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Bret Michaels v. Internet Entertainment Group, Inc.

5 F. Supp. 2d 823 (C.D. Cal. April 27, 1998)

Plaintiff Bret Michaels and intervenor Pamela Anderson Lee ("Lee") video-taped themselves engaging in sexual activity. Defendant Internet Entertainment Group ("IEG") obtained a copy of this video tape, and sought to display it on its adult-oriented subscription website.

IEG did not dispute that plaintiff held a valid copyright in the tape. Nor did IEG dispute that its proposed Internet distribution of the tape would infringe one of the exclusive rights conferred by the Copyright Act (17 U.S.C. §106) on the owner of the copyright.

Nonetheless, IEG asserted that it was permitted to display the video on its website because it had received a non-exclusive license to display the video from one of plaintiff's friends. IEG asserted that it had purchased its license for $16,500 from one Revilla. Revilla, in turn, received the video from an alleged client he would not identify. This unnamed client purportedly told Revilla that he had received the video as a gift from Michaels, but had not received a license to distribute the same.

Both Michaels and Lee denied that they had given anyone a license to distribute the video. Their denials were buttressed by the fact that Rivella had attempted without success to pay Michaels $1 million for a license to distribute the video. IEG's attempts to acquire a license directly from Michaels met with the same fate.

In the face of this evidence, the Court rejected IEG's claim and found that its distribution of the video would constitute copyright infringement. The court accordingly issued a preliminary injunction, enjoining defendant from distributing the video on the Internet. Said the court:

the plausibility of IEG's account of the facts is compromised by the monetary amounts involved. In order for the Court to imply a license under these facts, the Court would have to conclude that Michaels and his agents first refused to grant a license for $1 million, and six months later granted a license in the same property for $32,500. In the absence of a written contract, or other strong evidence to the contrary, the Court will not imply that the parties entered into a licensing agreement that defies economic rationality.

The Court went on to reject IEG's argument that dissemination of a small portion of the video represented a fair use exempted from the Copyright Act's prohibitions.

IEG's proposal to use short segments or still images from the Tape is consistent with its commercial purpose. Still images and short video clips are the stock-in-trade of Internet adult entertainment businesses. IEG's proposed use of short segments of the Tape corresponds precisely with the most likely form of distribution and display of the Tape on the Internet. The nature of the use therefore conflicts directly with the exclusive rights of the copyright owners. This situation is to be contrasted with the display on television of short segments of a theatrical motion picture for purposes of comment or criticism. Display of short segments is fair use because it does not conflict with the form of display that is valuable to the copyright owner -- display of the entire motion picture in a theater. Here, on the other hand, because of the nature of the adult entertainment business on the Internet, the commercial value of the Tape lies as much in the display of brief images as in display of the entire Tape.

The Court also held that plaintiff's rights of publicity and privacy would be violated by IEG's dissemination of the tape. It accordingly enjoined defendant IEG from distributing the tape over the Internet.

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