Ninth Circuit Affirms Preliminary Injunction Against Elvis Video Documentary

Passport Entertainment, which produced and sold “The Definitive Elvis,” a 16- hour video documentary about the life of Elvis Presley, appealed a preliminary injunction granted by the district court for the Central District of California to owners of copyrights in Elvis Presley- related video clips, photographs, and music. On November 6, 2003, the Ninth Circuit affirmed the preliminary injunction.Passport argued that the preliminary injunction is unconstitutional because (1) Passport can present a plausible fair use defense; (2) the preliminary injunction might be an unconstitutional prior restraint; and (3) some prior cases have refused to grant preliminary injunctions based on First Amendment principles. The ninth circuit held because the copyright owners filed the suit within two months after Passport published the documentary, the injunction was not a prior restraint. As for the third claim, First Amendment concerns are subsumed within the fair use inquiry in copyright cases. Consequently, if the use of the alleged infringer is not fair use, there are no First Amendment prohibitions against granting a preliminary injunction. Fair use is the only issue in contention on the merits for the grant of a preliminary injunction.

The district court applied the four statuatory fair use factors under 17 USC 107. Under the first factor, the court found the use to be commercial and not consistently “transformative” in that the new work did not add something new, with a further purpose or different character, to significantly alter the original work with new expression, meaning or message. Under the second factor, the district court examined the nature of the copyrighted works because some works are closer to the core of intended copyright protection than others. The still photographs, which did not depict newsworthy events in most stances, and songs, in particular, were inherently creative and therefore within the core of copyright protection. The television footage, while creative, might be characterized as “newsworthy.”

Under the third factor, both the quantity of the work taken from the copyrighted work and the quality and importance of the portion were considered. Passport’s use of video clips was substantial both in length and frequency; furthermore, the clips were in many instances the heart of the copyrighted work. Under the fourth factor, the district court considered the effect of the use upon the potential market for and value of the copyrighted work and found that Passport’s uses of the copyrighted works are likely to affect the market because they serve the same purpose as the original works.

The district court found that all four fair use factors weighed in favor of the copyright owner. The Ninth circuit agreed with the district court findings for the first three factors, but did not think the fourth factor weighed strongly on either side, however, the Court did not see any legal or clear error in the lower court’s factual findings underlying any of the fair-use factors. Thus the Ninth Circuit held that the district court did not abuse its discretion and affirmed its grant of preliminary injunction to Elvis Presley Enterprises, Inc.