McA Television Ltd. A Delaware Corporation v. C. Elvin Feltner, Jr., J. Clifford Curley

BARKETT, Circuit Before COX *, Circuit Judges, and BRIGHT Senior Judge.

BARKETT, Judge: Circuit Jr., Feltner, appeals from $9 Elvin C. him in favor of judgment against million non-jury copy- following a MCA Television Feltner contends trial. judgment must be reversed (1) subject matter court the ‍​‌‌‌​​​‌‌‌‌​​​‌‌​​‌​‌‌​​‌‌‌​‌​‌​​​‌‌‌​‌‌‌‌​​‌‌​‌‍district lacked (2) finding that he jurisdiction, erred licensing agreements when breached * tion. Myron Bright, U.S. Circuit Senior H. Honorable Circuit, by designa- sitting Eighth Judge pay Finally, fees that had become

failеd and, agreements, finally those due under erred its calculation of calculating damages. ways, only erred We affirm. various some of which we find necessary Initially, to discuss here. we re- Background, Factual ject Feltner’s assertion that the district court n finding erred “willfully” that Feltner acted syndicated programs MCA owns television infringing copyright, MCA’s which result- and owns television Feltner stations. MCA higher stаtutory ed in a damages determina- agreement and Feltner entered into an Act, tion. Copyright Section which licensed Feltner MCA to show certain § 17 copy- U.S.C. “Kojak” programs, such as and “The A right recover, may owner elect to instead pay Team.” When Feltner failed to fees that damages profits, actual and an award of stat- due, suspended right had become MCA utоry damages “in a sum of not than less programs. Notwithstanding televise its ‍​‌‌‌​​​‌‌‌‌​​​‌‌​​‌​‌‌​​‌‌‌​‌​‌​​​‌‌‌​‌‌‌‌​​‌‌​‌‍$20,000” or more than infringe- $500 for each suspension, continued to Feltner televise the 504(c)(1) (1996). ment. § See 17 U.S.C. programs. MCA sued Feltner claim- 504(e)(2) provides for an enhanced separate copyright infringe- acts of damages award if the was will- ment; program one' for each unauthorized ful and for a if reduced award that Feltner aired. The district court found ment was innocent. $10,000 One commentator has MCA, pursuant awarded to stat- stated that “[i]t seems clear that as here ute for each of the 900 pro- unauthorized ‘willfully’ used knowledge means with aired, grams and judg- million entered the defendant’s conduct copyright constitutes against ment Feltner.

infringement.” 3 Nimmer Copyright (1990), 14.04[B], Discussion § (emphasis 14-58-60 add- ed). initially Feltner asserts that the dis subject trict jurisdiction court lacked matter that, although We note the district because this cause did not “arise under” the court found that Feltner’s Act. 17 seq. 501 et copyrights “willful, innocent, MCA’s were not argues Feltner this ease involves a nature,” the district court awarded dam breach of contract claim and that the federal $10,000 ages of per airing, an amount which district court jurisdic did not therefore have require did not finding of willfulness. disagree tion. We and find that the court event, any finding court’s subject jurisdiction had matter over MCA’s Feltner willfully acted clearly was not erro claim under Act. See Sulli out, neous. As pointed the court Feltner Naturalis, van v. 5 F.3d knew that MCA’s revocation of his stations’ Cir.1993). programs license to air MCA prevented him Feltner next asserts that the district lawfully brоadcasting such, them. As court erred in that he breached the Feltner knew his conduct copy licensing agreements pay when he failed to right infringement. licensing licensing agreements fees. The provided if pay failed to Feltner also that the district fees, licensing MCA could terminate Felt in calculating damages erred it right ner’s programs. broadcast MCA damages awarded eрisode broad not dispute cast, does pay he failed to opposed to each separate as a rather, argues, the fees. He that MCA “work.” Although the federal Act waived its to terminate licensing allows for based on each agreements prior 504(e)(1) because MCA treated ter see 17 U.S.C. (providing that “the mination merely letters as collection cоpyright may elect, letters time be payment. to induce We conclude that rendered, fore final recover, district court’s factual finding that MCA did instead of actual damages profits, waive its terminate the infringe agreements clearly was not erroneous. ments involved respect work”) added), want, they one, tapes it does view any one n two, twenty episodes the term “Vоrk.” sitting, not define never watch or rent all of the “work” have circuits that have defined episodes; in the [] “separate copyrights are not dis held separately produced. series was they unless can ‘live their own tinct “works’ ” Video, life.’ Gamma Audio & copyright Id. at 1117. (1st Ean-Chea, Inc. Similarly, the decision of a distributor of Cir.1993); Stigwood Group, Ltd. v. Robert television to sell television series (2nd Cir.1976); ‍​‌‌‌​​​‌‌‌‌​​​‌‌​​‌​‌‌​​‌‌‌​‌​‌​​​‌‌‌​‌‌‌‌​​‌‌​‌‍1096, 1105 O’Reilly, 530 F.2d block, shows, in as a rather than as individual Disney Co. v. Walt way indicates that each in a series (D.C.Cir.1990). test focuses on whether This episode is unable to stand alone. Each was expression independent has an economic each produced independently epi- from the other itself, Gamma, is, in viable. value and independently sodes and each was aired from O’Reilly, at 530 F.2d at F.3d preceding subsequent episodes. More- Powell, 897 F.2d at 568. over, series, not episode, and industry practice Feltner asserts individually copyrighted by MCA. series, for television not is to enter contracts series, episodes of and that no one lines, reject individual Along the we Felt same just episode of a purchase would and air argument episode part ner’s that each of that, reasons, for these an series. He a pro “collective work.” Section episode of a series does not have individual parts compilation ... vides that “all of a value, “commercially via- independent is not constitute one work.” Act ble,” is not a “work” under the and therefore “compilation” defines as First, Second, by adopted the and D.C. test by a wоrk formed the collection and as Circuits. sembling preexisting or materials of adopted agree we with the test selected, coordinated, that data are or. ar by defining a we other circuits ranged way resulting a such the to meet it find that Feltner has failed here. original work as a whole constitutes Gamma, Indeed, rejected ‍​‌‌‌​​​‌‌‌‌​​​‌‌​​‌​‌‌​​‌‌‌​‌​‌​​​‌‌‌​‌‌‌‌​​‌‌​‌‍the First Circuit authorship. “compila work of Thе term argument now makes. the same Feltner tion” includes collective works. store, Ean- involved a video rental Gamma added). A “col- Chea, reproduced and rented unautho- periodical such a lective work” is “a Gamma, 11 at videotape copies. rized F.3d issue, anthology, encyclopedia, or in which a Ean- The district court found that 1108. contributions, constituting sepa- number of infringed copyrights of four Chea themselves, independent works in rate and language of a television series sodes Chinese a collective whole.” Id. are assembled into calculating owned Gamma. points to a clause damages, gave a Gamma anthologies ar agreements referring to award, concluding although Ean- is an gues that each series at issue here copyrights in infringed upon had Chea In Twin anthology. persuaded. are not We separate episodes of the these four Inc., Productions, In Peaks v. Publications only one work based in episodes constituted (2nd ternational, Ltd., 996 F.2d 1366 Cir. part fact that sells or rents on the Gamma 1993), addressed the issue the Second Circuit only complete sets of the series to video dеtermining appropriate unit for statu of the Id. at 1115. The First Circuit re- stores. There, Publications tory copyright versed, reasoning that published had a book contain International decision to sell or rent [a] distributor’s plots eight ing a detailed discussion complete to video stores in sets series Peaks.” episodes of the television show “Twin way episode in the indicates that each argued, Publications International sig- alone. More series is unable to stand here, episode although each does present purposes is the fact nificant for individually copyrighted, it “Twin Peaks” was tapes viewers who rent the section 504 work under rent as few or their local video stores $20,000. if a ing from And Act. The Second Circui t stating that defendants each rejected аrgument, proves “[t]he that two different this eight eight scripts television committed five author works, to one award of statu episodes not limited five different just awards, can tory damages because he she fifty. ten plot line from continue Data, Inc., Montgomery Mason viewers’ interest without and hold the next Cir.1992); 143-44 see also at furnishing a Id. 1381. resolution.” strong as that argument is not Feltner’s in Twin rejected by cаse, however, the Second Circuit the district court this “Twin Peaks” involved Peaks. Whereas parties had failed to determined plot that linked eight series of shows multiple airings the issue of whether raise story, together into one cohesive the shows the same were included within the A Team” at issue here —“The programs that 900 broadcasts of MCA Felt- plots “Kojak” series with individual agreed with- ner he aired after MCA had —are Thus, episode. the district court in each Feltner’s license. The district court drawn damages for each televi- awarded agreed in concluded that the had for each episode, sion rather than that, pretrial stipulation if Feltner were separate “work.” broadcast as copyright infringement, found hable for infringed number of works one for Finally, Feltner' asserts that the dis programs Feltner aired each of the after calculating damages be trict court erred withdrew Feltner’s license. multiple air cause it awarded that, ings episode. same He the Local Rules of the Rule 16.1E of Act, statutory under the parties District of instructs Southern Florida infringed, are based on each “work” rather Stipulation Pretrial file Joint latеr infringement, than see 17 U.S.C. days prior pretrial than five confer- that if the same is aired provides pre- ence. Rule 16.1E that “[t]he times, only infring one work has been three stipulation trial shall contain ... [a] concise ed, responds that not three. MCA statement of of law which remain for issues place did not this issue before the determination the court.” Rule 16.1G district court for determinatiоn and further that “the result, we cannot reach the merits of the ... control the trial.” will course We agree with issue. We MCA. previously great have stated that we owe 504(e)(1) provides copy- that “the judge’s interpretation deference to the trial elect ... an award of statu- pretrial stipulations. and enforcement of tory damages infringements involved West Peninsular Title Co. Pаlm Beach respect mth one (11th Cir.1995). County, 41 F.3d work_” added). The Fifth Cir- cuit summarized the effect of section agreed In this Feltner and MCA 504(e)(1): joint pretrial their that “[e]ach [of section, Under this the total number of telecasts without MCA’s authori- Feltner’s] (each rang- ty totalling “awards” of at least 900 in number —consti- — $20,000) separate copyright infringe- that a tutes a act any given depends action recover ment.” the statement uncontested facts, parties agreed infringed on the number of works that are that Feltner’s sta- individually and the number of liable in- tions “continued to telecast MCA’s fringers, regardless April in- [the of the number of after date ‍​‌‌‌​​​‌‌‌‌​​​‌‌​​‌​‌‌​​‌‌‌​‌​‌​​​‌‌‌​‌‌‌‌​​‌‌​‌‍MCA withdrew fringements plain- programs], of those works. So if a Feltner’s license to telecast the separate proves tiff that one defendant сommitted on a total of at least 900 occasions.” copy- five of one “statement of issues of law which determination,” righted parties remain did only statutory damages rang- remaining multiple one award of not list as a issue whether program Accordingly, it. the district court single episode of a did not err airings of a refusing reopen the case after it had multiple infringed work or works. findings announced to hear evidence on an merely generally that “what stated pretrial stipulation. not identified in the issue in favor statutory damages shall be awarded Accordingly, 504(c) the district court’s Act” under of MCA AFFIRMED. Thus, despite to be determined. remained copy- agreeing to the fact that 900 acts BRIGHT, Judge, Senior Circuit occurred, right infringement had nowhere dissenting: pretrial stipulаtion did Feltner alert $9,000,- The district court assessed Feltner specific legal issue of court to the district statutory damages $10,000 for each might include infringements the 900 whether — pro- of the 900 occasions on which MCA’s program multiple broadcasts of the same gramming improperly aired. I Because separate un- not constitute “works” that did incorrectly 504(c). believe that the district court as- section der sessed for each Moreover, presented no evidence (including repeat showings) rather than ment “separate copy- act[s] at trial that the 900 (i.e., episode) for each work individual in- stipulated to in the infringement” he fringed, I would remand the case to the stipulation involved less than 900 pretrial district court for a correct determination of 504(c) section due to under multiple airings program. Felt- of the same correctly opinion The court’s observes that until his failed even to raise this issue ner the text of section judge closing argument. As the district interpreting Act and the ease law that Act announcing properly pointed out after make clear the statute allows closing argument simply was too findings, statutory damages award of for each work legal the first late to raise a new issue for 504(c)(1) infringed. provides: Fehlhaber, v. 681 F.2d time. See Fehlhaber elect, copyright any the time 1982) (“[A]n 1015, B 1030 Cir. Unit rendered, before final to re- postjudgment in mo- argument first raised a cover, damages prof- instead of actual late.”). simply tion is too its, an award of light pretrial stipulation of the in this in infringements involved the givе a district court in the deference we work,.... respect to interpreting pretrial stipulation, a and Felt- added).1 § to at trial on the ner’s failure offer evidence Inc., Data, Montgomery v. Mason issue, that district court did not we find the (5th Cir.1992) (“So 135, plaintiff if a 143-44 interpreting pretrial stipulation err the proves that one defendant committed five placing in issue the number of works copyrightеd of one infringed. Although now on to appeal copyright of 900 acts statutory damages....”); award of Walt under ment is not the same as 900 works Disney Co. to raise this issue was section the time (“Both (D.C.Cir.1990) Copy- of the the text pretrial of the the issues of law section history legislative Act and its make or, latest, very during stipulation, at the statutory damages are to be calcu- clear that аt trial. Because Feltner failed to raise case in- according to the number of works lated there, he cannot now raise it here. the issue infringements.”) fringed, not of the number court, however, try finds this established expected be to an This Trial courts cannot of legal inapposite standard state- placed that the have not before issue Sess., H.R.Rep. Cong., legislative history provides: 2d at 162 No. 94th 1. The section 504 (1976), reprinted, U.S.C.C.A.N. single infringer in 1976 A work is liable , a no matter how acts amount are involved in the action separate, regardless of whether the acts were isolated, a or occurred in related series. court, however, pretrial stipulation. held that ments included this second sub- my majority present- properly issue had not been raised. To Thе observes mind, determining there exists no basis for ed no evidence at trial the 900 “show- pretrial stipulation pretrial stipula- raised the first ings” stipulated to the sub-issue but not the Both second. are sub- tion amounted to less than 900 “works” due by sumed the issue “what program. multiple telecasts of the same shall be awarded in favor of MCA under majority The contends because Feltner 504(c) of the Act.” fаiled to raise this issue until after the close evidence, estopped of the he became from Second, MCA, plaintiff, the the bur- bears raising the issue the district court and establishing den of its asserting regard ap- in that error Once the district court determined that each peal.2 majority represents decision episode constituted a it was MCA’s interpretation pretrial stiрu- erroneous obligation to establish the number of differ- lation, unjustly shifts burden of establish- episodes improperly ent aired. MCA did not ing damages from the to the defen- carry pretrial stipulation, this burden dant, plaintiff damages awards plainly and the district court erred in which it is not entitled under the law. pretrial stipulation otherwise. The stated only that there had been 900 unauthorized First, issue Contrary oрinion telecasts. before the district court. One of the remain- court, point at no did the specified by pretrial issues law infringed, state the number of “works” nor “what provide did it the number of different shall be awarded favor of MCA under Although sodes involved.3 have 504(e) Act.” As devel- number, been convenient it was not the 504(e) above, oped section for one correct number of “works.” It was MCA’s statutory damages per work in- obligation to establish the number of works fringed. question The first subsumed in this infringed. The district court should not have issue is thus what constitutes a “work” under fully develop determined MCA’s failure to Act. this sub-issue damages claim in a manner favorable to specifically pretrial was not raised MCA and detrimental the defendant. court, stipulation, the district and indeed this appeal, properly view, my court on addressed it party a court should hold necessary aspect language nothing Having claim. question stipulated resolved this initial more. Feltner to 900 tele- by determining copyrighted constituted casts of material without MCA’s work, inquiry authority, Furthermore, shifted to how not to 900 works. infringed. works had been pretrial stipu- district the issues of law raised in the appeal surprised 2. Fеltner that he was that it would use the 900 estab- by the close of sudden the trial and that the lished as the basis of by denying opportu- district court erred award, him the argued that several of the nity present evidence on the issue of showings episodes were of the same and thus dissent, my this claim is not the basis of multiple infringements majority I believe the should have addressed this work. See Tr. of Decision аt 13-18. The district alleged irregularity proceedings before argument court held that the came too late and summarily stating that Feltner "failed to offer accept point. refused to evidence on the evidence” on the issue. 4.During hearing at which the district court fact, 3. what constituted a work was an issue orally judgment, made its court al- district before the court and district indeed before this put lowed Feltner to evidence into the record appeal. epi- court on MCAcontended that each concerning showings the number of the 900 sode constituted a while Feltner main- repeat which were broadcasts of the same tained that each television series was a sodes. Feltner’s statements indicated that at episodes work. Sinсe the number of different showings repeats. least 300 were See Tr. of was irrelevant under Feltner's version of the $10,000 per infringement develop he had Decision at 15-17. At no reason to those facts at $3,000,000 trial. Once the district this amounts to over court determined that in excess dam- ages. constituted a work and announced the amount concerned lation $9,000,000 awarded. The

damages to be these circum- unfair under grossly for a and would remand I dissent

stances. assessment

proper infringed. to be each work shown

based on FLORIDA, OF

UNIVERSITY

Plaintiff-Appellant, Corporation

KPB, INC., a Florida d/b/a Brickman, Notes, Paul

“A” Kenneth

Defendants-Appellees. 94-2157.

No. Appeals, Court of

United States

Eleventh Circuit.

July

Case Details

Case Name: McA Television Ltd. A Delaware Corporation v. C. Elvin Feltner, Jr., J. Clifford Curley

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 26, 1996

Citation: 89 F.3d 766

Docket Number: 95-4424

Court Abbreviation: 11th Cir.