Triangle Publications, Inc., a Pennsylvania Corporation v. Knight-Ridder Newspapers, Inc., a Florida Corporation

626 F.2d 1171, 6 Media L. Rep. (BNA) 1734, 207 U.S.P.Q. (BNA) 977, 1980 U.S. App. LEXIS 15429

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 24, 1980
• Docket: 78-1639
• Status: Published

Opinions

JOHN R. BROWN, Circuit Judge;

This case raises significant issues under the laws of copyright and free speech. For years, Courts and commentators have recognized a potential conflict between copyright and the First Amendment.¹ However, until the District Court’s opinion in the case now before us, 445 F.Supp. 875 (S.D.Fla.1978), no Court had ever held that a copyright suit could be defeated by a First Amendment defense. We affirm the result reached by the District Court, but disagree with the Court’s rationale. Contrary to the District Court, we hold that fair use constitutes a valid defense to the copyright infringement suit involved in this case. The majority does not reach the issue of the First Amendment defense upon which the District Court based its judgment for the Appellee.

I. How It Came About And What Happened

The plaintiff-appellant, Triangle Publications (Triangle), is the publisher of “TV Guide,” a periodical containing television schedules and articles relating to television entertainment. The defendant-appellee, Knight-Ridder Newspapers (Knight-Ridder), publishes the Miami Herald Newspaper (the Herald). During the fall of 1977, Knight-Ridder began a campaign to promote a newly developed television booklet which was to be included as a supplement to the Sunday edition of the Herald. Like TV Guide, the booklet contains television schedules and articles related to that media. The supplement was introduced to the public on November 13, 1977, through a colored newspaper advertisement in the Miami Her-aid. See Appendix. The following week newspaper vending machine posters (known in the trade as rack cards) advertising the booklet were displayed throughout the southern part of Florida. Subsequently, four additional newspaper ads were introduced promoting the booklet, each displaying an actual-sized reproduction of a TV Guide cover next to an actual-sized reproduction of the cover of the Herald’s new TV supplement.²

In addition, the booklet was advertised in two thirty second television commercials. The first is based on the theme “Goldilocks and the Three Bears.” It compares the size of the Herald’s former television guide with the Herald’s new supplement and with TV Guide, concluding that the former supplement is too large, that TV Guide is too small, but that the new supplement is just the right size for human beings.³ While TV Guide is not mentioned by name, one of the actors in the commercial is shown briefly with a back-dated copy of TV Guide in hand. The cover of the TV Guide issue is clearly visible. The commercial was used for several weeks and was then discontinued. The second commercial is a monologue. After identifying TV Guide as the competing product, the announcer suggests that the Herald’s supplement is a better value for the money because the purchaser gets the entire newspaper, not merely a TV booklet.⁴ During the course of his statement, the announcer holds up a back-dated issue of TV Guide with the cover clearly visible. The announcer then puts down the TV Guide and holds up first a copy of the Herald’s supplement and then a copy of the Sunday edition of the Herald. This commercial was being used at the time of the District Court’s hearing and Knight-Ridder contemplated using it in the future.

The only conduct by the Herald being challenged here is the reproducing of TV Guide covers. The verbal reference to TV Guide made in the second commercial⁵ is not being attacked. Since each issue of TV Guide is individually copyrighted, and since magazine covers have in the past been afforded copyright protection, see, e.g., Conde Nast Publications, Inc. v. Vogue School of Fashion Modeling, Inc., 105 F.Supp. 325 (S.D.N.Y.1952), Triangle claims that the Herald’s showing of TV Guide covers violates § 106 of the new Copyright Act, 17 U.S.C.A. § 106 (1976).⁶ Triangle moved in the District Court for preliminary and permanent injunctions (and also sought damages).

The District Court found that the challenges to the five newspaper ads, the rack cards and the first television commercial were moot for purposes of a preliminary injunction, reasoning that none of these ads were then being used. Since all that was left was the second television commercial, the Court denied the motion for a preliminary injunction, pointing out that nearly all of the alleged harm had already occurred and that the likelihood of irreparable injury had therefore not been shown.

The Court also denied the motion for a permanent injunction. In so doing, the Court considered four issues. First, the Court considered whether the cover of a magazine is protected by the magazine’s copyright, holding that it is. Second, the Court found that the use of the cover was a “display” as defined by § 106(5) of the Act. Third, the Court held that the display was not protected by the defense of fair use. Fourth, the Court held, based on recent Supreme Court cases giving First Amendment protection to commercial speech,⁷ that the First Amendment place limits on the law of copyright and that the Herald’s display of TV Guide was constitutionally protected activity.

II. Fair Use

It is undisputed on this appeal that unless protected by fair use or the First Amendment, Knight-Ridder’s use of TV Guide covers constitutes as infringement under the copyright law.⁸ Accordingly, wé proceed directly to the question of whether the defense of fair use justifies Knight-Ridder’s actions.

The question of fair use has been appropriately described as “the most troublesome in the whole law of copyright.” Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661 (2d Cir. 1939). Although no definition of fair use that is workable in every case has ever evolved, a frequently quoted definition of fair use is “a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner [by the copyright].” Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967), quoting Ball, The Law of Copyright and Literary Property, 260 (1944).

Fair use is “a 'rule of reason’ fashioned by Judges to balance the author’s right to compensation for his work, on the one hand, against the public’s interest in the widest possible dissemination of ideas and information, on the other.” Sobel, supra note 1, at 51, quoting Latman, Fair Use of Copyrighted Works 5 (Sen. Comm, on Judiciary Study No. 141960). The fair use doctrine frequently serves to eliminate potential conflicts between copyright and free speech. See Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 Calif.L.Rev. 283, 299, 303-04 (1979) (hereafter cited as Denicola). The doctrine first appeared back in 1841 in Folsom v. Marsh, 9 F.Cas. 342 (C.C.D.Mass.1841), although the precise term “fair use” did not make its appearance until 28 years later in Lawrence v. Dana, 15 F.Cas. 26, 60 (C.C.D.Mass.1869). See generally Case Note, Copyright and the First Amendment — Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 445 F.Supp. 875 (S.D.Fla.1978), 1979 Wisc.L. Rev. 242, 246 & n.25 (hereafter referred to as Wisconsin Note). Since its beginnings, the doctrine of fair use has been refined, honed, and clarified in many Court decisions. However, the doctrine was not codified until the enactment of the 1976 Copyright Act.

In codifying the concept of fair use, Congress made clear that it in no way intended to depart from Court-created principles or to short-circuit further judicial development:

The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.

H.R.No.94-1476, 94th Cong., 2d Sess. 66 (1976) (House Report), reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 5659, 5680 (referred to as USCCA). See also Sen.Rep.No.473, 94th Cong., 1st Sess. 62 (1975) (Senate Report).

The 1976 Copyright Act instructs Courts to consider four factors — all gleaned from the case law⁹— in determining whether the defense of fair use applies:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C.A. § 107. The statute does not indicate how much weight is to be accorded each factor,¹⁰ but since the statutory formulation is simply a restatement of the case law, it is appropriate to look to the cases for guidance. Our research indicates that of these four factors, Courts have generally placed most emphasis on the fourth factor, the effect of the use upon the potential market for or the value of the copyrighted work. See, e. g., Time, Inc. v. Bernard Geis Assocs., 293 F.Supp. 130 (S.D.N.Y.1968); 3 Nimmer on Copyright, § 13.05(b)(4), at 13-54 (1978) (indicating that the fourth factor is the most important and citing a host of cases).

In analyzing the fair use question, the District Court did not get beyond the first factor. The Court deemed it controlling that the use of the TV Guide covers by the Miami Herald was to obtain commercial advantage. The Court established what amounts to virtually a per se rule that commercial motive destroys the defense of fair use.

Clearly, § 107 makes commercial motive relevant to fair use analysis. But it is certainly not decisive. As the legislative history makes clear:

This amendment is not intended to be interpreted as any sort of not-for-profit limitation on educational uses of copyrighted works. It is an express recognition that, as under the present law, the commercial and non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions.

House Report, at 66; U.S.Code Cong. & Admin.News, at 5679. See also Senate Report, at 62; 3 Nimmer on Copyright, § 13.05[A], at 13-52 (1978) (stating that commercial use does not necessarily negate fair use defense and citing string of cases to support proposition).

We assume without deciding that a lower Court’s finding that there was or was not fair use is normally a finding of fact subject to the clearly erroneous rule of F.R.Civ.P. 52(a). E. g., Eisenschiml v. Fawcett Publications, Inc., 246 F.2d 598, 604 (7th Cir. 1957). However, this Circuit has repeatedly made clear that the clearly erroneous rule does not apply to findings made under an erroneous view of controlling legal principles. E. g., Rowe v. General Motors Corp., 457 F.2d 348, 356 n. 15 (5th Cir. 1972); United States v. Pickett’s Food Service, 360 F.2d 338, 341 (5th Cir. 1966); Ferran v. Fleming, 293 F.2d 568, 571 (5th Cir. 1961). We believe that in viewing commercial motive as conclusive on the question of fair use, the District Court incorrectly applied § 107. Accordingly, its finding of no fair use defense is not subject to a clearly erroneous standard. Rather, we are more free to determine the question of fair use.¹¹

As § 107 makes clear, the first factor to consider in a fair use analysis is the purpose and character of the use. Here, Knight-Ridder used TV Guide covers for advertisements, and any commercial use tends to cut against a fair use defense.¹² On the other hand, the precise characteristics of the commercial use in this case caution against too much weight being given to the fact that the use is commercial. Specifically, there was no attempt to palm off Triangle’s product as that of the Herald’s. Compare Conde Nast Publications, Inc. v. Vogue School of Fashion Modeling, Inc., supra. Rather, the advertisement was a comparative advertisement done in a manner which is generally accepted in the advertising industry.¹³

The second factor specified in § 107 is the nature of the copyrighted work. One commentator has argued that because the copyrighted work — TV Guide — is itself commercial, the defense of fair use should more readily apply. See Wisconsin Note, supra, at 261. However, other commentators have argued that “courts have tended to be most receptive to unauthorized use of educational, scientific, and historical works.” Note, Copyright Infringement and the First Amendment, 79 Colum.L.Rev. 320, 326 n.42 (hereafter referred to as Columbia Note), citing Eisenschiml v. Fawcett Publications, supra. In our view, the fact that TV Guide is a commercial publication neither supports nor hurts Knight-Ridder’s claim that a fair use defense is appropriate here.¹⁴

The third factor to consider under § 107 is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Here, Knight-Ridder did not copy what is the essence of TV Guide— the television schedules and articles. It simply reproduced covers of old TV Guide issues. We do not mean to trivialize the covers of TV Guide, but simply emphasize that this factor would have been entitled to more weight had, for example, some of the contents been used.¹⁵

The fourth factor to analyze under § 107 —the factor which is widely accepted to be the most important, see, p. 1322, is the effect of the use upon the potential market for, or the value of, the copyrighted work. We are simply unable to find any effect— other than possibly de minimus — on the commercial value of the copyright. To be sure, the Herald’s advertisements may have had the effect of drawing customers away from TV Guide. But this results from the nature of advertising itself and in no way stems from the fact that TV Guide covers were used. Indeed, assuming that TV Guide covers offer positive artistic enjoyment, the reproduction of these covers in the Herald’s ads may have shown why TV Guide is a better product than the Herald’s guide and may have decreased the effectiveness of the ads. At no point has Triangle offered a cogent explanation of the logical link between the showing of TV Guide covers and the alleged harm to the copyright.¹⁶ We cannot see it. And interestingly enough, neither can the commentators. The District Court’s opinion has been the subject of several law review discussions. Nearly every commentator agrees that the harm suffered by TV Guide was at most de minimus and that the District Court erred in rejecting the fair use defense. For example, Professor Robert Denicola, in his recent law review article, states:

The plaintiff suffered absolutely no economic injury whatever from the alleged infringement of its copyright. If the plaintiff loses a significant share of its present market, that would result not from the display of plaintiff’s cover in defendant’s advertising but from commercial competition with a work that does not in any way make use of plaintiff’s copyrighted material. The alleged infringement itself causes no injury to the plaintiff because it does not in any manner substitute for the plaintiff’s product. It is difficult to believe that anyone purchases the magazine simply to ponder the cover — the only part reproduced by the defendant. Any harm suffered by the plaintiff results from competition with an independently created work rather than from exploitation of plaintiff’s own copyrighted material.

Denicola, supra, at 305-06. Similarly, the Columbia Note explains:

The use in question was at most an “incidental one,” and hence encompassed within the fair use doctrine. The fact that the parties were in competition with each other is irrelevant, since the use of the magazine cover — even if it were plaintiff’s entire work — could not serve as a substitute for plaintiff’s product. Thus, there was no economic detriment to the plaintiff, and defendant’s fair use defense should have prevailed. (Footnotes omitted).

Columbia Note, supra at 327-28. And the Wisconsin Note observes:

[T]he court failed to discuss the fourth factor — the effect of the use upon the potential market for or value of the copyrighted work — in the fair use context. While it is true that defendant’s purpose in creating and marketing a television supplement was to reap economic benefit by capturing part of the market held by TV Guide, defendant’s use had no appreciable deleterious effect upon the potential demand for the issues shown, since the programming schedules were out-of-date. In addition, the display of only the cover could have only slightly decreased the value of the articles in the dated issues, if at all. (Footnotes omitted).

Wisconsin Note, supra at 262.

Applying the four factors specified in § 107 — and giving heavy emphasis to the fourth factor — we conclude that the fair use defense applies in this case and that the District Court erred in holding that it did not. We simply cannot see how Triangle was harmed by the Herald’s advertisements. Moreover, the public as well as the Herald benefits from comparative advertising, thus minimizing the importance of the fact that a commercial use was involved.

III. First Amendment

Thus far the Court is unanimous. The majority concludes that we need not, and should not, reach the First Amendment issue.¹⁷

IV. Conclusion

We affirm the decision of the District Court denying Triangle’s motions for preliminary and permanent injunctions. However, we do so on the basis of fair use, not on the basis of the First Amendment which we do not reach.

AFFIRMED.

1 . For some of the leading Court cases, see Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977); Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978); Wainwright Sec., Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978). The most highly recognized articles include: Goldstein, Copyright and the First Amendment, 70 Colum. L.Rev. 983 (1970); Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 U.C.L.A.L.Rev. 1180 (1970); Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 ASCAP Copyright L.Symp. 43 (1971).

2 . The Herald published a second color ad on November 18, 1977. The Broward Times (Ft. Lauderdale) printed a black and white ad on November 15, 1977. The Keynoter (Marathon, Florida) and the Miami Times each printed a black and white ad on November 17, 1977.

3 . This is the script of the commercial:

[Narrator]: “This is the story of Sidney Bear, Cindy Bear and Junior Bear. They all love to watch TV, but . . . ”

[Middle Aged Man]: “This TV book is too small.”

[Child]: “This TV book is too big.”

[Middle Aged Woman]: “This TV section is just right.”

[Narrator]: “It was the Sunday Herald’s new TV book at no extra cost. The three bears loved the new . . just-right size with its up-to-date and more complete listings. ’Til one day this little blonde kid— uh, but that’s another story. . . . Something for everybody. Every day of the week.” (Dots indicate pauses, not omitted material.)

⁴

“This is TV Guide. When you buy it, that’s all you get. No extras. This is The Miami Herald’s TV Book. When you buy it, you get a few extras. Like more up-to-date listings, charts that let you see what’s on at a glance. It even has extras on top of the extras. And the best part is, even if there’s nothing good on TV . . . you can always sit back and read some of the extras. The Miami Herald.” (Dots indicate pauses, not omitted material.)

5 . See note 4, supra.

6 . Actually, Triangle sued under both the old (1909) Act as well as the new Act. The new Act became effective January 1, 1978. Of the various alleged infringements, the showing of the second commercial is the only post-January 1, 1978 conduct involved in this case. We believe, however, that the result in this case is the same under both the old and new Acts. We therefore limit our analysis to the new Act.

7 . E. g., Bates v. Arizona State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).

8 . The nature of the asserted infringement is disputed, however. Section 106 of the Act provides:

Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

******

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly. (Emphasis added).

Knight-Ridder contends that reproductions of the TV Guide covers were not “displays” under § 106(5). See § 101 (defining display). However, Knight-Ridder conceded at oral argument that it “reproduced” TV Guide covers. Section 106(1). Consequently, while Knight-Ridder’s argument that no display is involved seems rather specious, we need not conclusively rule on it here.

We think it also important to point out that we agree with the District Court’s analysis and conclusion that the copyright privilege owned by TV Guide clearly applies to protect TV Guide’s covers. See 445 F.Supp. at 878-79; see also note 15, infra; Conde Nast Publications, Inc. v. Vogue School of Fashion Modeling, Inc., supra; 1 Nimmer on Copyright, § 2.04[D][3] at 2-48-2-49 (1978). Knight-Ridder does not dispute the District Court’s opinion on this point.

9 . See, e. g., Mathews Conveyor Co. v. Palmer-Bee Co., 135 F.2d 73, 85 (6th Cir. 1943), quoted in 3 Nimmer on Copyright, § 13.05[A], at 13-51 (1978) (listing considerations very much like those later adopted by Congress).

10 . Indeed, the statute indicates that these four factors are not necessarily exhaustive. The factors specified in § 107 follow the words “shall include.” The term “including” is defined in § 101 as “illustrative and not limitative.” However, since Congress articulated these four factors and since they are the most important in the pre-1976 Act cases, we believe that normally these four factors would govern the analysis.

11 . Even assuming the clearly erroneous standard is the appropriate one, we believe that the District Court’s conclusion on the fair use question is indeed clearly erroneous.

12 . However, we must emphatically reject Triangle’s reading of Tennessee Fabricating Co. v. Moultrie Mfg. Co., 421 F.2d 279 (5th Cir. 1970), cert. denied, 398 U.S. 928, 90 S.Ct. 1819, 26 L.Ed.2d 91 (1970), for the proposition that in the Fifth Circuit, use of a copyrighted work for advertising can never constitute fair use. In Tennessee Fabricating, this Court found that fair use did not apply where defendant copied with only slight changes plaintiffs design for an architectural metal casting unit to be used as a screen or room divider and made photographic reproductions of the design for use in a catalogue. The Court stated that “[t]he doctrine of fair use has no application to the conduct of the defendants.” Id. at 284. In the course of its opinion, the Court pointed out that the doctrine of fair use is “fully and ably discussed” in Rosemont Enterprises, Inc. v. Random House, Inc., supra. 421 F.2d at 284. In Rosemont, the Court cited and distinguished a District Court opinion, Henry Holt & Co., et al. v. Liggett & Myers Tobacco Co., 23 F.Supp. 302 (E.D.Pa.1938), which suggests that an advertisement does not come within the scope of fair use.

To begin with, Rosemont did not necessarily adopt Henry Holt’s position. It simply pointed out that unlike in Henry Holt, no advertising was involved. More importantly, in Tennessee Fabricating, simply by referring to Rosemont for a full discussion of fair use, the Court in no way adopted every fair use principle contained in Rosemont, let alone the fair use principles in the many cases cited in Rosemont. Triangle thus reads far too much into Tennessee Fabricating’s citation of Rosemont. Moreover, the language in Tennessee Fabricating does not support Triangle’s position. Far from adopting a per se rule regarding advertising, the Court made clear that each case must turn on its own facts and that the result in a given case cannot depend on arbitrary or fixed principles. 421 F.2d at 283. Finally, the facts in Tennessee Fabricating are readily distinguishable from those here. In that case, defendant in effect stole plaintiff’s architectural design for its own use. Here, the Herald has not taken TV Guide’s cover to use for its own publication. It has simply shown the cover of TV Guide in a truthful, comparative advertisement.

13 . As stated, the fact that the commercial use occurred in the course of a truthful comparative advertisement undercuts the significance of the commercial nature of the use. Congress emphasized that the doctrine of fair use must be flexible. House Report, at 66; U.S.Code Cong. & Admin.News, at 5680; Senate Report at 62. Today, the public interest in comparative advertising is well-recognized. As the Federal Trade Commission has stated:

The Commission has supported the use of brand comparisons where the bases of comparison are clearly identified. Comparative advertising, when truthful and nondeceptive, is a source of important information to consumers and assists them in making rational purchase decisions. Comparative advertising encourages product improvement and innovation, and can lead to lower prices in the marketplace. For these reasons, the Commission will continue to scrutinize carefully restraints upon its use.

16 C.F.R. § 14.15(c) (1980). One affidavit received as a part of the record cites several examples of comparative advertising, including many magazine ads reproducing covers of competing magazines. For example, the January 9, 1978 issue of Advertising Age contains an advertisement for Americana magazine with a display of covers of competing magazines. The December 1977 issue of Media Decisions contains an ad promoting Horizon magazine featuring pictures of covers of competing magazines. An advertisement in the July 8, 1977 issue of New Times promoting that magazine shows covers of Time and Newsweek, two newsweeklys with which New Times competes. Affidavit of Ken Keoughan, Director of Marketing Services, Beber, Silverstein & Partners, Inc. Thus, while the Miami Herald is clearly out to make a profit from its advertisements, there is certainly no palming off of Triangle’s work. Rather, the Herald has used various covers of TV Guide for purposes of comparative advertisements.

14 . The nature of.the copyrighted work, while not important in the fair use analysis of this case, may in other circumstances be very important. For example, if a work reproduced for use by students is itself a textbook, the defense of fair use would be far less appropriate than if the work were material prepared for the general public. Senate Report, at 64. Similarly, if the copyrighted work is out of print and cannot be purchased, a user may be more likely to prevail on a fair use defense. Id

15 . We find unpersuasive Triangle’s argument that the cover of TV Guide is separately copyrighted and that therefore Knight-Ridder has reproduced an entire copyrighted work. In our view, the cover of a magazine is entitled to copyright protection as part of the magazine, just as a paragraph in a book may be entitled to copyright protection as part of the book. Thus use of the cover of a copyrighted magazine is an infringement. However, it makes no sense to us to say that the use of a cover constitutes the use of “an entire copyrighted work.” As a matter of logic and common sense, Knight-Ridder’s conduct would have been far more serious had it reproduced entire articles from TV Guide or full pages of TV schedules. In any event, even assuming that Knight-Ridder has reproduced an “entire” work, the idea that the copying of an entire copyrighted work can never be fair use “is an overbroad generalization, unsupported by the decisions and rejected by years of accepted practice.” Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1353, 203 Ct.Cl. 74 (1973), aff’d by an equally divided court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1975) (citing cases).

16 . The only explanation offered by Triangle at any stage of the litigation is that any time the cover of TV Guide is shown, its value is thereby reduced. We think the reduction in value — if any — of the covers of TV Guide from the showings by the Herald advertisements is so slight as to be immeasurable. There is nothing in the record to indicate any economic harm to the value of back-dated covers of TV Guide used in the Herald’s advertisements. Indeed, we have not even a rough indication of the economic value of these covers — either before or after the Herald’s ads. As one Court has stated, “To us it is very important that plaintiff has failed to prove its assumption of economic detriment, in the past or potentially for the future. . In the face of this record, we cannot mechanically assume [economic detriment] . . . .” Williams & Wilkins Co. v. United States, supra, 487 F.2d at 1359.

17 . Judge Brown dissents for the reasons stated in his dissent. This appellate opinion procedure used in this case is not uncommon. See, e. g., Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980); Usery v. Tamiani Trail Tours, Inc., 531 F.2d 224, 239 (5th Cir. 1976); United States v. Register, 496 F.2d 1072, 1075-76 (5th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 819 (1975); Stanga v. McCormick Shipping Corp., 268 F.2d 544, 546, 551 (5th Cir. 1959). Cf. Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011, 1023 (5th Cir. 1967).