At least some broadcasts are unpublished. 9 Works are copied in their entirety, 10 and the video clips serve a function similar Publication is the distribution of copies or phonorecords of a 17 U.S.C. $101 (definition of publication) (emphasis added). Since the public performance or display of broadcasts, alone, is not a publication, Pacific and Southern Co., Inc. v. Duncan, 572 F.Supp. 1186, 1197 (N.D. Ga. 1983), the works remain unpublished, unless there is a distribution of, or offer to distribute, videotapes, transcripts or other copies of the program. Because of the creator's right of first publication, there is a stronger presumption that nonconsensual use of unpublished works that the author never intended to distribute, is not fair. See Harper & Row, 471 U.S. 539, 564 (1985) (narrower scope of fair use for unpublished works); H.R. Rep. No. 2337, 89th Cong., 2d Sess. 63 (1966) ("The applicability of the fair use doctrine to unpublished works is narrowly limited since, although the work is unavailable, this is the result of a deliberate choice on the part of the copyright owner. Under ordinary circumstances the copyright owner's 'right of first publication' would outweigh any needs of reproduction for classroom use"). Significantly, Harper & Row did not limit the reference to classroom reproduction to educational copying. Harper & Row, 471 U.S. at 553-554. Although works that are broadcast may be technically unpublished, their dissemination may mean the courts would analogize broadcasts to published works in applying the fair use provision. 10 Verbatim copying is generally not a fair use. See Sony, at 449-50; Nimmer, supra note 2, at 13-90.13 n.61 and cases cited therein. And, assuming that a sufficient portion of an original broadcast were reproduced for commercial purposes, even a quantitatively small taking could infringe. Indeed, were the final (continued...) to the original programming. monitoring is not a fair use. 2. 11 Presumptively, then, broadcast Broadcast Monitoring Case Law 12 In Sony Corp. of America v. Universal City Studios, Inc., the Supreme Court held that the home, noncommercial videotaping for 10(...continued) monitoring product not a copy of the entire broadcast, the entire work is duplicated during the initial videotaping, which is later edited to suit client requests. Such intermediate copying is generally infringing. See Walt Disney Productions v. Filmation Associates, 628 F. Supp. 871, 876 (C.D. Cal. 1986) (Where a "work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work"). Walker v. University Books, Inc., 602 F.2d 859, 864 (9th Cir. 1979) ("[T]he fact that an allegedly infringing copy of a protected work may itself be only an inchoate representation of some final product to be marketed commercially does not in itself negate the possibility of infringement...."); Johnson Controls v. Phoenix Control Systems, 886 F.2d 1173, 1177 (9th Cir. 1989) (unnecessary for district court to review final version of defendant's software in infringement action). 11 Although all of the factors are apparently of equal weight, the Supreme Court has stated in dicta that the "last factor is undoubtedly the single most important element of fair use." Harper & Row, 471 U.S. at 566. It may be presumed that for some viewers, the broadcast monitoring service provides a substitute for the only reason that the viewers watch news programming -- to see their names and likenesses. It may also be presumed that harm flows to copyright owners from commercial news monitoring, since the owners' must compete in the video clip market, whether they exploit that use or not. See Sony, 464 U.S. at 451 ("If the intended use is for commercial gain, that likelihood [of harm] may be presumed."). 12 464 U.S. 417 (1984). of videotapes. 15 that Betamax is limited to noncommercial copying of free broadcast television, and authorizes neither audiotaping, nor even librarying Thus, it is not a fair use to audio- or videotape news and other programming for commercial purposes. Nor is it permissible to tape cable television and other pay services. Several courts addressing the specific issue of commercial broadcast monitoring have held that such reproduction is infringing. 16 17 In Pacific and Southern Co., Inc. v. Duncan, plaintiff WXIA-TV sued defendant TV News Clips for reproducing a one minute 13 The Sony Court defined timeshifting as "the practice of recording a program to view it once at a later time, and thereafter erasing it." Id. at 417, 423. 15 In librarying, "the user records a program in order to keep it for repeated viewing over a longer term [than timeshifting]." 464 U.S. at 459 (Blackmun, J., dissenting). News Clips, for example, libraries its tapes for one month after the pertinent broadcast. 572 F.Supp 1186, 1189 (N.D. Ga. 1983). 16 Pacific & Southern Co. v. Duncan, 220 U.S.P.Q. 859 (N.D. Ga. 1982), 572 F.Supp. 1186 (N.D. Ga. 1983), aff'd, 744 F.2d 1490 (11th Cir. 1984); 618 F.Supp. 469 (N.D. Ga. 1985), aff'd, 792 F.2d 1013 (11th Cir. 1986); Georgia Television Company v. TV News Clips of Atlanta, Inc., -718 F.Supp. 939 (N.D. Ga. 1989), 19 U.S.P.Q. 2d 1372 (N.D. Ga. 1991); Cable News Network, Inc. v. Video Monitoring Services of America, Inc., 723 F.Supp. 765 (N.D. Ga. 1989), rev'd, 940 F.2d 1471 (11th Cir. 1991), vacated, 949 F.2d 378 (11th Cir. 1991), remanded, 959 F.2d 188 (11th Cir. 1992). program. 18 45 second feature story broadcast during plaintiff's 90 minute news Plaintiff sought to enjoin the selling and other distribution of its broadcasts. Defendant filed a cross motion for summary judgment, alleging fair use. However, the court could not decide whether defendant's use was fair without resolving whether plaintiff engaged in a videoclip distribution business comparable and whether plaintiff's story was ever to defendant's, published. 20 19 Both summary judgment motions were denied. Following a bench trial, the court determined that the newscast was fixed and properly registered. 21 The court then held that defendant's copying of the feature was a total reproduction, and not a permissible attempt to relate the substance of the information contained in the feature. Defendant's First Amendment 23 and fair use defenses were rejected. The court 24 22 18 Defendant's television news clipping service monitored and recorded television news, and sometimes public affairs programs. Defendant provided copies of news stories to its clients and solicited new clients from those appearing on programs. Duncan, 220 U.S.P.Q. at 860. 21 Pacific and Southern Co., Inc. v. Duncan, 572 F.Supp. 1186, 1190-91 (N.D. Ga. 1983). 23 Id. at 1193 ("While the Court finds Defendant's argument theoretically provocative, it has little applicability to the question of whether copying the fitness trail feature infringed (continued...) 23 (...continued) Plaintiff's copyright. The fitness trail feature is a 'soft news' piece which, though informational, hardly fits in a category with [hard news films with significant public interest like the] film of the My Lai Lai massacre. Moreover, Plaintiff has preserved the original film; a copy is available to anyone who wants one. Indeed, the fitness trail itself is available for viewing. Thus, the First Amendment offers no defense to Ms. Duncan."). 24 Using a novel fair use analysis, the court reasoned that the factors listed in subparagraphs (1) through (4) are weighed only when a case involves the particular uses listed in the preamble. In determining that defendant's use was copying for subsequent sale, the court concluded that none of the listed uses were implicated, so balancing the four factors was not necessary. Id. at 1195. The court also noted that defendant's copying was not inherently productive or creative, id., and, in dicta, observed that defendant did not qualify for the television news archives exemption in section 108 (f). The exemption applies to the "reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program...." 17 U.S.C. $108 (f) (3). The exemption applies where: (1) the reproduction or distribution is made (2) the collection of the library or archives (3) the reproduction or distribution of the 17 U.S.C. $108 (a). The legislative history of section 108 indicates that the term "audiovisual news program" applies to daily newscasts of local, regional and national television networks, interviews about current events, and on-the-spot coverage of news events, H.R. CONF. REP. (continued...) |