Triangle Publications, Inc., a Pennsylvania Corporation v. Knight-Ridder Newspapers, Inc., a Florida Corporation

TATE, TUTTLE, Before BROWN and Judges. Circuit BROWN, Judge; R. JOHN Circuit significant case This raises issues under speech. the laws of and free For years, Courts have rec- and commentators ognized potential conflict between right and How- Amendment.1 cases, leading Transcript Corp., 1. For some Court see Sid Inc. v. Wall Street F.2d Productions, denied, Marty 1977), (2d & Krofft Cir. cert. Television Inc. v. Corp., (9th McDonald's F.2d 54 L.Ed.2d The most Cir. S.Ct. Nizer, Goldstein, 1977); (2d recognized Meeropol highly 560 F.2d 1061 articles include: denied, Amendment, 1977), Copyright 70 Colum. cert. 434 U.S. and the First S.Ct. Nimmer, (1978); Wainwright Sec., (1970); Does L.Ed.2d L.Rev. 983 ever, opinion Appendix. following aid. See The week the District Court’s until posters (known us, F.Supp. vending newspaper machine now before the case cards) advertising the had ever held that in the trade as rack (S.D.Fla.1978), no Court throughout by displayed a booklet were suit could defeated a Subsequently, part southern of Florida. We affirm the Amendment defense. First Court, ads were intro- newspaper four additional the District but result reached booklet, display- promoting the each Con- duced with the Court’s rationale. disagree reproduction of a TV Court, ing an hold actual-sized the District that trary to repro- next an actual-sized Guide cover to the constitutes a valid defense TV the Herald’s new duction of the cover of infringement suit involved supplement.2 not does reach issue majority case. The upon First Amendment defense addition, was advertised the booklet judgment based its the District Court which thirty two second television commercials. Appellee. for the The theme “Goldilocks first is based on the compares the size the Three Bears.” It And How About I. It Came guide with of the Herald’s former television Happened What TV new and with supplement the Herald’s Guide, Triangle concluding supple- Publica the former plaintiff-appellant, The that publisher large, of “TV TV is too (Triangle), is the ment is too Guide tions small, just Guide,” supplement is periodical containing television but that the new a right beings.3 While TV relating to size for human and articles television schedules name, defendant-appellee, one of The Guide is not mentioned entertainment. briefly (Knight-Rid actors in the commercial shown Newspapers Knight-Ridder Newspa copy with a of TV Guide der), Herald back-dated publishes the Miami Herald). TV Guide issue (the During the fall of hand. The cover of the per used pro clearly was began campaign a visible. The commercial Knight-Ridder was then discontin- newly developed booklet for several weeks and mote a television mono- supplement is a was to be included a ued. The second commercial which TV as the logue. identifying the Herald. Like After Guide Sunday to the edition of Guide, suggests competing product, television the announcer TV the booklet contains a better supplement the Herald’s and articles related to media. schedules purchaser pub money The introduced to the value for the because supplement was TV 13, 1977, gets newspaper, merely a a through lic November colored the entire on During his state- in Miami booklet.4 the course of newspaper Her- advertisement Sunday Abridge new “It Herald’s Amendment Guarantees of was [Narrator]: Press?, Speech at no bears Free U.C.L.A.L.Rev. TV book extra cost. The three Sobel, (1970); just-right and the First size the new . . loved Storm?, Gathering up-to-date complete A 19 ASCAP Amendment: list- with its and more Copyright L.Symp. ings. day little kid— ’Til one blonde uh, story. . . but that’s another . published 2. color ad on The Herald second day Something everybody. Every (Ft. Times November Lauderdale) printed 1977. Broward (Dots pauses, not indicate the week.” black white ad on material.) omitted Keynoter (Marathon, November Florida) 1977. The printed and the each Miami Times script 4. This is the of the commercial: black and white ad on November it, you buy TV that’s “This is Guide. When you get. script This Miami No is The This is the of the commercial: all extras. it, you get buy you Bear, Herald’s TV Book. When story Sidney “This is the [Narrator]: up-to-date listings, extras. Like more Cindy They few all Bear and Junior Bear. love ” glance. you what’s on at a TV, charts that let see . to watch . . but top And extras of the extras. Aged It even has “This book is TV too [Middle Man]: is, nothing good part if there’s the best even small.” you always . . can sit back big.” on TV . “This book is too [Child]: Aged Herald.” of the extras. The Miami read some (Dots TV section is [Middle “This Woman]: material.) pauses, just right.” indicate omitted ment, up being holds a back-dated were the announcer then used. all Since clearly of TV Guide with the cover left commercial, issue was the second television puts then down the visible. The announcer the Court denied the for a prelimi- motion up a copy nary injunction, and holds first of the pointing nearly out that all supplement and a copy alleged Herald’s then of the already harm had occurred com- Sunday edition of Herald. This and that the of irreparable injury likelihood used being mercial was at the time of the had therefore not been shown. hearing Knight-Ridder District Court’s and The Court also denied the motion for a

contemplated using it in the future. permanent injunction. In doing, so the by being The conduct the Herald First, Court considered four issues. the challenged the TV reproducing here is of Court considered whether the cover of a magazine Guide verbal reference TV is protected by magazine’s covers. The to the is copyright, holding Second, Guide made in the second commercial5 it that is. the being each issue of TV attacked. Since Court found that the use of the cover awas individually 106(5) copyrighted, “display” by Guide is and since of as defined the Act. § magazine Third, past covers in the af- been the Court held that the was display see, copyright protection, e.g., protected forded Conde by the defense of fair use. Publications, Vogue Fourth, held, Nast Inc. of v. School the Court based on recent Inc., Modeling, F.Supp. Fashion 325 Supreme giving cases First Amend- Court (S.D.N.Y.1952), Triangle claims that protection speech,7 ment to commercial that showing Herald’s of TV covers vio- Guide place the First Amendment limits on the Act, lates of new § of that dis- copyright law and the Herald’s (1976).6 Triangle U.S.C.A. 106 moved in play pro- of Guide constitutionally preliminary per- the District Court for and activity. tected injunctions (and sought

manent also dam- ages). II. Fair Use undisputed It is this appeal

The on that unless District Court found that the chal- ads, or lenges protected to the rack the First Amend- newspaper five ment, use of TV cov- Knight-Ridder’s cards and the first television commercial Guide purposes preliminary infringement were ers moot constitutes as under injunction, reasoning ads copyright Accordingly, proceed that none these law.8 wé 5. See note 8. The nature of the asserted 7. E. We therefore limit our the same under the second vides: various Act became believe, however, disputed, (1909) Act as well as the new Act. The new Actually, Triangle owner of exclusive 1978 conduct copies (1) Subject g., following: S.Ct. ^[******] Bates v. Arizona alleged infringements, however. Section 106 of the Act reproduce or commercial rights to sections 107 effective supra. phonorecords; both involved in this case. We do and sued under both the old January L.Ed.2d under this title has the analysis is result State old only post-January through authorize infringement to the new Act. Bar, in 1978. Of the showing this case new work Acts. pro- ing, conclusion that the ever, the TV argument rather that it on it here. Guide’s covers. See see also note § 2.04[D][3] Knight-Ridder tions, 106(1). Consequently, We 106(5). agree TV Guide play picture ic, phasis added). (5) and including Inc., Knight-Ridder think Inc. “reproduced” TV specious, and in the case of pictorial, graphic, with the District Court’s See supra; choreographic or it at 2-48-2-49 copyrighted Vogue covers were not also 15, infra; contends that other audiovisual § 101 clearly we individual important display 1 Nimmer conceded at need not copyright privilege School of Fashion Model- (defining display). literary, applies to Guide covers. Section while work Conde Nast Publica- works, or (1978). Knight-Rid- F.Supp. images sculptural conclusively reproductions musical, “displays” involved Knight-Ridder’s publicly. oral point work, pantomimes, analysis protect of a Copyright, argument out dramat- 878-79; motion works, to owned seems under How- (Em- rule dis- Note). beginnings, Since its question of whether the de- as Wisconsin to the directly refined, justifies Knight-Ridder’s been use has of fair the doctrine fair fense honed, many Court deci- actions. clarified codi- doctrine was not sions. appro question of fair use has been The Copy- of the 1976 until the enactment fied “the most troublesome priately described right Act. copyright.” law of Dellar the whole evolved, No. ed Works 5 possible tion, granted against Samuel consent, notwithstanding material in a reasonable owner 1939). Although no definition of fair compensation Rosemont L.Ed.2d cert. House, Inc., Fair use is Judges Copyright and quoting use is “a 141960). The fair use doctrine on the other.” denied, is workable in Goldwyn, dissemination 546 to to balance frequently quoted definition of (Sen. Latman, Enterprises, the owner 366 F.2d public’s interest (1967), quoting 385 “a privilege Comm, 'rule his Inc., Literary Property, 260 Fair Use work, Sobel, 303, to use the every case has ever of ideas and informa 1009, the author’s 104 F.2d 661 of reason’ fashioned [by manner without on Inc. 306 on others than supra note Judiciary Study 87 S.Ct. Ball, (2d the one v. Random copyright].” Copyright Cir. monopoly The Law right (2d 714, widest 1966), hand, 1, fre his 17 at 5680 to short-circuit U.S.Code ment: H.R.No.94-1476, (1976) gress particular situations on a explanation of what fair use sis. Section 107 is intended change. ing the doctrine must be free to present judicial way. eral depart codifying change, (referred made scope but (House a bill criteria Cong. from Court-created period of there is no Beyond a clear that endorses the narrow, Report), reprinted & applicable further 94th doctrine concept judicial doctrine of fair Admin.News, adapt statute, especially it in no very USCCA). disposition rapid technological Cong., enlarge purpose judicial develop- the doctrine of fair case-by-case ba- to broad fair to way it, principles 2d restate the courts and some it in pp. statutory use, to See intended Sess. use, freeze ^[1976] Con- gen- dur- also any 66 to Sen.Rep.No.473, Cong., 1st 62 94th Sess. potential con quently serves to eliminate (Senate (1975) Report). free speech. flicts between and Denicola, Copyright Speech: and Free See Act instructs Courts 1976 on the Protec Constitutional Limitations gleaned four from to consider factors —all 283, 299, tion of Calif.L.Rev. Expression, 67 determining case law 9 —in whether Denicola). (1979) (hereafter cited as 303-04 applies: of fair defense use first back in 1841 in appeared The doctrine determining whether the Marsh, (C.C.D.Mass. v. 9 Folsom F.Cas. 342 particular is a made case of work in 1841), “fair use” although precise term shall fair to be considered use the factors years until appearance did not make 28 include— Dana, F.Cas. later Lawrence v. (1) purpose and character (C.C.D.Mass.1869). generally See Case use, use is of including whether such Note, Copyright the First Amend nonprofit or is for commercial nature Publications, Triangle Inc. ment — purposes; educational Inc., Knight-Ridder Newspapers, (2) the nature F.Supp. (S.D.Fla.1978), 1979 Wisc.L. work; (hereafter referred to

Rev. 246 & n.25 13.05[A], Copyright, dispute opin- at 13-51 § in 3 Nimmer on der does not the District Court’s very (1978) point. (listing like much ion on considerations adopted by Congress). those later See, Conveyor g., e. v. Palmer- Mathews Co. Co., 1943), (6th quoted Bee 135 F.2d Cir. (3) substantiality the amount and non-profit commercial and character of portion used in relation an activity, while not conclusive with re- whole; righted as a spect work to fair can should be weighed along other factors in (4) fair upon the effect of the use use decisions. potential market for or value of the copyrighted work. 66; Report, House Cong. U.S.Code & Admin.News, at 5679. See also Senate Re- U.S.C.A. The statute does not § 62; port, at Copyright, 3 Nimmer on weight indicate how much accorded 13.05[A], (1978) (stating at 13-52 factor,10 each statutory but since the formu necessarily negate commercial use does not lation is simply restatement of the case citing fair defense and law, string cases to it is appropriate to look to the cases for support proposition). guidance. Our research that of indicates factors, these four Courts generally We deciding assume without that a placed emphasis factor, most on the fourth finding lower Court’s was or there upon potential effect of the use normally finding use is of fact market for or the value of the subject clearly to the rule erroneous of F.R. Time, See, g., work. e. Inc. v. Bernard Geis 52(a). g., Civ.P. E. Eisenschiml Fawcett Assocs., F.Supp. (S.D.N.Y.1968); 3 Publications, Inc., (7th 246 F.2d Nimmer Copyright, 13.05(b)(4), at 13- 1957). However, this repeatedly Circuit has (1978) (indicating that the fourth factor made clear the clearly erroneous rule citing important most a host of findings does not apply to made under an cases). legal controlling princi erroneous view of In analyzing the fair question, ples. g., use E. v. Corp., Rowe General Motors get District Court beyond (5th 1972); did first 457 F.2d n. Cir. Service, controlling factor. The Court deemed it United States v. Pickett’s Food that the (5th 1966); use of TV Guide covers the F.2d Cir. Ferran v. Miami Fleming, (5th 1961). Herald was to obtain commercial 293 F.2d Cir. advantage. The Court established what viewing We believe that in commercial mo virtually per amounts to se rule that as question tive conclusive fair commercial destroys incorrectly applied motive the defense of the District Court fair use. Accordingly, 107. of no fair finding its § subject clearly use defense is not to a erro Clearly, 107 makes commercial motive § Rather, more free neous standard. we are relevant use But it analysis. fair is question use.11 determine the fair certainly legislative not decisive. As the history makes clear: clear, As first fac 107 makes §

This analysis amendment is not intended to is be tor consider in fair use interpreted any not-for-profit Here, purpose as sort of and of the use. character copy- Knight-Ridder limitation on educational covers for uses used TV Guide righted recogni- advertisements, works. It is an use express and commercial that, law, tion present as under the defense.12 against tends to cut a fair use Indeed, ques- these four use statute indicates that District Court’s on the fair conclusion necessarily clearly factors tion are not exhaustive. The is indeed erroneous. specified in factors 107 follow the words § However, reject emphatically “including” Tri we must “shall include.” The term is angle’s Fabricating reading Co. v. of Tennessee defined in 101 “illustrative and not limita- Co., 1970), Mfg. (5th However, Moultrie Congress F.2d 279 tive.” these important since articulated denied, they cert. 398 U.S. 90 S.Ct. four factors and since are the most cases, (1970), proposition in pre-1976 L.Ed.2d 91 the Fifth advertising in we believe Act Circuit, govern use of a work for normally that the these four factors would use. In analysis. can never constitute fair Fabricating, Tennessee found that Court assuming clearly apply copied 11. Even erroneous stan- did not where defendant one, changes design appropriate slight plaintiffs dard is the that the believe righted work —TV Guide —is itself commer- hand, characteris- precise other

On the cial, cau- more this case use should the defense fair commercial tics of the being given Note, weight supra, readily much Wisconsin apply. too See against tion Specif- use is commercial. other commentators the fact that at 261. attempt palm off no ically, to most argued there that “courts have tended of the Herald’s. as that Triangle’s product use of education- receptive to unauthorized Publications, Inc. Note, Nast Compare Conde scientific, al, works.” and historical Inc., Modeling, of Fashion Vogue School Infringement and awas Rather, the advertisement supra. Amendment, 326 n.42 79 Colum.L.Rev. in a man- done comparative advertisement Note), to as Columbia (hereafter referred accepted in the ad- generally is ner which Publications, v. Fawcett citing Eisenschiml industry.13 vertising view, supra. In our the fact supports publication a commercial neither is 107 the is specified factor second Knight-Ridder’s claim that a fair hurts nor copyrighted work. One com- nature appropriate is here.14 defense argued that because mentator has emphasized casting use must of fair used that the doctrine metal unit to be an architectural 66; photo- Report, at U.S.Code made be flexible. House or room divider and screen Admin.News, 5680; Report reproductions design Cong. graphic in a for use at Senate & Today, public compara- catalogue. doc- The Court stated that interest in “[t]he to the con- at 62. application advertising well-recognized. has trine of fair use As the Fed- tive Id. 284. In the the defendants.” duct of course of eral Commission has stated: Trade opinion, pointed out that the Court supported the use of The Commission has ably “fully dis- and the doctrine of fair use comparisons where the bases of com- brand Enterprises, Ran- Inc. v. cussed” Rosemont clearly Comparative parison are identified. House, Inc., supra. 421 F.2d at 284. dom advertising, nondeceptive, when truthful Rosemont, distinguished a the Court cited important con- source of information to Co., Henry opinion, al. & et District Court Holt making rational sumers assists them Co., F.Supp. Liggett Myers & Tobacco Comparative purchase decisions. advertis- (E.D.Pa.1938), suggests an adver- which ing improvement encourages product in- scope does not within the tisement use. come novation, prices in the and can lead to lower reasons, marketplace. For these the Com- with, necessarily begin did not To Rosemont carefully will mission continue to scrutinize adopt Henry position. simply pointed Holt’s It upon its use. restraints Holt, advertising Henry out that unlike in no 14.15(c) (1980). re- One affidavit § C.F.R. importantly, in Tennessee was involved. More part a of cites several ceived as the record Fabricating, by simply referring to Rosemont including advertising, examples comparative of no for a of the Court in full discussion fair many magazine reproducing of com- ads covers way every adopted principle fair use contained January magazines. example, peting For the Rosemont, principles in in the thus reads far too much into Tennessee Fabri- let alone the fair use Age Advertising an ad- 1978 issue of contains Triangle many cases cited in Rosemont. magazine a for Americana with vertisement display magazines. competing The of covers of Moreover, cating’s citation of the Rosemont. con- 1977 issue of Media Decisions December Fabricating language in Tennessee does promoting magazine fea- ad Horizon tains an support position. adopting Triangle’s Far from maga- competing turing pictures covers of of per regarding advertising, a made clear that each case must se rule the Court July 8, An advertisement the zines. issue of New Times on its own turn promoting magazine given facts and that the result in a case cannot Newsweek, two shows covers of Time arbitrary depend principles. fixed newsweeklys competes. with which New Times Finally, F.2d at the facts in Tennessee Keoughan, of Market- Affidavit of Ken ing Thus, Director Fabricating readily distinguishable are from Services, Beber, Partners, Inc. Silverstein & case, here. In that those defendant in effect clearly the Miami Herald is out while plaintiff’s design stole architectural for own its advertisements, profit there is from its make a certainly Here, use. has not TV the Herald taken Triangle’s palming work. off of publication. It Guide’scover to use for its own has Rather, has various covers of the Herald used simply shown the cover of TV in a Guide comparative purposes for adver- TV Guide of truthful, comparative advertisement. tisements. stated, fact use 13. As the that the commercial work, copyrighted while nature compara- 14. The occurred in the course a truthful of of.the analysis important the of significance not case, tive of the commercial the advertisement undercuts very may im- be Congress in other circumstances of use. nature the to consider The third factor under the Herald’s may ads have shown why TV of substantiality por- is the amount a product Guide is better than the Herald’s copyrighted used in relation to the tion guide may have decreased the effec- Here, Knight-Ridder work as a whole. did tiveness of the ads. point At no has Trian- copy what is the essence of TV Guide— gle cogent offered explanation a the television schedules articles. It logical showing link between the of TV simply reproduced covers old Guide alleged Guide covers and the harm do issues. We not mean to trivialize the copyright.16 We cannot see it. And inter- Guide, emphasize covers of TV but simply estingly enough, neither can the commenta- factor would have been entitled to tors. opinion The District Court’s has been had, weight example, more some of subject law of several review discus- contents been used.15 every sions. Nearly agrees commentator by the harm suffered TV Guide was at analyze The fourth factor under most de minimus and that the District widely accepted —the factor which is be rejecting Court erred in use de- see, important, p. the most example, fense. For Professor Robert Den- upon potential effect of the use market icola, article, in his recent law review of, for, or copyrighted the value work. states: simply any We are unable to find effect— possibly other than de plaintiff minimus —on The absolutely suffered no eco- copyright. commercial value be To nomic injury alleged whatever from the sure, the may Herald’s advertisements infringement copyright. its If away plaintiff had the effect of drawing significant customers a loses share present market, from TV But Guide. this results from that would result not advertising way nature of and in no plaintiff’s itself from the display of cover in stems from the fact advertising Guide covers defendant’s but from com- Indeed, assuming were used. that TV competition mercial work that positive enjoy- any plain- Guide covers offer artistic does not in way make ment, reproduction alleged these covers tiff’s material. portant. example, reproduced rejected by years accepted For if a work decisions and textbook, practice.” students is itself defense Williams & Wilkins Co. v. United appropriate States, of fair use would be far less if 1345, 1353, than 487 F.2d Ct.Cl. prepared gener- work were material for the court, (1973), equally aff’d an divided public. Report, Similarly, al the be if Senate at 64. (1975) S.Ct. L.Ed.2d 264 print work is out of and cannot cases). (citing purchased, may likely user more prevail on fair use defense. Id by Triangle explanation 16. The offered any stage litigation is that time unpersuasive Triangle’s argument 15. We find shown, thereby cover TVof Guide is its value is separately that the righted of TV cover reduced. We think the reduction in value—if Knight-Ridder and that therefore has any the from reproduced view, covers of TV Guide the show- copyrighted an entire work. In our —of ings by slight magazine the is so Herald advertisements the cover of to entitled copyright protection part magazine, nothing as in as to be There is the immeasurable. just paragraph may any as a in a book be entitled to harm to the record indicate economic copyright protection part to the of book. value used in of back-dated covers of TV Guide maga- copyrighted Thus use of the cover of a Indeed, the Herald’s advertisements. we have However, infringement. zine an it makes rough not even a of the economic indication say sense to to us that the use a cover value of these covers—either before or after constitutes the entire use “an stated, the Herald’s ads. As one Court has “To logic work.” aAs matter of and common very plaintiff important us it is failed has sense, Knight-Ridder’s conduct would have detriment, prove assumption to of economic reproduced been far more serious had it entire past potentially in . the for the future. pages articles from TV Guide or full record, In the face of this we cannot mechani- event, assuming In schedules. Knight-Ridder even cally . . .” assume . [economic detriment] reproduced has “entire” an States, supra, v. United Williams& Wilkins Co. work, copying the idea that the an entire at F.2d copyrighted work an can never be fair use “is generalization, unsupported by the overbroad injury to fourth itself causes no factor —we conclude that the fair

infringement in any it applies because does in plaintiff use defense this case and that plaintiff’s substitute manner in did holding District Court erred it to believe that It is difficult product. Triangle simply not. We cannot see how simply magazine to purchases the anyone advertise- was harmed the Herald’s repro- only part cover —the ponder the Moreover, public as well as the ments. Any harm suf- defendant. by the duced comparative Herald from advertis- benefits compe- from plaintiff results by the fered minimizing importance of the ing, thus independently created an tition with that a commercial use was involved. fact exploitation from than work rather material. plaintiff’s own III. First Amendment Similarly, Denicola, at 305-06. supra, unanimous. The Thus far the Court is explains: Note Columbia not, that we need and majority concludes question was at most an in not, is- reach the First Amendment should one,” encompassed hence “incidental and sue.17 The fact within the fair use doctrine. competition parties were in that the Conclusion IV. irrelevant, since the use of each other is of the District We affirm decision magazine if it were cover —even Triangle’s denying pre- Court motions for not serve plaintiff’s entire work —could injunctions. How- liminary permanent and plaintiff’s product. substitute for ever, Thus, do so on the basis was no economic detriment there use de- and defendant’s fair on the of the First Amendment which plaintiff, basis (Footnotes prevailed. fense should we do not reach. omitted). AFFIRMED. Note, supra And the Columbia at 327-28.

Wisconsin Note observes: BROWN, Judge, Circuit concur- JOHN R. the fourth court failed discuss [T]he part dissenting part: in ring in and upon the use factor —the effect of light holding In of our the fair potential or value of the market for to discuss question, majority decides not righted use context. work —in the fair Had the Dis- the First Amendment issue. purpose While it is true that defendant’s fair use to be valid trict Court found marketing a creating television defense, simply I wouid affirm and leave reap benefit supplement economic question to another the First Amendment by capturing part the market held the District Court de- day. since Guide, appre- had no defendant’s use preliminary per- the motions for nied upon poten- ciable deleterious effect injunctions on the First manent based shown, since tial demand the issues since, stand, Amendment, if allowed programming schedules were out-of- opinion could create the District Court’s addition, display date. uncertainty the Fifth Cir- confusion only slightly cover could have decreased Note, copyright, Wisconsin cuit law of see the value of the articles the dated compelled I to address issues, omitted). supra, feel (Footnotes if at all. issue. the First Amendment Note, supra at 262. Wisconsin Constitution, Congress has Under the specified Applying the four factors promote Progress heavy emphasis to the “Power ... giving 107—and 802, denied, 1120, 1974), 17. Judge 419 cert. U.S. 95 S.Ct. Brown dissents for the reasons stated Stanga proce- (1975); appellate opinion 819 v. McCormick in his dissent. 42 L.Ed.2d This 544, 546, (5th See, Corp., Shipping Cir. 268 F.2d 551 dure used in this is not case uncommon. g., Collier, 1959). Grigsby (5th Service v. Coastal Marine e. Gates v. 616 F.2d 1268 Cf. Cir. Inc., 1011, (5th Inc., Texas, Tours, 1980); Usery Cir. 412 F.2d 1023 v. (5th Tamiani Trail 224, 1967). 1976); F.2d Register, United States v. Cir. (5th 496 F.2d 1075-76 Cir. Arts, by securing 102(b) of Science and useful for Thus makes clear that copyright to Authors and protection limited Times Inventors the does not to the extend idea itself. respective Right Writings exclusive to their This notion is further articulated in the I, legislative Art. cl. How- and Discoveries.” 8. history. example, For the House ever, Report the First Amendment to the departures Constitu- states: “Wide or varia- provides “Congress tion shall make no tions from the copyrighted work would still abridging law . . . the freedom of an infringement long as as the author’s . speech possible . . .” The ‘expression’ tension be- merely rather than the author’s provisions tween these two constitutional Report, 61; ‘ideas’ are taken.” House at recognized has been repeatedly by Courts Cong. Admin.News, U.S.Code & at 5675. and commentators.1 “idea-expression The dichotomy” generally provides a workable balance between Under law copyright, “protection is right and speech free As interests. given only expression to the of the idea— Ninth Circuit has stated: Stein, not the itself.” idea Mazer v. idea-expression dichotomy 201, 217, 460, 470, 98 . [T]he U.S. S.Ct. L.Ed. serves to (1954). competing accommodate in Judge In Learned Hand copyright terests of and the attempted give guidance first amend to some draw ment. ing “marketplace The of ideas” is not expres line between an idea and an by copyright limited Co., sion. In v. because is Nichols Universal Pictures (2d protection limited 1930), expression. 45 F.2d Judge Cir. Hand As one recognized laws, that under the commentator has stated: idea- “[T]he right expression represents acceptable “the cannot be limited line an literally text, else plagiarist escape by would im definitional balance as between copyright material variations.” Id. at The line and free speech 121. interests. de some expression gree between an idea upon and an an it encroaches freedom of arbitrary” idea “will seem no speech right matter where abridges in that it Yet, it is Id. drawn. at 122. attempting reproduce others, ‘expression’ but approach discovering articulate the justified this is greater public good line, Judge Hand in his stated “abstrac in the copyright encouragement of cre tions” test: ative degree works. In some it encroach

Upon work, upon right es upon the author’s to control his especially play, work great patterns per number of it his se of in- in that renders ‘ideas’ creasing well, unprotectible, generality equally justified by will fit but is greater public more and more of the incident left need for free access to out. may perhaps The last be more ideas part dialogue.” no of the democratic general than the Nimmer, most statement what Copyright Does Abridge about, the play might and at times First Free Amendment Guarantees of title; consist of its but Speech Press?, there is a 17 U.C.L.A.L.Rev. point in this series of Runge, abstractions where 1192-93 Cf. Lee v. they longer 887, 892-93, 92 are protected, other- [200], since S.Ct. 197 playwright wise the prevent J., could the use (1971) (Douglas, L.Ed.2d 169 dissent “ideas,” which, of his apart ing). from their

expression, his property never extend- Productions, Marty & Krofft Sid Television ed. Corp., Inc. McDonald’s 562 F.2d (9th Id. 121. 1977).2 “idea-expression This dichotomy” is Prior opinion to the District Court’s case, carried forward the 1976 Act. no Court had ever held the Supreme directly See the cases and cited faced articles in note Court has never majority opinion, supra. possible tension the First Amend- between copyright. law ment and the an case, analogous Scripps-Howard Zacchini 1180 preventing among things, copyright infringe- basis for other a to be

Amendment infringement copyright Cowboys of a ment. Cheer- Five of the Dallas enforcement Courts had been suit, number of although a leaders official uniforms posed had in their instance, in For the issue. faced poster widely for a Sec., Street Tran Inc. Wall Wainwright Cowgirls, members sold. Five of the Texas 1977),cert. (2d F.2d 91 Cir. script Corp., 558 group up made Cowboys former Dallas 730, 54 denied, 98 S.Ct. 434 U.S. Cheerleaders, posed uniforms poster for a part (1978),plaintiff, a limited L.Ed.2d 759 nearly identical those worn the Dallas in institutional research nership engaging original pos- Cowboys Cheerleaders business, in-depth prepared brokerage ter. The difference was that corpora 300 nearly reports analysis girls’ par- were poster, uniforms latter major tions, examining developments, unbuttoned, tially exposing their breasts. profit expectations, prospects, growth plaintiff’s granted mo- The District Court strengths. reports, These weaknesses This preliminary injunction. Court tion each, were pages as 40 long which were affirmed, finding a likelihood of substantial Defendant, a individually copyrighted. doing, In so it re- on the merits. success published ab newspaper, weekly financial argument that the District Court jected reports, appro plaintiff’s research stracts of rights publish to heed defendants’ failed verba language almost priating plaintiff’s the First Amendment. Court under a prelimi tim. The District Court entered is not observed that first amendment “[t]he appealed. nary injunction and defendant recognized legally license to trammel on affirmed, rejecting both The Second Circuit rights property.” Id. intellectual argu the fair use and First Amendment Krofft Marty also & Television See Sid issue, the Amendment ments. On the First Corp., supra (rejecting defend- McDonald’s not that defendants did Court reasoned arguments with re- First Amendment ants’ plaintiff’s news information but merely use of H. R. Pufnstuf spect McDonald’suse expression of that informa plaintiff’s took commer- characters in McDonaldland TV tion. cials; the that defendants Court reasoned appli- recently considered the This Court merely idea but the appropriated law Amendment cation well). expression of the idea as Cowboys copyright. In Dallas Cheer- The case law demonstrates Posters, 600 F.2d 1184 leaders v. Scoreboard generally pro- “idea-expression dichotomy” 1979), Cowboys (5th Dallas Cheer- separating a workable framework for Cowgirls, vides sued Texas leaders Score- others, Posters, Inc., (ideas) from claiming First Amendment interests board n.13, Co., (W.D.Okla.1974). Broadcasting F.Supp. 1267 97 375 433 U.S. n.13, Disney n.13 v. Air Pi S.Ct. (1977), L.Ed.2d See also Walt rates, Productions F.Supp. (N.D.Cal. did allude to this tension. Court 115-116 Zacchini, petitioner performed 1972) Nimmer, (citing act an in which Does Abridge net he was shot feet fair in Ohio and his reporter a cannon into a about from The First Amendment Guarantees of county away. performed Press?, act at He Speech and [L.]Rev. Free UCLA videotaped act was (1970), argues who law broadcasting company and for a abridge the First Amendment be does program. sued shown on a television news He not restrain the communication cause it does theory damages “right for publicity.” a state under Stigwood concepts); of ideas or Robert Company The Court held that O’Reilly, F.Supp. Group Ltd. v. First Amend- was not immunized under the ment from Nimmer, (also (Conn.1972) relying on su alleged infringe- damages for pra). opinion, ment. In a footnote to the the Court n.13, n.13, 97 S.Ct. at 2858 433 U.S. at 577-78 stated: trying to read at 977 n.13. Without 53 L.Ed.2d note Courts have dictum, We that Federal District that the into this think too much challenges rejected to the First Amendment gen- given Supreme its most has at least Court ground “no federal law on the “idea-expression approval to the dichoto- eral my” principle. placed an restraint on the use of [has been] Bodin, concept.” States v. idea United copyright (expressions). protection interests provides for the Herald’s con- Thus, happens what when the idea and the ex- duct. the asserted “tension” between pression Copyright are and the same? For the Act one exam- and the First Amend- works, simply ment does ple, graphic with ex- not respect the exist in this case. Copyright The Act provides pression convey safety itself essential the idea. use —to valve —fair potential minimize may simply Words not suffice describe Indeed, tension. the fair use out, doctrine has points the work. As Professor Nimmer recognized as been “a substantial rule of of be work art cannot described but can copyright law that can on occasion reduce experienced. gives examples He as be inherent tension between speech free difficulty trying describe property rights in expression.” Denico- “idea” of the Mona Lisa or Michelangelo’s la, supra, at 299. See also id. at 303-04. Moses. 1 Copyright, Nimmer (1978). 1.10[C][2], argues 1-81 He Second, —and even assuming fair use was not I agree cases, in most such appropriate defense, an —that Court was not he prevail. interest should As compelled to reach the result it did on the states, enlightenment con- “The additional Supreme basis of the Court’s commercial dialogue by tributed to the democratic rea- speech with, free begin cases. To the right impact graphic son of the visual of most speech of free is not absolute and must be compared relatively slight work is as analyzed in light legitimate of other inter of impact literary See, intellectual work.” g., ests. e. Zacchini v. Scripps-Howard Co., Id. These considerations seem relevant in Broadcasting 562, 433 97 U.S. S.Ct. 2849, dealing (1977), case since we are here with 53 L.Ed. 965 discussed note 2, Moreover, supra. right graphic of TV works —covers Guide. of commer speech cial free protec is afforded even less stated, As the District Court in this case speech. tion than non-commercial As the Knight-Ridder’s held TV Guide Court stated in Ohralik v. Ohio Bar State covers, although not fair was nonethe- Association, 456, 1912, 447, 436 U.S. 98 S.Ct. protected less under the First Amendment. (1978): 56 L.Ed.2d “[W] Court reasoned that the laws speech e have afforded commercial and the First Amendment created tension protection, a limited measure of commensu light in this case in Supreme recent position rate with its subordinate in the Court cases such as Bates v. Arizona State values, of First scale Amendment while al Bar, U.S. S.Ct. 53 L.Ed.2d lowing regulation might modes of be (1977), giving protec- First Amendment impermissible realm of non-commer speech. tion to commercial The Court Friedman, l. expression.” cial See also et a pointed out these commercial free al., Rogers, et S.Ct. speech importance cases demonstrate the L.Ed.2d 100 none And Su advertising. The Court did not rule preme speech free Court’s commercial cases Copyright simply Act unconstitutional but Moreover, copyright question. involve a case, held that under facts of this Bates, out, points one commentator which should enforced because the First heavily, the Court relied on so involved view, Amendment. the District Court’s advertising totally that was banned. See whenever the First Amendment and Here, Note, supra, 257 n. Wisconsin tension, pri- Act create a “the Copyright Triangle conceded that Herald could mandates of the First Amendment macy verbally to TV and could even refer deprived of Act be cover have used the facsimile of Guide’s F.Supp. at effectuation.” long copy as the Herald did simu so The District Court’s conclusion is incor- Guide. Thus the late an actual cover First, rect for a objective advertising number of reasons. would comparative above, demonstrated been thwarted. completely doctrine not have same, copyright importantly, the Dis- and the interest should most Finally, and nearly prevail generally over the idea-expression always sight Court lost trict incidental First Amendment concerns.4 did not con- District Court dichotomy. The convey Thus even Herald could if the adopting only Herald was whether the sider by of covers show- idea the TV Guide expression as well. or its Triangle’s idea themselves, that ing I believe the the covers of the Herald’s use believe that I over the copyright prevail interests should under fair use but protected is covers Guide interests. asserted First Amendment In- First that the Amend- reject argument deed, given difficulty trying to deter- my Knight-Ridder privilege confers a ment being mine what “idea” communicated copyright. infringe Triangle’s my Since is, that the TV covers I doubt by Guide part from the idea-ex- stems in conclusion asserted here First Amendment interests necessary is dichotomy, it isolate pression significant. way are involved here. Neither relevant idea in this Accordingly, I believe that case being really the idea commu- side identifies clearly prevail interests over copyright by Apparently, covers. nicated TV Guide alleged First Amendment interests. unique way sug- presents each cover a here, where, and the Even as idea ex- magazine is a con- gesting TV Guide that form, I graphic be- pression are wedded taining TV and articles about tel- schedules rarely will lieve that the First Amendment sug- week picture new each evision. The In any interest. prevail copyright over a listings and new gests that are new there event, copy- where if there is a situation conveyed could have articles. The Herald give way to the right protection must First showing facsimile of by simply idea that Amendment, certainly do not such reproducing TV Guide cover instead a case here. expression, namely, an actual cover conclusion, I concur result Hence, application of the idea-ex- Guide. majority reached and in their resolu- principle suggests that pression dichotomy I go of the use” issue. But would tion “fair defense the First not a Amendment hold that the District Court further and Triangle’s infringement suit. erroneously found a violation may idea be similar to Alternatively, right laws valid First Amendment and a or work expressed any painting that nutshell, I defense thereto. In a believe the theory If the covers Triangle’s art. result right District Court reached the works great of TV Guide similar to are wrong reason. art,3 why I then cannot understand Trian- gle exclusively idea-expression relies on the APPENDIX case dichotomy analyzing instead small-scale, are expression one in the idea and which Below is black white above, colored page wedded. I believe that version of the Herald’s full ad As I stated are expression when the one of November idea and wedded, prevail Triangle may suggests should in fact be its the First Amendment Brief, theory. Triangle page gives Reply as an On over concerns. He exam- 5 of argues My ple photographs should be Lai that the cover of TV Guide massa- exclusive though masterpiece Copyright, 1.10[C][2], treated it were a See Nimmer on cre. graphic Triangle’s argument, express skepticism art. And at oral I 1-82 While compared counsel the TV covers to Pi- even here would serve as Amendment paintings. casso and Rembrandt suit, problem defense a not before us and therefore do I not reach it. 4. Professor believes in certain sit- Nimmer expression uations the idea and are where kj Knight-Ridder Inc. v. concurring: Newspapers, Inc.,

TATE, Judge, Circuit 1978). (S.D. Fla. F.Supp. excellent and majority’s I concur that we should not summary, agree as it holds that the In I insofar scholarly opinion plaintiff’s idea-expression dichoto- utilization of now decide that the defendant’s applying was authorized is the sole my cover touchstone Therefore, majori- First Amend- doctrine. sensitive fundamental notes, application of the correctly proper use permit ment values so ty most First Amend- avoids principle righted public discussion and material Instead, might arise. conflicts I expression thoughts. ment would with the attempt- faced squarely wait until Nevertheless, in view of the observations ex- prohibition ed of a use dissent, partial may it contained by fair use but neces- pression protected note my own view appropriate expression sary adequate test should not be the idea-expression sole case, proposed thought. In such a resolving copyright- any potential basis for case, neither might, as in the instant reduce view, my conflict. First Amendment value of nor plaintiff’s circumstances, limited under expression (the sought values exploit his privilege may, Amendment and should exist it protection), and be advanced copyrighted expres- utilization where appropriate would then be consider convey- necessary purpose for the sion is weighing sensitive First factor expressions. thoughts or See discus- ing concerning Amendment fundamental issue Denicola, and Free Copyright sions in: That conflict is society. values of a free Speech: Constitutional Limitations on the us, properly did presently before Expression, Protection of 67 Calif.L.Rev. panel opinion. reach it in our Note, (1979); Infringement Amendment, and the First 79 Colum.L.Rev. Note, (1979); Constitutional Law —Com- mercial and the Speech Copyright First —

Amendment, (1979); 1979 Wisc.L.Rev. 242

Note, Amendment, Copyright and First

33 Univ. of L.Rev. Miami Admittedly, application with proper DICKINSON, Petitioner-Appellant, Enoch to visu- principle, the fair use it is difficult the First alize the rare occasions when WAINWRIGHT, Louie L. from or may quotation Amendment entitle Respondent-Appellee. reproduction material not am, I through otherwise available fair use. No. 80-5700. that, instance, agree inclined in the Appeals, United States Court us, case adequately before because fair use Fifth Circuit. served expression, the interests of free BUnit protection additional First Amendment expression reproduction extended 11, 1980. Sept. graphic illustration before us. my

illustrate with the dissent on difference issue, protect if fair use did not cover,

defendant’s use of the agree completely

then I would court, expressed

district the reasons pre- opinion, Amendment repro- plaintiff enjoining

vented the from

duction of Publications, the cover. Triangle

Case Details

Case Name: Triangle Publications, Inc., a Pennsylvania Corporation v. Knight-Ridder Newspapers, Inc., a Florida Corporation

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 24, 1980

Citation: 626 F.2d 1171

Docket Number: 78-1639

Court Abbreviation: 5th Cir.