Lewis Galoob Toys, at Arguably, this behavior could constitute unclean hands. However, the defense is rarely effective, id. The district court did not err in concluding LANS's behavior was not sufficiently serious to bar it from recovery.
LANS now opposes the injunctive relief it originally sought. Sony Corp. See Universal City Studios, F. A defendant has no right to expect a return on investment from activities which violate the copyright laws. Once a determination has been made that an infringement is involved, the continued profitability of [defendant's] business[ ] is of secondary concern. AVRS claims that because it had a good faith belief in the legality of copying the newscasts containing LANS's copyrighted material, the district court erred by awarding more than minimal damages.
AVRS relies on 17 U. On this record, the district court did not abuse its discretion by declining to reduce the award. Finally, AVRS argues the district court erred by admitting a videotape of the train wreck into evidence. College of the Desert, F. AVRS is incorrect. The videographer who shot the footage testified at trial that she saw her video broadcast on a local channel; another LANS employee testified the station that broadcast on that channel had been licensed to use the footage; and AVRS's log sheets showed AVRS sold a copy of that station's newscast from the day in question to the Southern Pacific Transportation Company, whose train derailed in the wreck.
Assuming error, AVRS was not prejudiced. The exceptions Nimmer would recognize do not apply in this case. See id. We do not imply the mere time and effort LANS invested in making the videotapes entitle the tapes to copyright protection; originality in the work product is required.
See Feist Publications, Inc. Rural Tel. CNN is not precedential even in the Eleventh Circuit since it was vacated for reconsideration by the en banc court. See Ierna v. Arthur Murray Int'l, Inc. The en banc court dismissed the appeal. Cable News Network, Inc. Video Monitoring Servs. In any case, the CNN panel considered an injunction barring the copying of any portion of an entire newscast, which consisted of "various news stories, prerecorded segments, interviews, and weather reports" which themselves were "preexisting, collected and assembled" works, CNN, F.
CNN found the injunction too broad because the newscast was a compilation of preexisting materials, see 17 U. CNN, F. The tapes at issue in this case were not compilations of preexisting works or data; they were preexisting creative works that were incorporated into the kind of compilatory news programs the CNN panel discussed. No court has adopted Nimmer's proposal. Those that have discussed it have found it inapplicable to the facts before them. Pufnstuf" children's television show; court found there "may be certain rare instances when first amendment considerations will operate to limit copyright protection for graphic expressions of newsworthy events" but Nimmer exception was inapplicable because plaintiffs' work did not fit Nimmer's definition of a news photograph ; Roy Export Co.
Columbia Broadcasting Sys. Research Found. American Broadcasting Cos. AVRS cites the Supreme Court's statement in Sony that "[c]opying a news broadcast may have a stronger claim to fair use than copying a motion picture," U. The Court was explaining that some copyrights are more valuable because they "govern material with broad potential secondary markets. Such material may well have a broader claim to protection because of the greater potential for commercial harm.
Thus, "[c]opying a news broadcast may have a stronger claim to fair use than copying a motion picture" because the potential market for copies of news broadcasts is not as great as that for copies of movies. This discussion concerns not the second factor, the nature of the copyrighted work, but the fourth factor, the effect upon the potential market for the copyrighted work.
AVRS argues that because its service is essentially one of time-shifting, the third factor would not count against a finding of fair use even if AVRS had copied all of LANS's copyrighted footage of the train wreck and plane crash.
AVRS relies on the statement in Sony that because "time-shifting merely enables a viewer to see [a televised copyrighted audiovisual work] which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced does not have its ordinary effect of militating against a finding of fair use. While a viewer is "invited to witness [a telecast program] in its entirety free of charge" and may therefore do so at a time the viewer finds convenient, the viewer is not invited to sell copies of the program.
AVRS does not qualify for the exemption from liability provided by 17 U. See 17 U. Wise, F. However, this factor does not weigh nearly so heavily as it might otherwise since there is no evidence that KCAL used the tape in this way. It did not attribute the tape to LANS, and so far as the record discloses, aired it as if it were KCAL's own rather than, for example, indicating that the best tape of the beating had been made by a LANS helicopter crew. Instead, the tape was simply used as part of KCAL's coverage of the riots.
Although KCAL apparently ran its own voice-over, it does not appear to have added anything new or transformative to what made the LANS work valuable--a clear, visual recording of the beating itself.
While the fact that KCAL had requested a license but had been refused one is not dispositive, see Campbell v. Acuff-Rose Music, Inc. Freeman, F. Unlike the circumstances in Campbell, nothing in this record suggests that KCAL requested a license "in a good faith effort to avoid this litigation.
And unlike the use of the original in 2 Live Crew's parody of "Oh, Pretty Woman," KCAL obtained a copy of the tape from another station, directly copied the original, superimposed its logo on the LANS footage, and used it for the same purpose for which it would have been used had it been paid for.
Nature of the copyrighted work. The Denny beating tape is informational and factual and news; each characteristic strongly favors KCAL. Likewise the fact that the tape was published before its use by KCAL.
Although the Videotape is not without creative aspect in that it is the result of Tur's skills with a camera, still this factor makes it a great deal easier to find fair use. Sony Corp. Universal City Studios, Inc. Therefore, this factor weighs substantially in KCAL's favor. Amount and substantiality of what was used. While a small amount of the entire Videotape was used, it was all that mattered. Tullo, which provided a video "news clipping" service by monitoring television news programs, recording them on videotape and selling copies to interested individuals and businesses, " [a]lthough AVRS copied only a small part of the raw footage shot by LANS, it was the most valuable part of that footage.
In preparing a newscast, a television station selects the most effective and illustrative shots from the raw footage available. Here, as there, this factor weighs against KCAL, for "the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else's copyrighted expression.
Effect on the market. This case doesn't fit neatly into a traditional niche, because "news" isn't normally thought of as having a secondary market. To that extent, this factor weighs in favor of KCAL.
Indeed, Sony suggests that this kind of duplication for commercial use may give rise to a presumption or inference of harm. Sony, U. Just as we recognized in Los Angeles News Service v. Columbia Broadcasting System, Inc. The fact that KCAL used LANS's copyrighted footage free of charge, rather than paying LANS or someone else for the footage, or investing in its own helicopter and crew to obtain the footage itself, at least raises an inference that its articulated purpose of reporting the news was mixed with the actual purpose of doing so by using the best version — whether or not it meant riding LANS's or some other station's copyrighted coattails.
See, e. On the other hand, there is a forceful argument that the LANS tape of the Denny beating itself became a news item shortly after it was published because its view was so extraordinary.
To the extent that KCAL ran the tape as a news story, this would weigh in its favor. However, this factor does not weigh nearly so heavily as it might otherwise since there is no evidence that KCAL used the tape in this way.
It did not attribute the tape to LANS, and so far as the record discloses, aired it as if it were KCAL's own rather than, for example, indicating that the best tape of the beating had been made by a LANS helicopter crew. Instead, the tape was simply used as part of KCAL's coverage of the riots. Although KCAL apparently ran its own voice-over, it does not appear to have added anything new or transformative to what made the LANS work valuable — a clear, visual recording of the beating itself.
While the fact that KCAL had requested a license but had been refused one is not dispositive, see Campbell v. Acuff-Rose Music, Inc. Freeman, F. Unlike the circumstances in Campbell, nothing in this record suggests that KCAL requested a license "in a good faith effort to avoid this litigation.
And unlike the use of the original in 2 Live Crew's parody of "Oh, Pretty Woman," KCAL obtained a copy of the tape from another station, directly copied the original, superimposed its logo on the LANS footage, and used it for the same purpose for which it would have been used had it been paid for. Nature of the copyrighted work. The Denny beating tape is informational and factual and news; each characteristic strongly favors KCAL.
Likewise the fact that the tape was published before its use by KCAL. Although the Videotape is not without creative aspect in that it is the result of Tur's skills with a camera, still this factor makes it a great deal easier to find fair use. Sony Corp. Universal City Studios, Inc. Therefore, this factor weighs substantially in KCAL's favor. Amount and substantiality of what was used. While a small amount of the entire Videotape was used, it was all that mattered.
Tullo, which provided a video "news clipping" service by monitoring television news programs, recording them on videotape and selling copies to interested individuals and businesses, "[a]lthough AVRS copied only a small part of the raw footage shot by LANS, it was the most valuable part of that footage. In preparing a newscast, a television station selects the most effective and illustrative shots from the raw footage available. Here, as there, this factor weighs against KCAL, for "the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else's copyrighted expression.
Effect on the market.
0コメント