Opposition Brief — TV News Clips of Atlanta, Inc. v. Georgia Television Co.

93-1067

| "No. 93-~ | FES 2 1994

IN THE | orev Gr (hie aa

~~

—

—~— ————

ee

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993 _

TV NEWS CLIPS OF ATLANTA, INC.,

CAROLYN JANNETTE DUNCAN AND

JEFFREY DUNCAN,

Petitioners,

VS.

GEORGIA TELEVISION COMPANY

D/B/A WSB-TV

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

Peter C. Canfield Arnold P. Lutzker

Counsel Of Record) Diane M. Morse

ow, Lohnes & Albertson Dow, Lohnes & Albertson

One Ravinia Drive 1255 23rd St., N.W.

Suite 1600 Washington, D.C. 20037

Atlanta, GA 30346 (202) 857-2500

(404) 901-8800

Counsel for Respondent Georgia Television

Company d/b/a WSB-TV

COUNTERSTATEMENT OF

QUESTION PRESENTED

Whether the district court abused its discretion in

entering an injunction against Defendants, identical

to the injunction previously entered against the same

Defendants in the WXIA case, which prohibits

Defendants’ systematic, unauthorized copying and

sale of WSB-TV’s copyrighted programming?

TABLE OF CONTENTS

PAGE

COUNTERSTATEMENT OF

O08) 75 8B io ol gy -) » i

py 8 Be oe Shy) 6 1G). Be iv

I. STATUTORY PROVISIONS INVOLVED .. 2

Il. COUNTERSTATEMENT OF THE CASE... 2

ie | ere err ee 3

me. See imetant Litigation... . cee ccc ces 5

II. SUMMARY OF THE ARGUMENT ..... 12

IV. REASONS WHY THE WRIT SHOULD

RE ETERETEAELEE ELITES 15

A. The District Court’s Holding That

Defendants’ Systematic, Unauthorized

Copying and Sale of WSB-TV’s

Copyrighted Programming Constitutes

Copyright Infringement is

Consistent With Basic Copyright

Principles and Case Law .......... 15

l. WSB-TV’s News and Public Affairs

Programs are Protected by

EE a waa ah hea oo 16

- ili -

PAGE

r The District Court’s Rejection

of Defendants’ Alleged

Defenses and Its Finding

of Infringement Are

Consistent With Case Law.... 21

B. The Injunction Entered by the

District Court Is Lawful and

Plainly Appropriate

fe rae re 25

V. CONCLUSION

- iv -

TABLE OF AUTHORITIES

PAGE

FEDERAL CASES

iation of American Medi

Colleges v. Carey, 482 F. Supp. 1358

(N.D.N.Y. 1980) ....--- eee e reer eeee 26

Basic Books, Inc. v. Kinko’s Graphics Corp..,

758 F. Supp. 1522 (S.D.N.Y. 1991) .....--+-- 28

Chicago Record-Herald Co. v. Tribune Ass’n.,

275 F. 797 (7th Cir. 1921) ....---+ eee cere: 17

En ia Britannica E v. Crooks,

542 F. Supp. 1156 (W.D.N.Y. 1982) ...--- 26, 29

Fame Publishing Co. v. Alabama Custom Tape, Inc.,

507 F.2d 667 (Sth Cir. 1975)

cert. denied, 423 U.S. 841 (1975) ....---+--- 29

Feist Publications, Inc. v. Rural Telephone Service

Co., 111 S.Ct. 1282 (1991) ....------ 19, 20, 21

isi m WSB-TV

v. TV News Clips of Atlanta,

19 U.S.P.Q.2d 1372

(N.D. Ga. 1991) ....---- eee errr rcees passim

-V-

PAGE

- WSB-TV v

News Clips of Atlanta, 718 F. Supp. 939

toa | eee re ee 8, 17

Gore v. Turner, 563 F.2d 159

be ee Et) 32

r Ww lish Inc. v i

Enterprises, 471 U.S. 539 (1985) ........ passim

Int rvice v Press,

OS UB. SIS CU onc cc ch eicnnivex 17, 18, 21

low iversi Found., Inc. v.

621 F.2d 57 (2d Cir. 1980) ........ 17, 18, 22-23

KCNC-TV Ince. v. Broadcast Information Services,

Inc., 717 F. Supp. 1449

(Sele GO. 5 .~.oss oe 17

Miller v. Universal City Studios, Inc., 650 F.2d

1365 (Sth Cir. 1981) .................. 17, 18

Nati v Bruno’s, In

792 F.2d 726 (8th Cir. 1986)............ 26, 28

Ortho-O-Vision, Inc. v. Home Box Office,

474 F. Supp. 672 (S.D.N.Y. 1979) ........ 26, 29

Nees

Paci h m Vv ncan,

572 F. Supp. 1186 (N.D.Ga. 1983),

ffd in rev'd in

744 F.2d 1490 (11th Cir. 1984),

cert. denied, 471 U.S. 1004 (1985),

on remand, 618 F. Supp. 469 (N.D.Ga. 1985),

3 Me, gw Ge ere re ee passim

Param t Picture _V. ,

16 U.S.P.Q.2d 1142

CUR SU PE oo cv ve des vectivsbenaests 29

Sailor Music v. Gap Stores, Inc., 668 F.2d 84

(2d Cir. 1981), cert. denied,

GIG Thi See SE 8 Whe bi oc viv tenewewass 28

Southwestern Bell Tel. Co. v. Nationwide Ind. Dir.

Serv., Inc., 371 F. Supp. 900

CONG GU OD 6 ce ba Vee vereeseeeseues 29

Wainwright Securities, Inc. v. Wall Street

Transcript Corp., 558 F.2d 91

(2d Cir. 1977), cert. denied,

Pog SP ere 17, 18

Walt Disney Co. v. Powell, 897 F.2d 565

ote. 3 Serer errr rrr ere 26, 28

- vii -

PAGE

FEDERAL STATUTES

17 U.S.C. § 102(a) (1988) .................. 16

17 U.S.C. §411(b) (1988) .............. 5, 29-30

17 U.S.C. § 502(a) (1988) .................. 25

MISCELLANEOUS

H.R. Rep. No. 94-1476, 94th Cong.,

Lt | a 20

: ca i

No. 93-___

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

TV NEWS CLIPS OF ATLANTA, INC.,

CAROLYN JANNETTE DUNCAN AND

JEFFREY DUNCAN,

Petitioners,

VS.

GEORGIA TELEVISION COMPANY

D/B/A WSB-TV

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

Respondent Georgia Television Company d/b/a

WSB-TV ("WSB-TV") hereby files this brief in

1/ Pursuant to Rule 29.1, Sup. Ct. Rules, the

following information is provided: Georgia

Television Company d/b/a WSB-TV is a wholly-

owned subsidiary of Cox Enterprises, Inc.

me

Opposition to a Petition for Writ of Certiorari to

review the judgment and opinion of the United States

Court of Appeals for the Eleventh Circuit entered in

the above entitled case on January 8, 1993.

I.

STATUTORY PROVISIONS INVOLVED

This case involves provisions of the Copyright Act

of 1976, including: 17 U.S.C. §§ 102, 106, 107, 410,

411, 412, 501, 502 and 50S.

II.

COUNTERSTATEMENT OF THE CASE

This is the second time that Defendants have

petitioned this Court for review of a judgment against

them based on their unauthorized copying and sale of

copyrighted broadcast programming. In 1985, this

Court denied Defendants’ petition for certiorari in

Pacific and Southern Company v. Duncan, 572 F.

a

Supp. 1186 (N.D.Ga. 1983), aff'd in part and rev’d in

part, 744 F.2d 1490 (11th Cir. 1984), cert. denied, 471

U.S. 1004 (1985) ("WXIA I"), on remand, 618 .

Supp. 469 (N.D.Ga. 1985), aff'd, 792 F.2d 1013

("WXIA II") (sometimes collectively referred to as

"WXIA"), a case nearly identical to this one in which

the district court entered, and the Court of Appeals

for the Eleventh Circuit affirmed, a permanent

injunction against these same Defendants for

repeated copyright violations. The injunction entered

by the district court and affirmed by the Eleventh

Circuit in the instant case is identical to the

injunction in WXIA.

A. The WXIA Case

In WXIA, the district court held that Defendants’

copying and sale of a portion of a WXIA news

broadcast infringed WXIA’s copyright and that such

a

activity was neither "fair use" nor protected by the

First Amendment. WXIA I, 572 F. Supp. 1186. The

district court nevertheless refused to enjoin

Defendants’ activities, concluding that such an

injunction would infringe Defendants’ First

Amendment rights. Id.

The Court of Appeals for the Eleventh Circuit

affirmed the district court’s entry of judgment for

WXIA, but reversed as an abuse of discretion the

district court’s refusal to enter an injunction. WXIA

I, 744 F.2d 1490. The Court of Appeals reasoned

that "[t]his is a classic case... of a past infringement

and a substantial likelihood of future infringements

which would normally entitle the copyright holder to

a permanent injunction against the infringer." Id. at

1499,

S

me

The Court of Appeals remanded the case to the

district court with instructions to enter a permanent

injunction. On remand, and after this Court’s denial

of Defendants’ petition for writ of certiorari, the

district court entered a permanent injunction against

Defendants, which was affirmed by the Eleventh

Circuit. WXIA II, 792 F.2d 1013.

B. The Instant Litigation

On December 11, 1986, following the Eleventh

Circuit’s affirmance of the permanent injunction in

WXIA and after hearing rumors that despite the

WXIA rulings Defendants were copying and selling

copies of WSB-TV’s broadcasts, WSB-TV began

serving on Defendants, pursuant to 17 U.S.C. §

411(b), advance notices of potential infringement.

The notices reiterated to Defendants that any copying

or sale of copies of WSB-TV’s broadcast news

psf

programs would constitute unlawful copyright

infringement and demanded that Defendants cease

and desist all such activity. Despite the teaching of

the WXIA decisions and despite WSB-TV’s periodic

service on Defendants of such advance notices of

potential infringement, Defendants continued to copy

and sell copies of WSB-TV’s broadcast news

programs and portions thereof.

Despite having received an advance notice of

infringement from WSB-TV on June 29, 1988,

Defendants copied and sold to the city of Atlanta

copies of portions of 27 different WSB-TV broadcast

programs. The portions of these programs copied

and sold by Defendants consisted for the most part of

Atlanta-related aspects of the Democratic National

Convention and ranged from reports on construction

disputes and demonstrations and events within the

Ni eineeeesetimaemmaciammmaaiaiiiicasaaiaiuaiaed

.. P

Convention hall itself to interviews with newsmakers,

political commentary and an hour-long special, made

possible only through the use of complex and

expensive multiple satellite feeds, of various

Convention parties throughout the metropolitan

Atlanta area. Defendants copied and sold this entire

hour-long WSB-TV special on Convention-related

parties, entitled "You're Invited."

WSB-TV registered the copyrights in the twenty

seven programs copied by Defendants, and filed its

Complaint, together with a motion for preliminary

injunction, on September 30, 1988. By their October

28, 1988 Answer, Defendants admitted that they

copied and sold to the City of Atlanta copies of the

27 different WSB-TV broadcast news programs

identified in WSB-TV’s Complaint. At an evidentiary

hearing, Defendants admitted further that they copied

eS }

for commercial sale every news and public affairs

program of WSB-TV whether or not a buyer was

available at the time of copyin.

Defendant Duncan testified that Defendants’

activities in this case differed from their activities at

the time of WXIA only in that, as a result of the

growth of their business, they did not have the time

to engage in as m+ solicitation of new customers.

She also testified that Defendants would not stop

copying and selling copies of WSB-TV’s broadcasts

absent a court order.

On January 9, 1989, the district court made

findings of fact and conclusions of law and granted

WSB-TV’s motion for preliminary injunction.

ae re WSB-TV y

News Clips of Atlanta, 718 F. Supp. 939 (N.D.Ga.

1989) ("WSB-TV _I"). The preliminary injunction

liiameemeeemcamsiaamaiiaaiiiiitsiaiiaiiiaiiiiaiiiiuiiaiaiiiia

- oe

entered was identical to that entered by the district

court and affirmed by the Eleventh Circuit in WXIA.

Following discovery, Defendants and WSB-TV

filed cross-motions for summary judgment. On May

29, 1991, the district court denied Defendants’ motion

for summary judgment and granted WSB-TV’s motion

for summary judgment as to Defendants TV News

Clips and Carolyn Duncan. Georgia Television

Company d/b/a WSB-TV v. TV News Clips of

Atlanta, 19 U.S.P.Q.2d 1372 (N.D.Ga. 1991) ("WSB-

TV_II"). By the order, the district court held that

WSB-TV was entitled to a permanent injunction.

The district court reasoned:

In WXIA I, a nearly identical case involving

the same defendants, when the District Court

refused to grant permanent injunctive relief,

the Eleventh Circuit Court of Appeals

reversed and held that ’this is a classic case,

then, of a past infringement and a substantial

likelihood of future infringements which

= 2

would normally entitle the copyright holder

to a permanent injunction against the

infringer.” WXIA I, 744 F.2d at 1499. The

very fact that defendants are now engaging in

the exact same conduct with a different

plaintiff indicates the appropriateness of a

permanent injunction in this case.

WSB-TV II, 19 U.S.P.Q.2d at 1376.

The injunction granted by the district court in this

case is identical in form to that reviewed and

affirmed by the Eleventh Circuit in WXIA.

By the order, the court also held that WSB-TV

was entitled to recover from TV News Clips and

Carolyn Duncan statutory damages in the amount of

$4,000 for each of the 27 infringements, as well as

costs and attorneys fees. The court stated:

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

——e

a .

other stations’ news broadcasts. In blatant

disregard of the import of the previous

litigation against defendants, defendants

admit that ‘until she [Duncan] is able to

reach a mutually satisfactory arrangement

with these broadcasters, or until she is no

[sic] ordered by a court of law, she will

continue her monitoring activities.’

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.

WSB-TV II, 19 U.S.P.Q.2d at 1376-77.

On January 8, 1993, the Eleventh Circuit

affirmed the judgment of the district court in a per

curiam opinion. Defendants filed a petition for

rehearing, which was denied on November 3, 1993.

III.

SUMMARY OF THE ARGUMENT

Defendants’ claim that this case raises new,

important issues requiring review by this Court is

wrong. Although Defendants neglect to mention it,

this is the second case in which judgment has been

entered against them for repeated copyright

violations.

This Court previously denied Defendants’ petition

for writ of certiorari in WXIA, a case nearly identical

to this one and in which the identical injunction was

entered against Defendants. The instant case is

based on the same well settled body of case law as

WXIA. This case raises no new issues, and it is not

in conflict with the decisions of this Court, or any

other court. Review by this Court is not warranted.

Errennaneeet eee ne

7.

Both this case and WXIA involve straightforward

applications of copyright principles to activities of the

Defendants that are unquestionably infringing. The

decisions are based on a substantial body of case law

holding that news reports, including broadcast news

reports, are protected by copyright. The finding in

both cases that Defendants’ "unabashedly

commercial" activities do not constitute fair use is

entirely consistent with the purpose of Section 107 of

the Copyright Act and a substantial body of case law.

The injunctive relief entered against Defendants

in this case was plainly appropriate. Defendant

Duncan’s own testimony establishes that, absent a

court order, there is a certainty of future

infringements in this case.

Defendants’ claim that the injunction is

overbroad because it prevents them from copying and

a!

selling public domain material, government works and

copyrighted material of others contained in WSB-

TV’s newscasts has no basis in reality. As the court

found in WXIA, Defendants built their business

based not on such material, but on material clearly

protected by the station’s copyright.

Defendants’ claim that this case has sweeping

copyright and fair access implications and establishes

a "federal common law copyright" is nonsense. This

case turns on its own facts and will affect few others

besides Defendants. The record in this case

establishes that, despite a previous judgment against

them in WXIA, Defendants engaged in wholesale

pirating of WSB-TV’s copyrighted works for their

ywn commercial gain. This cannot be fair use, and

constitutes blatant copyright infringement.

~ -

Both the WXIA and WSB decisions are good law

and have been relied on and cited authcritatively by a

number of courts, including this Court in Harper &

Row Publishers, Inc. v Nation Enterprises, 471 U.S.

539 (1985) ("Nation"). This Court should not accept

Defendants’ disingenuous characterization of this case

as one that raises "new" and important issues

requiring review by the Court. Defendants’ petition

for writ of certiorari should be denied.

IV.

REASONS WHY THE WRIT SHOULD

BE DENIED

A. The District Court’s Holding That

Defendants’ Systematic, Unauthorized

Copying and Sale of WSB-TV’s

Copyrighted Programming Constitutes

Copyright Infringement is Consistent With

Basi inciples and Cz W

This case involves a straightforward application

of basic copyright principles. The district court’s

. =

holding that WSB-TV’s broadcast news and public

affairs programs are protected by copyright, and that

Defendants infringed WSB-TV’s copyrights when it

copied and sold twenty seven of WSB-TV’s programs,

is entirely consistent with basic copyright principles

and a substantial ody of case law.

1. WSB-TV’s News and Public Affairs

Pr re P i

Section 102(a) of the Copyright Act provides that

copyright protection subsists "in original works of

authorship fixed in any tangible medium of

expression." 17 U.S.C. § 102(a) (1988). It is

undisputed that WSB-TV’s programs are fixed in a

tangible medium when they are recorded at the time

of broadcast.

Moreover, the district court correctly held that

WSB-TV’s programs are sufficiently original for

ot.

copyright. There is a substantial body of case law

holding that news reports, including broadcast news

reports, meet the threshold level of originality for

copyright protection.” Indeed, there is no authority

to the contrary.?/

2/ See, e.g., Harper & Row Publishers, Inc. v.

Nation Enterprises, 471 U.S. 539 (1985);

International News Service v. Associated Press,

248 U.S. 215 (1918); KCNC-TV Inc. v. Broadcast

Information Services, Inc., 717 F. Supp. 1449

(D.Colo. 1988); WXIA I, 744 F.2d at 1494; Miller

v. Universal City Studios, Inc,, 650 F.2d 1365 (Sth

Cir. 1981); Iowa State University Research

Foundation, Inc. v. American Broadcasting

Companies, 621 F.2d 57 (2d Cir. pe

Wai Inc. v. W

Transcript Corp., 558 F.2d 91 (2d Cir. 1977), cert.

denied, 434 U.S. 1014 (1978); Chicago Record-

Herald Co. v. Tribune Ass’n., 275 F. 797 (7th Cir.

1921).

3/ In granting WSB-TV’s motion for preliminary

injunction, the district court made a specific

factual finding that "WSB-TV has shown that its

broadcasts represent a creative product and

involve editorial discretion." WSB-TV I, 718 F.

Supp. at 946. The district court made the same

(continued...)

. -

The district court in WXIA I succinctly stated the

operative legal principles:

It is axiomatic that copyright protection does

not extend to news ’events’ or the facts or

ideas which are the subject of the news

reports. Miller v. Universal City Studi

Inc., 650 F.2d 1365, 1368 (Sth Cir. 1981)’

Wainwright Securities, Inc. v. Wall Street

Transcript Corp., 558 F.2d 91, 95 (2d Cir.

1977), cert. denied, 434 U.S. 1014 (1978).

But it is equally well-settled that copyright

protection does extend to the reports

themselves, as distinguished from the

substance of the information contained in the

reports. Wainwright, 558 F.2d at 95;

International New Vv

Press, 248 U.S. 215 (1918); see Chicago

Record-Herald Co. v. Tribune Ass’n., 275 F.

797 (7th Cir. 1921); 1 Nimmer on Copyright

§ 2.11[B] (1983). Copyright protects the

manner of expression of the news reports,

"the particular form or collocation of words

in which the writer has communicated it.”"

International News Service, 248 U.S. at 234.

3/ (...continued)

finding as to WXIA’s programs in WXIA I. 744

F.2d at 1494 ("[t]he editorial judgment used to

present effectively the events covered by the

broadcast made it an ’original’ work of

authorship").

-19-

Such protection extends to electronic news

reports as well as written reports. See 17

U.S.C. § 102(a)(5), (6), and (7); see also

Iowa State University Research Foundations,

Inc. v. American Broadcasting Cos., 621 F.2d

57, 61 (2d Cir. 1980).

WXIA I, 572 F. Supp. at 1191-92.

Contrary to Defendants’ claim, this Court’s

decision in Feist Publications, Inc. v. Rural

Telephone Service Co., 111 S.Ct. 1282 (1991)

("Feist"), has no effect on the district court’s holding

in this case. As the district court stated below, the

facts of Feist are "dramatically distinguishable" from

this case. WSB-TV II, 19 U.S.P.Q.2d at 1377.

In Feist, this Court held that an alphabetical,

"garden variety" listing of names, addresses and phone

numbers did not possess the modicum of originality

required for copyright. Feist, 111 S.Ct. at 1296-1297.

Alphabetical white pages listings, however, are far

- 20 -

afield from news and public affairs programs, which

involve editorial discretion, and combine such

elements as video, audio, set design, music, camera

angles, shot selection, narratives, lighting and

graphics.”

The fact is that the district court’s holding in this

case, and the court’s holding in WXIA, are entirely

4/ That such elements constitute original

authorship for copyright purposes is expressly

supported by the legislative history of the

Copyright Act of 1976. The House Report noted

that:

When a football game is being covered by

four television cameras, with a director

guiding the activities of the four

cameramen and choosing which of their

electronic images are sent out to the

public and in what order, there is no

doubt that what the cameramen and the

director are doing constitutes ‘authorship.’

H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 52

(1976).

eS

consistent with Feist.’ Copyright does not protect

facts; it does, however, protect expression of facts.

Indeed, not a single court has given Feist the radicai

interpretation advanced by Defendants.

2. The District Court’s Rejection of

Defendants’ Alleged Defenses and Its

Finding of Infringement Are Consistent

With Case Law A oe

Defendants’ claim that their activities are both

protected by the First Amendment and a fair use

because they provide public access to news broadcasts

is without merit, and the district court properly

5/ That WSB-TV’s news and public affairs

programs are protected by copyright is also

consistent with this Court’s holding in Nation that,

while "news of the day” is not protected by

copyright, "factual narratives” clearly are. 471 U.S.

at 556-57. Indeed, Defendants’ theory would

require reversal of two seminal copyright cases,

Nation and International News Service v.

Associated Press, 248 U.S. 215 (1918).

-—.

rejected it.’ This Court rejected the very same

argument made by the defendant in Nation,

concluding that "Any copyright infringer may claim to

benefit the public by increasing access to the

copyrighted work."” 471 U.S. at 569.

In Nation, this Court recognized that the public

interest in the free flow of information is protected by

6/ Contrary to Defendants’ claims, the record in

this case establishes that WSB-TV provides public

access to its news and public affairs programs.

WSB-TV preserves for at least 30 days a

broadcast-quality videotape copy of all of its

broadcasts and, for certain selected broadcasts,

retains such copies indefinitely. In addition, WSB-

TV preserves for several years a non-broadcast

quality audio and/or visual copy of all of its

broadcasts. WSB-TV has always honored requests

by the public to view tapes at the station.

Defendants, on the other hand, destroy their tapes

of programs within a month of the broadcast.

WXIA I, 572 F. Supp. at 1196.

7/ This Court cited as authority for rejecting the

defendant’s argument the Eleventh Circuit’s

holding in WXIA I. Id. (citing 744 F.2d 1499-

1500).

- 23 -

the copyright law’s refusal to protect facts, as opposed

to the expression of facts. The Court quoted the

following passage from Iowa State University

R nd., Inc. v r

621 F.2d 57 (2d Cir. 1980), a case involving ABC’s

use of a portion of a documentary film:

ABC possessed an unfettered right to use the

factual information revealed in Champion for

the purpose of enlightening its audience, but

it can claim no need to ’bodily appropriate’

lowa’s expression of that information by

utilizing portions of the actual film. The

public interest in the free flow of information

is assured by the law’s refusal to recognize a

valid copyright in facts. The fair use doctrine

is not a license for corporate theft,

empowering a court to ignore a copyright

whenever it determines the underlying work

contains material of possible public

importance.

621 F.2d at 61 (citations omitted).

Moreover, the court in this case and in WXIA

made specific findings that the Defendants activities

mM.

did little, if anything, to increase access to the

stations’ broadcasts. As the court stated in WXIJA I:

[Defendants’] sale of newscast copies does

not substantially further public dissemination

or perpetuation of news accounts. Since

[Defendants] destroy[] [their] tapes within a

month of the broadcast, the only archival

purpose served by [their] activity is that

attendant to getting news clips into private

hands (actually, mostly into corporate file

folders).

$72 F. Supp. at 1196.

Defendants admitted copying and selling copies

of the twenty seven registered programs at issue in

this case. The district court’s holding that

Defendants’ activities are neither protected by the

First Amendment nor a fair use is entirely consistent

with the decisions of this Court and other courts.

Therefore, the district court correctly held that

Defendants infringed the copyright in WSB-TV’s

programs.

se.

B. The Injunction Entered by the District

Court Is Lawful and Plainly Appropriate

to the Violation

The injunction entered against Defendants in this

case, identical to that previously entered against

Defendants in WXIA, is plainly appropriate. The

injunction is consistent with § 502 of the Copyright

Aci,’ which empowers courts to enjoin infringement

of a copyright. It is also consistent with a substantial

8/ Section 502(a) of the Copyright Act provides:

Any court having jurisdiction of a civil

action arising under this title may, subject

to the provisions of section 1498 of title

28, grant temporary and final injunctions

on such terms as it may deem reasonable

to prevent or restrain infringement of a

copyright.

17 U.S.C. § 502(a) (1988).

- Be

body of case law involving a past infringement and a

likelihood of future infringement.”

Defendants admitted that, with the intent to

commercially exploit, they copied every news and

public affairs program of WSB-TV. They also

admitted copying and selling copies of the twenty

seven works at issue in this case, despite receipt of

WSB-TV’s repeated advance notices of infringements.

Defendant Carolyn Duncan testified that Defendants

would not stop copying and selling copies of WSB-

TV’s broadcasts absent a court order. Therefore, the

9/ See, e.g., Walt Disney Co. v. Powell, 897 F.2d

565 (D.C. “Cir. 1990); National Football League v.

McBee & Bruno’s, Inc., 792 F.2d 726 (8th Cir.

1986); WXIA I, 744 F.2d at 1499 n.17;

Encyclopedia Britannica Ed. Corp. v. Crooks, 542

F. Supp. 1156 (W.D.N.Y. 1982); Association of

American Medical Colleges v. Carey, 482 F. Supp.

1358 (N.D.N.Y. 1980); Ortho-O-Vision, Inc. v.

Home Box Office, 474 F. Supp. 672 (S.D.N.Y.

1979).

4.

district court properly held that "[t]his is a classic case

_ of a past infringement . . . which would normally

entitle the copyright holder to a permanent injunction

against the infringer.". WSB-TV II, 19 U.S.P.Q.2d at

1376.

Section 502(a) of the Copyright Act grants courts

broad equitable powers to prevent copyright

infringements. As the court stated in WXIA I:

The district court in this case had the power

to issue an injunction because the statute

provides for injunctions to prevent

infringement of ’a copyright,’ not necessarily

the registered copyright that gave rise to the

infringement action. The opposite result

would be especially unjust in a case such as

this one in which the registered work and the

future works are so closely related, part of a

series of original works created with

predictable regularity and similar format and

function. To refuse injunctive relief under

these conditions would render meaningless

the fact that registration is ’not a condition of

copyright protection.’

744 F.2d at 1499, n.17.

—-_.

Defendants’ claim that the injunction is unlawful

because it protects works not in suit and works not

yet created is without merit. Courts have consistently

held that injunctive relief is available for works of the

plaintiff not in suit and future works where a pattern

of infringement and a likelihood of future

infringement is established!“ Here, Defendant

10/ See, ¢.g., Basic Books, Inc. v. Kinko’s

Graphics Corp., 758 F. Supp. 1522, 1542 (S.D.N.Y.

1991) (injunction covering "works not currently

existing but which may in the future be owned by

plaintiffs"); Walt Disney Co. v. Powell, 897 F.2d

565 (D.C. Cir. 1990) (injunction may be extended

to works not in suit where likelihood of future

mpg established); National Football

, 792 F.2d 726

(8th Cir. 1986) (permanent injunction for works

not yet in existence); WXIA I, 744 F.2d at 1499

n.17 (permanently enjoining copying or sale of

existing and future broadcast news and public

affairs programs); Sailor Music v. Gap Stores, Inc.,

668 F.2d 84 (2d Cir. 1981) (permanently enjoining

defendant from playing radio broadcasts in

clothing store that would infringe copyrighted

musical compositions), cert. denied, 456 U.S. 945

(continued...)

- 29 - |

Duncan’s own testimony establishes that there is a

certainty of future infringements.

10/ (...continued)

(1982); Fame Publishing Co. v. Alabama Custom

Tape, Inc.. 507 F.2d 667 (Sth Cir. 1975)

(permanently enjoining defendant from copying

and selling copies of copyright owner’s hit musical

compositions), cert. denied, 423 U.S. 841 (1975);

Paramount Pictures Corp. v. Labus, 16 U.S.P.Q.2d

1142 (W.D. Wis. 1990) (permanently enjoining

future infringement of works presently owned or

owned in the future by plaintiffs); Encyclopedia

Britannica Ed. Corp. v. Crooks, 542 F. Supp. 1156

(W.D.N.Y. 1982) (permanently enjoining

infringement of future works); Ortho-O-Vision,

Inc. v. Home Box Office, 474 F. Supp. 672

(S.D.N.Y. 1979) (injunction covering future

works); Southwestern Bell Tel. Co. v. Nationwide

Ind. Dir. Serv., Inc., 371 F. Supp. 900 (W.D. Ark.

1974) (permanently enjoining infringement of

existing works or works to be published in the

future).

11/ Moreover, the programs at issue in this case

were registered pursuant to § 411(b) of the

Copyright Act. Section 411(b) provides that the

copyright owner may, either before or after

fixation of the work takes place, institute an action

for infringement, fully subject to the remedies in

§§ 502 through 506 of the Act. Therefore,

(continued...)

—

Defendants’ theory that injunction cannot protect

future works would emasculate the remedy of

injunction in copyright infringement cases. If, as

Defendants claim, no court could enjoin today an

infringement that is certain to occur tomorrow, WSB-

TV and other stations would be forced to file suit

daily to prevent infringement of their copyrighted

news and public affairs programs. As the district

court found, the record in this case established that,

absent an injunction, "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

ll/ (...continued)

Congress created a statutory scheme in § 411(b)

that specifically allows a copyright owner such as

WSB-TV to obtain injunctive relief prior to the

creation of the work.

2.

sheer obstinance defendants will be able to outlast

prospective plaintiffs." WSB-TV II, 19 U.S.P.Q.2d at

1377.

Defendants’ claim that the injunction is

overbroad because it prevents them from copying and

selling public domain material, government works,

material abandoned by WSB-TV and copyrighted

material of others contained in WSB-TV’s newscasts

has no basis in reality. As the court found in WXIA

I], Defendants’ built their business based not on such

material, but on material clearly protected by the

station’s copyright:

[W]e do not read the injunction against

copying or selling "WXIA-TV’s broadcast

news programs’ to preclude [Defendants]

from taping any uncopyrightable work aired

on the WXIA broadcasts -- although it is

difficult to imagine how [Defendants] could

profit from this narrow class of material.

Indeed, we have seen no indication that the

appellant does wish to tape these segments.

ee

We wiil not require the district court to list

every minute or hypothetical exception to its

injunctive order when the thrust of that order

is clear. [Defendants’] professed concern that

the injunction prohibits her from taping

material abandoned by WXIA is similarly

hypothetical. The record reflects that such

material is minimal; indeed, [Defendants]

could at best make only soundless video

recordings of segments in which news anchors

speak in the studio (since audio tapes and

transcripts of the entire broadcast, and

videotapes of non-studio reports are

preserved by the station).

792 F.2d at 1014 (footnote omitted).

Framing an injunction appropriate to the facts of

a particular case is a matter peculiarly within the

discretion of the district court judge. Gore v. Turner,

563 F.2d 159, 165 (Sth Cir. 1977). As in WXIA,

Defendants admitted and the district court found that

Defendants had regularly copied and sold WSB-TV’s

copyrighted newscasts and would continue to do so.

Unless WSB-TV could obtain an injunction, WSB-TV

Se

could enforce its copyrights in its programs only by

finding out which stories have been copied,

registering those stories, and bringing many different

infringement actions. Accordingly, the district court

properly held that WSB-TV is entitled to a

permanent injunction.

V.

CONCLUSION

This case involves a straightforward application

of basic copyright principles to activities of the

Defendants that are unquestionably infringing.

Contrary to Defendants’ claims, this case does not

raise new or important issues requiring review by this

Court, and the decision is not in conflict with the

decisions of this Court, or any other court. ‘The

injunction entered against Defendants in this case,

which is identical to that previously entered against

~ 2

these very same Defendants in WXIA, is plainly

appropriate.

Respondent respectfully requests that this Court

deny the Defendants’ petition for writ of certiorari.

Respectfully submitted,

Peter C. Canfield

(Counsel Of Record)

Dow, Lohnes & Albertson

One Ravinia Drive

Suite 1600

Atlanta, Georgia 30346

(404) 901-8800

Arnold P. Lutzker

Diane M. Morse

Dow, Lohnes & Albertson

1255 23rd St., N.W.

Wasnington, D.C. 20037

(202) 857-2500

Counsel for Respondent Georgia Television

Company d/b/a WSB-TV

Date: February 2, 1994