the Court concludes that material facts preclude summary judgment.
Plaintiff, Television Digest is the publisher of Communications Daily, a daily trade newsletter for the telecommunications industry. Motion for Summary Judgment ("Motion"), p. 4. Communications Daily has been in publication since January 19, 1981. The defendant, United States Telephone Association ("USTA") is the national trade association for local exchange telephone companies. USTA, with approximately fifty employees, monitors and participates in Congressional and regulatory activities; it presents seminars and educational conferences; it represents the industry viewpoint in the media; and it disseminates information about telephone industry issues. Opposition, p. 2.
On January 19. 1981 USTA purchased one subscription of Communications Daily. On January 23, 1985 USTA purchased one subscription to Communications Daily. Motion, p. 8. Affidavit of Albert Warren, President of Television Digest ("Albert Warren Affidavit"). The January 19, 1981 subscription covered dates between January 19, 1981 and March 21, 1982, for a purchase price of $ 673.00. The January 23, 1985 subscription covered dates between January 1, 1985 and December 31, 1985, for a purchase price of $ 1,250. Albert Warren Affidavit, P 12. Rather than purchase additional subscriptions, USTA instituted a daily practice of making several photocopies of the single subscription issues, so that Communications Daily could be "instantaneously routed to all of the other staff members." Id. USTA made copies for its staff ranging from 12 to 26, each business day between February, 1981 and December 2, 1985.
Based on these actions, Television Digest filed a copyright infringement action under the Copyright Revision Act of 1976 ("The Copyright Act"), 17 U.S.C. § 101 et. seq., seeking an injunction, an accounting for gains, compensatory and punitive damages, and attorneys' fees. Television Digest then filed the instant motion for summary judgment.
Summary judgment is appropriate in copyright infringement actions where there is no serious dispute that the defendant reproduced copyrighted material owned by the plaintiff. Plaintiff has the burden of establishing copyright infringement, and must prove two essential elements: "ownership of a copyright and that defendant copied the protected material without authorization." See Weissmann v. Freeman., 868 F.2d 1313 (2d Cir.) cert. denied, 493 U.S. 883, 110 S. Ct. 219, 107 L. Ed. 2d 172 (1989).
As a threshold issue, the Court must determine that the work, which is the subject of the copyright action, i.e. Communications Daily, is entitled to copyright protection. USTA argues that this question presents a genuine issue of material fact. That is, because most stories are taken from material available to the public, e.g. Public Notices and decisions of the Federal Communications Commission ("FCC"), Communications Daily contains information which cannot be copyrighted. USTA cites authority which states: works of the United States government are not copyrightable by others, 17 U.S.C. § 105; and work that is merely derivative of the uncopyrighted work of others is not copyrightable, Suid v. Newsweek Magazine, 503 F. Supp. 146 (D.D.C. 1980).
USTA is incorrect regarding Communications Daily's entitlement to copyright protection, for "while facts have not been given copyright protection . . . compilations of such facts traditionally have been." Schroeder v. William Morrow & Co., 566 F.2d 3 (7th Cir. 1977). What is protected is "the author's original expression of particular facts." Financial Information, Inc. v. Moody's Investors Service, Inc., 751 F.2d 501 (2d Cir. 1984).
A work is original to the author and thus qualifies for copyright protection if the work is independently created by the author and possesses some minimal degree of creativity. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 111 S. Ct. 1282, 1287, 113 L. Ed. 2d 358 (1991). Thus, "the mere fact that component parts of a collective work are neither original to the plaintiff nor copyrightable by the plaintiff does not preclude a determination that a combination of such component parts as a separate entity is both original and copyrightable." Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 388 (5th Cir. 1984) quoting 1 Nimmer on Copyright §§ 3.02, 3.03. In examining the representative issues of Communications Daily, submitted on the motion, the Court concludes that the newsletter is more than a compilation of data; it provides original news stories.
See Motion, Exhibits B, C, and D. Thus, regarding the issue of entitlement to copyright protection, the Court concludes that Communications Daily is copyrightable.
Next, the Court must ensure that Television Digest has established ownership of the copyright to the issues of Communications Daily that were copied. Copyright ownership and protection vest with the author of an original work automatically upon its creation. 17 U.S.C. §§ 102, 201(a), 302(a); WPOW, Inc. v. MRLJ Enterprises, 584 F. Supp. 132, 136 (D.D.C. 1984). There is a statutory presumption that Copyright Office registrations within five years of publication constitutes prima facie evidence of ownership. 17 U.S.C. § 401(c). Plaintiff has established ownership for issues of Communications Daily which were published between April 1, 1981, and January 16, 1985.
Having established entitlement to copyright protection and ownership of the copyright, the Copyright Act confers certain exclusive rights to the owner of the copyright: the right to publish, copy, and distribute the author's work.
These rights vest upon creation of the work. 17 U.S.C. § 106. However, these rights are subject to limited exceptions delineated in sections 107-118. In this case copying is not disputed: USTA purchased single subscriptions to Communications Daily and then made multiple photocopies of it to provide to its staff members. However, USTA raises the defense of fair use. See 17 U.S.C. § 107. Accordingly, to find USTA liable for copyright infringement, the Court must satisfy itself that this exception does not apply.
Fair use "constitutes a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without [his or her] consent, notwithstanding the monopoly granted to the owner." See e.g. Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir. 1966)cert. denied, 385 U.S. 1009, 87 S. Ct. 714, 17 L. Ed. 2d 546 (1967). Specifically, section 107 of the Copyright Act provides that:
Notwithstanding the provisions of section 106, the fair use of a copyrighted work . . . for purposes such as criticism, comment, news, reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Fair use is an equitable doctrine requiring an examination of the specific facts of each case. See e.g., Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 552-555, 105 S. Ct. 2218, 2226-2227, 85 L. Ed. 2d 588 (1985). Congress has identified four factors to consider in determining fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;