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December 5, 1996

MICHAEL STARKS, 3D TV CORP. and DOES 1-50, Defendant.

The opinion of the court was delivered by: QUACKENBUSH

 BEFORE THE COURT is Defendants' Motion for Summary Judgment or in the alternative for Summary Adjudication of Claims, heard on October 15, 1996. Burton C. Jacobson appeared on behalf of Plaintiff; I. Braun Degenshein appeared for Defendants. Having reviewed the record, heard from counsel, and being fully advised in this matter, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment or Summary Adjudication of Claims is DENIED IN PART AND GRANTED IN PART for the following reasons.

 Plaintiff brought this action alleging copyright infringement under the 1986 Copyright Act, 17 U.S.C. § 106, and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a), concerning a movie entitled "The Starlets" ("the movie") and a "trailer" used to advertise the movie. Plaintiff claims that Defendants have infringed upon its copyright of the movie by copying the un-copyrighted trailer, and have engaged in unfair competition in violation of the Lanham Act. Defendants claim that there is no infringement because (1) the trailer pre-existed the full-length movie and was not itself copyrighted; and (2) the copying of the trailer constituted "fair use" under the 1976 Copyright Act. Defendants further contend that, in any event, Plaintiffs are not entitled to recover enhanced damages under the Copyright Act and have failed to state a claim under the Lanham Act.


 In approximately 1976, Plaintiff John Lamb produced a movie entitled "The Starlets". He registered a copyright of the movie in 1984. A trailer used to advertise the movie as a coming attraction in theaters was created by Plaintiff to promote the movie. The trailer itself was never copyrighted. The movie is over 75 minutes long and the trailer is 2 minutes 40 seconds in length, containing scenes from the movie, inter alia.

 Defendant Michael Starks is the President of 3D TV Corp. 3D TV designed, manufactures and markets an electronic device that allows for the viewing of specially formatted "3-D" films for viewing on a regular television, operated by synchronizing electronically controlled eyeglasses to specially formatted "3-D" videotapes.

 Defendants attempted unsuccessfully to obtain a license to use Plaintiff's copyrighted movie on two separate occasions. Defendants do not dispute that they then copied the trailer of the movie without permission of the Plaintiff, and specially formatted it to demonstrate their "3-D" system, along with other trailers on a compilation video tape. Defendants utilized an order form where a customer could order "3-D" video tapes to be used with their TVs and VCRs. The trailer video at issue here could be purchased for $ 50.00.


 The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir. 1975). Traditional summary judgment analysis establishes that the moving party is entitled to judgment as a matter of law where, viewing the evidence and the inferences arising therefrom in favor of the nonmovant, there are no genuine issues of material fact in dispute. Fed. R. Civ. P. 56(c); Semegen v. Weidner, 780 F.2d 727 (9th Cir. 1986). However, summary judgment is appropriate only where reasonable minds could not differ on the material facts at issue. See v. Durang, 711 F.2d 141 (9th Cir. 1983). There is no "genuine issue for trial" where the record "as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Electric Ind. Co. v. Zenith Radio, 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)

 1. Copyright Infringement

 Defendants contend that because the trailer pre-existed the movie and was not itself copyrighted, there can be no infringement. The court disagrees. The full length movie from which the trailer is derived is copyrighted. Defendants have provided no evidence that the trailer was published before the movie was copyrighted.

 The Copyright Act of 1976, 17 U.S.C. § 106 describes the exclusive rights in copyrighted works:

(1) to reproduce the copyrighted work in copies . . .;
(2) to prepare derivative works based upon the copyrighted work; (emphasis added);
. . .
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, the pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to ...

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