Los Angeles News Service Robert Tur v. CBS Broadcasting, Inc. Courtroom Television Network

305 F.3d 924 LOS ANGELES NEWS SERVICE; Robert Tur, Plaintiffs-Appellants, v. CBS BROADCASTING, INC.; Courtroom Television Network, Defendants-Appellees. No. 00-56470. No. 00-57000. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 5, 2002. Filed September 16, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED H. Jay Ford III, Tyre Kamins Katz & Granof, Los Angeles, CA, argued the cause for the appellants. Lindsey A. Duro, Los Angeles, CA, and William A. Bergen, Auburn, CA, were on the briefs. Frederick F. Mumm, Davis Wright Tremaine LLP, Los Angeles, CA, argued the cause and filed a brief for the appellees. Appeal from the United States District Court for the Central District of California; Florence-Marie Cooper, District Judge, Presiding. D.C. No. CV-99-01041-FMC. Before: O'SCANNLAIN and SILVERMAN, Circuit Judges, and REED, * District Judge. Opinion by Judge O'SCANNLAIN; Partial Concurrence and Partial Dissent by Judge SILVERMAN. O'SCANNLAIN, Circuit Judge. 1 We must decide whether the owner of the copyrighted video "Beating of Reginald Denny" can establish that a satellite news service infringed its copyright,…

concurring in part and dissenting' in part:

LANS sent CBS’s predecessor, Westinghouse, a request to admit that: “YOU used the VIDEOTAPE without the authorization of the copyright holder.” The *943 district court sustained Westinghouse’s objection that the request was “vague and ambiguous, particularly with respect to the meaning intended by the term ‘used’.”

“Use” is a common word used in everyday English; and it is used, without definition, throughout the law. See, e.g., 18 U.S.C. § 924 (c) (penalizing one who uses a firearm during the commission of certain crimes). The definition of the word “use” is “[t]o put into service or apply for a purpose.” American Heritage Dictionary of the English Language (3d ed.1992); see also United States v. Rutherford, 54 F.3d 370, 372-73 (7th Cir.1995) (“[i]n .ordinary English, the word ‘use’ implies intentional availment.”). Its meaning is commonly understood in everyday parlance. In the context of this case, the only reasonable interpretation of the request was: “Admit that you availed yourself of the tape or employed it in some way without the authorization of the copyright holder.” What else could it mean?

The district court ruled that the…

Opinion by Judge O’SCANNLAIN; Partial Concurrence and Partial Dissent by Judge SILVERMAN.

We must decide whether the owner of the copyrighted video “Beating of Reginald Denny” can establish that a satellite news service infringed its copyright, and whether a television network’s incorporation of that video into promotional materials was a fair use.

*929 I

In this age of television news, it is frequently the image accompanying the story that leaves an event seared into the viewership’s collective memory. The riots that shook Los Angeles in April 1992 are book-ended by two such images: the footage of police officers beating motorist Rodney King, which led to the trial and verdict that sparked the rioting, and the footage of rioters beating track driver Reginald Denny, which through television synecdoche has come to symbolize in a few moments the multiple days of violence that swept over the city. The latter image gives rise to this litigation, the latest installment in a series of suits by which the owners of the rights to that videotape have sought to ensure that renown translates into remuneration.

A

Los Angeles News Service, Inc. (LANS), is an independent newsgathering…