Page:Urantia Foundation v. Maaherra (D. Ariz. 1995).pdf/7

 circumstances sufficient to sustain [such] a First Amendment defense have noted the possibility of such a defense.” (Def.’s Br. at 12.) I, too, find that such a defense is inapplicable to the facts before me.

Professor Nimmer advocates such a defense in the situation where an entity owns the copyright to a graphic expression of “news,” but refuses to disseminate it. , supra, at 1-89. First, The URANTIAUrantia [sic] Book is not a graphic expression like the film of the Kennedy assassination or the photographs of the My Lai massacre. Second, the contents of The URANTIAUrantia [sic] Book do not fit Professor Nimmer’s definition of “news.” According to Professor Nimmer, a graphic expression of “news” exists only if the event captured has been the subject of news stories throughout the nation. Id. at 1-91. Third, The URANTIAUrantia [sic] Book is not being withheld from the public. The plaintiff suggests there are a quarter million books in print, and assures the court that the book remains “available for sale to the public.” (Pl.’s Reply Mem. in Supp. of its Mot. for Partial Summ.J. on First Amendment Defense at 2, 14.) “The fact that the words [with which] the author has chosen to clothe his narrative may of themselves be ‘newsworthy’ is not an independent justification for unauthorized copying.” Harper & Row, Pub., Inc., v. Nation Enters., 471 U.S. 539, 557, 105 S.Ct. 2218, 2229, 85 L.Ed.2d 588 (1985).

Neither Congress nor the courts have been oblivious to the inevitable conflict between the First Amendment and copyright and trademark law. Under the idea-expression dichotomy “[c]opyright law incorporates First Amendment goals by ensuring that copyright protection extends only to the forms in which ideas and information are expressed and not to the ideas and information themselves.” ''Los Angeles News Serv. v. Tullo'', 973 F.2d 791, 795 (9th Cir.1992). Furthermore, First Amendment concerns are addressed through the “fair use” doctrine, which recognizes “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2224 (quoting, Law of Copyright and Literary Property 260 (1944)).

Trademark law accommodates the First Amendment in a way similar to copyright law. Analogous to the idea-expression dichotomy, a trademark cannot be obtained in generic words or symbols. A word or symbol is generic if it is not an expression that relates exclusively to the potential trademark owner’s property. ''New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302, 306 (9th Cir.1992); see Kellogg Co. v. National Biscuit Co.'', 305 U.S. 111, 59 S.Ct. 109, 8 L.Ed. 73 (1938) (holding the term “shredded wheat” generic and unable to be a trademark). Furthermore, there are numerous statutory defenses in trademark law, including a “fair use” defense. See 15 U.S.C. § 1115(b). The defendant, however, has not chosen to assert any of the recognized defenses, and, instead, relies on a pure First Amendment defense.

I find that the aforementioned principles and defenses adequately serve to accommodate the competing interests of the First Amendment and the laws of copyright and trademark. I do not believe that expansion in this area would be judicially prudent. Consequently, the defendant’s proffered First Amendment defense to the plaintiff’s claims of copyright and trademark infringement must be rejected.

IT IS THEREFORE ORDERED that the plaintiff’s motion for partial summary judgment on the defendant’s First Amendment defense, filing 179, is granted.