Opinion · United States Court of Appeals for the Ninth Circuit
MILTON H. GREENE ARCH. v. BPI COMM., 320 Fed.Appx. 572 (9th Cir. 2009)
MILTON H. GREENE ARCHIVES, INC., Plaintiff-Appellant, v. BPICOMMUNICATIONS, INC., Erroneously Sued As VNU Bus. Media, Inc.; etal., Defendants-Appellees., 320 F. App'x 572 (9th Cir. 2009)
- Type
- Opinion
- Court
- United States Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 2009-03-24
- Topic
- general
MILTON H. GREENE ARCH. v. BPI COMM., 320 Fed.Appx. 572 (9th Cir. 2009) MILTON H. GREENE ARCHIVES, INC., Plaintiff-Appellant, v. BPICOMMUNICATIONS, INC., Erroneously Sued As VNU Business Media, Inc.; etal., Defendants-Appellees.
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UpLaw has not yet analyzed MILTON H. GREENE ARCH. v. BPI COMM., 320 Fed.Appx. 572 (9th Cir. 2009). The absence of a flag is not a finding that it is good law.
MILTON H. GREENE ARCH. v. BPI COMM.,320 Fed.Appx. 572(9th Cir. 2009)
MILTON H. GREENE ARCHIVES, INC., Plaintiff-Appellant, v. BPI
COMMUNICATIONS, INC., Erroneously Sued As VNU Business Media, Inc.; et
al., Defendants-Appellees.
Nos. 05-56194, 06-55530.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 9, 2007.
Filed March 24, 2009.
Surjit P. Soni, Esq., Soni Law Firm, Pasadena, CA, Plaintiff-Appellant.
Andrew J. Thomas, Davis Wright Tremaine, LLP, Los Angeles, CA, for Defendants-Appellees.
Andrew J. Thomas, Davis Wright Tremaine, LLP, Los Angeles, CA, for Defendants-Appellees.
Appeal from the United States District Court for the Central District of California, Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CV-04-00635-AHS.
Before: NOONAN, KLEINFELD and PAEZ, Circuit Judges.
MEMORANDUMfn*
Milton H. Greene Archives, Inc. appeals the district court's grant of summary judgment and attorneys' fees in favor of BPI Communications, Inc. We affirm.Page 573
The photographs at issue entered the public domain when Milton H. Greene permitted them to be distributed to magazines, newspapers, and local theaters. This was a general publication, not a limited publication, because "tangible copies of a work [were] . . . made available to the general public."Am.Vitagraph, Inc. v. Levy,659 F.2d 1023,1027(9th Cir. 1981) (quoting 1 Melville B. Nimmer David Nimmer,Nimmer on Copyright§ 4.04 (1978)). For the pictures at issue that were submitted to studios and publicists but were not used as broadly as the others or at all, the general publication doctrine still applies, because "an authorized offer [was] made to dispose of the work in any such mannereven if . . . suchdisposition [did] not in fact occur." Id.(emphasis added). Distribution of the photographs was not a limited publication, because Greene provided the photographs with "the right of diffusion, reproduction, [or] distribution."Id.(quotingWhite v. Kimmell,193 F.2d 744,746-47(9th Cir. 1952)).
The district court did not abuse its discretion in considering the newspaper and magazine clippings. They are self-authenticating, ancient documents whose authenticity is undisputed. Fed.R.Evid.803(16),902(6)-(7),1003. Greene could have sought to include the remainder of any clipping that it wanted the district court to consider. Fed.R.Evid.106. Any error in considering the testimony of David Weitzner, and such other evidentiary errors as Greene claims were made, were harmless. Fed.R.Civ.P.61.
The district court did not abuse its discretion in awarding reasonable attorneys' fees under17 U.S.C. § 505. Its discussion of the parties' arguments shows that it considered the relevant factors. Though the court did not explain in any detail its views on each of the many issues raised by Greene, the context, including plaintiffs attorney's abusive litigation tactics, and the decision itself make clear that the court accepted defendant's arguments.Smith v. Jackson,84 F.3d 1213,1221(9th Cir. 1996);Maljack Prods., Inc. v.Good-Times Home Video Corp.,81 F.3d 881,890(9th Cir. 1996). The award was not an abuse of discretion in the circumstances; the court's conclusions regarding the availability and amount of fees were not "based on an inaccurate view of the law or a clearly erroneous finding of fact."Entm't Research Group, Inc. v. Genesis CreativeGroup, Inc.,122 F.3d 1211,1217(9th Cir. 1997) (quotation marks and citation omitted).AFFIRMED.
The photographs at issue entered the public domain when Milton H. Greene permitted them to be distributed to magazines, newspapers, and local theaters. This was a general publication, not a limited publication, because "tangible copies of a work [were] . . . made available to the general public."Am.Vitagraph, Inc. v. Levy,659 F.2d 1023,1027(9th Cir. 1981) (quoting 1 Melville B. Nimmer David Nimmer,Nimmer on Copyright§ 4.04 (1978)). For the pictures at issue that were submitted to studios and publicists but were not used as broadly as the others or at all, the general publication doctrine still applies, because "an authorized offer [was] made to dispose of the work in any such mannereven if . . . suchdisposition [did] not in fact occur." Id.(emphasis added). Distribution of the photographs was not a limited publication, because Greene provided the photographs with "the right of diffusion, reproduction, [or] distribution."Id.(quotingWhite v. Kimmell,193 F.2d 744,746-47(9th Cir. 1952)).
The district court did not abuse its discretion in considering the newspaper and magazine clippings. They are self-authenticating, ancient documents whose authenticity is undisputed. Fed.R.Evid.803(16),902(6)-(7),1003. Greene could have sought to include the remainder of any clipping that it wanted the district court to consider. Fed.R.Evid.106. Any error in considering the testimony of David Weitzner, and such other evidentiary errors as Greene claims were made, were harmless. Fed.R.Civ.P.61.
The district court did not abuse its discretion in awarding reasonable attorneys' fees under17 U.S.C. § 505. Its discussion of the parties' arguments shows that it considered the relevant factors. Though the court did not explain in any detail its views on each of the many issues raised by Greene, the context, including plaintiffs attorney's abusive litigation tactics, and the decision itself make clear that the court accepted defendant's arguments.Smith v. Jackson,84 F.3d 1213,1221(9th Cir. 1996);Maljack Prods., Inc. v.Good-Times Home Video Corp.,81 F.3d 881,890(9th Cir. 1996). The award was not an abuse of discretion in the circumstances; the court's conclusions regarding the availability and amount of fees were not "based on an inaccurate view of the law or a clearly erroneous finding of fact."Entm't Research Group, Inc. v. Genesis CreativeGroup, Inc.,122 F.3d 1211,1217(9th Cir. 1997) (quotation marks and citation omitted).AFFIRMED.