Elvis Presley Enterprises, Inc. v. Passport Video

349 F.3d 622 ELVIS PRESLEY ENTERPRISES, INC., a Tennessee Corporation; National Bank of Commerce, trustee of the Promenade Trust; Sofa Entertainment, Inc., a California corporation; Jane Meadows Allen, trustee of the Allen Family Revocable Living Trust; Jerry Leiber, individually dba Jerry Leiber Music; Mike Stoller, individually dba Mike Stoller Music; Julian J. Aberbach, an individual; Alfred Wertheimer, an individual, Plaintiffs-Appellees, v. PASSPORT VIDEO, a business of unknown form and origin; Passport International Productions, Inc., a California Corporation; Passport International Productions of California, Inc., a California Corporation; Dante J. Pugliese, an individual, Defendants-Appellants, and Does, 1 Through 10, inclusive; Passport Entertainment, a California Corporation, Defendants. No. 02-57011. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 8, 2003 — Pasadena, California. Filed November 6, 2003. Michael R. Blaha, Santa Monica, CA, for the defendants-appellants. George R. Hedges and Kristen Bird, Quinn Emanuel Urquhart Oliver & Hedges, LLP, Los Angeles, CA, for the plaintiffs-appellees. Appeal from the United States District…

dissenting:

The district court has misstated critical facts and has misstated the governing law. For these reasons, we should reverse its grant of a preliminary injunction.

The Facts. That the plaintiffs hold copyrighted materials and the defendant used portions of them were not and are not disputed facts. Passport’s principal defense was that its use of the materials was fair use. Here the facts were disputed. Here the district court made critical misstatements as follows:

Finding of Fact 11: “The portions of The Ed Sullivan Show included on The Definitive Elvis are exact reproductions; the Defendants did not add anything new *632 or transformative to the copyrighted work.”

Finding of Fact 13: “The portions of Ed Sullivan’s Rock & Roll Classics — Elvis Presley included on The Definitive Elvis are exact reproductions; the Defendants did not add anything new or transforma-tive to the copyrighted work.”

Finding of Fact 22: “Portions of ‘The Elvis 1968 Comeback Special,’ ‘Elvis Aloha From Hawaii,’ and ‘Elvis in Concert’ have been copied and appear in The Definitive Elvis. The portions of these works included on The Definitive Elvis are exact reproductions; the Defendants did not…

Opinion by Judge TALLMAN; Dissent by Judge NOONAN

OPINION

The King is dead. His legacy, and those who wish to profit from it, remain very much alive. To what extent may a film maker, under the banner of “fair use,” incorporate video clips, photographs, and music into a biography about Elvis Presley without permission from the copyright owners of those materials? The district court — weighing the four statutory fair use factors under 17 U.S.C. § 107 — held that the film biographer in this case likely did not use the copyrighted materials fairly and enjoined the film maker from further distribution of its biography. We affirm.

I

A

Plaintiffs are a group of companies and individuals holding copyrights in various materials relating to Elvis Presley. For example, plaintiff SOFA Entertainment, Inc., is the registered owner of several Elvis appearances on The Ed Sullivan Show. Plaintiff Promenade Trust owns the copyright to two television specials featuring Elvis: The Elvis 1968 Comeback Special and Elvis Aloha from Hawaii. Plaintiff Allen Family Revocable Living Trust owns the copyright to the 1956 episode of The Steve Allen Show that featured Elvis as a guest.

Plaintiffs’…