Summary
holding that, although contested secondary use was not transformative, it properly fell within § 107's preamble categories and therefore first factor weighed towards fair use
Summary of this case from Brown v. Netflix, Inc.Opinion
04 Civ. 5332 (NRB).
November 1, 2005
Gregory A. Sioris, Esq., New York, NY, Counsel for Plaintiff.
Stephanie R. Cooper, Esq., Stephanie R. Cooper, P.C., New York, NY, Counsel for Defendant.
MEMORANDUM AND ORDER
On July 8, 2004, plaintiff, Video-Cinema Films, Inc. ("plaintiff" or "Video-Cinema") filed a complaint asserting copyright infringement and unfair competition claims against defendant, Ledler Foundation, Inc. Defendant filed an answer denying the allegations and asserting a number of affirmative defenses including those of release and fair use. Both parties have moved for summary judgment with respect to the copyright infringement claims and affirmative defenses in this case.
Although plaintiff asserts unfair competition claims in the complaint, neither party has moved for summary judgment with respect to those claims.
BACKGROUND
Unless otherwise noted, the following facts are not disputed.
Defendant is a nonprofit private foundation that prepares, and distributes via satellite, a program calledClassic Arts Showcase ("CAS") to public television stations, cable channels and other registered users. While defendant was originally known as The Ledler Foundation, Inc., the organization changed its name in 1988 to The Lloyd E. Rigler-Lawrence E. Deutsch Foundation ("the Foundation").
Plaintiff has argued that the Foundation is not a properly registered nonprofit organization. However, the evidence in the record overwhelmingly supports the Foundation's claim that it is a legitimate nonprofit organization. See Exs. A-D, Def.'s Mot. for Summ. J. We grant plaintiff's request to amend the caption to reflect that the correct name of the defendant in this case is The Lloyd E. Rigler-Lawrence E. Deutsch Foundation.
Plaintiff's request to add James D. Rigler as a defendant is denied. The primary basis for plaintiff's motion is the unsupported assertion that neither The Ledler Foundation nor The Lloyd E. Rigler-Lawrence E. Deutsch Foundation is a properly registered nonprofit entity. As discussed above, the evidence shows that The Lloyd E. Rigler-Lawrence E. Deutsch Foundation is properly registered as a nonprofit corporation with the state of California and as a private foundation with the IRS. See id. While Mr. Rigler is the President of the Foundation, we see no need or basis for allowing plaintiff to proceed against him personally.
See Ex. D, Def.'s Mot. for Summ. J.
CAS is essentially a compilation of video clips taken from a broad range of classical arts performances, prepared each week by the President of the Foundation, James Rigler. According to its website, CAS is a:
[F]ree cable television program designed to bring the classic arts experience to the largest audience possible by providing video clips of the arts in hopes that we may tempt you, the viewer, to go out and feast from the buffet of arts available in your community. Think of us as "Classic MTV".
Ex. E, Def.'s Mot. for Summ. J.
The Foundation does not pay licensing fees for the video clips it used in CAS programming. Instead, Mr. Rigler takes excerpts from a library of visual materials donated to the Foundation primarily by video distributors, artists and cultural institutions. The Foundation does not charge fees of any kind to users, does not include commercial advertisements in CAS programming and does not permit its users to add advertisements to CAS programming. Registered users of CAS may download and store material contained in CAS programming at any time via satellite.
See Rigler Aff. ¶ 16, Def.'s Mot. for Summ. J. We deny plaintiff's motion to preclude the Rigler Affidavit. See Pl.'s Answering Mem. of Law in Support of Mot. for Summ. J. and Cross Motion. Plaintiff seeks to preclude the Rigler Affidavit on the ground that defendant did not produce Rigler as its deposition witness. However, plaintiff's deposition notice did not require the defendant to present all potential trial witnesses or any particular witness. Defendant produced Peter Rosen, a consultant to the Foundation, in response to the notice it received. We note that Mr. Rigler, as President of the Foundation, was an obvious candidate for deposition and plaintiff failed to depose him. There is absolutely no "unfair surprise" in admitting Mr. Rigler's testimony.
See Rigler Aff. ¶¶ 10,13.
See id. ¶ 30 and Exs. E, I, Def.'s Mot. for Summ. J. In order to access CAS programming, potential users must fill out an application posted on the CAS website. In this application, the potential user must consent to certain conditions including: (1) "programming will not be altered in any way"; (2) "no commercials are permitted" and; (3) "no one may be charged for Classic Arts Showcase." See Ex. I, Def.'s Mot. for Summ. J.
Id. Rigler Aff. ¶¶ 27, 32.
The plaintiff, Video-Cinema, is primarily in the business of licensing motion pictures, or portions thereof, for exhibition on television and home video. Plaintiff holds exclusive television rights in a motion picture called Carnegie Hall as a result of a November 1964 agreement ("1964 Agreement") between Video-Cinema and Tele-Pac, Inc. ("Tele-Pac") granting Video-Cinema:
See Stern Decl. ¶ 2, Pl.'s Mot. for Summ. J.
Defendant initially disputed whether the 1964 Agreement conveyed an exclusive license to Video-Cinema. See Def.'s Mot. for Summ. J. 6-10. After reviewing the terms of the agreement, we find that it unambiguously conveyed an exclusive license to Video-Cinema.
[T]he license to distribute the said pictures set forth on Schedule A, in perpetuity, from the date hereof, for broadcasting by television or any other similar device now known or hereafter to be made known. This shall include, but not limit the said license to pay television, home television, theatrical television, etc., throughout the Territories.
See Ex. A, Pl.'s Mot. for Summ. J; Ex. 7, Def.'s Mot. for Summ. J.
The schedule attached to the 1964 Agreement lists twenty-six motion picture titles, including Carnegie Hall.
The exclusive nature of the license granted to Video-Cinema was reaffirmed by the terms of a 1987 Agreement between Tele-Pac and a third party, Raymond Rohauer ("1987 Agreement"). See Ex. 8, Def.'s Mot. for Summ. J.
To the extent that Carnegie Hall's copyright was an issue, it was resolved by plaintiff's production of a two-sided, color copy of the "Certificate Registration of a Claim to Renewal Copyright" in a post-argument submission received by this Court on October 13, 2005. This document lists Tele-Pac, Inc. as the renewal claimant and "proprietor of copyright in a work made for hire" for the work Carnegie Hall and lists the first date of publication as August 8, 1947. The back of the certificate shows that the renewal application and filing fee were both received by the Copyright Office on February 28, 1975.
Carnegie Hall is approximately 136 minutes in length. The plot of the movie follows the musical aspirations of a mother for her son. The mother works as a cleaner at Carnegie Hall for many years, and ultimately her son performs there. More importantly for purposes of this case, the movie includes a series of live performances by well-known classical artists. These live performances were specifically staged for the movie. One of these performances features the opera singer, Lily Pons, singing The Bell Song. The total length of the Pons performance in the movie is approximately five minutes and eight seconds. Another featured performance shows Leopold Stokowski conducting the New York Philharmonic Orchestra performing Tchaikovsky's Fifth Symphony, Second Movement. The total length of the Stokowski performance is approximately five minutes and thirty seconds.
See Ex. K, Pl.'s Mot. for Summ. J.
See Tr. Oct. 7, 2005 Conf. at 23.
See id.
See id.
In this case, Video-Cinema alleges two specific acts of copyright infringement. The first claim is based on the Foundation's use of an excerpt from the Stokowski performance originally featured in Carnegie Hall in CAS programming broadcast by CUNY-TV on July 26, 2002. ("Stokowski clip") Plaintiff's second claim is based on the fact that CAS programming broadcast by CUNY-TV on June 17, 2004 contained an excerpt of the Lily Pons performance originally featured in Carnegie Hall. ("Pons clip") Plaintiff initially provided a range of different estimates for the length of these excerpts based entirely on the unrecorded viewings of Video-Cinema's President, Larry Stern. Defendant has submitted actual tapes of the relevant broadcasts supplied by CUNY-TV.
See Compl. at ¶ 5; Ex. C, Def.'s Opp. to Pl.'s Motion for Summ. J.
See Compl. at ¶ 5.
Compare Compl. at 5; Stern Decl. ¶ 11, Pl.'s Mot. for Summ. J; Pl.'s Local R. 56.1 Statement ¶ 11.
Stern Dep. at 55:15-59:21, Feb. 14, 2005.
See Ex. C, Def.'s Opp. to Pl.'s Mot. for Summ. J. Plaintiff's motion to exclude the tapes because they were not produced during discovery is denied in the absence of any support for the contention that they are not authentic. Peter Rosen has sworn that the tapes were obtained directly from CUNY-TV, and the tapes are certainly the best evidence submitted on the issue of the length and content of the excerpts contained in CAS programming. See Rosen Aff. ¶¶ 25-26, Def.'s Opp. to Pl.'s Mot. for Summ. J.
Our review of the tapes of the July 26, 2002 and June 17, 2004 CUNY-TV broadcasts confirms that: (1) a Stokowski clip was included in the July 26, 2002 CUNY-TV broadcast; (2) this clip was approximately one minute and thirty seconds in length and appears to be an excerpt from the full performance featured in the movie Carnegie Hall; and (3) CAS included a credit before and after the clip specifying that the source of the excerpted performance was a documentary called The Art of Conducting, Great Conductors of the Past. Review of the June 17, 2004 broadcast confirms that: (1) a Pons clip was included in the CAS programming broadcast by CUNY-TV; (2) the Pons performance footage is preceded by an interview with the opera singer, Marilyn Horne; (3) voiceover commentary by Marilyn Horne is also included during the first twenty-five seconds of the performance footage; (4) the performance footage lasts a total of approximately one minute and twenty-five seconds and appears to be an excerpt from the full performance featured in Carnegie Hall; and (5) CAS included a credit before and after the clip identifying the source of the excerpted performance as the documentary Carnegie Hall at 100, A Place of Dreams.
The parties agree that the Foundation has never sought a license from Video-Cinema for any of the excerpts included in CAS programming. Parties also agree that Carnegie Hall was the original (if indirect) source of the excerpted Stokowski and Pons performances included in CAS programming aired by CUNY-TV on July 26, 2002 and June 17, 2004.
Although defendant initially emphasized the fact that the performance excerpts were taken directly from the documentaries rather than Carnegie Hall, defendant has conceded that the original source of the Stokowski and Pons performance footage wasCarnegie Hall. See Tr. Oct. 7, 2005 Oral Arg. at 19; Cooper Aff. ¶ 15, Def.'s Mot. for Summ. J.
Defendant has also conceded for purposes of these motions that it has engaged in broadcasting activities within the scope of the exclusive rights granted to Video-Cinema in the 1964 Agreement.
See Tr. Oct. 7, 2005 Oral Arg. at 17.
Plaintiff has produced multiple agreements with third parties in which Video-Cinema has licensed broadcasting rights related to performance excerpts from Carnegie Hall. Several of these excerpts are less than two minutes in length.
See Exs. 1-12, Pl.'s Mot. for Summ. J.
See Exs. 2-3, 8, Pl.'s Mot. for Summ. J.
B. Prior Litigation Between the Parties
These parties are not new to the Court. Plaintiff asserted similar copyright infringement claims against the defendant in a prior case that was ultimately settled. Video-Cinema Films, Inc. v. The Ledler Foundation, Inc., 02 Civ. 6279 (NRB). In the first case ("Video-Cinema I"), Video-Cinema claimed that the Foundation infringed its copyright interests in the motion picture Carnegie Hall by including an excerpt from the film featuring the cellist, Gregor Piatigorsky, in CAS programming.
As part of the settlement, plaintiff released and discharged all claims and demands "in law or equity, as connected to" the lawsuit which Video-Cinema and its successors "ever had, now have or hereafter can, shall or may, have against [the Foundation] . . . for upon or by reason or any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this Release." Plaintiff's counsel drafted the release.See Tr. Oct. 7, 2005 Oral Arg. at 41. The parties executed the release on February 11, 2003, and this Court endorsed a stipulation of dismissal with prejudice on February 24, 2003.
See Ex. J, Def.'s Mot. for Summ. J.
Id.
In two letters exchanged between the parties as they finalized the settlement, plaintiff's counsel twice referred to the release as a "general release." In a fax cover sheet, plaintiff's counsel simply refers to it as a "release."
Following a request made by this Court during oral argument, both defendant and plaintiff submitted copies of correspondence exchanged during the negotiation of the settlement and release in Video-Cinema I. We refer here to two letters dated February 10, 2003 and February 13, 2003 from plaintiff's counsel, Mr. Sioris, to defendant's counsel that were included in post-argument submissions.
See cover sheet of fax allegedly sent on Feb. 5, 2003 from Mr. Sioris to defendant's counsel. This document was included in plaintiff's post-argument submission, but we note that it does not include any time stamp or confirmation report verifying when or if it was actually sent. We assume for purposes of these motions that it was sent on Feb. 5, 2003.
DISCUSSION
I. Legal Standard for Summary JudgmentSummary judgment is properly granted if the record evidence "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (internal quotations omitted). Moreover, we must resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. See id at 255.
The fact that both parties move for summary judgment does not alter the fundamental approach. "Rather, each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Morales v. Quintel Entm't, 249 F.3d 115, 121 (2d Cir. 2001) (citations omitted).
II. Scope of February 2003 Release
In the February 2003 release signed by the President of Video-Cinema, Larry Stern, the plaintiff discharged all claims and demands "in law or equity, as connected to" the lawsuit which Video-Cinema and its successors "ever had, now have or hereafter can, shall or may, have against [the Foundation] . . . for upon or by reason or any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this Release." The parties currently dispute the scope of the release and disagree on whether the claim based on the Stokowski clip aired on July 26, 2002 is barred by the terms of the release.
See Ex. J, Def's Mot. for Summ. J.
We find that the language of the release, which was drafted by plaintiff's counsel, is ambiguous. The "as connected to" language supports plaintiff's contention that the scope of the release was limited to the specific claims raised in the complaint in Video Cinema I, namely the Foundation's use of performance clips of Gregor Piatigorsky taken from Carnegie Hall. However, the broad language of the clause that follows supports defendant's contention that this was a general release meant to encompass all claims that plaintiff had against defendant up to the date when the release was signed, i.e. February 11, 2003.
See Tr. Oct. 17, 2005 Oral Arg. at 41.
We note that the broad language in this clause of the release is very similar to a release clause evaluated by the Court of Appeals of New York in Lucio v. Curran, 2 N.Y.2d 157 (1957). In that decision, the court concluded that these "words of general release are clearly operative not only as to all controversies and causes of action . . . which had, by that time, actually ripened into litigation, but to all such issues which might have been adjudicated as a result of pre-existent controversies. . . ." Id. at 161-162. The complaint in Video Cinema I was filed on August 6, 2002, approximately 11 days after Mr. Stern claims to have witnessed the allegedly infringing broadcast of the Stokowski clip in this case.
Where the language of a release is ambiguous, we must resort to extrinsic evidence to determine the parties' intent. During the oral argument held on October 7, 2005, this Court inquired of both parties whether there was extrinsic evidence that might shed light on the scope of the release. In post-argument submissions, both parties sent the court a copy of a letter dated February 13, 2003 from Mr. Sioris to Stacy Krieger, prior counsel for defendant. In this letter, Mr. Sioris writes: "Enclosed please find a general release from my client dated February 11, 2003." In another letter dated February 10, 2003, Mr. Sioris writes: "Once the [settlement] check is negotiated I will forward to you my client's general release. . . ." We conclude that these letters confirm that the parties' intent was to establish a general release encompassing all actual and potential claims that Video-Cinema had against the Foundation up to the date when the release was signed, i.e., February 11, 2003.
See 29 Williston on Contracts, § 73.7(4th ed. 2003) ("The determination of whether the language of a release is clear and unambiguous, or, conversely, subject to more than one meaning and therefore ambiguous, is to be made by the trial judge from an examination of the four corners of the release . . . [W]here the court determines that the release is ambiguous with respect to its scope or meaning, there is a question of fact raised, requiring resort to extrinsic evidence to determine the parties' intent.")
Plaintiff's counsel sent a copy of this letter in a post-argument submission dated October 11, 2005.
Because the Stokowski clip in the current case is alleged to have aired on July 26, 2002, plaintiff's claims related to this clip are barred because they are within the scope of the 2003 release. We therefore grant defendant's motion for summary judgment with respect to that claim.
III. Analysis of Remaining Copyright Infringement Claim
A. Elements of Copyright Infringement
Put simply, "[c]opyright infringement is established when the owner of a valid copyright demonstrates unauthorized copying."See Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir. 2003) (quoting Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 137-38 (2d Cir. 1998)).
1. Plaintiff's Standing as Exclusive Licensee
Case law in this Circuit establishes that an exclusive licensee has standing to sue for copyright infringement. See Random House, Inc. v. Rosetta Books LLC, 283 F.3d 490, 491 (2d Cir. 2002). By its terms, the 1964 Agreement clearly conveyed to Video-Cinema an exclusive license to distribute the motion picture Carnegie Hall via "broadcasting by television or any other similar device." Thus, plaintiff clearly has standing to assert its copyright infringement claims.
See Ex. 7, Def.'s Mot. for Summ. J. Although defendant initially disputed Video-Cinema's standing and status as an exclusive licensee, the 1964 and 1987 Agreements decisively resolve this factual question. Moreover, defendant conceded this issue during oral argument. See Tr. Oct. 7, 2005 Oral Arg. at 6, 10-12, 17.
2. Validity of the Copyright
Because the Foundation initially challenged the validity of the copyright for Carnegie Hall, we briefly discuss this issue. According to the renewal certificate submitted into evidence,Carnegie Hall was first published on August 8, 1947. Registration and renewal of the work's copyright was therefore originally governed by the 1909 Copyright Act ("1909 Act"). Under the 1909 Act, an initial term of 28 years could be extended for an additional 28 years only if the copyright owner renewed the copyright during the final year of the copyright. Thus, if Carnegie Hall was renewed with the Copyright Office in a timely manner in 1975, the copyright would have been valid until 2003 under the 1909 Act.
See Ex. A, Pl.'s Mot. for Summ. J.
For a recent overview of copyright law, see Martha Graham Sch. and Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance, 380 F.3d 624, 632-34 (2d Cir. 2004).
However, the 1976 Copyright Act and Sonny Bono Copyright Term Extension Act ("CTEA") have changed copyright renewal in significant ways. Most importantly for purposes of this case, the CTEA specified that any copyright that was in its renewal term at the time that the Act became effective (i.e. October 27, 1998) automatically has a copyright term of 95 years from the date the copyright was originally secured. This means that ifCarnegie Hall's copyright was renewed in 1975 in a timely manner, it is valid until 2042.
See 17 U.S.C. § 304(b). See also 3 Nimmer on Copyright, § 9.11 [B][1]. Under the 1909 Act, copyright protection for Carnegie Hall would have commenced from the first date of publication.
The copyright renewal certificate submitted post-argument confirms that Tele-Pac, Inc. renewed the copyright for Carnegie Hall on February 28, 1975. By operation of law, copyright protection for Carnegie Hall extends until 2042.
See Submission from Pl.'s Counsel, Oct. 11, 2005. See also Stern Decl. ¶ 4, Pl.'s Mot. for Summ. J.
Plaintiff's production of a copyright registration certificate establishes a strong presumption that the copyright is valid. See Fonor Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir. 1997). See also 17 U.S.C. § 410(c) (certificate of copyright registration is prima facie evidence that copyright is valid). We see no reason why the same presumption would not apply to the certificate of copyright renewal produced by plaintiff in this case.
3. Unauthorized Copying
As we turn to the issue of whether there has been unauthorized copying, we note that defendant does not dispute certain matters. During the oral argument held on October 7, 2005, defendant conceded for purposes of resolving these motions that its production and/or distribution of CAS programming falls within the scope of the exclusive rights granted to Video-Cinema in the 1964 Agreement. Defendant has also conceded that the original source of the Pons clip was the motion picture Carnegie Hall, and that the Foundation never obtained a license from Video-Cinema.
See Tr. Oct. 17, 2005 Oral Arg. at 12, 17.
However, the defendant has also argued that the Pons clip was sufficiently transformed in the documentary or in the CAS compilation so as to preclude Video-Cinema's liability for copyright infringement. See Tr. Oct. 17, 2005 Oral Arg. at 21-22. This argument is potentially relevant both to our analysis of whether unlawful copying has occurred and whether the defense of fair use is available.
When evaluating whether a prima facie case of unlawful copying has been demonstrated, courts focus on whether there is "substantial similarity" between the allegedly infringing and original copyrighted works. The copying must be quantitatively and qualitatively sufficient to support a conclusion that actionable copying has occurred. See Castle Rock Entm't, Inc. v. Carol Publ'g Group, 150 F.3d 132, 138 (2d Cir. 1998).
In this case, defendant has emphasized that the Pons clip used in CAS programming was taken directly from a documentary by Peter Rosen ("Rosen") called Carnegie at 100, A Place of Dreams ("CH at 100"). Rosen has testified, and our independent review of the documentary confirms, that he altered and made certain additions to the original Pons performance footage included in Carnegie Hall. For example, the Pons performance included inCarnegie Hall lasts approximately five minutes and thirty seconds. Rosen edited the clip down to approximately one minute and twenty-five seconds and added an interview with Marilyn Horne before the performance footage, as well as her voiceover commentary for the first twenty-five seconds of the footage. Nevertheless, there is approximately one minute of unaltered performance footage that is identical in Carnegie Hall and the CAS programming broadcast on June 17, 2004. We find that the amount of footage used exceeds the de minimis threshold and that substantial similarity between the Pons performances in Carnegie Hall and CAS programming clearly exists in this case.
See Rosen Aff. ¶ 21, Def.'s Mot. for Summ. J. and Ex. D, Def.'s Opp. to Pl.'s Mot. for Summ. J.
See Ringold v. Black Entm't Television, Inc., 126 F.3d 70, 76-77 (2d Cir. 1997) (concluding that showing copyrighted art work on television show for aggregate duration of 26.75 seconds exceeded de minimis threshold).
In sum, the record evidence clearly establishes the elements of a copyright infringement claim with respect to the Pons clip. Thus, we proceed to an analysis of whether the defendant's act is protected by the doctrine of fair use.
B. Fair Use
The doctrine of fair use "permits and requires courts to avoid rigid application of the copyright statute, when, on occasion, it would stifle the very creativity which the law is designed to foster." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (citations omitted).
In determining whether a particular use is a protected fair use, courts are to "apply an `equitable rule of reason' analysis, guided by four statutorily prescribed factors." Harper Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 588 (1985). These factors are: (1) "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes"; (2) "the nature of the copyrighted work"; (3) "the amount and substantiality of the portion used in relation to the copyrighted work as a whole"; and (4) "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107.
Since fair use is an affirmative defense to a claim of infringement, the burden of proof is on the defendant. See Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 107 (2d Cir. 1998). Whether defendant's use is "fair" represents a mixed question of law and fact. See id. However, courts have made fair use determinations at the summary judgment stage in cases where there are no genuine issues of material fact. See Castle Rock Entm't, 150 F.3d at 137. As the Second Circuit has observed, "the mere fact that a determination of the fair use question requires an examination of the specific facts . . . does not necessarily mean that . . . there are factual issues to be tried." Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir. 1991) (citations omitted) (original emphasis).
1. Purpose and Character of Use
The preamble of § 107 presents an illustrative list of purposes commonly recognized as consistent with fair use, including: criticism, comment, news reporting, teaching, scholarship and research. See 17 U.S.C. § 107. While CAS programming probably does not qualify as "scholarship" or "research", it clearly has an educational purpose. This purpose tends to weigh in favor of the defendant. However, other considerations also must be weighed in evaluating the first factor, specifically whether the infringing work is commercial or "transformative."
Our review of the mission statements of the Foundation and CAS, as well as the programming itself, suggests that the primary purposes of CAS programming are to educate viewers about the classical arts and to encourage viewers to attend classical art performances in their communities. The fact that CAS programming entertains while it educates viewers does not undercut our conclusion that the programming is educational.
As discussed earlier, the Foundation is a nonprofit organization. It provides all of the funding used to produce and sustain CAS programming and does not make any profit on activities associated with CAS. No one is charged for access to CAS programming. No commercial advertisements are included in the programming. No reasonable jury could conclude that the character of the use was commercial.
Although a finding of "transformation" is not absolutely necessary to sustain a finding of fair use, it is often considered as part of an evaluation of the first factor. The analysis focuses on whether the new work "merely supersedes" the original work or if it "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message". Campbell, 510 U.S. at 579. In this case, the original Pons performance in Carnegie Hall is approximately five minutes and thirty seconds in length. While producing the documentary CH at 100, Rosen licensed the Pons clip from Video-Cinema and then transformed the original performance footage in two significant ways. First, he edited the original footage to a shorter clip of approximately one minute and twenty-five seconds. Second, Rosen added an interview with Marilyn Horne to introduce the Pons performance.
See Ex. 8, Pl.'s Mot. for Summ. J.
See Ex. D, Def.'s Opp. to Pl.'s Mot. for Summ. J.
CAS subsequently copied the clip directly from CH at 100. Although the clip became part of a new compilation of materials once it was inserted into CAS programming, CAS did not itself otherwise transform or add new meaning to the performance in any observable way. Moreover, our review of the tapes submitted into evidence confirms that there is just over one minute of unaltered Pons performance footage in the CAS programming that is identical to the footage in Carnegie Hall and CH at 100.
While the CAS programming was not truly transformative, the programming clearly has an educational purpose and was not commercial. After weighing these considerations, we conclude that the first factor favors the defendant in this case.
2. Nature of the Copyrighted Work
The second factor is primarily intended to distinguish works of fiction and other creative works from factual material. See Campbell, 510 U.S. at 586 (second factor reflects a "recognition that some works are closer to the core of intended copyright protection than others"). Our review of the movieCarnegie Hall confirms that it is best characterized as a creative, fictional work. The plot of the movie is pure fiction, and the live performances included in the film were specifically staged for purposes of Carnegie Hall. Although defendant suggests the performances are "factual" because they feature actual artists performing in a concert hall, these performance clips are more accurately viewed as creative because the lighting, cinematography and other presentation features reflect choices made by the directors of the movie. The second factor therefore favors the plaintiff.
See Tr. Oct. 7, 2005 Oral Arg. at 23.
3. Amount and Substantiality of Use
The third factor requires an evaluation of the amount and substantiality of the original work used as well as whether the amount of material used was reasonable in relation to the purpose of the copying. See Castle Rock Entm't, 150 F.3d at 144. In this case, the CAS programming included approximately one minute and twenty-five seconds of footage of Lily Pons performing. As discussed earlier, this is not de minimis. However, the statute specifies that the use must be examined "in relation to the copyrighted work as a whole." 17 U.S.C. § 107 (3). The performance clip used for CAS programming was extremely small in comparison with the total length of the movie. We also agree with the defendant that no reasonable jury would conclude that the Pons performance is the "heart" of the film. Finally, we conclude that the amount of footage used was reasonable when viewed in light of two of the primary purposes of the use, specifically those of educating viewers and encouraging interest in the classical arts. The third factor favors the defendant.
Since the total length of Carnegie Hall is 136 minutes, the Pons clip used in CAS programming amounts to slightly less than one percent of the original copyrighted work. Compare Iowa State Univ. Research Found., Inc. v. Am. Broad. Companies, Inc., 621 F.2d 57,62 (2d Cir. 1980) (concluding that commercial use of excerpts, the longest of which was two minutes and thirty seconds, from twenty-eight minute documentary was not fair use).
4. Effect of Use on Potential Market for or Value of the Copyrighted Work
The fourth factor focuses on the effect that defendant's use will have on the potential market or value of the copyrighted work. Video-Cinema has submitted a number of licenses with third parties for performance clips from Carnegie Hall. These licenses demonstrate that there is a commercial market for performance excerpts from Carnegie Hall in addition to a licensing market for broadcasts of the whole movie. The rights conveyed to Video-Cinema in the 1964 Agreement include the exclusive right to exploit both of these markets.
See generally Exs. 1-12, Pl.'s Mot. for Summ. J. For example, Ex. 2 is a 1991 license with CBS News authorizing use of sixty seconds of performance footage from Carnegie Hall for $2,000. Ex. 3 is a 1993 license with IMG specifies a fee of $6,000 for the first minute of footage used. Ex. 8 is a copy of a 1990 license in which Peter Rosen licensed nine performance clips from Carnegie Hall for use in his documentary. Each clip was less than two minutes, and the total fee for the clips was $19,200. See also Stern Decl. ¶ 12, Pl.'s Mot. for Summ. J.
The Foundation's use of the performance clips from Carnegie Hall is likely to erode the market value for those clips. Registered users pay nothing for access to CAS programming and can store CAS programming they download for extended periods of time. Although the Pons clip cannot serve as a substitute for consumers who want to license Carnegie Hall in its entirety, the clips in CAS programming can replace licensed performance excerpts. This is precisely the type of harm that the fourth factor aims to prevent. See Infinity Broadcasting, 150 F.3d at 111. Moreover, because the clip credits the documentary CH at 100 as the source of the performance footage, rather thanCarnegie Hall, there is a possibility that viewers and potential commercial users of the footage will not realize that they need to negotiate a license with Video-Cinema if they plan to re-broadcast the Pons clip. We conclude that the fourth factor weighs in favor of the plaintiff.
Having reviewed the relevant factors, we find that despite the fact that the Foundation's use was limited and had an educational and non-commercial purpose, the use of the performance footage from Carnegie Hall in CAS programming is likely to adversely impact the value and market for the licensing of these performance clips. On balance, and in the absence of disputed issues of material fact, we conclude that the copying of the Pons clip is not protected by the doctrine of fair use.
CONCLUSION
After making all inferences in favor of the plaintiff and having determined that there are no genuine issues of material fact, we have concluded that the 2003 release between the parties bars the plaintiff's copyright claims related to the Stokowski clip contained in CAS programming aired on July 26, 2002. We therefore grant defendant's motion for summary judgment with respect to that claim.
After making all inferences in favor of the defendant and having determined that there are no genuine issues of material fact, we conclude that the evidence in the record establishes the elements of a copyright infringement claim with respect to the Pons clip and that the affirmative defense of fair use does not apply. Therefore, we grant plaintiff's motion for summary judgment with respect to the copyright infringement claim based on defendant's use of the Pons clip.
The parties are directed to appear for a conference on November 22, 2005 at 4:15 P.M. if they are unable to resolve the remaining issues in this case before then.
IT IS SO ORDERED.