*1 act authority agent, fore, as their thus, we reverse and remand case for provided to additional Ships necessaries proceedings. were not on order of the Owners. REVERSED and REMANDED. Incorporation
The IFC Articles of des-
ignate as a IFC “common marketing members,
agency” deposition
testimony suggests that IFC members un-
derstood that IFC would act as their
agent in goods procuring and services es- sential to the squid 1996-97 fishing sea- LOS SERVICE; ANGELES NEWS son. if IFC was Even not authorized Tur, Robert Plaintiffs- act as agent, the Owners’ the Owners Appellants, themselves authorized many of Ventura v. Packers’ services. On numerous occa- sions, the verbally requested Owners ser- BROADCASTING, CBS INC.; Court vice from Ventura Packers en route to room Network, Television De port, many of the California fish tick- fendants-Appellees.
ets bear signature Ships’ own- 00-56470, Nos. 00-57000. ers and masters. The argue, Owners United States hand, Appeals, Court of the other that IFC acted as a non- Ninth Circuit. profit organization purchased fish members, from its resold the fish to third Argued and Submitted Feb. 2002. persons eye an with towards negotiating Filed Sept. price possible, best and distributed the profits, if any, back to its members. The
district court found the IFC Articles of
Incorporation supported this view as well.
We, therefore, leave for the trier of fact
to decide whether pro- Ventura Packers
vided Ships with goods and services
on the of the owner or person order au-
thorized inquiry owner. This will
determine whether there is admiralty jur-
isdiction and whether Ventura Packers
prevails on merits.
CONCLUSION Act,
The Maritime Lien 46 U.S.C.
§ 31342, DOHSA, like provides a statutory
basis for the exercise of a district court’s
admiralty jurisdiction. case, In this Ven-
tura Packers adduced sufficient evidenсe summary survive judgment, and there-
H. Jay III, Tyre Ford Kamins Katz & Granof, Los Angeles, CA, argued the cause for the appellants. Lindsey *5 Duro, A. Los Angeles, CA, and A. William Bergen, Au- burn, CA, were on the briefs. Frederick Mumm, F. Davis Wright Tre- LLP, maine Los Angeles, CA, argued the cause and filed a brief for the appellees. Before: O’SCANNLAIN and SILVERMAN, Circuit Judges, and REED,* District Judge.
Opinion by Judge O’SCANNLAIN; Partial Concurrence and Partial Dissent by Judge SILVERMAN. O’SCANNLAIN, Judge. Circuit We must decide whether the of owner the copyrighted video “Beating of Regi- nald Denny” can establish that a satellite news service infringed its copyright, and whether television network’s incorpo- ration of that video into promotional mate- rials awas fair use.
*The Reed, Jr., Honorable Edward C. Nevada, Senior sitting by designation. United States Judge District for the District of rebroadcast use and limited
I works. news, fre- it is of age television In this story accompanying Inc., is a image Broadcasting,
quently the CBS Defendant the view- into Inc., seared an event includes which that leaves of Viacom component The riots memory. Co. collective Electric еrship’s Westinghouse former are book- April Angeles to this relevant shook Los time period During footage images: corporate two such by Westinghouse ended litigation, Rodney beating motorist as officers unit known operating police an family included trial verdict to the led Newsfeed, news service.1 King, which a video Group W footage rioting, and and conven- sparked uplinks Using satellite both Den- Reginald driver track its beating supplied rioters W Group videotapes, tional synecdoche television through packaged ny, with both TV stations subscriber in a few moments symbolize to footage come of newswor- has and raw stories news swept violence days could then multiple events, stations which the thy rise image gives latter city. programming. over news in their own utilize ain latest installment occasions, licensed litigation, Group W to this several On owners which the suits series of to distribute footage from LANS sought videotape have to that rights subscribers. Newsfeed into remu- translates renown ensure Group a liсense W offered LANS neration. de- footage, which its riot distribute however, asserts, clined. A *6 rebroadcast the unauthorized investigating (LANS), Service, Inc. News Angeles Los works, it discovered copyrighted itsof organiza- newsgathering independent anis the four indeed distributed had Group W and licenses video and makes tion that LANS service. its Newsfeed over works news breaking events. of recordings audio of recipients multiple contends from Los riots Angeles filming the While made then use distribution Newsfeed Tur, is who Marika helicopter, LANS’s works. copyrighted from footage co-owner, shot the LANS’s (“Court Networks Television Courtroom arose. litigation other and which this TV Court TV”) recipient. alleged one co-owner, pilot Tur’s Marika other LANS’s “Beat- from footage seconds a used few ap- Tur, subsequently Robert and husband Denny,” primarily Reginald ing of four copyrights for received and plied throw- Williams Damien depicting frames re- video-tape segments separate head, in on-air Denny’s at works, a ing brick copyrighted night; cordеd that coverage promoting spots “teaser” minutes’ worth nine about total which co-defendant and his of Williams trial Regi- “Beating of as are known footage, incorporated also It Henry Watson. in White Man “Beating of Denny,” nald introducto- into the footage brick-throwing in Brown Man Truck,” “Beating of Panel Time Jus- “Prime its show montage for ry Rescue,” “Japanese and with Hatchback clock orange stylized a tice,” used by Riot- Attacked Bronco in Brown Man tinted, grainy, a over superimposed design those ownership of retains LANS ers.” The background. video monochromatic licenses to sell and continues copyrights company 1992. casting Group Televi- subsidiary W Westinghouse’s Inc., broad- sion, to another sold Newsfeed background changed as the “hands” of the fered several pieces of evidence. CBS ob- revolved; clock copyrighted LANS’s video jected to each inadmissible, as and it relied was in background for a couple of on objections these in its own motion for seconds, one sweep 360° of the clock. summary judgment; if the evidence of in- Court did not dispute TV it had used fringement was inadmissible, LANS would the footage, it but asserted that it had have failed to carry its burden of establish- obtained the video from Newsfeed but ing infringement and CBS would be enti- from the courtroom video monitor during tled to summary judgment. To under- the Williams and Watson trial. stand the court’s evidentiary rulings, a more detailed elaboration of prof- LANS’s B fered evidence required. LANS filed suit in federal district court against Westinghouse, TV, Court and a number of other defendants, alleging copy-
right infringement. Robert Tur2 After the submitted conclusion a declaration in of discovery, Westinghouse which he and Court asserted (after TV in May moved for summary judgment. However, stipulated dismissal), he saw three of February agreed to a stip- copyrighted works broadcast on a local ulated dismissal of those parties two station, from KPIX-TV. He stated that he had (in the action exchange for confidential telephoned the station spoken to a consideration) in an attempt negotiate a man identifying himself as editor, an who settlement. stipulation The tolled the stat- had told him that KPIX had obtained the ute of limitations for two years guar- riot footage it showed from Group W’s anteed LANS right to re-file its com- Newsfeed. Tur further averred that in a plaint against Westinghouse and Court TV subsequent KPIX, call to spoke he to an time, during that upon thirty days’ notice. archivist and requested “a copy of the
Settlement negotiations failed, footage KPIX received from Group W’s LANS re-filed its complaint in January Newsfeed.” station, said, he proceed- 1999 after giving requisite notice. Due ed to him send a videotape on which were *7 to the intervening corporate reorganiza- recorded an identifying slate and copies of tion, the complaint renewed named CBS the three copyrighted works. The slate Broadcasting (“CBS”) Inc. in Westing- reads, “DAYFEED-Special Feed L.A. house’s stead. CBS and Court TV re- Riot Violence Group W 05/03/92 Newsfeed newed their motions for summary judg- Copyright 1992.” mеnt, asserting that any use of “Beating of objected CBS to admission of por- this Reginald Denny” protected was by the tion of Tur’s declaration and of the sup- defense fair use and that LANS had no porting videotapes stills, and color part in evidence that either of them had infringed ground that the submission of such any of the other three copyrighted works. evidence the parties’ violated 1997 stipula- in LANS turn moved for partial summary tion. Paragraph 5 of agreement that judgment on the issue liability. in pertinent reads part: In the event that the First Amended In support of its motion for partial sum- Complaint is by refiled Plaintiffs against mary judgment against CBS, prof- LANS Westinghouse and TV, Court it is the Hereinafter, 2. "Tur" refers to Robert Tur ab- contrary sent a indication. However, Tur could in a newsfeed. cluded they restored that be intention
parties’ employees’ three of the none cur- remember they positions litigation to the same titles, in Tur had admitted and or parties names Accordingly, enjoy. rently sure what that he was not deposition Amended his if the First agree that further struc- corporate Westinghouse Westing- of the against part refiled complaint TV, will he had contacted. the parties ture Court and house addi- any new or assert right no to have were that the statements objected CBS defenses, dis- conduct or claims tional court hearsay. The district inadmissible in- acts of additional allege covery, or statements that with LANS agreed any that agree parties The fringement. be and would hearsay, thus not be would action present in the discovery obtained Westinghouse’s admissible, they if were action any in refiled admissible will be However, the district statements. own ad- been it would have extent same had not ade- that LANS concluded court action. present missible con- a for foundation quately established pre- agreement that the contended CBS were either the statements cluding that of the evidence admission cluded Westinghouse, Fed.R.Evid. by authorized stipulated after the KPIX from obtained 801(d)(2)(C), by Westinghouse’s made or dismissal. matter within “concerning a agent concluded court The district employment” agency or of the scope in- parties’ of the statement stipulation’s relationship,” the existence “during restoring and that controlling tent 801(d)(2)(D). It therefore Fed.R.Evid. necessarily litigation positions” “the same ruled that objection and CBS’s sustained evidence to the limiting parties meant relating of Tur’s declaration portions February of that was available were inadmissible. Group W his call to ob- sustained CBS’s accordingly court Tur’s declaration jection ruled c KPIX, he videotape testimony about he KPIX, stills and the color from received a declaration submitted LANS also all tape MTV, were inadmissible. a made from Fox, producer Robert Brown, execu- a former letter from Merrill b he had Fox TV. stated tive at Court Reginald Beating of “The from clip used a another also recounted declaration Tur’s he had program; in an MTV Denny” Tur stat- Group call, W. this one phone in the tape from a beta clip *8 and obtained lawyer “a tо spoken he had that ed tape’s that library; and that video MTV Westinghouse,” who from people other two as Service Group W News “identified had box Group that W him expressly told had letter stated Brown’s the source.” works copyrighted the four distributed W Group from “received TV had later Court In a service. through its Newsfeed ap- footage that seconds six Newsfeed previous excerpts of his Tur filing, offered beating. Denny Reginald to be” the pears this as- support in testimony deposition the description of that Fox’s objected he CBS There, had Tur stated sertion. and outright hearsay was label to spoken and Westinghouse called had as to at least hearsay was letter Brown’s referred of whom people, one different two these sustained court The CBS. district attorney, and that Westinghouse to a him Fox that the ruled and as well objections each of confirmed that attorney had the inadmissible. were Brown statements in- and been works had copyrighted four the d poration of the footаge into the “Prime Time Justice” montage had a transforma- Finally, LANS submitted Westing- effect; tive that Court TV had response house’s an rebroadcast to interrogatory pro- only a portion small work; pounded and and that answered in previous Court TV’s use had litigation. not significantly LANS had affect- submitted in- ed the market for terrogatory, work, licenses use “YOU used the VIDEO- as TAPE without Court TV was engaged authorization of in breaking copyright news coverage, holder.” In but in trial its response, West- in reporting, inghouse objected to the LANS is request not a competitor. for ad- mission of the district interrogatory court accordingly granted three Court grounds, including that it TV’s “vague motion for summary judgment as ambiguous, particularly with well respect denied LANS’s partial motion for the meaning intended by the summary judgment term as to Court TV. “[wjithout however, ‘used’ waiving the LANS filed this timely appeal.3 foregoing objections,” Westinghouse re- sponded “Admitted.” II The district court sustained the reserved In determining whether the district objection and excluded admission. It court erred in grаnting summary judg- rejected LANS’s contention that the term CBS, ment to we must first decide wheth- “use” is not vague because the Copyright er it in erred excluding proffered LANS’s it; Act defines the court concluded that no evidence that Newsfeed distributed its statutory provision defines and, the term copyrighted works. If some or all of the indeed, that under some circumstances the evidence admissible, if a reasonable public may “use” copyrighted work with- jury could conclude from the admissible out infringing the copyright. evidence that CBS infringed copy- LANS’s Having all of excluded LANS’s evidence right, grant of summary judgment probative of Group W’s distribution would be improper. copyrighted works, the district court de- nied LANS’s motion for partial summary A judgment as to granted CBS and summary judgment to CBS. In excluding the videotape that Tur obtained from KPIX and the supporting language declaration, Tur’s the district
Court TV based its court motion relied not on any of summary the substantive judgment on the prohibitions affirmative defense of fail- stipulation made ap use. Weighing plicable the four any non-exclusive fac- litigation, renewed but on tors that the Copyright Act prescribes, provision parties would be district court concluded that weighed all “restored to the litigation same positions.” favor a finding of fair use. It In particular, reasoned it is clear that LANS’s ob that Court TV’s was primarily use (though taining of the from videotape KPIX the *9 not exclusively) for the simple noncommercial expedient of telephone a request purpose of news reporting; that the incor- did not violate the prohibition par- on the appellant LANS is the in both No. ing 00-56470 entry the of judgment pursuant to Fed. 00-57000; and No. it filed two notices of R.Civ.P. 58. We ap consolidated the two appeal, following one the district court's or- peals. granting der summary judgment, one follow-
933 by mu- except presumably discovery, ther See discovery. conducting renewed ties’ the consent, guaranteeing 26(a)(5) the meth- (defining tual Fed.R.Civ.P. had); Fed. the may renewal of discovery be not bar would by dismissal ods discovery of motion). for (providing summаry judgment 34 R.Civ.P. pending party aof possession the in things tangible However, general of the language the as but production, for requests of means by indicates, provisions those none of clause things tangible discovery of for providing of the posture the change to any made by means non-party aof possession in the conducting the bar on This includes case. accordingly question The subpoena). aof discovery imposed for court discovery, the the reinstating provision the is whether weeks before. passed several cutoff had independently positions” “litigation parties’ evidence ob- of introduction the prohibits agreed never Thus, parties the had discov- than formal means by other tained have LANS would been stipulation, to the ery. but it discovery, further to conduct unable positions” “litigation if the Even for evi able to search have been would but merely precatory, provision not with means through own on its dence ac a re-filed conditions imposes rather in “discovеry” Rule meaning of in the restric specific the five addition to tion in Pro 26(a)(5) of Civil Rules the Federal of (no new it,4 examples the follow tions that discovery cut of a purpose “The cedure. no addi defenses; discovery; no or claims from the protect parties is to off date reconsider no infringement; acts of tional evidence producing of continuing burden no bar evidentiary rulings; prior ation of pre time to adequate them assure and to sum motion the renewing pending to discovery A immediately before trial. pare certainly light some shed mary judgment) however, not, ad affect date does cutoff A basic term means. general the on what of outside obtained missibility of evidence construction, generis, ejusdem maxim of in which case of the discovery process the examples to specific to read courts directs Whittaker is ordered.” cutoff date the pre language general constrain 1341, F.2d 736 Corp., v. Execuair Corp. v.Co. Indem. E.g., Travelers them. cedes omittеd); Cir.1984) (citation (9th 1347 cf. (9th 71, States, Cir. F.2d United Rhinehart, 467 U.S. v. Times Co. Seattle 1976). 2199, L.Ed.2d 104 S.Ct. to both apply provisions specific ob (1984) “information (distinguishing (locking the action nature of substantive discovery 'pro of the use through tained infringe- of acts and those claims those ... information identical “the cess” from limiting the alleged, thus already ment of the through independent means gained to tolling provision 2’s paragraph effect a court’s analyzing processes,” court’s already been that had of action the causes discovery process protect limitation) power within statute asserted type of former restricting disclosure (barring fur- posture procedural and to sentence&emdash;is term&emdash;the meant have first stipulation paragraph of pertinent 4. The terms that specific independent word with the force sentence its second introduces it, provisions giving indica- the other although some "Accordingly,” possibly follow specific "agree" succeeding, agree" terms more "further agreement use tiоn "litigation appear- only components of interchangeably without are virtually regu- sought to agreement positions” any that the structural "further” ing give the term However, in the "further” the word late. significance. general may indicate sentence second *10 information).5 It is true that on this read- establish” that hearsay declarant was ing, gave the stipulation LANS two addi- an agent of a party-opponent or that the years’ tional respite search for evidence declaration was within the scope of the by means; nondiscovery on the other agency. 801(d)(2). Fed.R.Evid. hand, the additional time could benefit or submitted only Tur’s assertion that KPIX hinder either side.6 was owned operated CBS; by even if existed, this relationship however, it of-
We that conclude the stipulation agree- fered no evidence of the scope of the edi- ment did not bar LANS from introducing tor’s agency relationship to KPIX or CBS the videotape and supporting declaration. beyond the editor’s own hearsay declara- However, made a CBS number of other LANS, tion. as the proponent of the evi- objections exhibits, to these on which the dence, bore the burden of establishing district court did not rule. We accordingly foundation from which to conclude that the must examine any whether of CBS’s evi- statement was within a hearsay exclusion. dentiary objections an affords alternative E.g., United States v. Chang, 207 F.3d See, basis for the exclusion. e.g., Sum- (9th Cir.2000). It simply failed Son, mers v. Inc., Teichert & 127 F.3d to do so. (9th Cir.1997) (“[A] grant of summary judgment may be if affirmed it is For reasons, the same Tur’s ac supported by any ground record, in the count of his conversation awith Westing whether or not the district court relied lawyer house hearsay. inadmissible In upon ground.”). his deposition, Tur admitted that he did not even remember what division of West
B
inghouse he
called, just
had
it had
Most of the alternative bases
affir-
“something to do with television.” Even
mance that
urges upon
CBS
rely
us
on the
accepting the assertion that the declarant
rule,
hearsay
Fed.R.Evid. 802.
lawyer
awas
which there was no
—for
Tur’s report of his conversation
beyond
evidence
the hearsay declaration
with the editor at
plainly
KPIX is
hearsay.
itself—we cannot conclude that the district
LANS seeks to introduce the editor’s “oral
court abused its
by
discretion
deciding that
... assertion” that
provided
Newsfeed
fact,
in the case of an employer the
station with the
footage
riot
prove
“to
size of Westinghouse, does not adequately
truth of
asserted,” i.e.,
the matter
establish the scope of the declarant’s au
copied
Newsfeed
and distributed
copy
thority.
righted
(c).
works.
801(a),
Fed.R.Evid.
LANS’s contention
state
editor’s
report
Tur’s
of his conversation
ment was the
of a
admission
party-oppo
archivist,
with the
by contrast, was not
nent is unavailing, because LANS failed to
hearsay, at
least
relevant part.
lay an adequate foundation to support that
if
Even Tur’s declaration —his oral request
contention. “The contents of the[hearsay]
for the videotape from KPIX’s archives—
...
statements
are not аlone sufficient to
can be characterized
an “assertion,”
as
5.
rules,
Washington's
State of
example,
For
the defendants’ affirmative de-
analyzed,
Rhinehart
were modeled on and
fense of
might
fair use
have
been bolstered
virtually identical to the Federal Rules of Civil
nondiscovery
pertaining
evidence
to the mar-
Rhinehart,
Procedure.
467 U.S. at
&
29-30
ket for licenses to show
copyrighted
LANS's
14-15,
nn.
identifying slate, sought governing that LANS also Nor do the rules au introduce. Out-of-court declarations intro- require thentication the slate be duced to show the effect on the listener Indeed, appears stricken. the slate to fall hearsay. E.g., directly are not United States v. within the text of the relevant Payne, (9th Cir.1991). Rule, provides 944 F.2d Federal which that no ex would, required support What the archivist said to Tur of trinsic evidence is course, hearsay, purporting be inadmissible for the authentication of "labels to be same reasons that what the editor said affixed in the course of business and indi during prior phone cating ownership, control, origin." call was inadmissi- or hearsay. 902(7) (emphasis added). ble But Thr's declaration offered Fed.R.Evid. (al- Moreover, important no account of what the archivist said it is to reiterate that though certainly implied requirement it that she said the authentication does not archivist). proponent piece she was an demand that the of a conclusively gen evidence demonstrate the brings videotape Which us to the article, only uineness of his but that he itself, identt~iing ap and the slate that showing support make a "sufficient to a pears opening urges on its frames. CBS finding question that the matter in is what hearsay or, us to conclude that the slate is proponent 901(a). claims." Fed.R.Evid. not, tape if that the slate or the itself is not here, provide And the Rules that the slate properly authenticated. provides prima itself facie evidence of its appropri We think that the slate is most authenticity. own CBS is free to rebut ately characterized as circumstantial evi showing on remand. origin, dence of rather than as an "asser We therefore decline to affirm the exclu- meaning hearsay tion" within the postmark video-tape rule. The slate is more akin to a sion of the contents and the supporting testimony stamp. declaration on the or a time We have held similar grounds presses. origin implicate alternative that CBS indicia of not to the hear say Snow, reliability is, course, rule. In United States v. 517 Their ultimate (9th Cir.1975), question fact, pass F.2d 441 we held that a on which we do not in the first instance. tape briefcase, name attached to a name, bore the defendant's was circum ownership-a stantial evidence of mere C trace," Wig- "mechanical to use Professor phrase-that implicate appeals more's did not LANS also the exclusion as hearsay (quoting hearsay rule. Id. at 443-44 of two other out-of-court state- Wigmore (3d ed.1940)). ments, on Evidence Fox's declaration and Brown's let- We followed Snow in United States v. Al ter.
varez,
(9th Cir.1992) (per
curiam), inscription We think that Fox's where we held that the "Garnika, Spain" what he saw on the label in MTV's video on a firearm was admissi library gun's was inadmissible under the best ble as circumstantial evidence of the having assuming been manufactured outside the evidence rule. Even United States. Id. at 1004. On the same label's contents were not inadmissible
936 hearsay,7 required LANS was produce to posture, we do not think that the state- (or original label a duplicate, see Fed. ments points LANS unambigu- 1003) R.Evid. or at explain least why it ously manifest CBS’s intent to adopt could not do so. See Fed.R.Evid. hearsay Brown’s true, declaration as 1004. Fox’s declaration was submitted in we therefore conclude that the district prior action, before the discovery cut- court did not abuse its discretion by ex- off, and LANS offers no basis for cоnclud- it. cluding ing that it could not have obtained the We reject also argument LANS’s original by label ordinary third-party dis- that both Brown’s letter and Fox’s declara covery. See 1004(2); Fed.R.Evid. Fed. tion were admissible because had LANS 45(a)(1)(C). 34(c), R.Civ.P. introduced them in the prior action. The argues also that Brown’s stipulation provided that “any discovery letter was not hearsay inadmissible be obtained in the [prior] action [would] be cause adopted CBS it by manifesting a any admissible in refiled action belief truth. See Fed.R.Evid. same extent it would have been admissible 801(d)(2)(B). It is true that CBS cited in [prior] action.” Simply because the both the Brown letter and the Fox declara judge district had yet ruled admissi tion in an earlier summary judgment mo bility in the prior action does not foreclose However, tion. although the form of its such a ruling upon refiling. The Brown somewhat,9 references varied the theory letter and Fox declaration were not per se espoused CBS in that motion signifi admissible under stipulation. cant: even LANS’s record evidence sup if рorting by distribution Newsfeed were un- D controverted, CBS contended it would still be entitled to summary judgment LANS’s final evidentiary conten based on the affirmative of fair tion defense rests on the interrogatory that pro it use, because own LANS’s pounded evidence showed to Westinghouse in the prior ac that any infringing distributions occurred tion. We agree with the district court that so long after the riots as not to undermine the question was vague; as the district market LANS’s works. In this court noted, correctly “use” aof copyright- might 7. argue One that the label is (which not an use) MTV it did not and a six- hearsay “assertion" thus is not under the TV.”; clip second to Court "Newsfeed’s ac- Alvarez Snow cases that we discuss tions ... did not plaintiffs harm "The above, or that the label constitutes a business portions plaintiffs' provided works record and therefore is hearsay, admissible Newsfeed to Court TV and MTV were taken 803(6). see Fed.R.Evid. We do not address from 'The Beating Reginald Denny.'"; these light contentions in of our conclusion and "As reflected in tire from letter Merrill rule anоther bars indirect admission of Brown ... provided Newsfeed clip to its the label’s contents in this case. 28,May However, subscribers on 1992.” papers also equivocal included more 8. light In state- of our conclusion that Fox’s de- ments, such as: scription "The evidence of the label reflects violates the best evi- rule, apparently Newsfeed dence provided we need not consider whether "Plain- it; CBS tiffs adopted have demonstrating no adoptive an evidence that moving parties copied only admission would cure hearsay prob- anything[except clip]. a short Specifi- lem. cally, discovery plaintiffs obtained from re- flects that MTV obtained and "[Dis- moving papers included such state- covery reflects that Court TV 'received from ments as: "The uncontroverted evidence is ” ... footage.’ Newsfeed seconds of provided Newsfeed clip three-second (within ordinary meaning thus did not abuse its discretion in sustain ed work term) necessarily infringement. ing vagueness objection. is not (2000) (dеfining See 17 U.S.C. with *13 particularity rights copy- the exclusive of a B
right owner);
1 Melville B. Nimmer &
Nimmer,
Copyright
analysis
David
Nimmer
on
Our
of the district court's
(2000).
display,
evidentiary rulings
§ 2.18[A]
Private
for ex-
has led us to conclude
ample, might
plain-language
videotape,
including
identify
fall within the
that
the
the
meaning
violating
copy-
ing slate,
portions
of "use" without
and associated
of Tur's
right
rights.
declaration
are admissible
evidence that
holder's exclusive
weighing
should have been considered in
LANS relies on our decision in Mar
summary judgment.
CBS's motion for
We
Mercy
Ctr.,
(9th
chand v.
Med.
10. "If a
fails to admit the
any
any
specific exceptions applies]
(D)
document or the truth of
matter as
three
or
there
good
requested
party
was other
reason for the failure to ad-
under Rule
and if the
37(c)(2).
requestmg
proves
mit." Fed.R.Civ.P.
the admissions thereafter
genuineness
of the document or the fruth
matter,
requesting party may apply
argues
appeal
of the
11. LANS
for the first time on
requiring
right
object by
to the court for an order
party
the other
that CBS waived its
answer-
pay
expenses
ing
interrogatory.
the reasonable
incurred
We do not address this
making
proof....
contention.
The court shall
right."
Campbell
Music,
III
v. Acuff-Rose
Inc.,
569, 577-78,
510 U.S.
114 S.Ct.
We now turn to the district
court's
(1994).
127 L.Ed.2d
grant
summary
judgment
to Court TV.
pertinent
dispute;
facts
are not
A
only whether,
we are
left
to decide
recognized,
As the district
court
facts,
these
fair use defense
shields
important
component
the most
of the in
portions
Court TV's rebroadcast
quiry
"purpose
into the
and character
Harper
Row, Publishers,
works.
&
Inc. v.
question
alleg
the use" is the
whether
Enters.,
539, 560,
Nation
471 U.S.
*14
edly
"transformative,"
i.e.,
fair use was
2218,
(1985);
S.Ct.
85 L.Ed.2d
588
L.A.
something
whether
the second
use "adds
Int'l,
News Serv.
v. Renters
Television
new,
purpose
with a further
or different
Ltd.,
987,
(9th Cir.1998)
(as
149 F.3d
993
character,
altering
the first with new ex
amended).
pression, meaning,
message."
or
Id.
at
requires
579,
Fair
use
individualized
"[T]he
tential market
for or value
of
ran its own
it does not
pear
anything
copyrighted
to have added
new or trans-
work.
formative
to what made
the LANS work
(2000).
17 U.S.C.
"The task is not
clear,
recording
valuable-a
visual
of the
simplified
bright-line
rules,
to be
with
for
beating
itself.").
statute,
recognizes,
like the doctrine
it
part,
appear
case-by-case
analysis
For
the most
it does not
calls
. . . . Nor
clip
may
statutory
that Court TV's use of the video
the four
factors
be treated
Merely plucking
isolation,
transformative.
the most
in
one from another.
All are to
visually
arresting
excerpt
explored,
weighed
from LANS's
be
and the results
to-
footage
gether,
light
purposes
copy-
nine minutes
cannot be said to
of the
Newsfeed,
12. Court TV asserts that
it obtained the foot~
than from
but
this contention
pertinent
age
not
to the fair use issue.
from the courtroom video monitor
rather
program, following editing
anything
Time Justice
have added
new. See Folsom v.
effect,
Marsh,
342,
(C.C.D.Mass.
for dramatic
has a better claim to
9 F. Cas.
1841) (No. 4,901) (Story, J.) ("There
scope
must
be within the
of "transformation."
real,
development
montage
be
substantial condensation of the The
at least
materials,
judg
plausibly incorporаtes
and intellectual labor and
the element of crea-
thereon;
merely
tivity beyond
republication,
ment bestowed
and not
mere
and it
scissors;
purpose beyond
the facile use of the
or extracts of
serves some
newsworthi-
parts, constituting
the essential
the chief ness.
original work."),
value of the
cited with
One additional consideration
approval
Campbell
578-79,
510 U.S. at
affecting
analysis
of this factor is that
However,
clip
who
to see it.
as the
the inclusion of the
in the
program's
regular
introduction,
montage
it was
video
that introduced the Prime
sure,
Supreme
straight reporting may,
Tobe
as the
Courthas stated
13. Even
in some
cases,
purposes
print journalism,
be "commercial" for
of this
in the context of
"the news
Harper Row,
562,
respecting
factor. See
&
471 U.S. at
element-thе information
current
("In arguing
purpose
literary production-
By contrast, factor clearly the use of the clip in the points toward fair use. coverage teasers was less transformative, meaning that a commercial purpose would C take on greater weight&emdash;and this use was It more is plausibly undisputed associated with news “amount” re- of “Beating of porting, Reginald purpose favored Denny” actually under the stat- ute, used Court than was TV was quite small, the Prime Time Justice both in mon- terms&emdash;a most&emdash; tage. Indeed, absolute few journalistic at seconds event was and “in coverage of relation to the copyrighted Williams and trial, Wilson work as a whole.” in which question LANS’s video promi- featured whether the amount of nently. footage And because the Court TV left on the newsworthy cutting-room event floor weighs was the trial rather than the favor of fair beating, use or against Court it. TV was direct competition with LANS. KCAL-TV, 108 F.3d at Cf. presses heavily on previous our *16 statements that although an alleged in- fringement may
Although both have promotional the used only a use small and portion use in the montage LANS’s several have aspects minutes of foot- age, distinguish portion them from the used pure constituted infringe- “heart”&emdash;the ment in KCAL-TV, Reuters or most valuable pertinent neither portion&emdash;of instance can the copyrighted Court TV’s material. commercial mo- See KCAL-TV, tive be 108 completеly discounted, F.3d at 1122 (quoting as it would Tul- lo, 798) 973 be for F.2d coverage (internal at of the quotation courtroom when the omitted); marks copyrighted see works were also 4 being introduced Nimmer & Nimmer, supra, § as evidence. 13.05[A][3], On balance, the at “purpose 13-180 n. cases). 209 (citing character” factor weighs weakly in favor of fair use. argument same applies here to some degree. However, it is worth noting B the rebroadcast in this case analyzed
We have
the “nature of only a few seconds’ worth of footage. Al-
the copyrighted work” factor extensively
though our opinion in KCAL-TV does not
in prior LANS litigation.
“The Denny
specify the amount of footage that
beating tape is informational and factual
defendant station copied there, it appears
news;
each characteristic strongly fa
it was considerably more than the
vors [the user]. Likewise the fact that the minor amount that Court TV used here.
tape was published before its
by
use
[the
KCAL-TV,
See
941
sure, selectivity
tape,
To be
can cut both
ters "that the core or `heart' of the
Reginald ways:
urges
only
which is the actual attack on
Court TV
that it took
Denny,
only
forty-five
necessary,
lasts for
about
sec what was
while LANS accuses
onds." L.A. News Serv. v. Reuters Televi
having deliberately
it of
lifted the choicest
Int'l, Ltd.,
F.Supp. 1265,
morsels. Our case law admonishes that
sion
1273
(C.D.Cal.1996),
part
poaching only
significant part
aff'd in
and rev'd in
the most
part
grounds,
on other
149 F.3d
994- a work makes the use no fairer
than
(9th Cir.1998).
LANS's current asser
copying,
reasoning
wholesale
but such
single
tion that
shot that Court TV
limit;
point
not without
at some
the selec-
employed
tape
was the "heart" of the
significant footage
tive extraction of
can no
plausible
light
seems less
of its earlier
longer
lifting
be characterized as
Nimmer,
contention. See also Nimmer &
gainsay
impor-
"heart." We do not
supra,
13.05[A]{3],
("To
at 13-180
avoid tance of the frames that Court TV used-if
reasoning,
plaintiff manifestly
circular
heart, they
not the
amount at least to a
argue
should not be heard to
the ventricle-but we think that
this factor
copying
passages
defendant's
of brief
weighs less in LANS's favor than in the
qualitative significance."
vouchsafes their
previous
involving
Denny
cases
video.
(footnote omitted)).
Mag
But cf. Hustler
Indeed, weighing
brevity
portion
azine,
Majority,
Inc.,
Inc. v. Moral
copied against
significance,
this factor
(9th Cir.1986) ("A
F.2d
creative
appears neutral.
copyright pro
work does not deserve less
just
part
compos
tection
because it is
of a
D
Therefore,
case,
ite work.
in this
we view
evaluating
factor,
In
the fourth
having copied
the Defendants as
work.").
an entire
the effect of Court TV's unauthorized use
potential
on the
market
for licenses to
interpreting
factor, though
Case law
this
work,
rebroadcast
we "consider not
of course faithful to the statute's direction
only
the extent of market harm caused
substantiality
that we are to consider the
particular
alleged
*17
the
actions of the
in-
portion
used "in relation to the
fringer, but also `whether unrestricted and
copyrighted
whole,"
work as a
has also
widespread
engaged
conduct of the sort
purpose
noted that
the
and character of
evaluating
the defendant
... would result
in a
the use are relevant in
the de-
substantially
impact
poten
See, e.g., Kelly
adverse
on the
nominator.
v. Arriba Soft
original." Campbell,
Corp.,
934,
(9th Cir.2002) ("If
tial market' for the
280 F.3d
(quoting
secondary
only copies
ting all, after SILVERMAN, singularly unsuited to Circuit Judge, helicopter coverage. concurring in Moreover, part and this inci- in dissenting' part: dent presented no apparent effort to evade LANS sent CBS’s predecessor, West- licensing outright. See KCAL-TV, 108 inghouse, a request to admit that: “YOU F.3d at 1122-23. This is not a case of used the VIDEOTAPE without the autho- unrestrained piracy. rization of the copyright holder.” The non-journalislic Notable users of the work (20th ie Rising Sun Century 1993). Fox include a Michael Jackson video and the mov- to as objected were requests twenty-one Westinghouse’s sustained court district should We ambiguous.” and “vague and “vague was request that the objection se- disingenuous use to litigants encourage to respect with particularly ambiguous, I disclosure. to evade quibbles mantic ‘used’.” the term meaning intended the 11(D) of Part from dissent respectfully every- used word ais common “Use” persuasive otherwise O’Scannlain’s Judge defini- used, without isit English; day pleased I am of balance the opinion, See, e.g., the law. tion, throughout join. a uses who one 924(c) (penalizing U.S.C. certain of commission the during firearm “use” word of crimes). The definition a apply or service into put
is “[t]o Dictionary Heritage American purpose.” ed.1992); (3d see Language English of FOR ASSOCIATION COMMUNITY F.3d Rutherford, v. States United also ENVIRON- THE OF RESTORATION (“[i]n .ordinary Cir.1995) (7th 370, 372-73 nonprofit cor- Washington MENT, a intentional implies ‘use’ word English, Plaintiff-Appellee, poration, commonly meaning is availment.”). Its v. In parlance. everyday understood reasonable case, only Washington of this DAIRY, a context BOSMA HENRY “Admit was: Dairy request Bosma interpretation Hank aka proprietorship or tape of the Dairy yourself Dairy H & S availed aka you that Bosma aka the au- way without Dairy & MB some it in aka employed S Bosma H & aka What Washington holder.” copyright Dairy, Liberty a Dairy; thorization Bosma, owner Henry mean? it could proprietorship; else Defendants-Appellants. operator, term that ruled court district The copy- of a “use” vague because “use” for Restoration Community Association infringe- necessarily is not work righted Washington Environment, a saying that like is But ment. Plaintiff-Ap- corporation, nonprofit you Did asked: if vague is “take” word pellant, for it? paying without newspaper take v. is not newspaper a taking of as the Just pro- Washington Dairy, a Henry Bosma news- if the (for example, necessarily theft Dairy Bosma Hank aka prietorship copy- of a use every free), not is paper Dairy & S Dairy Haka Bosma aka It infringement. constitutes work righted M& Dairy B aka Bosma SH & aka Westinghouse possible entirely Washington Dairy, a Liberty Dairy; violating without tape used have might Bosma, owner Henry proprietorship; constitut- way a or in rights, LANS’s Defendants-Appellees. operator, Section under fair use ed 01-35261, 01-35351. Nos. sim- admit request Act. Copyright it admit Westinghouse asked ply Appeals, Court States United *19 re- Westinghouse videotape. used had Circuit. Ninth it used how trial explain at free to mained 3, 2002. June and Submitted Argued legally use why tape 16, 2002. Sept. Filed permissible. requests twenty-one propounded objected Westinghouse admissions. Nineteen them. one single every