spheres in the movie and in "(Upper) Chamber" are both suspended in front of the chair from a metal framework and have a similar surface design.
Universal argues that the infringement is de minimis because the infringing footage in 12 Monkeys amounts to less than five minutes in a movie 130 minutes long. Whether an infringement is de minimis is determined by the amount taken without authorization from the infringed work, and not by the characteristics of the infringing work. As discussed above, 12 Monkeys copies substantial portions of Woods' drawing.
II. Irreparable Harm
Normally, when a copyright is infringed, irreparable harm is presumed. Fisher-Price, Inc. v. Well-Made Toy Mfg., 25 F.3d 119, 124 (2d Cir. 1994). This is only a presumption, however, and it vanishes if the copyright holder unreasonably delays prosecuting his infringement claim. Id. Universal argues that 12 Monkeys had been in release for twenty-nine days by the time Woods made his claim, and that this constitutes unreasonable delay. There is no evidence that Woods knew or should have known of the infringement until early January 1996. On January 24, Woods notified Universal of his claim. (Anderson Aff. P 4.) Three weeks does not constitute unreasonable delay.
While an injunction is not the automatic consequence of infringement and equitable considerations are always germane to the determination of whether an injunction is appropriate, New Era Publications Int'l v. Henry Holt, Co., 884 F.2d 659, 661 (2d Cir. 1989), cert. denied, 493 U.S. 1094, 107 L. Ed. 2d 1071, 110 S. Ct. 1168 (1990), in the vast majority of cases, an injunction is justified "because most infringements are simple piracy." Campbell v. Acuff-Rose Music, Inc., 127 L. Ed. 2d 500, 515 n.10, 114 S. Ct. 1164 (citing Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1132 (1990)).
Universal has not demonstrated that this is a case of "special circumstances" justifying an award of damages or a continuing royalty instead of an injunction, or that "great public injury" would result from an injunction. Cf. Abend v. MCA, Inc., 863 F.2d 1465, 1479 (9th Cir. 1988), aff'd sub nom. Stewart v. Abend, 495 U.S. 207, 109 L. Ed. 2d 184, 110 S. Ct. 1750 (1990). Universal argues that it will suffer considerable financial loss if a preliminary injunction is granted. Copyright infringement can be expensive. The Copyright Law does not condone a practice of "infringe now, pay later." Copyright notification and registration put potential infringers on notice that they must seek permission to copy a copyrighted work or risk the consequences.
Universal also argues that there are First Amendment and public interest considerations that favor the continued distribution of an unredacted version of 12 Monkeys. However, Universal has failed to specify the First Amendment or public interest considerations that argue against an injunction. Universal does not argue that its commercial, science-fiction movie constitutes criticism, comment, news reporting, teaching, scholarship or research, and thus, rightly does not contend that this infringement of "(Upper) Chamber" falls within the fair use doctrine. See 17 U.S.C. § 107 (1988 & Supp. 1993).
Because Woods has established the prerequisites for a preliminary injunction, and because Universal has failed to demonstrate that this is a case of "special circumstances" justifying only an award of damages and not an injunction, Woods' motion for a preliminary injunction is granted. The injunction will not take effect until Woods submits to the Court the separate copyright registration certificates for the 1987 and 1991 versions of "(Upper) Chamber." Woods will submit a proposed injunction in accordance with this opinion.
Dated: New York, New York
March 29, 1996
MIRIAM GOLDMAN CEDARBAUM
United States District Judge
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