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s. 1805 represents a drastic departure from these
Indeed, video monitors seek an amendment to Section
107 of the Copyright Act precisely because they know that their
activities are illegal. Having failed in the courts, video
times daily on weekdays and four times a day on the weekends.
WSB-TV also produces numerous public affairs programs every year.
As is true of hundreds of broadcast licensees, the station
invests enormous creative and financial resources in these
It does so in reliance on the fact that its creative
work product will be protected by the United States copyright
In 1986, WSB-TV learned that a video monitor, TV News
clips, was, without permission from the station, videotaping WSBTV's programming and aggressively marketing copies of the programs, or portions of the programs, to the public. According to court testimony, TV News Clips systematically recorded every minute of WSB-TV's news and public affairs programs. TV News clips then made efforts to identify persons who appeared in
segments of WSB-TV programming in order to sell clips to those
TV News clips charged $20
$65 for short clips, and
also fixed project and monthly rates with return customers.
These fees were received without any effort or interest on TV
News clips' part to clear rights or compensate the owners of the
copyrights in the programs.
By way of additional background, WSB-TV had
experienced, on a number of occasions, problems with misuses of
its copyrighted programs by third parties who took and used WSB
TV material without the permission of the station.
of particular concern to the station involved use of a WSB-TV
news story by a political candidate in a way that implied that
the station endorsed the candidate.
In an effort to gain control
over its copyrighted programs and to prevent such misuses of its
material, WSB-TV put TV News Clips on notice for more than one
year that unauthorized copying and marketing of its programming
was illegal. Throughout, TV News Clips maintained its
unfettered, fair use right to tape and sell WSB-TV programming.
Finally, WSB-TV filed a lawsuit against TV News clips for
infringement of the copyrights in its news and public affairs
After a two day hearing on the merits, the District
Court for the Northern District of Georgia, having heard
extensive testimony about TV News clips' method of doing
business, granted WSB-TV's motion for a preliminary injunction.
Georgia Television Company d/b/a WSB-TV v. TV News Clips of
Atlanta, Inc., 718 F. Supp. 939 (N.D. Ga. 1989). The injunction prohibited TV News clips from copying or selling the news and
public affairs programs of WSB-TV.
The Court considered TV News
clips' claim that its activities constituted fair use and,
weighing the four factors in Section 107 of the Copyright Act, rejected the defendant's fair use claim. 4/
The District Court subsequently granted WSB-TV's motion
for summary judgment against TV News Clips on its copyright
Georgia Television Company d/b/a WSB-TV V.
TV News clips of Atlanta, Inc., 19 U.S.P.Q.2d 1372 (N.D. Ga. 1991)
After careful consideration of the facts presented
to it, the Court rejected TV News Clips' claim that its
activities constituted fair use.
The Court made permanent the
injunction granted earlier, and awarded WSB-TV costs and
attorneys fees and statutory damages.
Finding TV News clips'
infringement of WSB-TV's copyrights to be willful, the court
This court finds that, as a result of the WXIA I litigation, defendants clearly were aware of the unlawfulness of their activities. Defendants admit that despite the outcome of WXIA I and despite the entry of a preliminary injunction in this case, defendants have continued to tape and sell copies of other stations' news broadcasts. In blatant disregard of the import of the previous litigation against defendants, defendants admit that "until (TV News clips) is able to reach a mutually satisfactory arrangement with broadcasters, or until (TV News clips) is no [sic] ordered by a court of law, [it] will
4/ TV News clips was the defendant in a previous copyright infringement case. See Pacific and Southern Co. d/b/a WXIA-TVV. Duncan d/b/a TV News Clips, 572 F. Supp. 1186 (N.D. Ga. 1983), aff'd in part and rey'd in part, 744 F.2d 1490 (11th Cir. 1984), cert. denied, 471 U.S. 1004 (1985), on remand, 618 F. Supp. 469 (N.D. Ga. 1985), aff'd, 792 F.2d 1013 (11th Cir. 1986) ("WXIATV"). The court in WXIA-TV also rejected TV News Clips' claim that its activities constituted fair use.
continue [its) monitoring activities." Defendants' Response to "plaintiff's statement of Material Facts to Which There is No Genuine Issue to be Tried" at 12.
These responses indicate that defendants will continue to violate the law, requiring numerous copyright owners to bring successive actions in this and other courts, creating unnecessary litigation, and hoping that by sheer obstinance defendants will be able to outlast prospective plaintiffs.
Id. at 1376-77.
TV News Clips' appeal of the permanent injunction and damages award is currently pending in the Eleventh Circuit.
OTHER VIDEO MONITORING LITIGATION
DENIES FAIR USE DEFENSE
A case similar to WSB-TV, Cable News Network, Inc. y.
Video Monitoring Services of America, Inc., 723 F. Supp. 765
(N.D. Ga. 1989) ("CNN"), was decided shortly after WSB-TV.
the court in WSB-TV, the District Court in CNN held that the
defendant video Monitoring Services' ("VMS") videotaping and sale of CNN's broadcast programming constituted copyright
infringement, and rejected the defendant!s claim of fair use.
The District Court granted CNN a preliminary injunction, and later made the injunction permanent., VMS's appeal of the
permanent injunction is also pending in the Eleventh Circuit.
Other courts that have considered the issue have also found that
video monitoring is not a fair use of copyrighted television news
and public affairs programs.
See e.g., Pacific and Southern Co.
d/b/a WXIA-TV v. Duncan d/b/a TV News Clips, 572 F. Supp. 1186 (N.D.Ga. 1983), aff'd in part and rey'd in part, 744 F.2d 1490
(11th cir. 1984), cert. denied, 471 U.S. 1004 (1985), on remand, 618 F. Supp. 469 (N.D. Ga. 1985), aff'd, 792 F.2d 1013 (11th Cir.
1986); KCNC-TV v. Broadcast Information Services, Inc., 717
F. Supp. 1449 (D.Colo. 1988).
VIDEO MONITORING IS NOT FAIR USE
Court cases to date have fundamentally validated the
right of producers of news and public affairs programs to protect their copyrighted programs. These cases recognize that although creators of news and public affairs programs do not own the news,
they do own their expression of the news. This most basic of copyright principles is challenged by the essence of the proposed legislation.
The fair use doctrine embodied in Section 107 of the
Copyright Act has enabled courts, through its flexible balancing
test, to make fair use determinations on a case by case basis.
Section 107 recognizes that each case brings with it a different
set of facts, and that no one factor will be determinative in
every case. Section 107 is not intended to provide an exhaustive list of "fair uses." Indeed, the section is structured in recognition of the fact that rarely will any activity qualify as a fair use in all situations.
In the case of video monitoring, courts have applied
the fair use test in a manner consistent with prevailing fair use precedent. Courts have uniformly, and we add, properly rejected claims by video monitors that their activities qualify for a