Topics:
- Copyrightability of Photographs The Copyright Act provides (17 U.S.C. §§ 4, 5(j)) that "Photographs" may be the subject matter of copyright. The Court held that the photograph was a writing of which the photographer was the author and that the Congress could constitutionally make such photograph the subject of copyright. This left open whether an ordinary photograph of a real life object could constitutionally be a proper subject of copyright. The Court found it "obvious" that the result could not be affected by the fact that the pictures represented "actual groups visible things" and that such pictures "drawn from the life" (as opposed to a "composed" subject) could be copyrighted. In this connection, the Court declared: "Others are free to copy the original. They are not free to copy the copy." (188 U.S. at 249, 23 S.Ct. at 299). And later: "The least pretentious picture has more originality in it than directories and the like, which may be copyrighted" (188 U.S. at 250, 23 S.Ct. at 300). In Pagano v. Beseler Co., 234 Fed. 963, 964 (2 Cir. 1916, the Supreme Court held that "It undoubtedly requires originality to determine just when to take the photograph, so as to bring out the proper setting for both animate and inanimate objects, with the adjunctive features of light, shade, position, etc."
- Limitations on exclusive rights: Fair Use
The Parties:
- Time Incorporated (Time Inc.), the plaintiff, is a corporation which, among other things, publishes "Life", "Time" and "Fortune" magazines; it also publishes books; and it has "Broadcast divisions", the operations of which presumably involve radio or television broadcasting or both.
Abraham Zapruder >> When President Kennedy was killed in Dallas on November 22, 1963, Abraham Zapruder, a Dallas dress manufacturer, was by sheer happenstance at the scene taking home movie pictures with his camera. His filman historic document and undoubtedly the most important photographic evidence concerning the fatal shots was bought a few days later by Life; parts of the film were printed in several issues of the magazine. As to these issues and their contents (including, of course, the Zapruder pictures) and as to the film itself, Life has complied with all provisions of the Copyright Act (17 U.S.C. § 1 and following; the Act).
Defendant Thompson has written a book, "Six Seconds in Dallas" (the Book), which is a study of the assassination. It is a serious, thoughtful and impressive analysis of the evidence. The Book contains a number of what are called "sketches" but which are in fact copies of parts of the Zapruder film.
Defendant Bernard Geis Associates (Associates), a partnership, published the Book on November 18, 1967 and defendant Random House, Inc. has been distributing the Book to the public. Defendant Bernard Geis is the only general partner of Associates.
Facts:
The complaint in a single count charges that certain frames of the Zapruder film were "stolen surreptitiously" from Life by Thompson and that copies of these frames appear in the Book as published.
The complaint avers that the conduct of defendants is an infringement of statutory copyrights, an unfair trade practice, and unfair competition.
While the word "frame" with respect to motion picture film is generally understood, it may be advisable briefly to explain it. [A frame is one of the many still images which compose the complete moving picture.] A motion picture consists of a series of photographs showing the objects in a scene in successive positions slightly changed. When the series is presented in rapid succession, the optical effect is of a picture in which the objects move. Each separate photograph in the series is called a "frame". Webster's Third New International Dictionary, pp. 902, 1475.
Defendants answered on January 15, 1968 and the answer in substance denies that plaintiff has any claim, then pleads nine affirmative defenses, and then pleads the nine affirmative defenses as a partial defense. The affirmative defenses are as follows: first, consent; second, that the Zapruder film could not be the subject of copyright because not original; third, that the Zapruder film could not be the subject of copyright because it could be made "in only a limited number of ways" and to allow copyright would result in the appropriation of the subject matter * * * by a limited number of copyright proprietors"; fourth, through seventh, fair use; eighth, that the Book is protected by the First Amendment and on that account an injunction cannot issue; and ninth, that an injunction will cause defendants irreparable harm.
Ruling:
Re: Copyrightability of Photographs
It is said for defendants that the pictures are simply records of what took place, without any "elements" personal to Zapruder, and that "news" cannot be the subject of copyright.
The Zapruder pictures are "photographs" of an event. The Copyright Act provides (17 U.S.C. §§ 4, 5(j)) that "Photographs" may be the subject matter of copyright. If this were all to be considered, it would seem clear that the pictures here were properly copyrighted because Congress has expressly made photographs the subject of copyright, without any limitation.
In Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S. Ct. 279, 28 L. Ed. 349 (1884), the Supreme Court found that the photograph in suit had involved the posing of the subject and a choice of costume, background, etc. The Court held that the photograph was a writing of which the photographer was the author and that the Congress could constitutionally make such photograph the subject of copyright. This left open whether an ordinary photograph of a real life object could constitutionally be a proper subject of copyright.
In Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S. Ct. 298, 47 L. Ed. 460 (1903), the Court found it "obvious" that the result could not be affected by the fact that the pictures represented "actual groups visible things" and that such pictures "drawn from the life" (as opposed to a "composed" subject) could be copyrighted. In this connection, the Court declared: "Others are free to copy the original. They are not free to copy the copy." (188 U.S. at 249, 23 S.Ct. at 299). And later: "The least pretentious picture has more originality in it than directories and the like, which may be copyrighted" (188 U.S. at 250, 23 S.Ct. at 300).
Judge Learned Hand believed that any photograph could be the subject of copyright because in Bleistein the Supreme Court had ruled that "no photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike".
There is an interesting case in this Court some fifty years ago. The question was whether a photograph of a street scene showing the Public Library on Fifth Avenue could be the subject of copyright. The decision upheld the copyright, saying among other things (Pagano v. Beseler Co., 234 Fed. 963, 964 (2 Cir. 1916):
"It undoubtedly requires originality to determine just when to take the photograph, so as to bring out the proper setting for both animate and inanimate objects, with the adjunctive features of light, shade, position, etc."
Thus, if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright. On what principle can it be denied because of the tragic event it records?
The defendants argue that "news cannot be copyrighted" citing the Associated Press case and National Tel. News Co. v. Western Union, 119 Fed. 294, 60 L.R.A. 805 (7th Cir. 1902).
Defendants are perfectly correct in their contention. A news event may not be copyrighted, as the cited cases hold. Life claims no copyright in the news element of the event but only in the particular form of record made by Zapruder.
The Associated Press case involved news articles (words) and not photographs. The Associated Press case did not involve copyrighted material but the Court discussed news articles as subjects of copyright. The Court carefully distinguished between the "news element", the "substance of the information" on the one hand, and "the particular form or collocation of words in which the writer has communicated it" (248 U.S. at 234, 39 S.Ct. at 70) on the other. The latter, the "particular form", was recognized as a proper subject of copyright, the Court saying (248 U.S. at 234, 39 S.Ct. at 70):
"No doubt news articles often posses a literary quality, and are the subject of literary property at the common law; nor do we question that such an article, as a literary production, is the subject of copyright by the terms of the act as it now stands."
It is said for defendants that the pictures cannot be copyrighted because of "lack of creativity".
This argument has already been dealt with in the discussion just above.
Any photograph reflects "the personal influence of the author, and no two will be absolutely alike", to use the words of Judge Learned Hand.
The Zapruder pictures in fact have many elements of creativity. Among other things, Zapruder selected the kind of camera (movies, not snapshots), the kind of film (color), the kind of lens (telephoto), the area in which the pictures were to be taken, the time they were to be taken, and (after testing several sites) the spot on which the camera would be operated.
Re: Limitations on exclusive rights: Fair Use
The test of fair use was primarily the degree of injury to the plaintiff (9 Fed. Cas. at 348, 349):
"If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto.
* * * * * *
"But if the defendants may take three hundred and nineteen letters, included in the plaintiffs' copyright, and exclusively belonging to them, there is no reason why another bookseller may not take other five hundred letters, and a third, one thousand letters, and so on, and thereby the plaintiffs' copyright be totally destroyed."
Section 107 of H.R. 2512 and of S. 597 is as follows:
"Limitations on exclusive rights: Fair Use
Notwithstanding the provisions of section 106, the fair use of a copyright work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:
(1) the purpose and character of the use;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."
With respect to this provision, the Report of the Committee on the Judiciary of the House said (H.R.Rep.No. 83, 90th Cong., 1st Sess. 29-30 (1967)):
"Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which though in no sense definitive or determinative, provide some gage for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which were stated in the 1964 bill and have been adopted again in the committee's amendment of section 107: `(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work'."
The Committee noted that any precise definition of fair use was impossible and said (at 32) that
"* * * the endless variety of situations and combinations of circumstances that can arise in particular cases precludes the formulation of exact rules in the statute. We endorse the purpose and general scope of the judicial doctrine of fair use, as outlined earlier in this report, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.
"Section 107, as revised by the committee, is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way."
The difficult job is to apply the relevant criteria.
There is an initial reluctance to find any fair use by defendants because of the conduct of Thompson in making his copies and because of the deliberate appropriation in the Book, in defiance of the copyright owner. Fair use presupposes "good faith and fair dealing".
In determining the issue of fair use, the balance seems to be in favor of defendants.
There is a public interest in having the fullest information available on the murder of President Kennedy. Thompson did serious work on the subject and has a theory entitled to public consideration. While doubtless the theory could be explained with sketches of the type used at page 87 of the Book and in The Saturday Evening Post, the explanation actually made in the Book with copies is easier to understand. The Book is not bought because it contained the Zapruder pictures; the Book is bought because of the theory of Thompson and its explanation, supported by Zapruder pictures.
There seems little, if any, injury to plaintiff, the copyright owner. There is no competition between plaintiff and defendants. Plaintiff does not sell the Zapruder pictures as such and no market for the copyrighted work appears to be affected. Defendants do not publish a magazine. There are projects for use by plaintiff of the film in the future as a motion picture or in books, but the effect of the use of certain frames in the Book on such projects is speculative. It seems more reasonable to speculate that the Book would, if anything, enhance the value of the copyrighted work; it is difficult to see any decrease in its value.
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