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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LOS ANGELES NEWS SERVICE; ROBERT TUR, Plaintiffs-Appellants, v. CBS BROADCASTING, INC.; COURTROOM TELEVISION NETWORK, Defendants-Appellees.    Nos. 00-56470 00-57000 D.C. No. CV-99-01041-FMC OPINION Appeal from the United States District Court for the Central District of California Florence-Marie Cooper, District Judge, Presiding Argued and Submitted February 5, 2002—Pasadena, California Filed September 16, 2002 Before: D
  FOR PUBLICATION UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT    L OS A NGELES N EWS S ERVICE ;R OBERT T UR ,Nos. 00-56470 Plaintiffs-Appellants, 00-57000v.D.C. No.  CV-99-01041-FMCCBS B ROADCASTING , I NC .;C OURTROOM T ELEVISION N ETWORK ,OPINION  Defendants-Appellees.  Appeal from the United States District Courtfor the Central District of CaliforniaFlorence-Marie Cooper, District Judge, PresidingArgued and SubmittedFebruary 5, 2002—Pasadena, CaliforniaFiled September 16, 2002Before: Diarmuid F. O’Scannlain and Barry G. Silverman,Circuit Judges, and Edward C. Reed, Jr.,* District Judge.Opinion by Judge O’Scannlain;Partial Concurrence and Partial Dissent by Judge Silverman  *The Honorable Edward C. Reed, Jr., Senior United States DistrictJudge for the District of Nevada, sitting by designation. 13967  COUNSEL H. Jay Ford III, Tyre Kamins Katz & Granof, Los Angeles,California, argued the cause for the appellants. Lindsey A.Duro, Los Angeles, California, and William A. Bergen,Auburn, California, were on the briefs.Frederick F. Mumm, Davis Wright Tremaine LLP, Los Ange-les, California, argued the cause and filed a brief for theappellees. OPINION O’SCANNLAIN, Circuit Judge:We must decide whether the owner of the copyrightedvideo “Beating of Reginald Denny” can establish that a satel-lite news service infringed its copyright, and whether a televi-sion network’s incorporation of that video into promotionalmaterials was a fair use.IIn this age of television news, it is frequently the imageaccompanying the story that leaves an event seared into theviewership’s collective memory. The riots that shook Los 13971L OS A NGELES N EWS S ERVICE v. CBS B ROADCASTING  Angeles in April 1992 are bookended by two such images: thefootage of police officers beating motorist Rodney King,which led to the trial and verdict that sparked the rioting, andthe footage of rioters beating truck driver Reginald Denny,which through television synecdoche has come to symbolizein a few moments the multiple days of violence that sweptover the city. The latter image gives rise to this litigation, thelatest installment in a series of suits by which the owners of the rights to that videotape have sought to ensure that renowntranslates into remuneration.ALos Angeles News Service, Inc. (LANS), is an independentnewsgathering organization that makes and licenses video andaudio recordings of breaking news events. While filming theLos Angeles riots from LANS’s helicopter, Marika Tur, whois LANS’s co-owner, shot the footage from which this andother litigation arose. LANS’s other co-owner, Marika Tur’spilot and husband Robert Tur, subsequently applied for andreceived copyrights for four separate segments of the video-tape recorded that night; the copyrighted works, which totalabout nine minutes’ worth of footage, are known as “Beatingof Reginald Denny,” “Beating of Man in White Panel Truck,”“Beating of Man in Brown Hatchback with Rescue,” and“Japanese Man in Brown Bronco Attacked by Rioters.”LANS retains ownership of those copyrights and continues tosell licenses for limited use and rebroadcast of the works.Defendant CBS Broadcasting, Inc., is a component of Via-com Inc., which includes the former Westinghouse ElectricCo. During the time period relevant to this litigation, the Wes-tinghouse corporate family included an operating unit knownas Group W Newsfeed, a video news service. 1 Using both sat-ellite uplinks and conventional videotapes, Group W supplied 1 Westinghouse’s subsidiary Group W Television, Inc., sold Newsfeedto another broadcasting company in 1992. 13972L OS A NGELES N EWS S ERVICE v. CBS B ROADCASTING  its subscriber TV stations with both packaged news storiesand raw footage of newsworthy events, which the stationscould then utilize in their own news programming. On severaloccasions, Group W licensed footage from LANS to distrib-ute to its Newsfeed subscribers.LANS offered Group W a license to distribute its riot foot-age, which was declined. LANS asserts, however, that ininvestigating the unauthorized rebroadcast of its copyrightedworks, it discovered that Group W had indeed distributed thefour works over its Newsfeed service. LANS contends thatmultiple recipients of the Newsfeed distribution then madeuse of the copyrighted works.Courtroom Television Networks (“Court TV”) was onealleged recipient. Court TV used a few seconds of footagefrom “Beating of Reginald Denny,” primarily the framesdepicting Damien Williams throwing a brick at Denny’s head,in on-air “teaser” spots promoting its coverage of the trial of Williams and his co-defendant Henry Watson. It also incorpo-rated the brick-throwing footage into the introductory mon-tage for its show “Prime Time Justice,” which used a stylizedorange clock design superimposed over a grainy, tinted,monochromatic video background. The background changedas the “hands” of the clock revolved; LANS’s copyrightedvideo was in the background for a couple of seconds, one360$ sweep of the clock. Court TV did not dispute that it hadused the footage, but it asserted that it had obtained the videonot from Newsfeed but from the courtroom video monitorduring the Williams and Watson trial.BLANS filed suit in federal district court against Westing-house, Court TV, and a number of other defendants, allegingcopyright infringement. After the conclusion of discovery,Westinghouse and Court TV moved for summary judgment.However, in February 1997, LANS agreed to a stipulated dis- 13973L OS A NGELES N EWS S ERVICE v. CBS B ROADCASTING
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