Fortnightly Corporation v. United Artists Television, Inc.

PETITIONER: Fortnightly Corporation
RESPONDENT: United Artists Television, Inc.
LOCATION: WAFB TV

DOCKET NO.: 618
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 392 US 390 (1968)
ARGUED: Mar 13, 1968
DECIDED: Jun 17, 1968

Facts of the case

Question

Media for Fortnightly Corporation v. United Artists Television, Inc.

Audio Transcription for Oral Argument - March 13, 1968 in Fortnightly Corporation v. United Artists Television, Inc.

Earl Warren:

Number 618, Fortnightly Corporation, petitioner, versus United Artists Television, Incorporated.

Mr. Barnard?

Robert C. Barnard:

Mr. Chief Justice, may it please the Court.

This case is here on certiorari to the Court of Appeals for the Second Circuit.

The respondent, plaintiff below is engaged in the business of licensing films and cartoons to television stations to be broadcasted by those stations.

The petitioner on two community antenna systems is charged with copyright infringement by reason of the reception of the broadcasts of the movies and cartoons by the stations licensed by the respondent.

There are two basic issues on this appeal.

First is the reception of a broadcast signaled by the petitioner, CATV, and the transmission or the conducting of that signal by wire to the homes of the subscribers without sight or sound being involved a performance in public of the copyrighted works within the meaning of Sections 1 (c) and 1 (d) of the copyrighter.

The second and related issue is whether when a broadcast has been licensed by a copyright owner, as it has been here.

A member of the public has a license implied in law under the Copyright Act and the Communications Act to receive off the air and enjoy the authorized broadcast by the use of a receiving antenna of his choice, including subscribing to the service of a community antenna.

Petitioner's two community antenna systems were located in Clarksburg and Fairmont, West Virginia, two towns in --.

Just by West Virginia is hilly, rugged, and mountainous.

In 1952 when the systems began, the only television stations in the area were in Pittsburgh and in Johnstown, Pennsylvania.

In 1953, the stations in Wheeling, West Virginia and Steubenville, Ohio began broadcasting.

They were -- these were the only stations that the people in this area had from which they could get any television service.

These stations were some distance away from Clarksburg and Fairmont.

They're some 50 to 65 miles from Fairmont and a little bit farther from Clarksburg.

As I said, the area here is mountainous and the towns are in hilly areas.

Most of the houses are in valleys but there are also houses and people who live on the hills and in and around the towns.

This is also an area where the winters are harsh.

As a result of the winds and ice, the tall antennas on poles presented problems with the householders.

As a result, many Clarksburg and Fairmont residents found it convenient to subscribe to the petitioner's service rather than put up their own antennas.Others joined in cooperation with their neighbors and put up cooperative antennas.

Coops of this kind still exist in these communities.

Others subscribed to community antennas other than those owning to petitioner and those systems still exist.

We suggest that the petitioner systems are classic examples of CATV put up where the terrain and the distance made reception difficult for the people in the area.

We were performing this service which Mr. Gellar said yesterday the Commission had found to be in the public interest.

And perhaps, West Virginia is a classical area for the community antenna.

Figures that were writ -- issued recently suggest that more than 25% -- more than 20% of the homes in that area depend on community antenna for their television service.

The Court has just heard community antenna discussed in very general terms in the Southwestern case.

The facts in this case are not in dispute but I think it is important that I state not only what community antenna does, but also what it does not do because there is confusion and a number of allegations that do not apply to the facts in this case.