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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1118

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1737%3A2. Public record. Not legal advice.