973 F.2d 791

August 27, 1992, Filed

Opinion by Judge Browning.

Los Angeles News Service ("LANS") records newsworthy events on videotape and licenses television stations and networks to use all or segments of the unedited ("raw") footage in edited broadcast news stories. Audio Video Reporting Services ("AVRS") provides a video "news clipping" service: It monitors television news programs, records them on videotape and sells copies of all or segments of the tapes to interested individuals and businesses.

LANS videotaped the sites of an airplane crash and a train wreck, registered its copyrights to the tapes, and licensed certain Los Angeles-area television stations to use them on news programs. AVRS made video recordings of these news programs, which included portions of LANS's footage, and marketed the recordings.
LANS sued, claiming copyright infringement.

AVRS appeals, making the following claims: (1) the raw videotapes are not sufficiently original to merit copyright protection; (2) the public's First Amendment right of access to videotapes of newsworthy events, such as the crash and the wreck, precludes copyright protection for the tapes; (3) even if the tapes are copyrightable, AVRS made "fair use" of them and is therefore shielded from liability for copyright infringement; (4) even if AVRS would otherwise be liable for copyright infringement, LANS's "unclean hands" barred recovery; (5) having found AVRS liable for copyright infringement, the court should have permanently enjoined AVRS from copying LANS's copyrighted material without license from LANS, fixed the terms of a license that would permit AVRS to copy LANS's copyrighted material, and required LANS to notify AVRS when LANS's copyrighted material was broadcast; (6) the damage award was excessive; and (7) a videotape of the train wreck should not have been admitted into evidence. We affirm.

Raw Videotapes as Original Works of Authorship

AVRS claims LANS's raw videotapes, as opposed to the edited news stories in which portions of those tapes were combined with other footage, narrative, interview excerpts and graphics to form a television news "package," are not "original works of authorship" and thus do not merit copyright protection under § 102(a) of the Copyright Act of 1976, 17 U.S.C. §§ 101-914.
AVRS argues LANS's tapes merely captured whatever was before the camera, involved no creativity or intellectual input, and so are not original works deserving copyright protection. The Supreme Court rejected a similar argument more than 100 years ago. In Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), the plaintiff argued a photograph of the author Oscar Wilde was not original and therefore not copyrightable because a "photograph is the mere mechanical reproduction of the physical features or outlines of some object animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture." The Court did not decide whether all photographs reflected the necessary originality, id., but held the Wilde photograph clearly was original because of the creative and intellectual decisions involved in producing it:

[The court below found that the photograph was] a "useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same . . . entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, [and] suggesting and evoking the desired expression . . . .
These findings, we think, show this photograph to be an original work of art, the product of plaintiff's intellectual invention, of which plaintiff is the author . . . .
"No photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike." Professor Nimmer's treatise reports that Judge Hand's statement of the law "has become the prevailing view, so that [almost] any . . . photograph may claim the necessary originality to support a copyright merely by virtue of the photographers' personal choice of subject matter, angle of photograph, lighting, and determination of the precise time when the photograph is to be taken." See also Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 142-43 (S.D.N.Y. 1968) amateur photographer's raw footage of the assassination of President John Kennedy was sufficiently original because of the creative effort involved in selecting type of camera, film, lens, area in which to shoot, time to film, and position of camera).Whether or not every photograph or raw videotape is original and therefore copyrightable, it is clear from the record in this case that the preparation of the two videotapes at issue required the intellectual and creative input entitled to copyright protection. The district court so concluded after hearing testimony, from the operator of the video camera and the pilot of the helicopter in which the camera operator flew, regarding the production of LANS's news videotapes in general and the tapes in this case in particular. The witnesses described the initial decisions about the newsworthiness of the events and how best to tell the stories succinctly and effectively; the selections of camera lenses, angles and exposures; the choices of the heights and directions from which to tape and what portions of the events to film and for how long. The camera operator described herself as "an artist. I use a paintbrush. I use the camera to tell a story."

AVRS contends that even if the tapes are original enough to merit copyright protection, we should adopt a bright-line rule that no videotape of a newsworthy event is copyrightable because its creator's proprietary interest must give way to the public's First Amendment right of access to information.

Professor Nimmer has suggested the idea-expression dichotomy and the fair use doctrine may not adequately protect First Amendment interests in some circumstances. Citing the exclusive photographs of the My Lai massacre during the Vietnam War and the Zapruder home movie of the assassination of President John Kennedy as examples, Nimmer proposes that "where the 'idea' of a work contributes almost nothing to the democratic dialogue, and it is only its expression which is meaningful," copyright protection of the expression should be limited in the interest of public access to information necessary to effective public dialogue. Nimmer explains:

No amount of words describing the "idea" of the massacre could substitute for the public insight gained through the photographs. The photographic expression, not merely the idea, became essential if the public was to fully understand what occurred in that tragic episode. It would be intolerable if the public's comprehension of the full meaning of My Lai could be censored by the copyright owner of the photographs....
Similarly, in the welter of conflicting versions of what happened that tragic day in Dallas, the Zapruder film gave the public authoritative answers that it desperately sought; answers that no other source could supply with equal credibility. Again, it was only the expression, not the idea alone, that could adequately serve the needs of an enlightened democratic dialogue. Because there was no showing that other depictions and reports of the plane crash and train wreck were unavailable or omitted information vital to the public understanding of the events, and because the record establishes that LANS's tapes were shown on local television programs immediately after the events and thus were freely available to the public, we conclude the problem perceived by Professor Nimmer was not present in this case, and we reject, as indeed would Professor Nimi-ner, AVRS's contention that the First Amendment precludes liability for infringement of LANS's copyrights.