Appendix — Teleprompter Corp. v. Columbia Broadcasting System, Inc.

Supreme Court brief1974

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TABLE OF CONTENTS

Opinion of the Court of Appeals ...............

Judgment of the Court of Appeals ..............

Astended Complaint: «50065 6 VARS

Supplemental Complaint ......................

Answer to Supplemental Complaint and Supple-

mental Answer ...... Be Rl ng peg apa ramen

Order (Pretrial Order Number Two) ..........

Second Supplemental Complaint ................

Answer to Second Supplemental Complaint ......

Pretrial Order Number Three ..............4..

Ee ere ee PET! Ba a

PURI oo kk eke tceeicics ORS

Bie OF AGOONE oaks oc ccce tina

Stipulation Number One ......................

Stipulation Number Two ...................00.

Bamtrpts from Trameeiet oo 3... co oo

TESTIMONY

WITNESSES FOR PLAINTIFFS:

PAGE

Jencks, Richard William:

Direct by Mr. Sokolow .................... 292a

ek ee Baer nena ue Nee a) oo * 299a

Chertok, Jack:

eereek ty Mir, Moriee oo... 5 5. 5. oss eke cs, 310a

Offer of Proof by Mr. Moran .............. 3lla

eee ee ae 312a

Offer of Proof by Mr. Moran .............. 314a

Davis, Edwin W.:

Lrect by air. Scio on. es 5 5 os 314a

Vor tre Or Sis. Barnard ....... 3.0 cccccsnce 321la

og CS | EES Poa n aan aerate = 321la

. 5 Re re eeerenr era

See COI no os cc kv cnn cisensces 322a

NE 6 top ons oc ds kone caea beans 323a

RPO COMIN Fs i vio no Re van 325a

PN or sks vn ook Seseeeasnue 326a

Ram TI ass os ain ss owes ee wea 327a

gee a ee ene 327a

Examination by the Court ................. 365a

5 Ee ere Pere rs” 366a

I i eek io ou a a Sb RRO 366a

PAGE

Gray, Gordon: ° oe

Direct by Mr. Sokolow .......... eave 367a

COON OY BEE. DOSUING is. oo a ccnvassccacen 379a

Voir Dire by Mr. Sokolow ................ 384a

Cross (Cumtinned) cvs anos canscnnvdie sees 384a

II eon he cess es io caret es 390a

MN ES OCF CER as Viv cee s ea ee 390a

Moore, Dale:

Direct by Mr. Sokolow .........-.++-2+-+0- 392a

Offer of Proof by Mr. Sokolow ............. 397a

TOE COOUUNO) sv k0 nid 985 wniee veka nes 398a

Cross ty Mis. Therma: 03... stecceciwne eevee 403a

NE sass vs ee cs mie 419a

Burkey, Evelyn F.:

Direct by Mr. Solow «... «2.000055 «cdg h ceed 420a

Offer of Proof by Mr. Sokolow ............. 422a

Cross by Mr, Barnard ..........---++++0e. 423a

PN POR PC Cee OLE 428a

ee ean. nga eer Gay eater EF eo 429a

Reel, Frank A. :

Direct by Mr. Sokolow ..........+. ciel bhi 430a

Offer of Proof by Mr. Sokolow .........-..- 436a

Cross by Mr. Barnard .............2c00- .. 437a

Finkelstein, Herman:

Direct by Mr. Sokolow ............--+-++5 . 44la

Offer of Proof by Mr. Sokolow ............- 444a

Cross by Mr. Barnard .........----e+ee0-- 446a

United States Bistrict Court

SouTHERN District or New York

64 Civil 3814

dp.

CoLuMBIA BROADCASTING System, Inc., Catvapa Pro-

DUCTIONS, a joint venture, Jack CHERTOK TELEVISION,

Inc., Dena Picrurss, INc.,

Plaintiffs,

US.

TELEPROMPTER CORPORATION and

ConLEYy ELECTRONICS CORPORATION,

Defendants.

(3-29-66) amended

Docket Entries 3

Date Proceedings

Dec. 11-64—Filed complaint and issued summons.

Dec. 23-64—Filed summons summons & return, served deft. 12-15-64

Jan. 5-65—Filed stip. & order extending deft’s time to answer to

1-25-65—Bonsal, J.

Jan 22’65—Filed Stip and Order extending time for defendant to

answer from 1/25/65 to and including 2/9/65, Edel-

stein, J.

Feb. 9-65—Filed deft’s ANSwER.

Feb. 9-65—Filed deft’s notice to take deposition of pltff’s.

Mar. 465—Filed stip. & order adjourning depositions of plffs. to

4-19-65—Levet, J.

Apr. 14-65—Filed stip. & order adjourning depositions of pltffs. &

deft. to 5-19-65—Tenney, J.

vii-.

Docket Entries

Date Proceedings

Apr.

June

July

19-65—Filed pltffs’ affdvt. & notice of motion for summary

judgment—ret. 5-4-65—

19-65—Filed affdvt. of Edwin W. Davis in support of motion

19-65—Filed affdvt. of Royal E. Blakeman

19-65—Filed affdvt. of Herbert Bonis

19-65—Filed affdvt. of Linda Sell

19-65—Filed affdvt. of Jack Chertok

19-65—Filed pltffs’ memorandum in support of motion for sum-

mary judgment, etc.

3-65—Filed stip. adjourning motion for summary judgment to

6-8-65

12-65—Filed stip. & order adjourning date re: depositions of

pitffs & defts. until 20 days after a final order re: pitffs’

motion—etc.—Feinberg, J.

1-65—Filed affdvt. of Asa D. Sokolow in opposition to motion

for Rule 2 Judge

1-65—Filed deft’s affdvt. & notice of motion for a Rule 2

Judge—ret. 5-28-65 before Ryan, J.

1-65—Filed memo endorsed on motion filed 6-2-65—Motion for

Rule 2 judge is denied without prejudice to renewal if

the deft. is so advised after determination of the pending

motion for summary judgment—So ordered—Ryan, J.—

mailed notice

7-65—Filed stip. & order adjourning mdtion for summary

judgment to 6-22-65—Palmieri, J.

14-65—Filed affdvt of Walter Schier in opposition to motion for

summary judgt.

14-65—Filed deft’s memorandum of law in opposition to sum-

mary judgt.

viii

Docket Entries

Date Proceedings

Mar.

21-65—Filed deft’s reply to pitffs’ motion for summary judgment

21-65—Filed affdvt. of Donald D. Schilling in opposition

21-65—Filed affdvt. of Donald L. Guthrie

21-65—Filed affdvt. of Walter A. Kinash in opposition

21-65—Filed affdvt. of A. Earl Cullum, Jr. in support of oppo-

sition

21-65—Filed affdvt. of Joseph Silverman

21-65—Filed affdvt. of Marvin L. Thall

21-65—Filed affdvt. of E. Stratford Smith in opposition

21-65—Filed deft’s memorandum in opposition

16-65—Filed pltffs’ reply memorandum

16-65—Filed pitffs’ reply memorandum

16-65—Filed Opinion #31,880—Nothing herein contained is

intended to express any opinion as to the merits, nor as

to whether deft. should or should not have an opportunity

to discover facts claimed by deft. to be relevant to the

issues here. For the reasons indicated, the motion for

summary judgment is denied—So ordered—Wyatt, J.—

mailed notice

20-66—Filed memorandum endorsed—Motion granted after

hearing, Herlands, J. designated as a Rule 2 Judge & an

order was signed & filed—Ryan, Ch. J.

21-66—Filed order referring action to Herlands, J. for all pur-

poses, Ryan, Ch. J.

21-66—Filed stip & order adjourning motion for designation of

Rule 2 Judge to 1-20-66—Ryan, Ch. J.

21-66—Pre-Trial Confer, Held Before: Herlands, J.

29-66—Filed consent order—granting pltff. leave to file amended

complaint—Herlands, J.

De k : E; . ies

Date Proceedings

Apr. 6-66—Filed pitff’s (CBS) amended complaint

Apr. 7-66—Filed amended summons with notice of service on Katz

Moselle & Schier—4-6-66

Apr. 26-66—Filed deft’s amended ANSWER to amended complaint

May 18-66—Filed transcript of record on proceedings of 3-21-66

3-26-69 | —Pre-trial conference held. HERLANps, J.

6/19/69 —Filed Transcript of record of proceedings, dated 3/26/69

Oct. 14-69—Filed order referring action to Motley, J. for all pur-

poses.—Sugerman, Ch. J.—m/n

Dec 15-69—Hearing held before Motley, J——Motion granted for

leave to file suppl. complaint. Deft has to 1-30-70 to

answer, otherwise more with respect thereto

Dec 31-69—Filed Transcript of record of proceedings, dated Dec.

15-1969

Jan 30-70—Filed defts notice of change of name of attys.

Jan 30-70—Filed defts answer to supplemental complaint and supple-

mental answer.

Oct 23-70—Filed pre trial order Number one—Motley, J.

Apr 15 71—Before Motley, J—Hearing Held—Decision Reserved

May 17 71—Filed Orper that pitff’s motion to file a 2d Supplemental

complaint is granted. Defts shall have until 6-1-71 to file

an answer to 2d Suppl. complaint. All pretrial discovery

re: trial of the first stage of this case to be completed be-

fore 6-30-71. All parties are to-file before 8-1-71 a pre-

trial memorandum as indicated. The parties to file NLT

9-1-71 a new proposed pretrial order relating to the first

stage. If parties are unable to agree on single proposed

order, each pty shall file a separate proposed order by

9-1-71. A final pretrial conference will be held.on 9-15-71

at 9:30 am. The case will proceed to trial on 9-22-71 at

10 am. So Ordered—Motley, J. (mailed notices)

Docket Entries

Date Proceedings

Sept.

24-71—Filed pltff Columbia Broadcasting System for the pro-

duction of documents.

21-71—Filed pltffs CBS second supplemental complaint

21-71—Filed pltff CBS notice of entry

17-71—Filed pre trial order No. 3—Motley, J. =

9-71—Filed transcript of record of proceedings on 4-15-71.

15 71—Pre-Trial Conference held & concluded. Trial Sept. 22

1971 at 2 pm Room 129. Motley, J.

21 71—Pre-Trial Conference held & concluded.

22 71—Trial begun before Motley, J. non-jury.

23 71—Trial Cont’d.

Sept. 24 71—Trial Cont'd.

Sept.

Dec.

27 71—Trial Cont'd.

28 71—Trial Cont’d and adj. to Sept. 30.

30 71—Trial Cont’d and concluded. “Decision Reserved.”

28-71—Filed Transcript of record of proceedings, dated 9-15-71.

28-71—Filed Transcript of record of proceedings, dated 9-23-71.

28-71—Filed Transcript of record of proceedings, dated 9-24-71.

28-72—Filed Transcript of record of proceedings, dated 9-21-71.

28-72—Filed Transcript of record of proceedings, dated 9-22-71.

28-72—Filed Transcript of record of proceedings, dated 9-28-71.

29-71—Filed Transcript of record of proceedings, dated 9-30-71.

May

Jun

Docket Entries —

Date eee

2-72—Filed Opinion #38463—Taking the law in its present

State, we find that the CATV’s before us do not function

as broadcasters within the meaning of the Fortnightly

test, that they therefore do not “perform” pltffs’ works, &

hence do not infringe their copyrights. We, of course,

do not reach any of defts’ arguments other than those

considered above. Settle order on five days’ notice—

Motley, J.

17 72—Filed Pre-Trial Order No. 4 dated Sept. 14 1971. Motley

J. :

. 21-71—Filed Pre Trial Order No. 5. Motley, J.

17-71—Filed Pre Trial Order No. 3. Motley, J.

18-72—Filed stipulation Number Two.

18-72—Filed stipulation Number One.

22-72—Filed Defendants’ Statement and Lists pur. to Paragraph

3 of Pretrial Order No. 3.

22-72—Filed Defendants’ Rebuttal Statement and Lists pur. to

Paragraph 4 of Pretrial Order No. 3.

22-72—Filed Deft’s. Statement of Objections to Rebuttal Exhib-

its pur. to Paragraph 5 of Pretrial Order No. 3.

22-72—Filed Defendants’ Third Additional Document List.

13 72—Filed Defts’ Notice of motion (no-date returnable) for

judgment in form annexed in favor of defts against pltffs

dismissing the complaint, with costs to be taxed by the

Clerk & for allowance of atty’s fees.

13 72—Filed Memo of law in Support of motion filed this day.

23 72—Before Motley J.—Application for Teleprompter to col-

lect $35,000. atty fees—denied.

Docket Entries

Proceedings

Jun 2772—Filed Jupcment—Ordered that the Amended Complait

and First and Second Suppl. Complaints are dismisse

on the merits and that the action is dismissed. Adjudge

that the defts Teleprompter Corp. and Conley Electronic

Corp. recover of the pltffs CBS Inc., Calvada Produ

tions, Jack Chertok Television Inc. and Dena Picture

Incorp. the costs of this action in this Court to be taxe

by the Clerk herein pursuant to 17 U.S.C. Sec 116; an

that the application by said defts for legal fees is heret

denied. Motiey J. Judgment entered—Clerk. (maile

notices ) ENT: 6-28-72.

Jun 2872—Filed Pitff CBS Inc. et al. Notice or AppEat $5.00 fro

final judgment entered 6-27-72. Copies mailed

Aug 22-72—Filed stipulation and order that the attached list of co:

rections of the transcript of trial is deemed to be co

rected & modified to reflect such corrections. MOTLEY, |

Aug 22-72—Filed notice to the docket clerk that the record on appe:

has been certified and transmitted to the U.S.C.A.

—Filed Transcript of record of proceedings, dated June 2.

1972

eee

UNITED STATES COURT OF APPEALS

For THE SECOND CircUIT

Case No. 72-1800

CoLuMBIA Broapcastinc System, Inc., CALvapa Pro-

DUCTIONS, a joint venture, Jack CHERTOK TELEVISION,

Inc., Dena Pictures, INc.,

Plaintiff s-A ppellants,

Vv.

TELEPROMPTER CORPORATION and

Contey Erectronics Corporation,

Defendants-A ppellees.

Filings—Proceedings

Filed copies of docket entries and notice of ap-

peal

- Received docket fee

Filed order extending time to file appellants

brief and appendix to 10-2-72; appellees

brief by 11-1-72; appellants reply brief by

11-15-72

Filed order extending time to file record to

8-22-72

Filed Record (original papers of district court)

Filed motion for leave to file a brief amicus

_curiae (NCAA) with proof of service

Filed order granting leave to file appellant’s

brief not to exceed 64 pages

9-22-72

10- 2-72

10-16-72

10-19-72

11-15-72

11-16-72

11-17-72

xiv

Filings—Proceedings

Filed order granting motion for leave to file a

brief amicus curiae, which is to be filed by

10-2-72 (NCAA)

Filed motion for leave to file brief amicus

curiae (ASCAP) with proof of service

Filed motion for itl aller amicus

curiae and participate in o argument

(Assoc. of Motion Picture Assoc. of Ameri-

ca) with proof of service °

Filed joint appendix ~

Filed brief, appellants with proof of service

Filed joint exhibit (4 vols.)

Filed order ting leave to file brief amicus

curiae (ASCAP)

Filed order granting leave to file brief amicus

curiae (MPAA); otherwise denied

Filed brief, amicus curiae (ASCAP) with

proof of service

Filed brief, amicus curiae (MPAA) with

proof of service

Filed motion to extend time to file appellees

brief with proof of service

Filed order ing motion to extend time to

file appellees brief to 11-15-72; appellees brief

shall not exceed 75 pages

Filed appelles brief w/proof of service

Filed motion for leave to file brief amicus

curiae (National Cable Television Associa-

tion, Inc.) w/proof of service

Filed order granting leave to file brief amicus

curiae (NCTA)

Filed brief (amicus curiae NCTA) w/proof

of service

6- 8-73

10-15-73

10-16-73

Filed reply brief w/proof of service

Filed tal record (origi

, eas (original papers

Argument heard (by: Lumbard, Kaufman,

Mansfield, CJJ)

udgment Affirmed in Part and Reversed &

gery li Sic

Filed judgment

Certified original record & proceedings for:

Cleary, Gottlieb, Steen & Hamilton is

Issued Mandate (opinion & judgment)

Filed notice of filing of petition for writ of

iorari (T. , etal.) (S.C.

a Mew) a

Filed notice of filing of petition for writ of

certiorari (Columbia Broadcasting System,

Inc., et al.) (S. C. No. 72-1633) to

“gulag pane Geet ae

granting petition for writ of certiorari (Tele-

prompter Corporation, et al.)

Filed certified copy of order of Supreme Court

granting petition for writ of certiorari (Co-

lumbia Broadcasting System, et al.)

xvi

Opinion of the Court of Appeals

Court of Appeals, Second Circuit

CotumsBia Broapcastinc System, INnc., et

al. v. TELEPROMPTER CORPORATION

et al.

No. 72-1800 Decided Mar. 8, 1973

Appeal from District Court for Southern District of

New York, Motley, J.; 173 USPQ 778.

Action by Columbia Broadcasting System, Inc., Cal-

vada Productions, Jack Chertok Television, Inc., and Dena

Pictures, Incorporated, against Teleprompter Corporation

and Conley Electronics Corporation for copyright infringe-

ment. From judgment dismissing complaints, plaintiffs

appeal. Modified.

See also 148 USPQ 417.

Asa D. SoxoLow and Szymour Grausarp, both of New ~

York, N. Y., for appellants.

ROsENMAN, CoLin, Kaye, PetscHEK, Freunp & Emit,

New York, N. Y., for Columbia Broadcasting System,

Inc.

MaRsHALL, BratTrer, GREENE, ALLISON & TucKER, New

York, N. Y., for Calvada Productions.

ALEXANDER & GREENE, New York, N. Y., for Jack Cher-

tok Television, Inc.

GrauBarD, Moskovitz, McGotpricx, DANNETT & Horo-

witz, New York, N. Y., for Dena Pictures, Incorporated.

seul

Opinion of the Court of Appeals

Rosert C. BARNARD, JULIUS Levy, CLEARY, GOTTLIEB,

Steen & Hamitton, R. Micnazet Duncan, Katz,

RosENSWEIG & SINDLE, and Davin Z. RosENSWEIG, all

of New York, N. Y., for appellees.

Paut, WEtss, RirK1Inp, WHARTON & GARRISON, HERMAN

FINKELSTEIN, SIMON H. RiFKinp, JAY H. Topxts, and

Paut L. Lask1n, all of New York, N. Y., for American

Society of Composers, Authors and Publishers, amicus

curiae.

Stuart F, FELpsTEIn, CHARLES S. WALSH, and STEPHEN

A. Gop, all of Washington, D. C., for National Cable

Television Association, Inc., amicus curiae.

Puitiipes, NizEr, BENJAMIN, Krim & BALton, Louis

Nizer, GERALD MEYER, and GERALD F. PHI Ps, all of

New York, N. Y., for Motion Picture Association of

America et al., amici curiae.

Before LumBarpo, KAUFMAN, and MANSFIELD, Circuit

Judges.

Lumsarp, Circuit Judge.

Plaintiffs-appellants, Columbia Broadcasting System,

.._Inc. (CBS), Calvada Productions, Jack Chertok Television,

Inc., and Dena Pictures, Incorporated appeal from a final

judgment entered after trial in the Southern District. Ap-

pellants commenced this copyright infringement action’

against defendants-appellees, Teleprompter Corporation

(Teleprompter) and its subsidiary Conley Electronics Cor-

poration, who own and operate numerous Community An-

tenna Television (CATV) systems throughout the country.

*The original action was commenced on December 11, 1964. At-

tempts to consolidate this action with United Artists Television v.

Fortnightly, 255 F. Supp. 177, 149 USPQ 758 (S. D. N. Y. 1966),

afPd 377 F’ 2d 872, 153 t USPQ 696 (2d 1967), rev'd 392 U.S

390, 158 USPQ 1° (1968), in the district Court were tnsyovessful

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xix

Opinion of the Court of Appeals

court, holding that the reception of telecasts of appellants’

copyrighted programs by Teleprompter’s CATV systems

and the distribution of these programs to CATV subscrib-

d) To perform or present the copyrighted work publicly

a drama or, 8 be drones werk ror nt ally if it be

sale, to vend any manuscript or any record whatsoever thereof; to

make or to procure the making of any transcription or record thereof

OF ey om which, in whole or in part, it ma in any manner or by

method exhibited, performed, produced or ;

crane api’, Perform, represent, produce, or reproduce it, in any

Opinion of the Court of Appeals

on Fortnightly, the district court held that the CATV

Systems here did not “perform” the copyrighted works.

The allegations of infringement were limited to an illus-

trative group of copyrighted programs. Similarly, the com-

plaints charged five specific and illustrative CATV systems

with having infringed appellants’ copyrights, although pre-

sumably other CATV systems owned by Teleprompter con-

ducted similar activities. As a result, the copyright claims

at issue involve, and are limited to, the operations of Tele-

prompter’s CATV systems in: five cities at stated ‘periods :

Elmira, New York in November 1964; Farmington, New

Mexico in November 1964, June 1969, and March 1971;

Rawlins, Wyoming in June 1969; Great Falls, Montana in

June 1969; and New York City in June 1969 and March

1971. A knowledge of the operations of each of these

systems is essential to an understanding of our resolution

of the issues.

Elmira: In November 1964, the date of the only in-

fringement alleged with regard to the Elmira CATV

system, the system had the Capacity to carry twelve tele-

vision channels. It received and provided its viewers with

the programs of ten television broadcast stations located in

Elmira and in communities varying from 46 to 173 miles

away. Broadcasts from.CBS affiliates, as well as from some

Stations with other network affiliations, in Buffalo (119

miles), Scranton (76 miles), Syracuse (64 miles), and

Binghamton (46 miles) were received off-the-air® at the

system’s antenna site on a hill adjacent to Elmira and were

made available to the system’s subscribers. Because of dis-

xxi

Opinion of the Court of Appeals

antennas located on a mesa thirty miles from Farmington.

Originally, all the stations were from Albuquerque, New

Mexico (144 miles from Farmington) ; later, a station from

*A microwa link involves the transmission of signals through

i metas pet oes eS Cia Tee

to .S. ©), is trans-

for “[reception the ic.” In the of

Ah ewe pony ie = 2p slp ho

iim

Opinion of the Court of Appeals

Durango, Colorado (43 miles) was added during periods

when one of the Albuquerque stations was not broadcasting.

on ne eee nari lations

the Albuquerque stations directly off-the-air by means

rooftop antennas was not feasible. However, the Albu-

By March 1971, the third date of alleged infringement,

the system had been rebuilt with twelve-channel equipment.

At this time, it received and distributed the broadcasts of

Farmington system by a microwave system, 1300 miles in

length.

On the one additional channel available to the system in

1964 and 1969, it originated some limited programming,

Opinion of the Court of Appeals

which consisted of general interest programs such as local

news, sports, and movies, an automated time and. weather

scan,” and occasionally some educational programs. When

capacity. The system received and made available to its

subscribers programming from six broadcast stations, five

from Denver, Colorado (184 miles from Rawlins), on

which the copyrighted programming was carried, and one

from Casper, Wyoming (87 miles from Rawlins). The

system received the Denver stations, which could not be

received in Rawlins from rooftop antennas, off-the-air on

antennas located ninety miles from Denver, and transmitted

them by microwave link to Rawlins. The Casper station

was received off-the-air on an antenna located.at the edge

of town. Because of mountainous terrain, reception of the

Casper station directly off-the-air by rooftop antennas was

not generally possible; however, the Rawlins audience did

receive its broadcasts as a result of rebroadcasts by a tranis-

lator. At the time of the alleged infringement, the only

program origination on non-broadcast channels that ‘the

CATV system produced was an automated time and weather

scan.

Great Falls: The Great Falls CATV system was a

twelve-channel system at the time appellants allege it to

*This consisted of an automated camera that scanned clock

XXiv

Opinion of the Court of Appeals

have infringed their copyrights. It received and distributed

to its subscribers programming of nine broadcast stations.

Three of the stations (including the one that broadcast the

program whose copyright is alleged to have been infringed)

were in Spokane, Washington (286 miles from Great

Falls), one was in Lethbridge, Canada (163 miles away),

two were in Salt Lake City (466 miles away), and one

was in Helena (71 miles away). The system received the

signal of each of these stations off-the-air by means of

antennas located at varying distances from the originating

stations (17 to 95 miles) and transmitted it by microwave

to a point in Great Falls, from which it was distributed by

cable to the system’s subscribers. Because of distance,

mountainous terrain, and the limitations of the individual

stations, the Great Falls audience could receive none of these

broadcast stations by means of rooftop antennas. In ad-

dition, the system received the signals of two Great Falls

stations off-the-air by means of antennas located in the com-

munity, and distributed these signals to its subscribers. On

a non-broadcast channel, the system offered an automated

time and weather scan. On another non-broadcast channel,

the system originated ten hours per week of movies and

local interest programs.

New York: At the time of the first alleged infringe-

ment, in June 1969, Teleprompter’s New York CATV

system had a twelve-channel capacity. By March 1971, the

time of the second alleged infringement, its capacity had

increased to thirteen channels. Under the terms of the

system’s franchise, it must receive and distribute all eleven

New York City stations and is barred from importing any

stations from outside New York City. From time to time,

microwave has-been used to connect the system’s main

antenna with two subsidiary antennas. The signals of the

New York stations were received off-the-air by these an-

tennas and distributed by cable to the subscribers. The

xxv

Opinion of the Court of Appeals

New York system, on its non-broadcast channels, offered

several forms of automated originations, in addition to

originating from forty to seventy hours of local and general

interest programming per week. In connection with one of

the latter types of originations, a sports event, the Tele-

prompter system sold some commercial time and intercon-

nected with other CATV systems in the New York area.

I. Fortnightly Corp. v. United Artists, Inc.

The starting point in our analysis of appellants copy-

right-infringement claims must, of course, be the Supreme

Court’s decision in Fortnightly Corp. v. United Artists

Television, Inc., supra. In deciding whether the Fortnightly

CATV system “performed,” within the meaning of the

scribers, the Court applied a functional test and held that

the CATV system there involved was functionally related

more to the television viewer, who does not “perform,”

than to the television broadcaster, who does “perform.”

In this regard, Mr. Justice Stewart, speaking for the Court,

said:

The television broadcaster in one sense does less

than the exhibitor of a motion picture or stage play;

he supplies his audience not with visible images but only

with electronic signals. The viewer. conversely does

more than a member of a theater audience ; he provides

the equipment to convert electronic signals into audible

sound and visible images. Despite these deviations from

the conventional situation contemplated by the framers

of the Copyright Act, broadcasters have been judicially

treated as exhibitors, and viewers as members of a

theater audience. Broadcasters perform. Viewers do

not perform * * *. ‘

xxvi

‘Opinion of the Court of Appeals

When CATV is considered in this framework, we

conclude that it falls on the viewer’s side of the line.

Essentially, a CATV system no more than enhances the

viewer's capacity to receive the broadcaster's signals; it

Provides a well-located antenna with an efficient connec-

tion to the viewer’s television set. (Emphasis added. )

pp. 398-99, 158 USPQ at 4-5.

The teaching of Fortnightly is that a CATV re-

ception service that receives broadcast signals off-the-air

from an antenna or other receiving equipment erected with-

in or adjacent to the community it serves, and distributes

the programming received to subscribers, does not “per-

receive the programs without the aid of CATV. Appellants

correctly note that the operations of each of the CATV

systems involved here were different and broader than those

of the system before the Supreme Court in Fortnightly.

Fortnightly’s system provided a simple reception service

and consisted of “antennas located on hills above each city,

with connecting coaxial cables, strung on utility poles, to

carry the signals received by the antennas to the home

television sets of individual subscribers.” Fortnightly, p.

392, 158 USPQ at 2. Although Fortnightly was decided in

1968, the litigation in that case had been instituted in

1960, and, as a result, the Court considered CATV ina

state of technology that was then eight years out-of-date.

Hence, the Court did not have before it a system that orig-

inated programming on non-broadcast channels, that sold

commercials on its origination programming, that had the

capacity to interconnect with other CATV systems, that

utilized microwave links in bringing broadcast signals to

its subscribers, and that imported signals from stations lo-

cated hundreds of miles away from the community that the

xxvii

Opinion of the Court of Appeals

system was intended to serve. Appellants’ counsel infor

us that the Supreme Court was made aware of the chan

ing technology of CATV by counsel for amici and ‘

counsel for Fortnightly (who represent Teleprompter here

Indeed, the Court’s opinion in at least two places’ impli

that it was aware of this fact and was not necessarily la

ing down a broad rule to apply to:all CATV systems t

gardiess of the nature of their operations.”

The question before us is whether the character «

CATV is so changed by the additional services that

cable systems here have undertaken that their total oper

tion, including the reception service, under the

functional test, have become functionally equivalent to tho:

of a broadcaster, and thus these systems should be deems

to “perform” the broadcast programming that they distri

ute. The additional operations undertaken by these CAT

systems, which appellants contend distinguish this ca:

from Fortnightly and bring about this asserted metamo

phosis in the character of CATV, are the following: 1

origination of programming on non-broadcast channel

and the sale of commercial time on such non-broadca:

programming ; 2) interconnection with neighboring CAT’

systems; 3) use of microwave links in bringing broadca:

programming to subscribers ; and 4) the importation of di:

tant broadcast signals from outside the area served by th

CATV system. We shall consider in order the effect

each of these operations on the application of the For

nightly doctrine to the CATV systems involved.

II. Non-broadcast Program Origination

At the outset, we reiterate that what is involved her

is the origination of programming on channels not used fo

eT et er eee

See F nen ag Agr Pe nited Artists, Inc., 392 U. S. 3%

392n. 6, and 25 USPO 1,25 “is68)”

Opinion of the Court of Appeals

mercials on such non-broadcast channels. We do not have

before us, and thus do not consider, the question of what

the effect would be on the Fortnightly doctrine if programs

originated by the CATV system were used to replace se-

lected broadcast programming received from network or in-

dependent stations that would otherwise have been dis-

tributed without alteration to subscribers on broadcast

channels. Similarly, we do not have before us a CATV

system that sold commercials on broadcast programming to

replace the commercials sold and transmitted by the broad-

cast station.

Although the Supreme Court noted in Fortnightly that it

was not dealing with a CATV system that originated non-

broadcast programming,” we fail to see why a system’s

program origination on channels other than those on which

it relays broadcast programming should alter the result in

Fortnightly. Obviously, the system “performs” those pro-

grams that it originates for distribution, to its subscribers.

However, we do not see the logic in appellants’ contention

that this program origination serves to convert the CATV

system into a “performer” of those programs that it dis-

tributes to its subscribers on broadcast channels. Even

though the origination service and the reception service are

sold as a package to the subscribers, they remain separate

and different operations, and we cannot sensibly say that

the system becomes a “performer” of the broadcast pro-

gramming when it offers both origination and reception

services, but remains a non-performer when it offers only

the latter.

In support of their contention, appellants point to As-

sociated Music Publishers, Inc. v. Debs Memorial Radio

Fund, Inc., 141 F. 2d 852, 61 USPQ 161 (2d Cir.), cert.

denied, 323 U. S. 766, 63 USPQ 358 (1944). In that case,

"*Note 11, supra.

xxix

Opinion of the Court of Appeals

the defendants had argued that they should not be subject

to copyright liability for programs that they broadcast

without advertising support but merely as a service to their

listeners. This court rejected that contention, noting that z

the programs, even without advertising, served to increase

the total number of station listeners and thus helped to

maintain the station as a successful financial entity. Ap-

pellants argue that Debs supports their position that the

various functions of the CATV systems should be con-

sidered as a whole to determine whether the system is func-

tionally equivalent to a broadcaster, in which event it should

be deemed a “performer” with regard to all programming

it relays to its subscribers. This argument is but a general

statement of appellants’ particular contention that non-

broadcast program origination converts the system into a

“performer” with regard to broadcast Programming dis-

tributed to subscribers.

Debs, however, does not support either proposition. The

issue there was not whether the programs had been “per-

formed”—indeed, having broadcast the programs, the sta-

tion could hardly contend it was not a “performer”—but

whether the programs had been performed “for profit”;

and one can readily see that indirect “profit” accrued to the

station in Debs as a result of its unadvertised broadcast of

these programs. That decision is not authority for appel-

lants’ broad proposition that the operations of a CATV

system must be viewed and evaluated for copyright purposes

as a whole; and, thus, neither can it support the contention

that a system’s non-broadcast program origination converts

it into a “performer” of broadcast programs distributed to

subscribers by its reception service.

Therefore, we hold that the fact that certain of the

CATV systems involved here originated programming and

non-broadcast channels did not make them “performers,”

Opinion of the Court of Appeals

for copyright purposes, of broadcast programming distrib-

uted to subscribers. A contrary approach would be un-

necessarily wooden and mechanical in its application of

With regard to the sale of commercial time on non-

broadcast programming, although this is another step bring-

ing cable origination programming in competition to some

extent with broadcast programming, again, we do not agree

with appellants’ position that there is some sort of “spill-

over” effect by which the system becomes a “performer”

with regard to its reception service.

Ill. Interconnection

As noted earlier, Teleprompter’s New York CATV

system has occasionally interconnected its facility with those

of the two other CATV systems operating in the New York

area. Appellants analogize this activity to the networking

that is common among broadcast stations, and they point to

this as another factor making the New York system func-

tionally equivalent to a broadcaster. However, the only in-

terconnection with which we are concerned occurred in two

instances of sporting events that the system originated on

non-broadcast channels, There was no interconnection here

relating to the reception of any telecast of appellants’ copy-

righted programs, or indeed of any broadcast programming,

received by the system and distributed to subscribers. There-

fore, we are not presently in a position to evaluate what

seitcnaian in 47 C. F R$ 76201 08 CATV rm it

in . FP. , Tequiring systems wi

more than 3,500 subscribers to commence program origination, which

digeist aun Gln, These rules were

move mre ¥ ayo review of the FCC’s CATV rules. Al-

though FC ato ye ea re cestained in United States v.

Midwest Video, 405 - S. 649 (1972), the FCC has not yet reinstated

XXxi

Opinion of the Court of Appeals

effect interconnection may have on CATV copyright liability

if and when it ever reaches the point at which it is equiva-

lent to a network of CATV systems. In light of the mini-

mal interconnection we have before us, we must agree with

the district court that “[w]hatever this brief interconnec-

tion may portend for the future, it [did] not transform

[Teleprompter’s] present CATV system into a broadcast-

ing network as [appellants] suggest.”

IV. Microwave

A relatively recent development in CATV technology

that was not before the Court in Fortnightly is the use of

microwave to transmit a broadcast signal from the point of

its reception off-the-air to the point from which it is dis-

tributed by cable to the homes of subscribers. Typically,

microwave is used to import distant signals into the CATV

community, an activity the effect of which on the issue be-

fore us we shall consider below.* However, the use of mi-

crowave is not necessarily limited to this activity.

Appellants contend that the use of microwave, in and of

itself, is sufficient to make a CATV system functionally

equivalent to a broadcaster and thus subject to copyright lia-

bility for all the programming it receives and distributes to

its subscribers. We are unconvinced by this contention.

Neither do we believe that the use of microwave makes the

Xxxii

Opinion of the Court of Appeals

point-to-point communication and is merely an alternative,

more economical in some circumstances, to cable in trans-

mitting a broadcast signal from one point in a CATV sys-

tem to another. Hence, we see no reason to attach legal

significance, in terms of copyright liability, to the decision

to utilize microwave links.

V. Importation of Distant Signals

Appellants’ final, and in the end, most persuasive»con-

tention relates to the fact that certain of the CATV systems

involved here distributed to their subscribers signals from

broadcast stations located many miles from the communi-

ties served by the systems. In CATV parlance, this is

known as the importation of distant signals. ‘This activity

was not before the Supreme Court in Fortnightly, and appel-

lants contend that that decision did not signify thata CATV

system does not “perform” a copyrighted television program

when it brings the signal in from another community, often

from another television market, and distributes that signal

to subscribers. :

The CATV system in Fortnightly brought television

signals to viewers who could not otherwise have received

them. However, these signals were already’ in the com-

munity and were not imported by the CATV system from

another community, as is evidenced by the fact that the

system received them from an antenna located in or di-

rectly adjacent to the CATV community. It was only be-

cause of topographical conditions in and around the com-

munity that residents could not receive the signals on their

receivers. Thus, it was the office of the CATV system in

Fortnightly to use its advanced antenna technology and

equipment to overcome these adverse conditions and there-

by to bring the signals to members of the community. The

Supreme Court held that, in performing this function, the

eee

Opinion of the Court of Appeals

CATV system did not “perform,” within the meaning of

the Copyright Act, the programming carried on those

signals. However, in United States v. Southwestern Cable

Co., 392 U.S. 157 (1968), decided just one week before

Fortnightly, the Court explicitly recognized that this was

only one of two major services that CATV systems render

to the communities they serve. In this regard, Mr. Justice

-Harlan, speaking for the Court, stated at p. 163:

CATV systems perform either or both of two

functions. First, they may supplement broadcasting

by facilitating satisfactory reception of local stations

in adjacent areas in which such reception would not

otherwise be possible; and second, they may trans-

mit to subscribers the signals of distant stations en-

tirely beyond the range of local antennae.

When a CATV system is performing this second func-

tion of distributing signals that are beyond the range of

local antennas, we believe that, to this extent, it is function-

ally equivalent to a broadcaster and thus should be deemed

to “perform” the programming distributed to subscribers

on these imported signals. See Select Theatres Corp. v.

Ronzoni Macaroni Co., 59 USPQ 288 (S. D. N. Y., 1943),

cited in Fortnightly, 392 U. S. at 398, n. 23, 158 USPQ

at 5, for the proposition that “broadcasters perform.”

The system’s function in this regard is no longer merely to

enhance the subscriber's ability to receive signals that are

in the area ; it is now acting to bring signals into the com-

munity that would not otherwise be receivable on an an-

tenna, even a large community antenna, erected in that area.

In Fortnightly, the CATV system distributed the pro-

grams to an audience to which they would not otherwise

have been presented. But the Court did not find this fact

significant for copyright purposes. The Court found that

XXxiv

Opinion of the Court of Appeals

the CATV system made these programs available to this

new audience by providing it with the services of an ad-

vanced antenna. It then reasoned that, since a television

viewer was privileged to view whatever programs he could

receive using any available antenna, a CATV system should

not be deemed a “performer” for copyright purposes when

it provided this antenna service as a commercial venture.

When a distant signal is involved, CATV is again distrib-

uting television programming ts a new audience that could

not otherwise have viewed it. However, in this case, the

new audience is one that would not have been able to view

the programs even if there had been available in its com-

munity an advanced antenna such as that used by the

CATV system. The added factor in such a case is the signal

transmitting equipment, such as microwave links, that is

used to bring the programs from the community where

the system receives them into the community in which the

new audience views them. The viewer’s ability to receive

the signal is no longer a product solely of improved an-

tenna technology; rather it results from the system’s im-

portation of the signal into the CATV community from a

separate, distant community.

As a result, we no longer have a system that “no more

than enhances the viewer’s capacity to receive the broad-

caster’s signals.” Fortnightly, p. 399, 158 USPQ at 5.

We hold that when a CATV system imports distant signals,

it is no longer within the ambit of the Fortnightly doctrine,

and there is then no reason to treat it differently from any

other person who, without license, displays a copyrighted

work to an audience who would not otherwise receive it.

For this reason, we conclude that the CATV system is a

“performer” of whatever programs from these distant

signals that it distributes to its subscribers.

There remains, however, the difficult problem of de-

fining what is a distant signal. The range of a television

xxxv

Opinion of the Court of Appeals

signal is a function of many factors, including the current

state of broadcast and reception technology. Some of these

factors, such as topography, are unchanging in a particular

area. But broadcast and reception technology are in a

constant state of flux. Moreover, in determining the range

of a broadcast signal, it may not be enough to say that the

signal is or is not receivable in the community served by

the CATV system. The fact that the signal can be re-

ceived may not be meaningful unless it can project an image

that is acceptable acording to industry norms.

Thus, it seems clear that a precise judicial definition of

a distant signal is not possible. The FCC for purposes of

the CATV signal-carriage requirements, at one time cate-

gorized signals as “distant” and “local” in terms of their

ability to be received a substantial portion of the time by a

substantial portion of the homes in the area by means of

home antennas.” However, we find this definition unsuit-

able for copyright purposes because we believe that any def-

inition phrased in terms of what can be received in area

homes using rooftop antennas would fly in the face of the

mandate of Fortnightly. Thus, in the absence of legislation *

on this matter, we must undertake to establish some stan-

ard for determining what is a distant signal for copyright

Any determination that a particular television signal is

“distant” must, of course, be made with respect to its prox-

imity to a specific local area, which we have termed the

This was ge ageambod yore tier 3 which marks

the boundary acceptable reception of the is ex-

perm tee "30 percent ofthe tine a the be percent

of the Ay beer -R. §§ 73.683 and 73.684. With respect

to locations outside its Grade B contour, a te Fc Tas promulgated

a oo by the FCC.

gine © Sends Soteiinn oh Sant sae

eat carriage requirements

2) = ofthe signal carriage mens CAT ae

Xxxvi

Opinion of the Court of Appeals

CATV community, served by the CATV system and desig-

nated in a franchise issued to it by a state or local govern-

ment body or regulatory authority."* To say that a particu-

Almost 5,000 such franchises have already been with the

number to increase. See Barnett, State, Federal and Local

a Television, 47 Notre Dame Lawyer 681, 702

é! ). Although the franchises have for the most part been issued

by local ities such as cities and towns, at least five states

(Connecticut, Nevada, Rhode Island, Vermont, and Hawaii) have

in effect laws subjecting CATV to state regulation, and more appear

Macca ere Tasco “aacting such state regulatory schemes (eg.,

Massachusetts, Illinois, New ork and New Jersey), probably be-

state regulation aay amagss associated with local 8 compared with

state-regulation, id. at Hence it may be anticipated that

some state 1 may, as part of their new regulatory schemes,

create local i areas or regions within the state based upon

done by Connecter edad population concentrations, as has been

i Opinion of the Court of Appeals

signal than to state what is a distant signal. Accordingly,

we have concluded that any signal capable of projecting,

without relay or retransmittal,” an acceptable image that a

CATV system receives off-the-air during a substantial por-

tion of the time by means of an antenna erected in or ad-

jacent to the CATV community is not a distant signal. This

seems to us to be required by Fortnightly.

_ When the community from which the signal originates,

which we term the originating community, and the CATV

community are different, and when the signal is initially re-

ceived by the system at a location in or near the originating

community and then transmitted to the CATV community

by microwave or cable, a strong presumption arises that it

is a distant signal. The alleged infringer is then under a

heavy burden to show that the signal is not a distant signal

—that is, that it would be equally receivable off-the-air in

the first instance and would project an image of similar

quality, if there were substantially similar receiving equip-

ment located in or adjacent to the CATV community. Un-

less this burden is met, the signal should be deemed a distant

signal, and the CATV system would not be within the am-

bit of Fortnightly with respect to that signal.

Similarly, when the signal is initially received by the

CATV system on an antenna or other receiving device lo-

Opinion of the Court of Appeals

device on which the signal is initially received cannot in any

case be located outside the city limits of the community

that has franchised the CATV system. We can envision

various legitimate circumstances, such as the desire to take

advantage of a tall building, hill, or other topographical

feature, that might cause the system to desire to locate its

antenna or receiving device in an area closely neighboring

the community that it serves. Such an antenna placement

is not motivated by the desire to be closer to the signal’s

point of origin in order to receive it before its strength is

dissipated and then to transmit to another location—pre-

sumably the motive that ordinarily underlies a system’s

decision to locate its antenna outside the community that it

serves. Therefore, we would treat such a case in the same

manner as those in which the antenna is located within the

CATV community. However, we wish to make clear that

the distances we envision here are small, and that any

system that locates its antenna more than a few miles from

the CATV community should bear the burden of showing

that the signals it receives and distributes are not in fact

distant signals.”

Tel i eee sot

uhiley eo ete i Sgro chpecree gad oo rejected

this a 4 s -

Xxxix

Opinion of the Court of Appeals

VI. Conclusion

In light of what we have said, we conclude that the

CATV systems in New York City and Elmira were prop-

erly held not subject to copyright liability. In the case of

New York City, it was stipulated that the Teleprompter

system did not at any time import distant signals. As to

Elmira, although it appears that the system did import and

distribute one distant signal from New York City, it is

stipulated that none of the programs at issue involving

alleged copyright infringement were carried by that station.

The remaining stations distributed by the Elmira system

were stipulated to have been received by an antenna located

on a hill directly neighboring the city, and were thus not

distant signals. Therefore, the Elmira system was properly

held not subject to copyright liability with respect to pro-

gramming carried on these signals.

On the other hand, the Rawlins CATV system im-

ported five Denver stations from a distane of 184 miles. It

was on these Denver stations that the programs at issue

were carried. The system received these stations on an an-

tenna located 90 miles from Denver. Therefore, we con-

clude that these Denver signals were presumptively dis-

tant signals and that, in distributing the programs carried

on these stations, the Rawlins system “performed” the

copyrighted programs and thereby infringed appellants’

copyrights. For the same reason, we hold that the Great

Falls system “performed” the copyrighted programs, which

were distributed to subscribers through the importation

of a signal originating in Spokane, Washington (284 miles

from Great Falls) and received by antennas located 55 and

67 miles from Spokane.

The Farmington system provides potentially the clear-

est example of distant signal importation, in that signals

originating in Los Angeles, California, 600 miles away,

were distributed to subscribers. Only one of the Los An-

Opinion of the Court of Appeals

geles stations broadcast any of the copyrighted programs

at issue. Inasmuch as this station was received off-the-air

by an antenna located a substantial distance from Farm-

ington and then transmitted to the Farmington CATV

system for distribution, it is presumptively a distant signal

under our holding, and Teleprompter must be held to have

“performed” the copyrighted program. The other alleged

infringements relate to programs that were carried by sta-

tions located in Albuquerque (144 miles) and Durango,

Colorado (43 miles). These signals were received by the

CATV system on an antenna located on a mesa 30 miles

outside of Farmington. We believe that a distance of 30

miles is too great to sustain an assertion that the antenna

is adjacent to the CATV community. Instead, on these

facts, we must treat the system as one that has located its

antenna outside the CATV community. Thus, in the ab-

sence of a contrary showing by Teleprompter, these signals

should also be deemed distant signals and the system should

be held to have “performed” the copyrighted programs and

thereby infringed the copyrights.

Of course, each system deemed to have imported distant

signals must be afforded an opportunity to show that, al-

though the receiving antenna was located outside the CATV

community, the particular signal could have been received

in a similar fashion by an equivalent antenna located in or

adjacent to the CATV community. We seriously doubt

that the Rawlins and Great Falls systems could sustain this

heavy burden because of the great distances involved. Si-

milarly, it is doubtful that the Farmington system will be

able to make such a demonstration with regard to the Los

Angeles station. However, the Farmington system may be

in a somewhat better position with regard to its carriage

of the Albuquerque and Durango stations. The alleged in-

fringement resulting from this activity concerned program-

ming broadcast by two CBS affiliates—one from Al-

xii

Opinion of the Court of Appeals

buquerque and one from Durango. The parties have stipu-

lated that

“[p]ursuant to permission granted by CBS and by

[the Albuquerque affiliate], the signals [of the affi-

liate] * * * were rebroadcast [by a translator sys-

tem] located near Farmington * * *. All of the

signals embodying the programs as to which in-

fringement by the Farmington CATV is alleged

* * * were rebroadcast by these translators.”

It was further stipulated that, as a result of these trans-

lators, “[t]hese signals * * * could be received by residents

of Farmington on rooftop antennas.”

From these facts, we conclude, without the need for

further showing by Teleprompter, that these Albuquerque

stations could have been received by a CATV antenna lo-

cated within Farmington of substantially similar sophisti-

cation to that erected on the mesa. Thus, it is clear that the

Albuquerque stations were not distant signals, and there

is no need to remand to the district court for findings on

this point." On the other hand, the stipulation indicated

that the signals of the Durango affiliate were not rebroad-

cast and could not be received by means of rooftop anten-

nas. Thus, if the system is unable to demonstrate that the

Durango station is not a distant signal, it must then be re-

garded as a “performer” of the programming distributed

to subscribers on that station. Since the copyrighted pro-

grams were distributed to subscribers on both the Albu-

**Although these signals were receivable because they were re-

broadcast by translators, our earlier statement of the governing stand-

ard, “that any signal capable of projecting, without relay or trans-

mittal, an acceptable image that can be reached off-the-air * * * by ;

means of an antenna * * * erected in or adjacent to the CATV

community is not a distant signal,” does not make the

stations distant signals. We were not referring to an authorized re-

' broadcast of the signal.

xlii

Opinion of the Court of Appeals

querque and the Durango stations, this leads to the con-

clusion that the Farmington system was a “performer,”

_and thereby infringed the copyright, when it distributed the

programs on the Durango station, but was not a “per-

former,” and did not infringe, when it distributed the same

programs on the Albuquerque station.” Although this re-

sult is somewhat lacking in symetnry, in the final analysis

it will probably result in minimal damages, if any,. being

imposed on the Farmington CATV system; for we find it

hard to see what damages appellants can have sustained,

or what profits Teleprompter earned, from the carriage of

the Durango broadcasts in light of the system’s simultane-

ous non-infringing distribution of the programs on the

. Albuquerque CBS affiliate. By the simple turn of a knob,

the viewers who saw the programs on the Durango station

could have viewed them, as a result of the efforts of the

same CATV system on the Albuquerque station. How-

ever, we think that, unless the Durango station is shown not

to have been a distant signal, there was at least a technical

infringement of the copyright with regard to that station.

Accordingly, in light of our disposition of the issues on

this appeal, we affirm the district court’s holding that Tele-

prompter’s Elmira and New York City CATV system did

not infringe appellants’ copyrights; we reserve the district

court’s decision with regard to Telepronipter’s Rawlins,

Great Falls, and Farmington CATV systems, without prej-

udice, however, to Teleprompter to proceed in the district

court within a reasonable time to show that any of these

systems did not in fact import distant signals; and we re-

mand to the district court for further proceedings, includ-

cense implied in law, since the Durango station’s broadcasts were not

receivable off-the-air ,USEO st ens Peumleghe.

See 377 F. 2d at 884, 153 USPQ at 705-

Opinion of the Court of Appeals

The complex problems presented by the issues in this

Case are not readily amenable to judicial resolution. As the

Supreme Court said in Fortnightly, “[w]e [must] take the

can. We hope that the Congress will in due course legislate

a fuller and more flexible accommodation of competing copy-

right, anti-trust, and communications policy considerations,

consistent with the challenges of modern CATV technology.

Affirmed in part and reversed and remanded in part.

Judgment of the Court of Appeals

Auited States Cowt of Appeals

FOR THE

SEeconp Circu1t

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse

in the City of New York, on the eighth day of March, one

thousand nine hundred and seventy-three.

Present: Hon. J. Epwarp LumBarp

Hon. Irvinc R. KauFMAN

Hon. WALTER R. MANSFIELD

Circuit Judges,

CoLtumBiA BroapcastTinc System, INc.,

CALVADA Propuctions, a joint venture,

Jack CHERTOK TELEVISION, INc. and

Dena Pictures, INCORPORATED,

Plaintiffs-A ppellants, ‘\, . 72-1800

TELEPROMPTER CORPORATION and CoNLEY

ELECTRONICS CORPORATION,

Defendants-A ppellees.

Appeal from the United States District Court for the

Southern District of New York

- This cause came on to be heard-on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by counsel.

On ConsipERATION WueEReEor, it is now hereby or-

dered, adjudged, and decreed that the judgment of said

District Court be and it hereby is affirmed in part and re-

versed in part and that the action be and it hereby is re-

manded to said District Court for further proceedings,

including the determination of damages, as are not incon-

sistent with the opinion of this court.

A. DANIEL Fusaro

Clerk

I Ee INT ORI I MEL NT IEE IE EIT G TEI LA MT AL AMA a8 eam

3 EP SSSETES TRS 12

SSE SeERs Ss

———

Amended Complaint

' UNITED STATES DISTRICT COURT

; SOUTHERN DISTRICT OF NEW YORK

: COLUMBIA BROADCASTING SYSTEM, INC.,

; CALVADA PRODUCTIONS, a joint venture,

“ JACK CHERTOK TELEVISION, INC. and

» DENA PICTURES, INCORPORATED,

Plaintiffs, *

; :° AMENDED COMPLAT

-against-

: 64 Civ. 3814

| TELEPROMPTER CORPORATION and CONLEY

' ELECTRONICS CORPORATION, $

Defendants. $

Plaintiff Columbia Broadcasting System, Inc., by its

attorneys, Rosenman Colin Kaye Petschek & Freund, plaintiff

Calvada Productions, by its attorneys, Marshall, Bratter,

Greene, Allison & Tucker, plaintiff Jack Chertok Television,

Inc., by its attorneys, Alexander & Green, and plaintiff

Dena Pictures, Incorporated, by its attorneys, Graubard &

Moskovitz, for their complaint herein allege as follows:

FACTS COMMON AND APPLICABLE

TO ALL CLAIMS FOR RELIEF

1. The respective claims set forth in this complaint

each arise under Title 17, United States Code, §101.

Jurisdiction is conferred on this Court by Title 28, United

States Code, §1338. .

2. Plaintiff Columbia Broadcasting System, Inc.

(herein called CBS) 18, and at all times hereinafter men-

tioned, was,a corporation duly organized and existing under

the laws of the State of New York,’ and has its principal

Place of business in New York, New York. ©

Amended Complaint

3. Plaintiff Calvada Productions (herein called wr

Calvada) is, and at all times hereinafter mentioned, was, a

Joint venture existittng under the laws of the State of

California and composed of four corporations, three of which

exist under the laws of the State of California with their

pringipal places ‘of business in California, and one of which

exists under the laws of the State of New York with its

principal place of business in New York.

4. Plaintiff Jack Chertok Television, Inc. (herein

called Chertok) is, and at all times hereinafter mentioned,

was, a corporation duly organized aii Zxisting under the

laws of the State of California, and has its principal place

of business in California.

5. Plaintiff Dena Pictures, Incorporated (herein called

Dena) is, and at all times hereinafter mentioned, was, a

corporation duly organized and existing under the laws of

the State of California, and has its principal place of .

business’ in California.

6. Defendant Teleprompter Corporation (herein called |

Teleprompter) is a corporation duly organized and existing

under the laws of the State of New York, and has its princi-

pal place of business in New York, New York.

7. Defendant Conley Electronics Corporation (herein

called Conley) is a corporation duly organized and existing

under the laws of the State of Illinois, is duly authorized

to do business in the State of New York under Section 210

ef the New York General Corporation Law and maintains an

office within the City of New York, County of New York.

It is a wholly-owned subsidiary of defendant Teleprompter

Amended Complaint

8. Plaintiff CBS, through the CBS Television Network,

an unincorporated division, operates a television broadcast-

ing network and furnishes programs (herein called CBS pro-

grams) to approximately 200 television stations in the

United States (herein called affiliates). The affiliates,

with the permission of CBS, broadcast CBS programs to

television viewers without charge.

9. Defendant Teleprompter and/or Conley directly or

indirectly, through subsidiary divisions and/or corporations

owns and operates 16 or more of what it calls "community

antenna television systems" (herein sometimes called CATV).

These systems are located in various parts of the United

States, including the State of New York, and have approxi-

mately 55,000 subscribers representing approximately

250,000 television viewers. |

10. A CATV intercepts and/or receives television signa

broadcast by television stations, including CBS affiliates,

and transmits such signals to its paying subscribers by

cable. Defendant Teleprompter's and/or Conley's systems

utilize complex equipment, including converters, antennae,

-and amplifiers; carey several different television signals

simultaneously; in many cases, actively convert the signal

from the channel on which it is broadcast to another channel

on which it will appear on a television set equipped to

receive CATV signals; and in many cases, transmit signals

through the use of microwave facilities which are a form of

radio transmission. ‘3 e

1l. CATV systems operated by defendant Teleprompter

and/or Conley are business enterprises conducted for profit.

‘wholly original, and is copyrightable subject matter under

Amended Complaint

They receive revenues, inter alia, by charging their many

subscribers installation charges and periodic fees.

FOR A FIRST CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CBS

12. Plaintiff CBS repeats and realleges each and

every allegation contained in paragraphs 1 through 11 of

this complaint. 4 .

13. Plaintiff CBS has created and produced an origi-

nal series of television programs entitled "CBS Reports"

which describes and analyts significant issues and per-

sonalities of the day.

14. Prior to the 10th day of November, 1964, plain-

tiff CBS originated, created and produced a program in

the “CBS Reports” series entitled “The U. S. and the Two

Chinas". This program is a motion picture and a non-

dramatic literary work, contains a large amount of material

the laws of the United States.

15. Plaintiff CBS complied in all respects with

Title“17, United States Code and all other laws governing

copyrights, secured the exclusive rights and privileges

in and to the eogghign of said program, and received

from the Register of Copyrights a certificate of copy-

right registration identified as follows: Class M, No.

Mpl14522, dated November 16, 1964. It is not physically

feasible to attach a copy of said program to this com-

plaint, but a copy will be made available tothe Court

when required.

Amended Complaint

16. At the time of the infringements hereinafter

mentioned, plaintiff CBS was and still is the sole prop-

rietor of all right, title and interest in and to the

exclusive right to publicly perform and deliver, exhibit,

represent, produce, reproduce and copy said program.

17. On November 11, 1964, CBS transmitted the afore-

said program to its affiliates, and on the same date, CBS

affiliates, including affiliates located in Albuquerque,

New Mexico and Syracuse, New York, broadcast the aforesaid

program. -

18. On November 11, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed

and delivered for profit, exhibited, represented, pro-

duced, reproduced and copied the aforesaid program by dis-

tributing it to its many paying subscribers in Farmington,

New Mexico and Elmira, New York, among other places

presently unknown to CBS, by receiving, reproducing and

distributing signals emitted by CBS affiliates, including

affiliates located in Albuquerque and Syracuse.

19. By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiff CBS,

infringed the copyright referred to in paragraph 15, supre..

«.

: 20. By reason of such infringements, plaintiff CBS

has sustained substantial injury and damage, and unless

this Court permanently restrains the defendant from fur-

ther commission of said acts, plaintiff CBS will suffer

irreparable injury for which plaintiff CBS has no adequate

remedy at law.

Amended Complaint

FOR A SECOND CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CBS

21. Plaintiff CBS repeats and realleges each and

every allegation contained in paragraphs 1 through 11 of

this complaint.

22. Plaintiff CBS has created and produced an origi-

nal weekly series of television programs entitled "World

War I", which portrays the era of the First World War, its

causes, events, and after-effects.

23. Prior to the 13th day of November, 1964, plain-

tiff CBS originated, created and produced a program in

the “World War I" series entitled "Battle of Jutland”.

This program is a motion picture and a non-dramatic

literary work, contains material which is wholly original,

and is copyrightable subject matter under the laws of the

United States.

24. Plaintiff CBS complied in all respects with

Title 17, United States Code and all other laws governing

copyrights, secured the exclusive rights and privileges

in and to the copyright of said program, and received from

the Register of Copyrights a certificate of copgrignt =

registration identified as follows: Class M, No. Mp14547,

dated November 24, 1964. It is not physically feasible to

attach a copy of said program to this complaint, but a

copy will be made available to the Court when required.

25. At the time of the infringements hereinafter

mentioned, plaintiff CBS was and still is the sole

proprietor of all right, title and interest in and to the

Amended Complaint

exclusive right to publicly perform and deliver, exhibit,

represent, produce, reproduce and copy said program.

On November 17, 1964, CBS transmitted the afore-

and on the same date, CBS

26.

said program to its affiliates,

including affiliates located in Buffalo, Syra-

affiliates,

e and Binghamton, New York, Scranton, Pennsylvania and

broadcast the aforesaid program.

cus

Albuauerque, New Mexico,

27. On November 17, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed

resented, produced,

istributing

and delivered for profit, exhibited, rep

reproduced and copied the aforesaid ainciaee by d

subscribers in Elmira, New York and

it to its many pay ing

New Mexico, among other places presently un-

reproducing and distributing

including affiliates

Farmington,

known to CBS, by receiving,

signals emitted by CBS affiliates,

located in Buffalo, Syracuse, Binghamton, Scranton and

Albuquerque.

28. By these acts, defendant Teleprompter and/or

license ‘or authority from plaintiff CBS,

ony, without

infringed the copyright referred to in paragraph 24, supra

29. By reason of such infringements, plaintiff CBS

ess

has sustained substantial injury and damage, and unl

this Court permanently restrains the defendant from fur-

of said acts, plaintiff CBS will suffer

which plaintiff CBS has no adequate

ther commission

irreparable injury for

remedy at law.

Amended Complaint

FOR A THIRD CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CBS

30. Plaintiff CBS repeats and realleges each and

every allegation contained in paragraphs 1 through 11 of

this complaint.

31. Prior to the 17th day of November, 1964, plain-

tiff CBS originated, created and produced a special pro-

gram entitled "The Burden and Glory of John F. Kennedy"

dedicated to the memory of the late President Kennedy and

his quest for peace. This program is a motion picture

and a non-dramatic literary work, contains a large amount

of material wholly: original, and is copyrightable subject

matter under the laws of the United States. |

32.. Plaintiff CBS complied in all respects with

Title 17, United States Code and all other laws governing

copyrights, secured the exclusive rights- and privileges

in and to the copyright of said program, and received

from the Register of Copyrights a certificate of copyright

registration identified as follows: Class M, No. Mpl14548,

dated November 24, 1964. It is not physically feasible to

attach-a copy of said program to this complaint, but a

copy will be made available to the Court when required.

33. At the time of the infringements hereinafter

mentioned, plaintiff CBS was and still is the sole prop-

rietor of all right, title and interest in and to the

exclusive right to publicly perform and deliver, exhibit,

represent, produce, reproduce and copy said.program.

Amended Complaint

34. On November 18, 1964, CBS transmitted the afore-

said program to its affiliates, and on the same date, CBS

affiliates, including affiliates located in Buffalo, Syra-

euse and Binghamton, New York, Scranton, Pennsylvania and

Albuquerque, New Mexico, broadcast the aforesaid program.

35 On November 18, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed

and delivered for profit, exhibited, represented, pro-

duced, reproduced and copied the aforesaid program by dis-

tributing it to its many paying subscribers in Farmington,

New Mexico and Elmira, New York, among other places

presently unknown to CBS, by receiving, reproducing and

distributing signals emitted by CBS affiliates, including

affiliates located in Buffalo, Syracuse, Binghamton,

Scranton and Albuquerque.

36. By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiff CBS,

infringed the copyright referred to in paragraph 32, supra.

37: By reason of such infringements, plaintiff CBS

has sugtained substantial injury and “damage, and mane

this Court permanently restrains the defendant from ‘rur-

ther commission of said acts, plaintiff CBS will suffer

irreparable injury for which plaintiff CBS has no adequate

remedy at law. |

ON BEHALF OF PLAINTIFF CALVADA

38. Plaintiffs repeat and reallege each and every

Amended Complaint

allegation contained in paragraphs 1 through 11 of this

complaint.

39. Plaintiff Calvada has created and produced an

original weekly series of television programs entitled

"The Dick Van Dyke Show", a comedy series.

4Oo. Prior to the 22nd day of September, 1964, plain-

tiff Calvada originated, created and produced a program in

"The Dick Van Dyke Show" series entitled "The Alan Brady

Show Goes to Jail”. This program is a motion picture

and a dramatic work, contains a large amount of material

wholly original, and is copyrightable subject matter under

the laws of the United States. “Me

41. Plaintiff Calvada complied in all respects with

Title 17, United States Code and all other laws governing

copyrights, secured the exclusive rights and privileges .

in end to the copyright of said program, and received

from the Register of Copyrights a certificate of copyright

registration identified as follows: Class L, No. Lp29270,

dated December 3, 1964. It is not physically feasible to

attach a copy of said program to this complaint, but a .

cepy Will be made available to the Court when required.

42, At the time of the infringements hereinafter

mentioned, plaintiff Calvada was and still is the sole

proprietor of the copyright described in paragraph 41,

supra, and plaintiff CBS was and still is the sole and

exclusive licensee of the right to publicly perform, ex- :

hibit, represent, produce, reproduce and copy said pro-

gram by means of television.

Seas

lla

Amended Complaint

43. On November 11, 1964, CBS transmitted the afore-

said program to its affiliates, and on the same date, CBS

affiliates, including affiliates located in Albuquerque,

New Mexico and Binghamton and Syracuse, New York, broad-

cast the aforesaid program.

4k. On November 11, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed,

exhibited, represented, produced, reproduced and copied

the aforesaid program by distributing it to its many

paying subscribers in Farmington, New Mexico and Elmira,

New York, among other places presently unknown to plain-

tiffs, by receiving, reproducing and distributing signals

emitted by CBS affiliates, including affiliates located

in Albuquerque, Binghamton and Syracuse.

45. By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiffs,

infringed the copyright referred to in paragraph 41, supra.

46. By reason of such infringements, plaintiffs CBS

and Calvada have sustained substantial injury and damage,

and unless this Court permenently restrains the defendant

from furtier commission of said acts, plaintiffs CBS and

Calvada will suffer irreparable injury for which plain-

tiffs CBS and Calvada have no adequate remedy at law.

FOR A FIFTH CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CBS

AND A SECOND CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CALVADA

47. Plaintiffs repeat and reallege each and every

allegation contained in paragraphs 1 through 11 and para-

°w- his complaint.

Amended Complaint

48. Prior to the 29th day of September, 1964, plain-

tiff Calvada originated, created and produced a program

in "The Dick Van Dyke Show" series entitled "Three Letters

From One Wife". This program is a motion picture and a

dramatic work, contains @ large amount of material wholly

original, and is copyrightable subject matter under the

laws of the United States.

49. Plaintiff Calvada complied in all respects with

Title 17, United States Code and all other laws governing

copyrights, secured the exclusive rights and privileges in

and to the copyright of said program, and received from

the Register of Copyrights a certificate of copyright

registration identified as follows: Class L, No. Lp29e71,

dated December 3, 1964. It is not physically feasible to

attach a copy of said program to this complaint, but a

copy will be made available to the Court when required.

50. At the time of the infringements hereinafter

mentioned, plaintiff Calvada was and still is the sole

proprietor of the copyright described in paragraph 49,

supra, and plaintiff CBS was and still is the sole and ex-

clusive licensee of the right to publicly perform, exhibit,

represent, produce, reproduce and copy said program by

means of” television.

51. On November 18, 1964, CBS transmitted the afore-

~ said program to its affiliates, and on the same date, CBS

affiliates, including affiliates located in Albuquerque,

New Mexico, Buffalo, Syracuse and Binghamton, New York,

and Scranton, Pennsylvania, broadcast the aforesaid pro-

-—--

13a

Amended Complaint

52. On November 18, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed,

exhibited, represented, produced, reproduced and copied

the aforesaid program by distributing it to its many paying

subscribers in Farmington, New Mexico and Elmira, New Sack,

among other places prcneakhy unknown to plaintiffs, by

receiving, reproducing and distributing signals emitted

by CBS affiliates, including affiliates located in Albu-

querque, Buffalo, Syracuse, Binghamton and Scranton.

53. By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiffs, in-

fringed the copyright referred to in paragraph 49, supra.

p 54. By reason of such infringements, plaintiffs CBS

and Calvada have sustained substantial injury and damage,

and unless this Court permanently restrains the defendant

from further commission of said acts, plaintiffs CBS and

Calvada will suffer irreparable injury for which plain-

tiffs CBS and Calvada have no adequate remedy at law.

FOR A SIXTH CLAIM FOR RELIEF

ON BEHALF-OF PLAINTIFF CBS

AND A THIRD CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CALVADA

55. Plaintiffs repeat and reallege each and every

allegation contained in paragraphs 1 through 11 and para-

graph 39 of this complaint.

56. Prior to the 20th day of October, 1964, plain-

tiff Calvada originated, created and produced a program

in "The Dick Van Dyke Show" series entitled "Pink Pills

and Purple Parents". This program is a motion picture

’

Amended Complaint

and a dramatic work, contains a large amount of material

wholly original, and is copyrightable subject matter under

the laws of the United States.

Sy. Plaintirt Calvada complied in all respects with

Title 17, United States Code and all other laws governing

copyrights, secured the exclusive rights and privileges in

and to the copyright of said program, and received from

the Register of Copyrights a certificate of copyright

registration identified as follows: Class L, No. Lp29272,

dated December 3, 1964. It is not physically feasible to

attach a copy of said program to this complaint, but a

copy will be made available to the Court when required.

58. At the time of the infringements hereinafter

mentioned, plaintiff Calvada was and still is the sole

proprietor of the copyright described in paragraph 57,

Supra, and plaintiff CBS was and still is the sole and ex-

clusive licensee of the right to publicly perform, exhibit,

represent, produce, reproduce and copy said program by means

of television.

39. On November 25, 1964, CBS transmitted the afore-

said program to its affiliates, and on the same date, CBS

affiliates, including the CBS affiliate located in Johns-

town, Pennsylvania, broadcast the aforesaid program.

60. On November 25, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed,

exhibited, represented, produced, reproduced and copied the

aforesaid program by distributing it to its many paying

subscribers in Johnstow, Pennsylvania, among other places

Amended Complaint

presently unknown to plaintiffs, by receiving, reproducing

and distributing signals emitted by. CBS affiliates, in-

cluding the affiliate located in Johnstown, Pennsylvania.

61. By these acts, defendant Teleprompter and/or

Conley, witout license or authority from plaintiffs, in-

fringed the copyright referred to in paragraph 57, Supra.

62. By reason of such infringements, apart CBS

and Calvada have sustained substantial injury ana damage,

and unless this Court permanently restrains the defendant

trom further commission of said acts, plaintiff CES and

Calvada will suffer irreparable’ andgury for which plain-

tiffs CBS and Calvada have no adequate remedy at law.

63. Plaintiffs repeat and reallege each and every

allegation contained in paragraphs 1 through 11 of this

complaint.

SA. Plaintiff Chertok has created and produced an-

original weekly series of ion programs entitled

"ty Living Doll", a comedy series~

65. Prior to the 8th day of November, 1964, plain-

tiff Chertok originated, created and produced a program in

the "My Liying Doll" series entitled "me Love Machine".

This pregren’ is a motion picture and a dramatic work, con-

tains a large amount of material wholly origindl, and is

copyrightable subject matter under the laws of the United

States. fs =

Amended Complaint

66. Plaintiff Chertok complied in all respects with

Title 17, United States Code anid all other laws governing

copyrights, secured the exclusive rights and privileges in

and to the copyright of said program, and received from

the Register of Copyrights a certificate of copyright

registration identified as follows: Class L, No. Lp29267,

Gated December 3, 1964. It is not physically feasible to

attach a copy of said program to this complaint, _ but a

copy will be made available to the Court when required,

67. At the time of the infringements hereinafter

mentioned, plaintiff Chertok was and still is the sole

proprietor of the copyright described in paragraph 66,

Supra, and plaintiff CBS was and still is the sole and ex-

elusive licensee of the right to publicly perform, exhibit,

represent, produce, reproduce and copy said program by

means of television.

68. On November 8, 1964, CBS transmitted the afore-

said program ‘to its affiliates, and on the same date, CBS

affiliates, including affiliates located in Albuquerque,

New Mexico and Binghamton and Syracuse, New York, broad-

cast “the aforesaid program.

69. On November 8, 196%, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed,

exhibited, represented, produced, reproduced and copied

the aforesaid program by distributing it to its many pay-

ing subscribers in Farmington, New Mexico and Elmira, New

York, among other places presently unknown to plaintiffs,

by receiving, reproducing and distributing signals emitted

17a

Amended Complaint

* py CBS affiliates, including affiliates Ideated in Albu-

querque, Binghamton and Syracuse.

70. By these acts, defendant Teleprompter. and/or

Conley, without license or authority from plaintiffs, in-

fringed the copyright referred to in paragraph 66, supra.

7l. By reason of such infringements, plaintiffs CBS

and Chertok have sustained substantial snjury and damage,

and unless this Court permanently restrains _ defendant

from further peminatint of said acts, plaintiffs CBS and

Chertok will suffer irreparable injury for which plaintiffs

CBS and Chertok have no‘adequate remedy at law.

72. Plaintiffs repeat and reallege each and every

allegation contained in paragraphs 1 through 11 and para- |

graph 64 of this complaint.

73. Prior to the 15th day of November, 1964, plain-

tiff Chertok originated, created and produced a program in

the "ay Living Doll” series entitled “The Beauty Contest”.

This program is & ection picture and a-dramatic work, con-

tains a large amount of material wholly original and is

copyrightable subject matter under the laws of the United

States.

74. Plaintiff Chertok coupled in all respects with

‘Title 17, United States Code and all other laws’ governing

copyrights, secured the exclusive rights and privileges in

and to the ‘copyright of said program, and received from the

tration identified as follows: Class L, No. Lp29268,

dated December 3, 1964. It is not physically feasible to

attach a copy of said program to this complaint, but a

copy will be made available to the Court when required.

75. At the time of the infringements hereinafter

mentioned, plaintiff Chertok was and still is the sole

proprietor of the copyright described in paragraph 74,

supra, and plaintiff CBS was and still is the sole and ex-

clusive licensee of the right to publicly perform, exhibit,

represent, produce, reproduce and copy said program by

means of television.

76. On November 15, 1964, CBS transmitted the afore-

said progres to its affiliates, and on the same date, CBS.

affiliates, including affiliates located in Albuquerque,

New Mexico and Binghamton and Syracuse, New York, broad-

cast the aforesaid program.

77. On November 15, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed,

exhibited, sequenuabed, produced, reproduced and copied

the aforesaid program by distributing it to its many pay-

ing subassthure in Farmington, New Mexico and Elmira, New

York, among other places presently unknown to plaintiffs,

by receiving, reproducing and distributing signals emitted

‘by CBS affiliates, including affiliates located in Albu-

querque, Binghamton and Syracuse.

78. By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiffs,

19a

Amended Complaint

infringed the copyright referred to in paragreph 74,

supra.

79. By reason of such infringements, plaintiffs CBS

and Chertok have sustained substantial injury and damage,

and unless this rt permanently restrains the defendant

from further commission of said acts, plaintiffs CBS and

Chertok will suffer irreparable injury for which plaintiffs

CBS and Chertok have no adequate remedy at law.

FOR A NINTH CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CBS

AND A THIRD CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CHERTOK

80. Plaintiffs repeat and reallege each and every

allegation contained in paragraphs 1 through 11 and para-

graph 64 of this complaint.

81. Prior to the 29th day of November, 1964, plain-

tiff Chertok originated, created and produced a program in

the "My Living Doll" series entitled "My Robot, the Warden"

This program is a motion picture and a dramatic work, con-

tains a large amount of material wholly original, and is

copyrightable subject matter under the laws of the United

States.

_ >» 82. Plaintiff Chertok complied in all respects with

Title 17, United States Code and all other laws governing

copyrights, secured the exclusive rights and privileges in

and to the copyright of said program, and received from

the Register of Copyrights a certificate of copyright .

registration identified as follows: Class L, No. Lp29269,

dated December 3, 1964. It is not physically feasible to

Amended Complaint

attach a copy of said program to this complaint, but a

copy will be made available to the Court when required.

83. At the time of the infringements hereinafter

mentioned, plaintiff Chertok was and still is the sole

proprietor of the copyright described in paragraph 82,

supra, and plaintiff CBS was and still is the sole and

exclusive licensee of the right to publicly perform, ex-

hibit, represent, produce, reproduce and copy said pro-

gram by means of television.

84. On November 29, 1964, CBS transmitted the afore-

said program to its affiliates, and on the same date, CBS

affiliates, including the CBS affiliate located in Pitts-

burgh, Pennsylvania, broadcast the aforesaid program.

85. On November 29, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed,

exhibited, represented, produced, reproduced and copied

the aforesaid program by distributing it to its many pay-

ing subscribers in Johnstown, Pennsylvania, among other

places presently unknown to plaintiffs, by receiving, re-

prodyeing and distributing signals emitted by CBS affili-

ates, including the affiliate located in Pittsburgh,

Pennsylvania.

86. By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiffs, in-

fringed the copyright referred to in paragraph 82, supra.

87. By reason of such infringements, plaintiffs CBS

and Chertok have sustained substantial injury and damage,

and unless this Court permanently restrains the defendant

2ila

Amended Complaint

from further commission of said acts, plaintiffs CBS and

Chertok will suffer irreparable injury for which plain-

tiffs CBS and Chertok have no adequate remedy at law.

FOR A TENTH CLAIM FOR RELIEF -

-ON BEHALF OF PLAINTIFF CBS

AND A FIRST CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF DENA

88. Plaintiffs repeat and reallege each and every

allegation contained in paragraphs 1 through 11 of this

complaint.

89. Plaintiff Dena has created and produced an

original weekly series of television programs entitled

“Phe Danny Kaye Show", a comedy-variety show.

90. Prior to the 8th day of November, 1964, plain-

tiff Dena originated, created and produced @ program in

“nig” Danny Kaye Show" series with guest stars Shari Lewis

This program is a motion picture and

and Howard Morris.

a dramatic work, contains a large amount of material

wholly original, and is copyrightable subject matter under

the laws of the United States.

‘gl. Plaintiff Dena complied in all respects with

Title 17, United States Code and all other laws governing

copyrights, secured the exclusive rights and privileges

in and to the copyright of said program, and received

from the Register of Copyrights a certificate of copyright

registration identified as follows: Class L, No. Lp29264,

dated December 3, 1964. It is not physically feasible to

attach a copy of said program to this complaint, but a

copy will be made available to the Court when required.

Amended Complaint

92. At the time of the infringements hereinafter

mentioned, plaintiff Dena was and still is the sole prop-

rietor of the copyright described in paragraph 91, supra,

and plaintiff CBS was and still is the sole and exclusive

licensee of the right to publicly perform, exhibit, repre-

sent, produce, reproduce and copy said program by means of

television.

93. On November 11, 1964, CBS transmittedthe afore-

said program to tts affiliates, and on the same date, CBS

affiliates, including affiliates located in Albuquerque,

New Mexico and Binghamton and Syracuse, New York, broad-

cast the aforesaid program.

94. On November 11, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed,

exhibited, represented, produced, reproduced and copied

the aforesaid program by distributing it to its many pay-

ing subscribers in Farmington, New Mexico and Elmira, New-

York, among other places presently unknown to plaintiffs,

by receiving, reproducing and distributing signals emitted

by CBS affiliates, including affiliates located in Albu- .

querque, Binghamton and Syracuse.

95. By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiffs, in-

fringed the copyright referred to in paragraph 9l, supra.

96. By reason of such infringements, plaintiffs CBS

and Dena have sustained substantial injury and damage, and

unless this Court permanently restrains the, esitentent from

further commission of said acts, plaintiffs CBS and Dena

23a

Amended Complaint

will suffer irreparable injury for which plaintiffs CBS

and Dena have no adequate remedy at law.

FOR AN ELEVENTH CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CBS

AND A SECOND CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF DENA

oT. Plaintiffs repeat and reallege each and every

allegation contained in paragraphs 1 through ‘11 and para-

graph 89 of this complaint.

98. Prior to the 15th day of November, 1964, plain-

tiff Dena originated, created and produced a program in

“Phe Danny Kaye Show” series with guest stars Diahann

Carroll and Don Knotts. This program is 4 ection picture

and a dramatic work, contains @ large amount of material

wholly original, and is copyrightable subject matter under

the laws of the United States.

99. Plaintiff Dena complied in all respects with

Title 17, United States Code and all other laws governing

copyrights, secured the exclusive rights and privileges

in and to the copyright of said program, and received

from-the Register of Copyrights a certificate of copy-

right registration identified as follows: Class L, No.

Lp29265, dated December 3, 1964. It is not physically

feasible to attach a copy of said program to this com-

plaint, but a copy will be made available to the Court

when required.

100. At the time of ‘the infringements hereinafter

mentioned, plaintiff Dena was and still is the sole

proprietor of the copyright described in paragraph 99,

222-2 2-e

Amended Complaint

supra, and plaintiff CBS was and still is the sole and ex-

clusive licensee of the right to publicly perform, exhibit,

represent, produce, reproduce and copy said program by

means of television.

_ 101. On November 18, 1964, CBS transmitted the afore-

said program to its affiliates, and on the same date, CBS

affiliates, including affiliates located in Albuquerque,

New Mexico, Buffalo, Syracuse and Binghamton, New York,

and Scranton, Pennsylvania, broadcast the aforesaid pro-

gram.

102. On November 18, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed,

exhibited, represented, produced, reproduced and copied

the aforesaid program by distributing it to its many pay-

ing subscribers in Farmington, New Mexico and Elmira, New

York, among other places presently unknown to plaintiffs,

by receiving, reproducing and distributing signals emitted

by CBS affiliates, including affiliates located in Albu-

querque, Buffalo, Syracuse, Binghamton and Scranton.

103. By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiffs, in-

fringed the copyright referred to in paragraph 99, supra.

104, By reason of such infringements, plaintiffs

CBS and Dena have sustained substantial injury and damage,

and unless this Court permanently restrains the defendant

from further commission of said acts, plaintiffs CBS and

Dena will suffer irreparable injury for which plaintiffs

CBS and Dena have no adequate rememdy at law.

25a

Amended Complaint

FOR A TWELFTH CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CBS

AND A THIRD CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF DENA

105. Plaintiffs repeat and reallege each and every —

allegation contained in paragraphs 1 through 11 and para-

graph 89 of this complaint.

106. Prior to the 25th day of November, 1964, plain-

tiff Dena originated, created and produced a program in

"The Danny Kaye Show™ series with guest star Gwen Verdon.

This program is a motion picture and a dramatic work, con-

tains a large amount of material wholly original, and is

copyrightable subject matter under the laws of the United .

States. é : .

107. Plaintiff Dena complied in all respects with

Title 17, United States Code and all other laws governing

copyrights, secured the exclusive rights and privileges

in and to the copyright of said program, and received

from the Register of Copyrights a certificate of copyright

registration identified as follows: Class L, No. Lp29266,

dated December 3, 1964. It is not physically feasible to

attacti a copy of said program.to this complaint, but a

copy will be made available to the Court when required.

108. At the time of the infringements hereinafter

mentioned, plaintiff Dena was and still is the sole

proprietor of the copyright described in paragraph 107,

supra, and plaintiff CBS was and still is the sole and

exclusive licensee of the right to publicly perform, ex-

hibit, represent, produce, reproduce and copy said pro-

gram by means of television. -

109. On November 25, 1964, CBS transmitted the

aforesaid program to its affiliates, and on the same date,

CBS affiliates, including the CBS affiliate located in

Johnstown, Pennsylvania, broadcast the aforesaid program.

110. On November 25, 1964, defendant Teleprompter

and/or Conley, directly or indirectly, publicly performed,

exhibited, represented, produced, reproduced and copied

the aforesaid program by distributing it to itssmany pay-

ing subscribers in Johnstown, Pennsylvania, among other

places presently unknown to plaintiffs, by receiving,

reproducing and distributing signals emitted by CBS

affiliates, including the affiliate located in Johristown,

Pennsylvania.

lll. By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiffs, in-

fringed the copyright referred to in paragraph 107, supra.

112. By reason of such infringements, plaintiffs

CBS and Dena have sustained substantial injury and damage,

and unless this Court permanently restrains the defendant

from further commission of said acts, plaintiffs CBS and

Dena will suffer irreparable injury for which plaintiffs

CBS and Dena have no adequate remedy at law.

WHEREFORE, plaintiffs demand judgment:

1. That defendant Teleprompter and/or Conley, its

agents, servants, subsidiaries, and all persons acting

under its direction, control, peiiission or license, be

enjoined during the pendency of this action and perma-

mais from infringing the aforesaid copyrights in any

27a

Amended Complaint

2. That defendants be required to pay such damages —

as plaintiffs have sustained in consequence of defendants'

said unlawful acts, but in no event less than Two Hundred

Fifty ($250.00) Dollars for each infringement;

3. That defendants pay to plaintiffs the cost of

this action, and reasonable attorneys' fees to be allowed

to the plaintiffs by the Court; and

4, That the plaintiffs have such other and further

relief as is just and proper.

ROSENMAN COLIN KAYE PETSCHEK & FREUND

Attorneys for Plaintiff

Columbia Broadcasting System, Inc.

Office and Post Office Address

575 Madison Avenue

New York, New York 10022

By £¢ a a. Sako y ge

ro rm

MARSHALL, BRATTER, GREENE, ALLISON '

. & TUCKER

Attorneys for Plaintiff Calvada Produc-

tions

Office and Post Office Address

New Yo

aes ke TRA bleo a

ALEXANDER & GREEN

Attorneys for Plaintiff

Jack Chertok Telévision, Inc.

Office and Post Office Address

120 Broadway

New York w York 1

eA a ie

Amended Complasnt

GRAUBARD & MOSKOVITZ

Attorneys for Plaintiff

Dena Pictures, Incorporated

Office and Post Office Address

4O Wall Street

New Pree: ore York 10005

By ¢ ¢ = id t Gur harnet

aber 0

29a

Amended Answer

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

wo soem woecec owe oo ons Oeteietetetene” 4

«©

COLUMBIA BROADCASTING SYSTEM, INC., :

CALVADA PRODUCTIONS, a joint venture, .

JACK CHERTOK TELEVISION, INC. and re

CONLEY ELECTRONICS CORPORATION, :

Defendants Teleprompter Corporation and Coaley Electronics

Corporation by their attorneys answer the amended complaint herein

at follows. (The rermbers of paragraphs of Pari I of this amended

answer correspond to the numbered paragraphs of the amended

complaint.)

. 1. Admit that plaintiffs purport to invoke the jurisdiction

of the Court on the basis of the statutes referred to in paragraph 1 of

the amended complaint. Except as so stated, defendants deny each

and every allegation of paragraph | of the euncofiet eumginiat.

2.-5. Deny knowledge or information sufficient to nee

belief as to the allegations of paragraphs 2 through 5 of the amended

complaint. :

6. Admit that Teleprompter Corporation is a New York

corporation with offices in New York, New York. 4

7. Admit that Conley Electronics Corporation is an Dlinois

corporation, authorized to do business in the State of New York with

Amended Answer

offices in New York, New York and is a wholly-owned subsidiary of

Teleprompter Corporation. |

gt _ 8 Deny knowledge or tnformesion sufficient to form a belief

as to the allegations of paragraph 8 of the amended complaint.

9. Defendant Teleprompter Corporation denies each and

every allegation in paragraph 9 of the amended complaint. Defendant

Teleprompter Corporation denies that it does, or at thé time of the acts

complained did, own or operate any community antenna systems ise

television reception except that defendant Teleprompter’ Corporation

admits that it owns all of the capital stock in separate corporations,

including defendant Conley Electronics Corporation, which own and

operate 14 community antenna systems for television reception and

} less than all of the steck in two other corporations which each respec-

: tively own and operate @ community antenna wpeten for television

; reception; these community antenna systems for television reception

are located in various parts of the United States, including the State of

New York, and such systems have in the aggregate approximately

55, 000 subscribers.

Defendant Conley Electronics Corporation denies each

and every allegation in paragraph 9 of the amended complaint except

that it admits that it owns and operates community antenna systems for

RE OE eon an

: television reception in Elmira, New York, Horseheads, New York,

Johnstown, Pennsylvania, Farmingtoh, New Mexico, Silver City,

New Mexico, Rawlins, Wyoming, Liberal Kansas, Eugene, Gregon,

Springfield, Oregon and Santa Cruz, California.

;

‘

;

10. Deny each and every cilegation in paragraph 10 of the

= =

TST VS 2s

2. aR wees tr

SSO STs err Sa

3la

Amended Answer

impossible without an antenna system, and that all antenna systems con!

sist essentially of an antenna and equipment connecting it to the

television receiver. A community antenna system for television recep-| -

tion provides a connection to its subscribers from favorably-placed

enteanes of the system, and serves the same function as any other

antenna system. The antennas owned by the separate corporations, the

stock of which corporations is owned in whole or on nnd he detain

Teleprompter Corporation and the antennas owned by defendant Conley

Electronics Corporation as alleged in paragraph 9 hereof, and connect-

ing equipment utilized to connect these antennas to the television

receivers purchased and owned by and situated on the premises of the

system's subscribers, are analogous o= similar to the antennas and

connecting equipment utilized by other owners of television receiving

sets. These community antenna systems do not alter, penta) modify,

add to or delete broadcast information telecast from television stations,

but merely make available for their subscribers a connection to the

community antenna system so that the subscriber is able to use the

antenna system to receive on subscriber's television set the broadcast

information telecast by the stations.

1. Defendant Teleprompter Corporation denies each and

every allegation of paragraph 11 of the amended complaint except that

defendant Teleprompter Corporation admits that subscribers of the

separate corporations weferred to in paragraph 9 hereof are permitted

to conndct the antennas to the subscriber's set upon payment of a

. 4

connection fee and a monthly maintenance charge, and that the separate

oS oF

—

Fe i a ee ee ee

Amended Answer

corporations owning and operating these systems are business enter-

prises conducted for profit, and that defendant Teleprompter

Corporation is a business enterprise conducted for profit.

Defendant Conley Electronics Corporation denies each

and every allegation of paragraph 1: of the amended complaint except

that defendant Conley Electronics Corporation admits that subscribers)

of aPaycrems referred to in paragraph $ hereof are er

connect the antennas to the subscriber's set upon payment of a connec;

tion fee and a monthly maintenance charge, and that defendant Conley

Electronics Corporation is a business enterprise conducted for profit.

FIRST CLAIM

12. Repeat their answers contained in paragraphs | 7

il above as if fuily sect out hereia.

13.-17. Deny knowledge or information sufficient to form

a belief as to the allegations of paragraphs 13 through 17 of the amen-

ded complaint.

18.-20. Deny each and every allegation of paragraphs 18

through 20.0f the amerded complaint.

SECOND CLAIM

21. Repeat thei> answers contained in paragraphs 1 through

ll above as if fully set out herein.

22.-26. Deny knowledge or information sufficient to form

a belief as to the allegations of paragraphs 22 through 26 of the amen-

ded complaint. -

27.-29. Deny each and every allegation of paragraphs 27

through 29 of the armmendec complaic:t.

| THIRD CLAM

30. Repeat their answers contained.in paragraphs | dirough

ll iiwie as if fally cokniit herein.

31.-34. Deny knowledge or information eufficient to form a

belief as to the allegations of paragrapns 31 through 34 of the amended

complaint. .

35.-37. Deny each and every allegation of paragraphs 35

through 37 of the amended complaint. = See,

‘ ‘ .

. FOURTH CLAIM

38. Repeat their answers contained in paragraphs 1 through

11 above as if fully set out herein.

39.-43. Deny knowledge or information sufficient to form a

belicf as to the allegations of paragraphs 39 through 43 of the amended

compiaint.

44.-46. Deny each and every allegation of paragraphs 44

through 46 of the amended complaint.

‘ FIFTH CLAIM

47. Repeat thcir answers contained .in paragraphs 1 through

1l and 39 above as if fully set out herein.

_ 48.-51. Deny knowledge or information sufficient to form a

belief as ne the allegations of paragraphs 48 through 51 of the amended

complaint.

52,.-54. Deny each and every allegation of paragraphs 52

through 54 of the amended complaint. a

i le alle Bl le oe ee a TT wn. . tae errs

-5-

55. Repeat their answers contained in paragraphs | through

11 and 39 above as if fully set out herein.

56.-59. Deny knowledge or information sufficient to form a

belief as to the allegations of paragraphs 56 through 59 of the amended

complaint. :

60. -62. Deny each and every allegation of paragraphs 60

through 62 of the amended complaint. ae *

SEVENTH CLAIM

63. Repeat their answers contained in paragraphs | through

i 11 above as if fully set out herein.

64.-68. Dery knowledge or ipformation sufficient to form a

* pelief as to the allegations of paregraphs 64 through 68 of the amended

: complaint.

69.-71. Deny each and every allegation of paragraphs 69

> through 71 of the amerded complaint.

EIGHTH CLAIM

72. Repeat their answers contained in paragraphs | through

= 1) and 64 above as if fully set out herein.

73.-76. Deny knowledge or information sufficient to form a

belief as to the allegations of paragraphs 73 through 76 of the amended

complaint.

77.-79. Deny cach and every allegation of paragraphs 77

through 79 of the amended complaint.

“WSS Bra: Baer eae ese SUSU.

35a

Amended Answer

3 aa “NINTH CLAIM

_ 80, _ Repeat their answers ceutainad in paragraphs 1 through

11 an 64 hice ub 8¢ Silty diab tnd aca. x

81.-84. Deny knowledge or information sufficient to form a

belief as to the allegations of paragraphs 81 through 84 of the amended

complaint. ney

85.-87. Deny each ard every allegation of paragraphs 85

through 87 of the amended complaint.

’

TENTH CLAIM

88. Repeat their answers contained in paragraphs | through

11 above as if fully set out herein. ;

89.-93. Deny knowledge or information sufficient to form a

belief as to the allegations of paragraphs 89 through 93 of the usneniied

complaint.”

94.-96. Deny each and every allegation of paragraphs 94-

through 96 of the amended complaint,

ELEVENTH CLAIM

97. Repeat their answers contained in paragraphs | through

11 and 89 above as if fully set out herein.

98.-101. Deny knowledge or information sufficient to form a

belief as to the allegations of paragraphs 98 through 101 of the amended

complaint,

102, -104, Deny each and every allegation of paragraphs 102

through 104 of the amended complaint.

TWELFTH CLAIM

105. ‘Repeat their answers contained in paragraphs 1 through

11 and 89 above as if fully set out herein. ;

106, -109. Deny knowledge or culeeiiation sufficient to form a

belief as to the allegations of paragraphs 106 through 109 of the amended;

complaint.

110, -112. . Deny each and every allegation of paragraphs 110

through 112 of the amended complaint. ae”

Il. Sevarate Defenses Under the Communications

Act and Public Policy

113. Commercial television broadcasting such as that engaged

in by plaintiff Columbia Broadcasting System, Inc., (herein saliitunt to

} as CBS) and its affiliates referred to in the amended complaint is

governed by the Cormmunications Act of 1934 as amended, 47 U.S.C.

q@ §251, et seq. as implemented by regulations promulgated by the

Federal Communications Commission. Defendants aver that the

national system 6f commercial television broadcasting established under

| the Act as so impicmented contemplates the dissemination of the radio

viasake transmitted or broadcast by television licensees to all members

of the public capable of receiving ther. The frequencies or ec cakaiaes

channels used by plaintiff CBS and its afaates, as well as by all tele-

vision stations, are the property of the public and are licensed to

plaintiff CBS and its affiliates by the Federal ‘iis eineisianih Commis-

sion for the public benefit and to serve the public interest, and as such

the licensees are trustees of the public. Neither the Act nor the

Regulations confers the right upon any licensee or other person, to

‘i

‘

ce:

restrict or control the reception for private use and enjoyment of broad-

cast signals; nor do the Act or Regulations prescribe the nature of the

equipment which may be employed by the public to facilitate reception or

authorise the use of any equipment technique or method to preclude

reception of signals once they have deea broadcast for dissemination to

the public. Under the Act television licensees have the right only to

prohibit rebroadcasting of their signals by another beoadeast station,

and, since community antenna systems, including those = to i.

paragraph 9 herein, are not rebroadcasting, reception of ereadinst sig- :

nals for members of the ee ede such syoteme cannot be limited or :

controlled bya station.

114, Defendaats farther aver that the costs of the American

system of free sohpiaien: are met by the sale of time and programs on

the various licensed broadcast stations to advertisers or sain who

wish the use of these facilities to communicate a message 1s the public.

Under this system copyright owners such as plaintiffs receive their

compensation from the ier the network broadcaster ie advertiser

or the licensors of the foregoirg. No broadcaster such as plaintiff CBS

or its affiliates may impose any charge on any member of the public for

the reception of telecasts made over the publicly-owned channels, and

no licehsee of broadcast facilities has either the legal right or the

technical capacity under his license to specify who may receive the

broadcast for private use and enjoyment or on what terms. Members

of the public have the right by providing the necessary receivers and

antennas of their choice to receive such telecasts, and those Who elect

to utilize an antenna service to receive a telecast, and those providing |

iy ee

‘Amended Answer

such a service to facilitate reception have the right to do so. Defendants

aver that plaintiffs seek to create a monopoly wd control over reception

of public broadcast neither technically possible under authorized methods

of broadcasting nor permitted by the licenses of the stations by extending

the limited monopoly granted by copyright thereby thwarting the public

policies of the copyright laws, the Communications Act and the antitrust

laws. ‘Thee: -

(a) The plaintiffs seek by this action directly or indirectl

to impose an unlawful charge and restraint upon the reception of comme

' cial television broadcasts by members of the public who are subscribers ;

to the comrauntty antenna systems referred to in the amended complaint,

| and the relief prayed for in amended complaint must be denied and the

| amended complaint dismissed.

(bo) The public policy embodied in the Act and Regulations

jj adopted thereunder contemplates the provision of broadcast service, in-

t cluding reception, so far as possible to all of the people of the United

f States and the protection and promotion of the interests of the listeners

and viewers in broadcast reception, including members of the public who

i ciect’to subscribe to the community antenna service referred to in para-

graph 9 above. Plaintiffs seek, contrary to the said provisions and

policies of the Communications Act, znd contrary to public policy, to

inhibit, limit, restrain, restrict, control, and/or prevent the public

from receiving and viewing commercial telecasts on their private

premises including members of the public who elect to subscribe to the

community antenna service referred to in paragraph 9 above. The

relief prayed for in the amended complaint must be denied and the

amended complaint dismissed.

39a

Amended Answer

) The telecasts referred to in the amended complaint

are intended for reception by the public, and plaintiffs seek to exercise,

control #0 as to discriminate among membérs of the publi, denying

reception to or controlling reception by those members of the public

who choose to subscribe to the commusity antenna service referred to

in paragraph 9 hereof. Shiee ne baste endete tn See Sie. bath Getetatns

iste nclailaith tk daniahiaa eee reception of commercial telecasts by

members of the public, and such control over reception and discrimina~

tion contravenes the public policy embodied in the niciens regulations

thereunder, the relief prayed for in the amended complaint must be |

denied and the amended complaint dismissed. :

Wl. Separate Defenses Under the Copyright

Laws and Related Defenses

135, Fach of the separately lettered sections of this paragraph

states a separate and independent defense:

(a) The relief prayed for in the amended eeengtahnn must

be denied and the amended complaint dismissed because the programs

referred to in the amended complaint are in the public domain and un-

;

{

;

_ § protected ‘r copyright, in that they have been sold, performed or ase

lished with the authority of the alleged copyright proprietor without

notice of copyright having been affixed thereon in conformity with law,

and that said copyrights, if any, have been dedicated or abandoned by

reason of other uses and the failure to comply with the provisions of the

_(b) The relief prayed for in the amended complaint must;

be denied and the amended complaint dismissed because the zopies of

the programs deposited with the Register of Copyrights did not

ote <

Amended Answer

include the entire pregiem transmitted or furnished to the afftates by

plaintiff CBS for telecast by said affiliates within the time period within

which said program was telecast,

be denied and the amended complaint Cismissed because the plaintiffs

have sold, performed or published in the programs referred to in the

amended complaint, or other programs in the series, without notice of

have failed to deposit other programs of the series referenced wn the

First and Second, and the Fourth through Twelfth, inclusive, Claims.

Thus each program referred to in the amended complaint and each

entire series is in the public domain and unprotected by the Copyright

; Act or the laws governing copyright.

(d) Plaintiffs have for many years known of and been ‘

aware of reception of telecests by members of the public who are sub-

scribers to community antenna service. The community antenna systems

i for television reception in Farmington, New Mexico, and Elmira, New !

t York, were constructed ir. 1955 and have been in existence continuously

* since that time. The antenna system in Johnstown, Pennsylvania, was

f constructed in or about August 1960, and has been in existence con-

4 tinuously since that time. From tirnc to time since the date of their

; ‘eaisidaitbien: the said antenna systercs have been improved at substan-

tial cost and expense, as plaintiffs well knew. The antenna systems

and/or the stock in corporations owning same in Farmington, Elmira

and Johnstown were acquired by defendant Teleprompter Corporation in

1961 for a substantial consider ztion and shortly thereafter transferred

to defendant Conley Electronics Corporation, an Dlinois corporation,

- i2 «

4la

Amended Answer

all of ‘bath stock anaee by defendant Teleprompter ‘Corporation.

Between 1959 and 1964 corporations referred to in paragraph 9 hereof

acquired or constructed other antenna systems. All of the foregoing

acquisitions or constructions were well publicized and known to plain-

tiffs; but at no time prior to the commencement of this action did — :

plaintiffs assert any right or claim against defendants; the separate

corporations owning the antenna epeininn referred to in paragraph 9

hereof (or their predecessors), or object to the existence or use of the

said antenna systems, or any of them, or object to recéption of CBS

affiliates by subscribers to such antenna systems, or notify defendants,

the separate corporations owning said systems, or their predecessors,

that plaintiffs owned or claimed to own any interests in programs, in-

cluding the programs referred to in the amended complaint, which .

might be infringed by any act of said antenna systems. By reason of

such delay, and the detriments incurred by defendanis and the separate

corporations (the stock of which is owned in whole or in part by defen-

dant Teleprompter Corporation), plaintiffs are guilty of such laches as

should in equity bar all claims asserted in the amended complaint.

{e) Defendants further aver, upon information and

belief, that plaintiff CBS by custom and usage in the industry, by its

conduct at the time of entering into affiliation contracts with its

affiliates and negotiating rate cards with them, and in its selection of

such affiliates, and in entering into contracts and licenses with sponsors.

advertisers, and producers with respect to transmitting programs over

its facilities, and the telecasting of said ene by its rn

has waived and acquiesced in any and all aepyetahh infringements

-13-

42a

Amended Answer

Alleged in the amended complaint, end plaintiffs, by reason of participa-

tion in the benefits of, and acquiescence in, the conduct of plaintiff CBS,

have sirailarly waived and acquiesced in any and all copyright infringe-

ments, and all plaintiffs are estopped from asserting said infringements,

in that they have among other acts:

(i) sold to sponsors and advertisers the right to

use the network facilities of plaintiff CBS, to have advertisements tele-

cast before, during and after, or as part of, the broadcast of the said

programs. The price at which the right was sold was determined upon

the basis of the potential audience of the affiliate telecasting the program

including subscribers to community antenna systems. By this course of!

: business and dealings plaintiffs have accepted the benefits of and con-

serted to contracts between sponsors and plaintiff CBS and to contracts

between plaintiff CBS and its affiliates which, upon information and

belief, contain no prohibition against, and contemplate reception of the

telecast by all members of the public regardless of the nature of the

‘SS se. cer me

antenna system selected by the receiver owner, including subscribers

to community antenna systems referred to in paragraph 9 hereof.

{ii) encouraged reception by, and neither objected

te nor demanded payment for the reception of broadcasts of programs,

BS PT TSS SS

by any private person, including houscholders, apartment dwellers,

transients in hotels, motels, bars and other establishments located in ~

or near Elmira, New York, Johnstown, Pennsylvania or Farmington,

New Mexico, or in or near Albuquergee, New Mexico, Scranton,

Pittsburgh or Johnstown, Pennsylvania, or Syracuse, Buffalo, and

Binghamton, New York, or in other areas which persons utilized

various types of antenna system cquipment for television reception,

including persons who clected to subecride to a community antenna

. ie > ‘ - i : °

: au) | known of and participated in the custome,

practices and uanges in he television industry developed and in exietenct

since the inception of the industry relating and devoted to increasing the

viewing audience by various means and methods, including reception by

members of the pune whe elect to subscribe to community antenna

systems, and have consented to and encouraged, and accepted the bene-

fits of, the growth of the community antenna industry and the increased

reception resulting therefrom, including reception by members of the

public who are subscribers to the community antenna be eels referred

to in paragraph 9 hereof. : =

(iv) committed the acts alleged in paragraph (d)

of this section, which are here realleged as if set forth in full. .

(f) Plaintiffs Calvada, Chertok and Dena agreed to per-

mit or authorize plairtiff CBS to transmit the programs referenced in

the Fourth through Twelfth Claims to its affiliates for telecast by plain-

tiff CBS and its affiliates for reception by the public, and plaintiff CBS

by agreement with its afhliates transmitted the programs referenced in

the First through Third Claims to its affiliates for telecast by them for

equence of such agreements and the

| reception by the public. As a cons

custom and usage of the industry members of the public who are sub-

—

stribers to the community antenna systems in Elmira, New York,

Johnstown, Pennsylvania, and Farmington, New Mexico, as’ well as

elsewhere; are licensed in fact or in law and entitled to receive such

telecasts by means of such antenna systems, and the separate corpora~

tions owning these antenna systems are licensed in fact ‘or,im law to

furnish to their subscribers a connection to their antenna systems for

such reception by subscribers.-

Amended Answer

Iv. gzerete Defenses ofMisuseof

<6. Defendants aver that plaintifis have, since the production

of the programs referred to in the amended complaint and continuing up

to the present time, misused the copyrights referred to in the amended

complaint, and that such copyrights are therefore act enforceaiic tn this

action. rear ‘ *

117, Defendants aver that plaintiff CBS and the other plaintiffs

have misused the copyrights, if any, in such programs, Flong with other

copyrights, by engaging in courses of conduct including, but not limited

to; the following:

(a) thy entering into agreements with sponsors or adyer-

tisers with respect to programs referred to in the amended eovaghatan

in which plaintiffs claim copyrights upon the condition that the sponsors

or advertisers enter into agreements with respect to other programs in

which plaintiffs claim copyrights (commonly known as "block booking"),

and by refusing to deal with sponsors and advertisers except on the

; condition that the sponsors or advertisers contract to acquire from

plaintiffs rights to telecast more than a single program.

(>) By agreeing and conspiring among themselves and

with others unknown to defendants to enter into agreements with spon-

} sors on advertisers with respect to the program in which plaintiffs

claim copyright only on condition that the sponsors or advertisers con-

tract with plaintiffs for other programs telecast by plaintiff CBS and

its affiliates.

programs referred to in the amended complaint, along with others, to

- 146-

tren only ior spactic sogments of ouch time, jd a aialein by tying

sponsor's or advertiser's right to contract for specific segments of |

brondeast time on the CBS network to having contracted with CBS for |

such programs. i =

iui. 5 agrsing snd coteplsng among Semanves a

with éthers unknown to defendants not to license programs and not to

grant the contractual right to telecast the programs, including but not

Limited to the alleged copyrighted programs mentioned in the amended

complaint, to sponsors and advertisers except through plaintiff CBS.

(e) By agreeing and conspiring among themselves and-

| with others, including the producers of the programs referred to in the

amended complaint, to limit use, enjoyment, distribution, reception

Vand viewing of said programs by attempting to require affiliated stations

to limit or prevent reception of telecasts by members of the public who

rMubscribers to an antenna system for television reception referred

. toin — 9 hereof.

(f) By agreeing and conspiring among thems elves and

: with others, including affiliates of CBS, to limit or prevent the recep-

tion by —— of the public who elect to secure an antenna system

for cmaialas by subscribing to a community antenna service, including

those who are subscribers to an antenna service referred to in para-

graph 9 hereof for the purpose of controlling the business of those cor-

‘porations lawfully engaged in making such antenna service gvailable to

members of the public who elect to subscribe to the said community

antenna systems.

. telecast by plaintiff CBS or its affiliated stations which were telecasting

——~- ° =

"dhl EPS Tee! SOT ET STE Ae

i as ee ee ee te

for facilities or for programs, or its licensing of programs from a

118, . Plaintiff CBS has misused the copyrights referred to in

the amended complaint, along with others,

{a) by agreeing and conspiring with sponsors or adver-

tisers and with others unknown to defendants that no product competitive

with that of the sponsor or advertiser shall be advertised through a

the alleged copyrighted programs, during, and within specified periods

before or after, the telecast of such programs. °

(b) by agrociig and conspiring with affiliates that no

product competitive with that of the sponsor or advertiser shall be ad-

vertised through a telecast by agsliatea stations telecasting the alleged

copyrighted programs, ouvien and within specified periods before or

after the telecast of such programs.

119. Plaintiff CBS has misused the copyrights in the programs

referred to in the arnended complaint, along with others, by engaging

in courses of conduct including, but not limited to, the following:

(a) By tying its agreement with sponsors or advertisers

conan producer, to the granting to plaintiff CBS by such advertiser

or sponsor or programm producer of control over production and con-

tent of the ponguens and in merchandising or subsidiary rights together '

with participation in the profits from such production and rights.

(b) By refusing to deal with pe. gredacere ona

basis other than an exclusive license for or right to the distribution of

said programs for reruns or syndication for television, or transfer of

outright ownership of, or exclusive rights in, the copyright to plaintiff

’

‘

Seu

47a

Amended Answer

CBS, or the granting of» prticiption in the profit of such reruns oF ;

syndication by plaintiff CBS.

{c) By requiring sponsors or advertisers to onder a list

of atBliates which exceeds the numberof fila euch sponsor ot ad-

vertiser might otherwise order if not so required,

The relief prayed for in the amended — must therefore

be denied and the eeKtsded complaint dismisses. Sere BS

28: The preceding paragraphs numbered 117 through 119 con-

_ | stitute separate and independent defenses in that the acts and/or courses

of conduct alleged, separately or in combination constitute misuses of

| copyright, and, in addition, constitute unreasonable restraints of trade

: in violation of Section 1 of the ghesisinn Act (15 U.S.C. §1). Said

courses of conduct, emong others, in conjunction with said agreements

5 by plaintiff CBS, also constitute a conspiracy to monopolize and an

| | atternpt to monopolize the television industry and the production, dis-

tribution and sale of ‘maine programs, and to maintain the unlawful

& and restrictive system of nationwide program distribution by the tele-

, vision networks, in violation of Section 2 of the Sherman Act (15 U.S.C.

p $2); and constitute requirements for exclusive dealing in violation of

Section 3 of the Clayton Act (15 U.S. c.$14).

Menrsremmes ners ena. &

V. Separate Defenses of Misuses of

Copyzichts end Unclean Hands

121. The courses of conduct to control and to dominate the

television industry including reception as set forth in this amended

answer, turns on the plaintiff CBS's control and wee Ere of

copyrights. Itis by means ae through the device of cnqenitiigs accumu

lating and monopcli zing copyrights and subsidiary rights that plaintiff

» $94

ar ee

CBS soeks.to accomplish its anti-competitive objectives akduaaied.

monopolizing and controlling the television industry. By acquiring, :

accumulating and monopolising copyrights the plaintiff CBS seeks to con-

trol reception in the home through the device of dominating and exer-

cising control over the business of providing antenna service to the pub-

lic. The antenna service euch as that referred to in paragraph 9 hereof

enables members of the public to receive on their own television

receivers in their own premises programs telecast for pyblic reception

by television station icendese in accordance with the Communications

Act of 1934 as amended. The business of providing oth cxtenan period

pe neare of the public is lawful and proper and the attempt to use

} copyrights to control such business is an unlawful extension of copyright

and since plaintiffs seek such extension of copyright, they are not en-

titled to relief prayed for in the amended complaint

122. Plaintiff CBS, in participation with other plaintiffs, comes

before the Court with unclean hands in that it has attempted, and by

this suit is attempting, to extend the limited monopoly conferred by

ails of such monopolization and control, and by monopolization and

control of broadcast time of television station licensees, and monopoli-

zation and control of television program production and distribution, it

may further control, restrain, dominate and monopolize the entire

television broadcast process, including program production, broadcast-

LTS Se PPS TS ee

ing, advertising and reception of television programs in the homes all

contrary to public policy. Therefore plaintiffs have no standing in this

Court and may not recover.

Amended Answer

VL. No Relief Against Defendant _ ones

123. vecbesics tdladncakas Coun tee einen weet

she time of the acts complained of, did pot, own or operate aay comene-|

c couLocnn oie Sonne ae

alleged in the amended complaint justifying equitable or other relief

against defendant Teleprompter Corporation.

WHEREFORE GREE Sap Sea iienste

amended complaint herein and for costs and attorney's fees and for

such other and farther reliefs to this Court may seem just and proper,

Dated: New York, New York : :

: KATZ, MOSELLE & SCHIER

April 26, 1966 ’ Attorneys for Defendants

Teleprompter Corporation

and Conley Electronics Corporation

‘Office and Post Office Address

608 Fifth Avenue

: New York, New York 10020

By /S/ Walter C. Schier

A Member of the Firm

- Of Counsel:

SMITH & PEPPER

Office and Post Office Address

110i 17th Street, N. W.

Washington, D. C.

CLEARY, GOTTLIEB, STEEN & rast ser mage

Office and Post Office ee

1250 Connecticut Avenue, N. W.

Washington, D. C. 20036

SS OL, SES OSS SE ae

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

COLUMBIA BROADCASTING SYSTEM, INC.,

CALVADA PRODUCTIONS, a joint venture,

JACK CHERTOK TELEVISION, INC. and

DENA PICTURES, INCORPORATED,

~_—

Plaintiffs, CC see

~against-

TELEPROMPTER CORPORATION and

CONLEY ELECTRONICS CORPORATION,

Defendants.

64 Civ. 3614

Plaintiff, Columbia Broadcasting System, Inc., by its

attorneys, Rosenman Colin Kaye Petschek Freund & Emil, for

its complaint supplementing the amended complaint herein

alleges as follows:

FOR A THIRTEENTH CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CBS

113. Plaintiff CBS repeats and realleges each and

every allegation contained in paragraphs 1, 2 and 6 through

11 of the amended complaint.

114. Plaintiff CBS has created and produced an origi-

nal series of television programs entitled "Hawaii Five-O";

an adventure series.

115. Prior to June 4, 1969, plaintiff CBS originated,

created and produced a program in the “Hawaii Five-O" series

entitled "Hawaii Five-O (Pilot) (680920)", also known as

"Cocoon". This program is a motion picture and a dramatic

Sla

Supplemental Complaint

work, contains a large amount of material wholly original,

and is ‘copyrightable subject matter under the laws of the

United States. = eh +.

116. Plaintiff CBS complied in all respects with Title

17, United States Code.and all other laws governing copy-

rights, secured the exclusive rights and privileges in and

to the copyright of said program, and received from the Reg-

ister of Copyrights a certificate of registration identified

as follows: Classes I-M, No. Ip 36819, dated June 23, 1969.

It is not physically feasible to attach a copy of said pro- -

gram to this complaint, but a copy will be made available

to the Court when required. 4.

117. At the time of the infringement hereinafter men-

tioned, plaintiff CBS was and still is the sole proprietor

of all right, title and interest in and to the copyright

described in paragraph 116, supra, including the exclusive

right to publicly perform, exhibit, represent, produce, re-

produce and copy said program.

118. On June 4, 1969, CBS transmitted the first half

("Part I") of the aforesaid program to its affiliates and

owned stations and, on the same date, CBS affiliates and CBS

owned stations, including its station in New York, New York,

broadcast the aforesaid program. The aforesaid program was

broadcast on a delayed basis by the CBS affiliates in

Denver, Colorado and Albuquerque, New Mexico on June 6, 1969

4. -

and June 7, 1969, respectively.

119. On June 4, 1969 in New York, New York, on June 6,

—

1969 in Rawlings, Wyoming, and on June 7, 1969 in Farmington,

New Mexico, defendant Teleprompter and/or Conley, directly

or indirectly, publicly performed, exhibited, represented, .

produced, reproduced and copied the aforesaid program by

distributing it to its. many subscribers in New York, New

York, in Rawlings, Wyoming and in Farmington, New Mexico,

among other places presently unknown to CBS, by receiving,

reproducing and distributing signals emitted by the said CBS

owned stations and affiliates, including the owned station

in New York City, and affiliates in Denver and Albuquerque.

120. By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiff CBS, in-

fringed the copyright referred to in paragraph 116, supra.

121. By reason of such infringements, plaintiff CES

has sustained substantial injury and damage, and unless this

Court permanently restrains the defendants from further com-

mission of said acts, plaintiff CBS will suffer irreparable

injury for which plaintiff CBS has no adequate remedy at

lew.

FOR A FOURTEENTH CLAIM FOR RELIEF

ON BEHALF OF PLAINTIFF CBS

122. Plaintiff CBS repeats and realleges each and

every étiagation contained in paragraphs 1, 2 and 6 through

11 of the amended complaint.

123. Desilu Productions, Inc. (hereafter "Desilu"), a

corporation organized and existing under the laws of the

State of California, created and produced an original series

-|-

of television programs entitled "I Love Lucy", a comedy

series.

Joh. Prior to May 13, 1969, Desilu originated, created

and produced a program in the "I Love Lucy" series entitled

“Mme Black Wig". This program is & motion picture and a ~

dramatic work, contains a large amount of material wholly

original, and is copyrightable subject matter under the laws

of the United States. Sa

125. Desilu complied in all respects with Title 17,

United States Code and all other laws governing copyrights,

secured the exclusive rights and privileges in and to the

ter of Copyrights a certificate of copyright registration -

identified as follows: Classes L-M, No. Lp 21287, dated

Fepruary 8, 1962. It is not physically feasible to attach

a copy of said program to this complaint, but a copy will

be made avaliable to the Court when required.

126. Thereafter, and aaah. to May 13, see. by agree-

t ment in writing between Desilu and CBS, Desilu for valuable

consideration assigned said copyright to CBS. At the time

| of the infringement hereinafter mentioned, plaintiff CBS was

and still is the sole proprietor of all right, title and in-

terest in and to the copyright ‘described in paragraph 125,

) supra, including the exclusive right to publicly perform,

j exhibit, represent, produce, reproduce and copy said program. -

127. Thereafter, and also prior to May 13, 1969 KHQ

: Incorporated, for valuable consideration, was granted a

oe ae

54a

Supplemental Complaint

license to broadcast said program over the facilities of

television station KHQ-TV, Spokane, Washington.

128. On May 13, 1969, KHQ-TV, Spokane broadcast the:

aforesaid program.

129. On May 13, 1969, defendant Teleprompter and/or

Conley, directly or indirectly, publicly performed, exhib- |

ited, represented, produced, reproduced and copied the afc

‘said program by distributing it to its many “subscribers ir

Great Falls, Montana, among ‘other places presently unknowr .

to CBS, by receiving, reproducing and distributing signale .

emitted by KHQ-TV, Spokane. |

130. By these acts, defendant Teleprompter and/or

Conley, ‘without license or authority from plaintiff CBS,

fringed the copyright referred to in paragraph 125, supra

131. By reason of such infringements, plaintiff CBS

has sustained substantial injury and damage, and unless t

Court permanently restrains the defendants from further c

mission of said acts, plaintiff CBS will suffer irreparab .

injury for which plaintiff CBS has no adequate remedy at

law.

FOR A FIFTEENTH CLAIM FOR RELIEF

- ON BEHALF OF PLAINTIFF CBS -

132. Plaintiff CBS repeats and realleges each and

every allegation contained in paragraphs 1, 2 and 6 tnrov

: 11 of the amended complaint and paragraph 123 of this sur

plemental complaint.

5Sa

Supplemental Complaint

133. Prior to June 6, 1969, Desilu Desilu originated, created —

and produced @ program in the "I Love Lucy" series entitled

"tucy Learns To Drive" . This program is a motion picture

and a dramatic work, contains a large amount of material

wholly original, and is copyrightable subject matter under

the laws of the United States. :

134. Desilu complied in all eampaahe with Title 17;

United States Code and all other laws governing copyrights,

secured the exclusive: rights and wriytieges in and to the

ter of Copyrights a certificate of copyright registration

identified as follows: Classes L-M, No. Ip 22403, dated

July 30, 1962. It is not physically feasible to attach a

copy of said program to this complaint, but a copy will be

made available iv the Court when required.

135. Thereafter, and prior to June 6, 1969, by agree-

ment in writing between Desilu and CBS, Desilu for valuable

consideration assigned said copyright to CBS. At the time

of the infringement hereinafter mentioned, plaintiff CBS was }

| and still is the sole proprietor of all right, title and in- ;

terest in and to the copyright described in paragraph 134,

: supra, including the exclusive right to publicly perform, ~

‘.

» granted a license to broadcast said program over the facili-

ties of television station KBTV, Denver, Colorado.

» exhibit, ee produce, reproduce and copy said pro-

136. Thereafter, and also prior to June 6, 1969,

ee ee aN mre ee er ee enw

Mullins Broadcasting Co., for valuable consideration, was

ee ee

S6a

Supplemental Complaint

137. On June 6, 1969, KBTV, Denver broadcast the afore-|

said program.

138. On June 6, 1969, defendant Teleprompter and/or

Conley, directly or indirectly, publicly performed, exhib-

ited, represented,- produced, reproduced and copied the afore-

said program by distributing it to its many subscribers in

Rawlings, Wyoming, among other places presently unknawn to

CBS, by receiving, reproducing and distributing signals

emitted by KBTV, Denver, Colorado. .

139. -By these acts, defendant Teleprompter and/or

Conley, without license or authority from plaintiff CBS, in-

fringed the copyright referred to in paragraph 134, supra.

140. By reason of such infringements, plaintiff CBS

has sustained substantial injury and damage, and unless this

Court permanently restrains the defendants from further com-

mission of said acts, plaintiff CBS will suffer irreparable

injury for which plaintiff CBS has no adequate remedy at

law. .

WHEREFORE, plaintiff CBS demands judgment:

1. That defendant Teleprompter and/or Conley, its

agents, servants, subsidiaries, and all persons acting under

its direction, control, permission or licenbe, be enjoined

during the pendency of this action and permanently from in-

fringing the aforesaid~copyrights in“any manner;

2. That defendants be required to pay such damages as

plaintiff CBS has sustained in consequence of defendants'

said unlawful acts, but in no event less than Two Hundred

Fifty ($250.00) Dollara for each infringement

3. That defendants pay to plaintiff CBS the cost of

this action, and reasonable attorneys' fees to be allowed

to plaintiff CBS by the Court; and

4, That plaintiff CBS have such other and further re-

lief as is just and proper.

Attorneys for Plaintiff

Columbia Broadcasting System, Inc.

Office and Post Office Address

575 Madison Avenue

New York, New York 10022

58a

Supplemental Complaint

UNITED STATES DISTRICT COURT

Plaintiffs, prigp ld

~against- a ges

64 Civ. 3814

- TELEPROMPTER CORPORATION and CONLEY ~~

ELECTRONICS CORPORATION, - <

Defendants.

STATE OF NEW YORK

88.:

)

COUNTY OF NEW YORK

JOSEPH W. GELB, being duly sworn, deposes and says:

Deponent is not a party to the action, is over 18 years

of age and resides at 276 Riverside Drive, New York, New

York. On the lth day of July 1969, deponent served the an-

nexed Notice of Motion and Affidavit.on the following per-

sons at the following addresses designated by said attorneys

for that purpose:

Marshall, Bratter, Greene, Allison & Tucker

430 Park Avenue

New York, New York 10022

Attorneys for Plaintiff Calvada& Productions

Alexander & Green

120 Broadway

New York, New York 10005 “

Attorneys for Plaintiff Jack Chertok Tele-

vision, Inc.

Graubard & Moskowitz

40 Wall Street

New York, New York 10005

Attorneys for Plaintiff Dena Pictures,

Incorporated

Moselle & ‘Schier

bob firth Avenue

= York, hor oe Yeuk 10020"

Attorneys for Defendants

_ (copy to Robert C. Barnard, Esq.

Cleary Gottlieb Steen & Hamilton

1250 Connecticut Avenue N.W.

Washington, D.C. 20036 )

by depositing a true copy of same enclosed in a postpaid

properly addressed wrapper, in an official depository under

the exclusive care ‘and custody of the United States post

office department within the State of New York.

{cof de

Sworn to before me this

[toy of July, 1969.

60a

Anewer to Supplemental Complaint and

Supplemental Answer

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Siete td See wwe ewe eer mew wero en

COLUMBIA BROADCASTING SYSTEM, INC.,

CALVADA PRODUCTIONS, a joint venture,

-JACK CHERTOK TELEVISION, INC. and

DENA PICTURES, INCORPORATED,

Plaintiffs,

“lagainet- = Supptermentad

; Answer ‘

TELEPROMPTER CORPORATION and CONLEY ee:

. ELECTRONICS CORPORATION, *< 64 Civ. 3814

Defendants Teleprompter Corporation and Conley Elec-

tronics Corporation, by their attorneys, answer the supplemental complaint

herein and supplement their Amended Answer, as follows:

Failure to State a Cause of Action

1. The supplemental complaint herein fails to state a cause

of action on which relief may be granted and must be dismisse¢. Del: ndants

aver that the function of the community antenna television systems referred

to in the supplemental complaint is identical to the function of the community

antenna television systems in Fortnightly Corporation v. United Artists

Television, Inc., 392 U.S. 390 (1968), in that they all provide well located

antennas with efficient connections to the television sets of their subscribers,

in order to enhance the viewers’ capacity to receive the broadcasters’

6la

Answer to Supplemental Complaint and

Supplemental Answer

*2,. The supplemental complaint fails to state a cause of

action on which relief may be granted to plaintiffs Calvada Productions,

Jack Chertok, Inc., and Dena Productions, Inc., and must be dismissed

as to those plaintiffs.

3. No facts are shown oz alleged in the supplemental com-

plaint justifying equitable or other relief against defendants Teleprompter

or Conley with respect to the acts of a community antenna television

system in New York, New York, complained of in the Thirteenth Claim. De-

fendants aver, on information and belief, that there are at least four Set |

ity antenna television systems in New York, New York. Defendants aver

Teleprompter Manhattan CATV Corporation, a New York corporation,

wholly owns, and at the time of the acts complained of many owned, a

community antenna television system in New York, New York. A majority —

of the stock of Teleprompter Manhattan CATV Corporation is, and at the

ame of the acts complained of was, owned by defendant Teleprompter and

none is, or at the time of the acts complained of was, owned by defendant

Conley. Defendants Teleprompter and Conley have no interest whatsoever,

direct or indirect, in the ownership of any other community antenna tele-

vision system in New York, New York.

4. No facts are shown or alleged-iz the supplcmental com-

plaint justifying equitable or other relief against defendants cages esl

or Conley with respect to the acts of the community antenna cotevsalan

system in Great Falls, Montana, complained of in the Fourteenth Claim.

Defendants aver that the community antenna television system in Great

Falls, Montana, is now, and at the time of the acts complained of was,

| Answer to Supplemental Complaint and

Supplemental Answer

F wholly owned by Great Falls Community TV Cable Company, Inc., a Mont

corporation not doing business in the State of New York. All of the stock <

Great Falls Community TV Cable Company, Inc., is, and at the time of

the acts complained of was, owned by defendant Conley.

Thirteenth Claim

5.° In answer to paragraph 113 of the supplemental complaint

defendants Teleprompter and Conley repeat each and every answer containe

in paragraphs 1, 2, and 6 through ll of the amended answer as if fully set

out herein.

; 6. Deny knowledge or information sufficient to form a belief

as to the allegations of paragraphs ll4 through us of the supplemental com-

plaint.

7. Deny each and every allegation of paragraphs 119 through

121 of the supplemental complaint.

Fourteenth Claim

8. In answer to paragraph 122 of the supplemental complaint,

efendants Teleprompter and Conley repeat their answers contained in para-

raph 5 above and paragraphs l, 2, and 6 through Ll of the ament d answer

if fully set out herein.

63a

Answer to Supplemental Complaint and

Supplemental Answer

9. Deny knowledge or information sufficient to form a

belief as to the allegations of-paragraphs 123 through 128 of the supplemental

- 10. Deny each and every allegation of paragraphs 129

through 131 of the supplemental complaint.

‘Fifteenth Claim

ll. In answer to paragraph 132 of the supplemental complaint,

defendants Teleprompter and Conley repeat their answers contained in °

paragraph 5 above and paragraphs 1, 2, and 6 through ll of the amended

answer as if fully set out herein.

12. Deny knowledge cr information sufficient to forn 2

belief as to the allegations of paragraphs 133 through 137 of the supplemental

complaint. *

13. Deny each and every allegation of paragraphs 138 through

140 of the supplemental complaint. —

Il.

Separate Defenses Under the Communications

Act and Public Policy

14. Defendants repeat and incorporate herein as if fully

set out their separate defenses cciahitined in paiagraphs 113.and 114 of the

amended answer, thereby averring that plaintiffs, contraryAo the public

policies of the copyright laws, the Communications Act, and the antitrust

laws, seek to extend the limited monopoly granted by copyright in order

64a

Answer to Supplemental Complaint ond

Supplemental Answer

| to unlawfully inhibit, limit, restrain, restrict, control and/or prevent

the public from receiving and viewing commercial telecasts and directly

or indirectly to impose an unlawful charge and restraint upon the reception

of commercial telecasts by and unlawfully to discriminate against members

of the public who are subscribers to the community antenna television

systems referred to in the supplemental complaint.

15. Defendants aver that the community antenna television

systems referred to in the amended and the sienennentiil ouangiation now,

and at the time of the acts complained of did, operate in full compliance

and conformity with the applicable policies, requirements and licenses,

whether express or implied, of the Communications Act as lawfully imple-

mented by the Federal Communications Commiseian, Yietindenta ever:

that plaintiffs are fully aware of and benefit from the policies and iene:

ments of the Communications Act in that the community antenna television

systems owned or operated by plaintiff CBS and/or its subsidiaries and

divisions under the regulations of the Federal Communications Crneelaeibil

perform a function and provide services identical to those of the antenna

pcs vamaeen to in the supple nental complaint. Defendants aver that

plaintiffs seek by this action, directly or indirectly, to extend unlawfully

the limited monopoly granted by the copyright laws, thereby thwarting the

policies of the copyright laws, the Communications Act and the antitrust

laws. Thus.

(a) Plaintiffs seck to inhibit, limit, restrain, restrict,

control or prevent the community antenna television systems referred to in

the amended and Supplemental complaint from providing the services author-|

65a

Answer to Supplemental Complaint and

Supplemental Answer

ized, licensed and/or required by the Communications Act and the Regu-

7 lations. ;

(>) Plaintiffs seck to create a monopoly and extend their

control over r the provision of community antenna services.

Defendants aver that plaintiff CBS, in order to preserve at

extend its present system of nationwide program distribution and network

control of local broadcasting stations, seeks by this action to control,

its discretion, the availability of rapid and efficient — service to

to the policies of the Communications act and in deroga-

the public sabes

tion of the lawful authority of the Federal Communications Commission.

Plaintiff CBS, through the device of acquiring, accumulating, and mono-

subsidiary rights, is seeking to use copyrights as @

polizing copyrights and

private regulatory device to influence the location of and to fix the areas

r zones to be served by television broadcasting stations through control

members of the public electing

of the reception of television broadcasts by

be to community antenna television systems, to limit experimental

to subscri

applications of broadcasting and reception technology designed to permit

re effective use of television, and to prescribe the nature of

larger and mo

the services to be rendered by television broadcasting stations and

community antenna television systems.

Iv.

Separate Defenses Under the Copyright

Laws and Related Defenses

16. Each of the separately lettered sections of this paragraph

states a separate and independent defense:

“See,

“Answer to Supplemental Complaint and

Supplemental Answer

(a) Defendants repeat and incorporate herein as if

fully set forth the separate defense of paragraph 115(a) of the amended

answer, thereby averring that the programs referred to in the supplemental

complaint are in the public domain and unprotected by copyright.

(b) Defendants repeat and incorporate herein asif -

folly set forth the separate defense of paragraph 115(b) of the amended

answer and further aver that the copies of the programs deposited w ith

the Register of Copyrights did not include the entire program furnished to

the television stations referred to in the supplemental complaint by plain-

tiff CBS for telecast by said television stations within the time period °

within which said sibiiees was telecast.

fully set forth the separate defense of paragraph 115(c) of the amended

answer and further aver that Desilu Productions, Inc., has committed the

acts or engaged in the conduct therein denniinen: *

(a) Defendants repeat and incorporate herein as if fully

set forth the mi coeoate defense of ret 115(d) of the amended answer

as agplicenes to the community autenna television aetna eimai to in

the supplemental complaint that were constructed and acquired prior to

December, 1964, by defendant Conley or the separate corporations whose

stock is owned in whole or in part by defendant Teleprompter.

(ce) Defendants repeat and incorporate herein as if Lally

set forth the separate defense of paragraph 115(e) of the amended anawee

and further aver that plaintiff CBS has waived and acquiesced in and is

estopped from asserting any and all copyright infringements by reason of

67a

Answer to Supplemental Complaint and

Supplemental Answer

entering into copyright licensing agreements and negotiating license fees

with the television stations referred to in the supplemental compiaint and

; ba _ : \

accepting the benefits thereat. ————--— == NN

{f) Defendants repeat and incorporate herein as if fully

set forth the separate defense of paragraph 115(f) of the amended answer

and further aver that plaintiff CBS by agreement with television aeikile.

referred to in the supplemental complaint provided the sovigeeons as to

which copyright infringement is alleged to such stations fox entecast by

them for reception by the public and that, as a ectinabenlnist: the sub-

scribers to the community antenna systems referred to in the supplemental

complaint are licensed in fact or in law to receive such telecasts by means

of such antenna systems and the separate corporations owning these antenna

sytems are licensed in fact or in law to furnish to their subscribers a

connection to thei¢ antenna sytems for such reception by subscribers.

Vv.

Separate Defenses of Misuse of Copyright

17. Defendants repeat and incorporate herein as if fully _

set forth the separate defenses of paragraphs 116 through 119 of the amended

‘sitiblins Defendants further aver that Desilu Productions, Inc., has mis-

used the copyrights referred to in the supplemental complaint by engaging

in courses ot conduct including, but not limited to, those described in

paragraphs 116 through 119 of the amended answer, particularly by agreeing

and conspiring with others, including plaintiff CBS, for the purpose of

controlling the business of those corporations lawfully engaged in making

community antenna service available to members of the public who elect

_ Answer to Supplemental Complaint and

Supplemental Answer

to subscribe to the community antenna television systems.

18. Upon information and belief, defendants aver that plaintiff

CBS and/or Desilu Productions, Se: i have misused the copyrights, if any, —

in programs referred to in the amended and the supplemental complaint, by

agreeing and conspizing between themselves and with others unknown to

defendants to refuse to deal with television stations not affiliated with CBS

except through plaintiff CBS and on the condition that such flevision sta-

tions acquire from plaintiff CBS rights to telecast more‘than a single

program or enter into agreements with respect to other programs in which

plaintiff CBS claims copyrights (commonly known as "block booking"), and

to ver such television stations to limit or prevent reception of tele-

casts by members of the public who are subscribers to community antenna

television systems.

19. Defendants repeat and incorporate herein as if fully set

forth the separate defenses of paragraph 120 of the amended answer, thereby

averring that the courses of conduct of plaintiff CBS, Desilu Productions, Inc.

and/or the television stations referred to.in the gupplemental complaint, .

separately or in combination, constitute misuses of copyright; and, in

addition, constitute unreasonable restraints of trade and requirements for

exclusive dealing and a conspiracy and an attempt to monopolize the tele-

‘eta industry and to maintain the unlawful and restrictive system of

nationwide program distribution by the television networks, all in violation ~

of the antitrust laws.

69a

Answer to Supplemental Complaint and

Supplemental Answer

ate Défenses of Misuses of

Copyrights and Unclean Hands

20. Plaintiff CBS comes before this Court with unclean

hands. Defendants aver, on information and belief, that plaintiff CBS

and/or its subsidiaries and divisions has acquired and now owns, oT owned

at the time of the acts complained of, numerous meloaialit antenna tele-

vision systems or all or part of the stock therein. Defendants inte, on

information and belief, that jane or all such community antenna television

eyvteian perform a function and provide services identical to the function

performed and services provided by the community antenna television

systems referred to in the supplemental complaint, that the television

broadcasts received by such community antenna television systems include

broadcasts of copyrighted materials; and that such éutabmanitey antenna

selevision systems do not pay or otherwise compensate the owners of

such copyrighted programs in any manner.- By engaging in and by permittin

the community antenna television systems referred to herein to engage in

such course of conduct and business and by accepting the benefits thereof,

plaintiff CBS shall not be heard to assert the claims contained in the

supplemental complaint and has no standing in this Court. Therefore, the

relief eal in the supplemental complaint must be denied and the swpple-

mental complaint dismissed.

21. Defendants repeat and incorporate

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