Joyce, Sarah

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DePaul Journal of Art, Technology & Intellectual Property Law Volume 3 Issue 1 Fall 1992 Article 11 Video Software Dealers Ass'n v. Webster, 968 F.2d 684 (8th Cir. 1992) Sarah Joyce Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Sarah Joyce, Video Software Dealers Ass'n v. Webster, 968 F.2d 684 (8th Cir. 1992), 3 DePaul J. Art, Tech. & Intell. Prop. L. 40 (1992) Available at: https://via.library.depaul.edu/jatip/vol3/iss1/11 This Case Summaries is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact digitalservices@depaul.edu. limitations did not begin to run until Stone knew thefacts giving rise to her statutory entitlement. The factthat Stone is the daughter of Williams is the relevantfact giving rise to Stone's statutory entitlement. Stonediscovered she was Williams daughter in October 17,1979.The defendants argued that since Stone did notseek a judicial determination that she was the ownerof the copyright renewals within three years of 1979,she is barred from asserting a cause of action basedon that ownership. Statutes of limitations bar reme-dies, not the assertion of rights.7 This principle appliesto the Act.8 To be entitled to a share of copyrightrenewal royalties under the Act, the plaintiff must bea child of the author.9 The Act does not state that aplaintiff loses the right to renewals by delaying asser-tion of that right."The court makes clear that there is a distinctionbetween what must be done to give rise to an entitle-ment of a statutory right, and what needs to be doneto vindicate that right." The court concluded thatStone did not lose her status as the author's child justbecause she waited to ask the court to declare herstatus. The only consequence to Stone was to limither claims based on the infringing acts of the defen-dants. Royalties which became due either subsequentto, or within three years of, the commencement of thesuit were not barred by the statute of limitations.Stone could not, however, recover for royalties whichbecame due more than three years before the com-mencement of the suit.Finally, Stone argued the defendants' ongoingexploitation of her interest in the copyright renewalsand their failure to account to her for her royaltyshare was a continuous course of wrongful conductwhich precludes the statute of limitations defense.The court disagreed. Although each infringement is aseparate injury which gives rise to an independentclaim for relief, when infringements occur during thelimitations period, that does not mean that recovery isavailable for past infringements. 2 Stone could onlyrecover for the injuries occurring within three years ofthe commencement of the suit.CONCLUSIONThe Court of Appeals for the Second Circuit madeclear that the three year statute of limitations govern-ing causes of action in infringement under the Actapply only to the individual acts of infringement, notthe enforcement of the property interest in the copy-right renewal. Hence, a plaintiffs substantive right toan interest in a copyright renewal is not abrogatedjust because that plaintiff fails to timely file for a hold-ing on that status. Here, the three year statute of limi-tations under the Act began to run once Stone wasput on notice that Williams was her father in 1979.However, each act of infringement by the defendantswas distinct, giving rise to an independent claim ofrelief. Thus, Stone's claims for royalties which becamedue within three years of the commencement of thesuit were not time-barred.Barbara Fox Kraut1. Copyright Act, 17 U.S.C. SS 101, 304(a), 24 (1988).2. Stone v. Gulf American Fire & Casualty Co., 554 So. 2d346 (Ala. 1989), cert. denied, 496 U.S. 943 (1990).3. Stone v. Williams, 766 F. Supp. 158 (1991).4. Copyright Act, 17 U.S.C. §507(b) (1988).5. Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992)(citing 118 E. 60th Owners v. Bonner Properties, Inc., 677 F.2d 200,202 (2d Cir. 1982); Luckenbach S.S. Co. v. United States, 312 F.2d545, 548 (2d Cir. 1963)).6. Id. (citing Cullen v. Margiotta 811 F.2d 698, 725, cert.denied, 483 U.S. 1021 (1987); Keating v. Carey, 706 F.2d 377, 382(2d Cir. 1983)).7. Id. at 1051 (citing United States v. Obermeier, 186 F.2d243, 254-55 (2d Cir. 1950)).8. Id. (citing Prather v. Neva Paperbacks, Inc., 446 F.2d 338,340 (5th Cir. 1971)).9. Id.10. Id.11. Id. at 1051 (citing United States v. Obermeler, 186 F.2d243, 254-55 (2d Cir. 1950)).12. Id. at 1049.Video Software DealersAss'n v. Webster,968 F.2d 684 (8th Cir. 1992).INTRODUCTIONPlaintiff, a Video Dealers Association, brought suitagainst defendant, the state of Missouri, challengingthe constitutionality of a statute prohibiting the distri-bution of violent videos to minors. The Court ofAppeals for the Eighth Circuit affirmed the UnitedStates District Court for the Western District ofMissouri finding the statute to be unconstitutionalunder First Amendment principles.FACTSPlaintiffs are associations whose members rentedor sold videos to the public, an association of filmproducers and distributors, and owners and operatorsof video retail stores. Defendants are the MissouriAttorney General, a county prosecuting attorney, andall other members empowered to enforce the statute(collectively "Missouri").The challenged statute provides that videos cov-ered under the statute must be displayed or main-tained in a separate area and may not be rented orsold to persons under the age of seventeen. Thestatute applies to videos which, applying contempo-rary community standards, the average adult personwould find" "(1)... [has] a tendency to cater to orappeal to morbid interests in violence for personsunder the age of seventeen, (2) ...depicts violence ina way which is patently offensive with respect to40 Journal of Art & Entertainment LawJournal of Art & Entertainment Law 1Joyce: Video Software Dealers Ass'n v. Webster, 968 F.2d 684 (8th Cir. 1Published by Via Sapientiae, 2016what is suitable for persons under the age of seven-teen, and (3)...lacks serious literary, artistic, political,or scientific value for persons under the age of seven-teen."'The statute contains no definition of 'violence', noexplanation of purpose, and no legislative history. Ina July 1989 article written by the bill's sponsor, therepresentative wrote that the bill was designed tocover movies containing "graphic sexual torture,bondage, rape, cannibalism, human brutality, andmutilation."'Missouri's position is that the statute targets"slasher videos," which it describes as "blood andgore" displaying "the most bestial and graphic acts ofviolence imaginable" such as "excessive scenes ofmurder, rape, sado-masochistic sex, autopsies, mutila-tions, satanism and assorted perversions." Missourialso broadly asserts that the statute is aimed at"graphically violent videos."'LEGAL ANALYSISThe court found that the statute was unconstitu-tional for three reasons: (1) it is not narrowly tailoredto promote a compelling state interest, (2) the statuteis impermissibly vague, and (3) the statute imposesstrict liability.' Because the statute regulates videosbased on their content, the court applied strict scruti-ny. In deciding whether a statute which is a content-based regulation of speech should be upheld understrict scrutiny, the court uses a two step analysis. First,the court determines whether the regulation can bejustified with a compelling state interest and second,the court determines whether the regulating statute isnarrowly tailored to achieve its asserted purpose.6 Inapplying these factors, the court held that the statutewas not narrowly tailored to promote an articulated,compelling state interest.7Under the strict scrutiny analysis, Missouriattempted to justify its statute's content-based regula-tion of speech by citing two compelling state inter-ests-prohibiting obscenity and protecting childrenfrom slasher videos. First, the court held that thestatute could not be justified as legally prohibitingobscene material under the First Amendment, becauseobscene material encompasses only expression thatdepicts or describes sexual conduct.8 Although agree-ing with Missouri that some expression which is notobscene for adults may be obscene from the view-point of a minor, the court still found the statute con-stitutionally infirm because of its inclusion of violentvideos. Videos included under the statute depictingonly violence do not fall within the legal definition ofobscenity.Second, the court found that although states havebroader authority to regulate communicative materialsavailable to children, minors are nevertheless entitledto a significant measure of First Amendment free-doms.9 Only in narrow and defined circumstancesmay government bar public dissemination of protect-ed materials to them.0 Because much of the speechcovered by the statute was neither obscene nor sub-ject to some other legitimate proscription, it could notbe suppressed solely to protect the young from ideasor images that a legislative body thinks unsuitable forthem. In refusing to decide whether the state's interestin protecting children was legitimate, the court con-cluded its application of strict scrutiny by holding thateven assuming the state's interest is valid, the statutewas not narrowly drawn to achieve its end withoutunnecessarily infringing on freedom of expression."As drawn, the statute covered all types of violence.To survive a vagueness challenge, the test iswhether the statute gives a person of "ordinary intelli-gence a reasonable opportunity to know what is pro-hibited," and whether it provides "explicit standardsfor those who apply the statute.""2 Courts apply astringent vagueness test when the statute involvedallegedly infringes on the right of free speech.Missouri asserted that the statute was merely anadoption of the Miller test for obscenity, substitutingthe word "violence" for the words "sexual conduct."'"The court, however, reasoned that if the statute wassimilar to the Miller test, a definition of "violence" wasrequired. The statute's phrase, "...tendency to cater orappeal to morbid interests in violence for personsunder the age of seventeen" was held by the court tobe elusive and prohibitive of merely offensive videosalso."4 Furthermore, the court found that given theabsence of legislative history and purpose, there wasno way for Missouri's courts to decisively narrow thestatute. Therefore, the court concluded that because"people of common intelligence, whether prosecutorsor video dealers, must guess at the meaning of thestatute...the statute is impermissibly vague.""Last, the court condemned the statute for impos-ing strict liability on video dealers. Statutes whichimpose criminal responsibility for dissemination ofunprotected speech or chill the exercise of FirstAmendment rights must contain a knowledge require-ment.6 Moreover, the court felt that regardless of aknowledge requirement, penalizing video dealers fora video's content presented a hazard of self-censor-ship. The court felt that dealers would in essence beforced to view all videos to make a determination oftheir content; they would be reluctant to exercisetheir freedom of speech which would ultimatelyrestrict the market. The court held that because thestatute's strict liability requirement would make deal-ers reluctant to place videos on the market, therebyrestricting the public's access to constitutionally pro-tected videos, the statute violated the FirstAmendment.17CONCLUSIONCourts have repeatedly held that legislation aimedat protecting children must be clearly drawn and theFall, 1992 41 2DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 3, Iss. 1 [2016], Art. 11https://via.library.depaul.edu/jatip/vol3/iss1/11standards adopted must be reasonably precise. This isnecessary so that those who govern and those whoadminister the laws will understand the statute'smeaning and application. In this case, the courtrefused to narrowly construe the statute to cure it ofits constitutional defects. The court explained therewas no readily apparent means of rehabilitating thestatute. Nothing less than rewriting the statute to atleast include a definition of violence would begin toremedy its vagueness. Nevertheless, the court added,it was not belittling the State's interest in protectingthe well-being of minors, and stressed that its holdingnarrowly applied to the statute at issue.Sarah Joyce1. Video Software Dealers Ass'n. v. Webster, 968 F.2d 684,687 (8th Cir. 1992) (citing Mo. Rev. Stat. S 573.090 (Supp. 1991)).2. Id. at 687-88 (8th Cir. 1992) (quoting Kenneth D. Rozell,Missouri Statute Attacks 'Violent" Videos: Are First AmendmentRights in Danger?, 10 LoY. E~r. L. 655, 666 (1990) (quoting SlasberVida Law Draws Contrasting Reviews, THE STATESMAN, July 1989, at6)).3. Id. at 688.4. Id.5. Id.6. Id. at 689.7. Id. at 688.8. Id.9. Id.10. Id. (citing Erznoznik v. City of Jacksonville, 422 U.S.205, 212-14 (1975)).11. Id. at 689.12. Id. (citing Grayned v. City of Rockford, 408 U.S. 104,108(1972)).13. Id. at 690 (citing Miller v. California, 413 U.S. 15, 24(1973)).14. Id.15. Id.16. Id.17. Id.42 Journal of Art & Entertainment Law 3Joyce: Video Software Dealers Ass'n v. Webster, 968 F.2d 684 (8th Cir. 1Published by Via Sapientiae, 2016

Video Software Dealers Ass\u27n v. Webster, 968 F.2d 684 (8th Cir. 1992)

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Video Software Dealers Ass\u27n v. Webster, 968 F.2d 684 (8th Cir. 1992)

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