Los Angeles News Service v. Reuters Television International Ltd.

Opinion by Judge O’SCANNLAIN; Dissent by Judge SILVERMAN

We must decide whether a news organization may recover actual damages under the Copyright Act for acts of infringement that mostly occurred outside the United States.

I

The copyrighted works at issue here (“the works”) are two video recordings, “The Beating of Reginald Denny” and “Beating of Man in White Panel Truck,” which depict thé infamous events at Florence Ave. and Normandie Blvd. during the 1992 Los Angeles riots. Los Angeles News Service (“LANS”), an independent news organization which produces video and audio tape recordings of newsworthy events and licenses them for profit, produced the works (and two other videotapes not at issue here) while filming the riots from its helicopter. LANS copyrighted the works and sold a license to rebroadcast them to, among others, the National Broadcasting Company (“NBC”) network, which used them on the Today Show.

Visnews International (USA), Ltd. (“Vis-news”) is a joint venture among NBC, Reuters Television Ltd., and the British Broadcasting Company (“BBC”). Pursuant to a news supply agreement between NBC and Visnews, NBC transmitted the Today Show broadcast by fiber link to…

dissenting:

In our previous decision, L.A. News Serv. v. Reuters Television Int’l, Ltd. (Reuters III), 149 F.3d 987 (9th Cir.1998), we decided the very issue the majority now re-decides the other way. At that time, we identified the issue as whether “a plaintiff may recover actual damages accruing from the unauthorized exploitation abroad of copyrighted work infringed in the United States.” Id. at 989. We held that it could. Our mandate said, “We REVERSE the ruling barring the 'claim for extraterritorial damages and REMAND for a trial on actual damages, with directions that if LANS elects to recover actual damages, the award of statutory damages be vacated.” Id. at 997.

The majority now holds that when we said “actual damages,” we didn’t mean actual damages, but only whatever profits the infringer might have realized. This new holding is not only at odds with our previous holding, but it fails to take account of the fact that the Copyright Act itself specifically uses the terms “actual damages” and “profits” separately and distinctly. 1 The district court should have allowed LANS to do what we said it could do — prove its actual damages. For that reason, I respectfully…