus curiae Dena Pictures, Inc.; Seymour Graubard, New York City, of counsel.
Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for amicus curiae American Society of Composers, Authors and Publishers; Herman Finkelstein, Simon H. Rifkind and Jay H. Topkis, New York City, of counsel.
William B. Haughton, Los Angeles, Cal., Gen. Counsel, Directors Guild of America, Inc., amicus curiae.
William Berger, San Francisco, Cal., Gen. Counsel, Screen Actors Guild, Inc., amicus curiae.
This action for infringement of plaintiff's copyrights in moving pictures by defendant's community antenna television (CATV) systems in Clarksburg and Fairmont, West Virginia poses novel questions involving interpretation of certain provisions of the Copyright Act, 17 U.S.C. § 1 et seq.1
In a general sense, this litigation is a commentary on the current scientific and technological revolution whose manifestations in the field of electronics include such forms of mass communication as television over the air—commonly known as TV—and wire television or cable-TV2—one phase of which is CATV.
In a legalistic sense, this case requires the application of traditional judicial techniques of statutory construction to give specific words in Section 1 of the Copyright Act a meaning that will accommodate the underlying legislative purpose and the realities of modern communications technology.
For the reasons expounded in this opinion, the court decides that defendant is liable for infringing plaintiff's exclusive performing rights in the copyrighted works that are the subject matter of this litigation.
This opinion contains the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a).
Two preliminary observations will place the issues and the record in sharper focus. The term "community antenna," as used by defendant for self-description, is a misnomer and reflects a fundamental misconception. Defendant's two systems are not "community" ventures. They are large-scale commercial enterprises, advertising and promoting television programs, and making profit out of the exploitation of television programs, including plaintiff's copyrighted motion pictures. Nor are defendant's operations simply that of passive "antennas" used only to receive telecasts. In fact, defendant's two systems, among other processes, receive, electronically reproduce and amplify, relay, transmit and distribute television programs—operations requiring complex, extensive and expensive instrumentation. These systems function as wire television systems, only one of whose structural components consists of antennas.
Most of the evidentiary facts are not in dispute.3 The parties disagree fundamentally, however, as to the characterization of the evidence, the operative facts and the legal conclusions. To take the most salient example: the electronics experts for both sides agree on the relevant television technology; and the parties themselves do not controvert any of the other basic technological facts, such as the manner in which defendant's electronic instrumentation functions. Plaintiff and defendant, however, argue for diametrically opposed conclusions from those facts.
Because the evidence is technical and this case presents important questions of first impression, the court will express its findings and conclusions in more than customary detail.
The complaint
The amended complaint (hereinafter "complaint"), filed January 24, 1964, alleges defendant's ownership and operation of "two community television systems," one located in and about the city of Clarksburg, West Virginia, and the other in and about the city of Fairmont, West Virginia. (Paragraph "4"). The complaint describes the physical structure, electronic instrumentation and operation of the systems. In this description, the complaint states that defendant's systems "receive and reproduce television signals emanating * * * from television broadcasting stations located in the cities of Pittsburgh, Pa., Steubenville, Ohio and Wheeling, West Virginia"; that the "television signals so received and reproduced * * * are then distributed by defendant by means of cables connected to the homes, residences and places of business of defendant's subscribers in and about" Clarksburg and Fairmont, "against payment by said subscribers of an initial hook-up fee and a monthly service fee to defendant." (Paragraph "5").
The complaint particularizes (paragraphs "6"-"15") plaintiff's exclusive rights as the copyright owner of a large number of copyrighted "motion picture photoplay films," material details in connection therewith being set forth in voluminous exhibits attached to the complaint. Among plaintiff's exclusive rights enumerated in the complaint (paragraph "15") is "the exclusive right to license the exhibition and telecasting" of the listed moving pictures "to television stations," "authorizing them to telecast such motion pictures in their coverage area." It is alleged that the amount of plaintiff's compensation derived from such licensed television stations "depends to a large extent on the size of the television audience for said motion pictures in the local coverage area of the licensee, but not outside thereof."
The complaint (paragraphs "16"-"27") sets forth, as follows, the names and channel numbers of five television stations with whom plaintiff entered into limited license agreements covering a specified number of telecasts of certain listed motion pictures and providing "for free home reception and for no other use or purpose":
KDKA Pittsburgh channel 2
WTAE Pittsburgh channel 4
WIIC Pittsburgh channel 11
WSTV Steubenville channel 9
WTRF Wheeling channel 7
The complaint then charges (paragraphs "28"-"31") that, "by means of its television systems," without license or authority, defendant "did receive, reproduce and distribute in such reproduced form to its subscribers, the television broadcasting signals emitted by" the five above-mentioned television stations, "carrying telecasts" of plaintiff's copyrighted motion pictures, as listed in the complaint; that, by reason of such acts, "defendant did publicly exhibit, perform, represent, produce, reproduce, copy, publish and vend, by means of its television systems, said motion pictures to its subscribers, * * * all of which constituted an infringement" of plaintiff's copyrights; and that defendant's acts "pertaining to each telecast of plaintiff's copyrighted motion picture photoplay films gives rise to a separate claim under the Copyright Act against the defendant with respect to each such telecast." The exhibits attached to the complaint list the respective infringement dates.
The complaint (paragraph "34") also charges defendant with "unfair trade practices and unfair competition."
For relief, plaintiff seeks an injunction, damages, an accounting, costs and attorneys' fees.
The answer
The answer, filed April 1, 1964, is divided into seven parts. The first part contains, inter alia, denials of most of the material facts upon which plaintiff predicates its infringement claims. Defendant refers to each of its systems as "a community antenna system" and a "community antenna system for television reception" (paragraph "4"), "the function of which is the wholly passive one of responding to the energy of broadcast waves which strike it." (Paragraph "5"). Defendant denies engaging in "the performance, exhibition, production, reproduction, representation or publication of motion pictures or any program or advertising" (paragraph "5") and denies the allegations of the complaint charging infringement, unfair trade practices and unfair competition (paragraphs "28"-"35").
The second part (paragraph "36") alleges the defense that plaintiff "has failed to state a cause of action upon which relief may be granted."
The third part (paragraphs "37"-"38"), quoted at length below, alleges the separate defense that plaintiff seeks by this action "to impose an unlawful charge upon the reception by defendant's subscribers of broadcasts by commercial television" in contravention of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-609 (1964), as implemented by regulations of the Federal Communications Commission.
The fourth part (paragraph "39(a)"-"39(e)") pleads five separate defenses: (a) that "all of the motion pictures referred to in the Amended Complaint are in the public domain and unprotected by copyright having been publicly performed and published with the authority of the copyright proprietor without notice of copyright having been affixed thereon in conformity with law"; (b) that there is a failure to state a cause of action for those infringements "for which...
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