Spike Lee’s legal skirmish over use of the Rodney King videotape was settled out of court yesterday –the film will be released Nov. 20 with the beating footage intact– but the echoes of his fight may be resounding through the halls of entertainment law firms.

In a five-page written dissenting opinion issued earlier this week, 9th U.S. Circuit Court Judge Stephen Reinhardt argued that the yet-to-be released film should be afforded greater protection under the First Amendment due to its political content and subject matter.

Reinhardt wrote his dissent in opposition to two other judges sitting on the San Francisco-based 9th Circuit Court, who decided not to hear Lee’s petition to move up the original Oct. 13 hearing date. Since the matter was settled out of court yesterday, the differences of opinion in the 9th Circuit become moot.

“‘X,’ based upon the life of Malcolm X, is not merely ordinary entertainment but the dramatic expression of a highly controversial point of view on an extremely important subject–a point of view the public is entitled to hear,” wrote the judge.

“It is political speech in a raw though dramatic form. Motion pictures and even television comedy programs have become a significant part of our political dialogue. We must be vigorous in our efforts to guard such speech against all forms of interference.”

Martin Garbus, the attorney who represented Lee, said the judge’s dissent represents the first time a judicial distinction has been made “based on the quality of the product.”

“I believe he recognizes that because of the way the material is handled and the people who are doing it, it’s a film that has social implications,” said Garbus, of New York-based Frankfurt, Garbus, Klein & Selz. “I think the decision is totally unique and could set very important legal precedent. It certainly benefits all serious artists.”

Lee’s attorney had tried to move the hearing date because of Warner Bros.’ Nov. 20 nationwide release of the film. An Oct. 13 ruling in a lower court would have been too late to make changes in the film, meaning it would have to be released without the footage, they argued.

Reinhardt took special recognition of this scheduling conflict, writing, “The district court’s unwillingness to hold a hearing on the dispute prior to the time Lee is required to deliver his final version of ‘X’ to Warner Bros. means that the version of the film that Lee wishes to exhibit will not be released.

“If this is true, Lee will suffer irreparable injury–but the principal loser will surely be the public, for it is the public that will be deprived of the opportunity to see ‘X’ in the form its creator believes to be most powerful, effective, and persuasive.”

The Oct. 13 hearing concerned the original suit filed by George Holliday, the man who shot the videotape and who owns the copyright. Citing both copyright infringement and the possibility of future violence, Holliday had sought to block the use of the videotape in “Malcolm X.”

On Thursday, Holliday’s attorney, Ronald W. Grigg, said he believed his client’s suit was never an attempt to challenge First Amendment rights.

“This was about property rights, not about First Amendment expression,” Grigg said. “We certainly do not agree with Judge Reinhardt and believe he had a fundamental misunderstanding as to what was going on here.”

Both sides, though, were able to reach an out-of-court settlement yesterday for an unspecified amount that will allow Lee to use the videotape footage. Originally Lee was to pay $ 50,000 for the rights to use portions of the videotape, although Holliday’s attorney contended his client was never paid. In his suit, Holliday sought more than $ 100,000 for copyright infringement.

Terms of the settlement were not disclosed.

While Reinhardt’s dissent does not rewrite law, Garbus noted that it has the potential of influencing future cases involving First Amendment protection of artistic rights and copyright law.

For instance, Lee’s use of the videotape is over an image of a burning American flag, as Denzel Washington reads the words of Malcolm X. “I believe the judge’s dissent questions the point where a public image becomes a new work,” Garbus said.

He noted that few people could question that the videotape of Los Angeles police beating Rodney King has indeed become a public image. Lee also felt that no other image could as accurately describe events in Los Angeles as that videotape, Garbus said.

“This videotape could be likened to only a few other pictures that have been imprinted on the American consciousness,” Garbus said. “The Zapruder film of the Kennedy assassination, the pictures of the little Vietnamese girl running from napalm. These pictures become larger than the events themselves.”

In his dissent, Reinhardt recognized the political and social import of the film, writing that the “speech and copyright issues are of extraordinary public concern.”

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