pictures are shown — mid-1950's science fiction films with titles such
as "Killers From Space" and "The Beginning of the End." Part of one of the
clips used in the Peter Graves biography showed him in a motion picture
released in the mid-1950's called "It Conquered The World," a science
fiction movie in which he played a leading role as a scientist. This
archival showing had a point, explained on camera by Graves: "You had to
pay the rent and buy the groceries . . . And also, I always felt that they
or most anything else I did — was good training to get to learn more
The subject program, "Peter Graves: Mission Accomplished" is a
biography. It was produced for a wide commercial audience and for
profit, but a work that treats as its subject the life of a well-known
television and motion picture actor. The Peter Graves biography is
approximately 44 minutes long (60 minutes with commercials) and covers the
formative years of his life and his career as a television and screen
actor. The program narrator is "Biography" host Jack Perkins and Graves
himself, members of his family and professional colleagues review the
major achievements of his life. The program devotes considerable
attention to Graves' work, starting with an account of his earliest
efforts as a stage actor in college, moving through his first Hollywood
films in the 1950's, his recognized performance in "Stalag 17" and then
on to his television career in "Fury" and ultimately to "Mission
Impossible," the motion picture "Airplane," and Graves as host of A&E's
"Biography." Film clips and short pieces of videotape of Graves in these
and other roles are employed to show Graves' development and versatility
as an actor and his principal achievements; still photographs of Graves
and his family, movie posters and shots of Hollywood in the late 1940's
supply some of the background.
Made in 1956, "It Conquered the World" was one of Graves' earliest
appearances in a Hollywood film. Graves played a scientist trying to stop
a colleague and an alien invader (a Venutian named Beulah) from achieving
their objective of world domination. Speaking generally of the mid-1950's
science fiction genre, the "Biography" narrator explains, "While these
pictures may seem campy by current standards, they were popular films at
the time. And the young actor treated them as serious business." A short
clip from "Killers From Space" follows, a few seconds more of Graves
commentary and then 20 seconds from "It Conquered the World." In the case
of "It Conquered the World," it was not the film itself that was shown,
but rather 20 seconds of footage edited from a promotional trailer that
had once presaged the film's booking in theaters. A "trailer" (or
"preview of a coming attraction") is simply film footage of scenes in a
motion picture shown in a theater a week or so in advance of the picture
itself, usually with graphics and a voice-over promoting the movie. The
clip shows Graves in short scenes, each lasting a few seconds, taken out
of sequence from the film. The trailer carries an announcer's voice-over
track and displays prominent graphics superimposed over the first few
seconds of footage that identify the picture.
Hofheinz does not have an independent registered copyright in the
trailer, and there is no allegation or evidence that there is any
copyright in the trailer itself. The motion picture from which the
trailer footage derived, however, was (and still is) copyrighted. Through
a series of assignment and litigation in 1994, the movie became the
property of Ms. Hofheinz. The movie runs about 70 minutes and although no
longer available for rental in theatrical release or available for rental
or purchase in the home videocassette market, plaintiff
does rent it for special showings and film festivals and has licensed
footage from it.
There is no evidence that the trailer itself has ever been rented, but
Hofheinz has asserted claims based upon its use and settled one several
years ago with another television producer.
Conclusions of Law Summary Judgment
Standard Rule 56(c) of the Federal Rules of Civil Procedure provides
that a motion for summary judgment may be granted when "there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." The Second Circuit has
repeatedly noted that "as a general rule, all ambiguities and inferences
to be drawn from the underlying facts should be resolved in favor of the
party opposing the motion, and all doubts as to the existence of a genuine
issue for trial should be resolved against the moving party." Brady v.
Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 330 n. 2 (1986) (Brennan, J.,
dissenting)); see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir.
1995); Burrell v. City Univ., 894 F. Supp. 750, 757 (S.D.N.Y. 1995). If,
when viewing the evidence produced in the light most favorable to the
non-movant, there is no genuine issue of material fact, then the entry of
summary judgment is appropriate. See Burrell, 894 F. Supp. at 758 (citing
Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law. "Only disputes
over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be counted."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[T]he mere
existence of factual issues — where those issues are not material
to the claims before the court — will not suffice to defeat a
motion for summary judgment."
Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985).
For a dispute to be genuine, there must be more than "metaphysical
doubt." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). "If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50
The Inclusion of Brief Clips from "It Conquered the World" in
the Peter Graves Biography constitute "Fair Use"
Based upon the standard discussed above, this case qualifies as one
which can and should be resolved on summary judgment. Counsel for both
sides have argued, as matters of emphasis and judgment, how the Court
ought to weigh these facts in assessing the "fair use" exception to the
Copyright Act, 17 U.S.C. § 107, but the material facts that bear on
the analysis do not allow of dispute. As the court said in Wright v.
Warner Books, Inc., 953 F.2d 731, 735 (2d Cir. 1991): "the mere fact that
a determination of the fair use question requires an examination of the
specific facts of each case does not necessarily mean that in each case
involving fair use there are factual issues to be tried."
The Copyright Act permits one, in certain circumstances, to use or
appropriate a copyright proprietor's protected expression notwithstanding
copyright protection. The concept is embodied in 17 U.S.C. § 107,
which states that the "fair use" of a copyrighted work does not infringe
the copyright in that work. As the court put it in Maxtone-Graham v.
Burtchaell, 803 F.2d 1253, 1255 (2d Cir. 1986): "The purpose
of fair use is to create a limited exception to the individual's private
property rights in his expression — rights conferred to encourage
creativity — to promote certain productive uses of copyrighted
Whether a given use is fair is determined on a case-by-case basis
within the context of four factors enumerated in § 107.
See Harper & Row Publishing v. Nation Enterprises, 471 U.S. 539
(1985). The factors to be considered include:
(1) the purpose and character of the use, including
whether the use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and (4)
the effect of the use upon the potential market for or
value of the copyrighted work.
17 U.S.C. § 107.