"The task of this court is identical to that of the trial court when reviewing a grant of summary judgment." Continental Casualty Co. Hustler timely appealed and this court has jurisdiction.
The court held that the mailings and television displays were permissible under the fair use doctrine. The district court held that Hustler had made out a prima facie case of infringement, but granted summary judgment for the Defendants. The Defendants raised the defense of fair use. In March 1985, the parties filed cross motions for summary judgment. On August 8, 1984, Hustler sued Moral Majority, Inc., Jerry Falwell, and the Old Time Gospel Hour (the "Defendants") for infringing its copyright. The amount of contributions generated from this broadcast is not in the record. A Moral Majority executive admitted that the intent behind including copies of the parody was to raise money.įinally, on Decemand December 11, 1983, Falwell displayed the parody during nation-wide television broadcasts of his weekly sermon on the Old Time Gospel Hour. Within 30 days of the mailings, the Moral Majority received approximately $45,000 from the "major donors" letter and the Old Time Gospel Hour received approximately $672,000 from its letter. This letter was also signed by Falwell, but focused on the need to keep Falwell's religious television stations open in order to combat people like Larry Flynt, Hustler's publisher. Three days later, Old Time Gospel Hour, a corporate sponsor of religious television and radio broadcasts, mailed a solicitation including a copy of the parody to approximately 750,000 supporters of its programs. It also requested donations to help finance Falwell's suit against Hustler. The second mailing was directed to about 26,900 "major donors" and included a copy of the parody with eight of the most offensive words blackened out. This first mailing is not involved in the suit. It described the parody without including a copy of the actual parody, and asked for a contribution to help Falwell "defend his mother's memory" in court. One was directed to approximately 500,000 "rank-and-file" members. On November 15, 1983, Moral Majority, Inc., a conservative political lobbying group, sent out two mailings signed by Falwell. At the bottom of the page in small print is the disclaimer "AD PARODY - NOT TO BE TAKEN SERIOUSLY." The Hustler Magazine parody featured Reverend Jerry Falwell, a nationally known fundamentalist minister, describing his "first time" as being incest with his mother in an outhouse, and saying that he always gets "sloshed" before giving his sermons. The advertisements use double entendres to give the reader the impression that the "first time" refers to the celebrity's first sexual experience. Campari advertisements consist of interviews with famous people about the first time they drank Campari. ("Hustler") published a parody of Campari liquor advertisements. In the November 1983 and March 1984 issues of Hustler Magazine, appellant Hustler Magazine, Inc. Hustler appeals and both sides request costs and attorney fees. The district court granted the defendants' summary judgment motion, holding that their copying constituted "fair use," 606 F.Supp. sued Moral Majority, Inc., Old Time Gospel Hour, and Falwell for copyright infringement. Falwell also solicited contributions while displaying the parody on the Old Time Gospel Hour, a television show. and Old Time Gospel Hour mailed hundreds of thousands of copies of the parody as part of a solicitation drive. published a parody featuring Reverend Jerry Falwell. Jewel Bjork, Grutman, Miller, Greenspoon, Handler & Levin, New York City, for defendants-appellees.īefore PREGERSON and POOLE, Circuit Judges, and SOLOMON, Senior District Judge.
Carson, Cooper, Epstein, & Hurewitz, Beverly Hills, Cal., for plaintiff-appellant. United States Court of Appeals, Ninth Circuit. MORAL MAJORITY, INC., a District of Columbia Corporation Old Time Gospel Hour, a Virginia Corporation and Jerry Falwell, an individual, Defendants-Appellees. 796 F.2d 1148 (1986) HUSTLER MAGAZINE, INC., Plaintiff-Appellant,
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