Bond v. BlumBond v. Blum
NIEMEYER, Circuit Judge.
On a motion for summary judgment filed in this copyright infringement action, the district court held that the defendants’ copying of a copyrighted manuscript for introduction into evidence in a state-court child-custody proceeding constituted a “fair use” of the manuscript under the Copyright Act,
I
In the child-custody case of Slavin v. Slavin, commenced in July 2000 and pending in the Circuit Court for Baltimore City, Case No. 95249006/CE 201677, Alyson Slavin Bond sued her former husband, William Slavin, for exclusive custody of their three children. William Slavin filed a cross-petition for exclusive custody and, in support of his position, introduced into evidencе an autobiographical manuscript written by Alyson‘s current husband, William Bond, to establish that the home of Alyson and William Bond would not be a suitable place for the three children. Bond‘s manuscript was entitled Self-Portrait of a Patricide: How I Got Away with Murder.
In June 1981, when William Bond, who was formerly known as William Rovtar, was 17, he beat his father to death with a hammer in his grandparents’ garage in Bainbridge Township, Ohio. After Rovtar was arrested and detained in a juvenile detention facility in Ohio, he entered into a guilty-plea agreement in juvenile court with the result that in September 1981 he was transferred to the Sheppard & Enoch Pratt Hospital in Baltimore, Maryland, for psychological treatment. Rovtar was released in 1982, and after his release, he legally changed his name to William Bond. He remained in Maryland and thereafter became employed as a tennis instructor at a country club, a bicycle salesman, and a bodyguard, among other things.
In 1987, Bond began to write Self-Portrait of a Patricide: How I Got Away with Murder, “the true story of and by William Bond,” which he hoped to market to publishers for profit. The manuscript describes in horrific detail how Bond planned and committed the murder of his father with a hammer, and how his dying father attempted to raise himself off the floor of the garage before Bond delivered the final blows to his neck and head. It describes Bond wiping away his fingerprints, scrubbing the garage floor, cleaning blood, flesh, and bone from his clothes, and stuffing his father‘s dead body in his car‘s trunk. Most sinister of all, it depicts a remorseless individual who brags about fooling the police and the juvenile system to “get away scot-free” and even collecting, as planned, the money from his father‘s estate. Although verifiable facts of the murder are consistent with the details provided in the manuscript, Bond has now stated in an affidavit that the manuscript is “a highly fictionalized and stylized work,” based on his “juvenile experience.” Bond circulated his manuscript directly and through agents in order to find a publisher, asking for a seven-figure advance. His efforts, however, were unsuccessful. After some revisions, Bond also gave a copy of the manuscript to Norman Pessin, an attorney who had represented Bond in various unrelated matters, to help him get the manuscript published, but his efforts, too, failed. Although Pessin thereafter died, his widow retаined a copy of the manuscript.
Bond met Alyson Slavin in early 1995, after Alyson was separated from her husband, William Slavin. Bond and Alyson continued to see each other until they married in May 2001. In 1996, shortly after Bond and Alyson met, Bond wrote a lengthy letter to Alyson‘s father, Kenneth Blum, Sr., indicating that he intended to marry Alyson and become the stepfather of her children. The letter offered an analysis of individual members of Blum‘s family and purported to offer “solutions” to correct perceived deficiencies in the
Blum not only found this letter very disconcerting, considering it to be an attempt to extort money from him, but he also became concerned for the safety of Alyson and her children. In June 2000, just before the state custody action was commenced, Blum hired a private investigator, Dudley F.B. Hodgson, to look into Bond‘s background. At their first meeting, Blum gave Hodgson an overview of his dealings with Bond and expressed his concern over both thе safety of his grandchildren and Bond‘s effort to “shake him down” for money. Blum gave Hodgson a copy of the letter that Bond had sent him and told Hodgson that he had heard that Bond may have had some problems with his family involving violence in Ohio.
In the course of his investigation, Hodgson learned about the murder of Bond‘s father and contacted the Bainbridge, Ohio police department, obtaining copies of the police report and other documents relating to the homicide investigation. Hodgson reported these findings to Blum, and at Blum‘s request, Hodgson went to the home of Miriam Pessin, the widow of Norman Pessin, believing that Bond had also tried to “shake Pessin down” for money before he died. When Hodgson interviewed Miriam Pessin in April 2001 and asked hеr if she had any information that would be helpful in his investigation of Bond, she told Hodgson that she did have, stored in a box, a loose-leaf copy of a manuscript that Bond authored. Mrs. Pessin stated that Bond had given a copy of the manuscript to her husband for him to read for the purposes of locating a publisher. She later testified that this box of materials was not part of Pessin‘s legal files, which he carefully kept separate, and that Bond had also given her portions of the manuscript to read. Not wanting to retain the manuscript in her home, Mrs. Pessin gave it to Hodgson. Hodgson made a copy of the manuscript and gave copies to Alyson‘s ex-husband, William Slavin, and the attorneys representing him in the state custody action. William Slavin‘s attorneys made the manuscript an exhibit during the deposition of Alyson in July 2001 and intended to make it a part of the custody litigation in the Circuit Court for Baltimore City, in which a hearing was scheduled for December 10, 2001. For the sole purpose of preventing further use of the manuscript in the proceedings before the Baltimore City Circuit Court, Bond registered a copy of his manuscript with the Copyright Office in August 2001.
Immediately after registering the manuscript, Bond commenced this action for copyright infringement, naming as defendants Blum, Blum‘s son, Hodgson, William Slavin, and Slavin‘s attorneys. He requested a preliminary and permanent injunction prohibiting the use of the manuscript by the defendants for any purpose and requiring the return of all existing coрies.
At the hearing on Bond‘s motion for a preliminary injunction, the district court heard testimony from Alyson Bond, Blum, Hodgson, and Mrs. Pessin, among others. Following the hearing, the court found that Bond had written the manuscript and had delivered it to Pessin and others in an effort to get it published. The court found
On the merits of the copyright infringement issue, the court evaluated the defendants’ defense of “fair use” by applying the four factors set forth in
When Bond filed a motion to alter or amend the judgment, the district court denied the motion, finding that Bond was again “blurring the distinction between the copyright protection afforded the mode of expression in a written work and the ideas and facts in the public domain which are expressed in the work.” The court observed that Bond had not established any likelihood that the defendants intended to utilize the manuscript in any way other than that deemed by the court to be a fair use, and that, in the event they tried to use it for other purposes, they would do so “at the risk of being sued as a wil[l]ful infringer.”
Pursuant to motions filed by the defendants, the district court awardеd attorneys fees to the individual defendants under
Bond filed an appeal from the district court‘s summary judgment entered on November 27, 2001, and the court‘s subsequent order awarding attorneys fees. The law-firm defendants cross-appealed from the district court‘s denial of their motions for attorneys fees and for
II
Bond contends that the district court adopted a per se rule that use of copyrighted material as evidence in a legal proceeding is always a “fair use,” “overriding” the analysis for finding “fair use” required by
The defendants note that the district court did in fact consider the factors set forth in
Applying the four factors stated in
We review the district court‘s summary judgment de novo, applying the same standard that the district court was required by law to apply for granting the motion for summary judgment. Beverati v. Smith, 120 F.3d 500, 503 (4th Cir.1997).
The Copyright Act, enacted on the authority of
The copyright “monopoly“—i.e., the “bundle of exclusive rights ... to publish, copy, and distribute” the work, Harper & Row, 471 U.S. at 546-47, 105 S.Ct. 2218—is limited and subject to a list of statutory exceptions, including the exception for fair use provided in
The fair-use doctrine is a long-standing common-law principle, now codified in
(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.
A fair-use analysis bears relevance only when a challenged use violates a right protected by the Copyright Act. But the statutorily protected rights are themselves limited in that a copyright does not secure an exclusive right to the use of facts, ideas, or other knowledge. Rather, a copyright gives an author exclusive rights only with respect to his manner of expression. See, e.g., Baker v. Selden, 101 U.S. 99, 102, 25 L.Ed. 841 (1879); Superior Form Builders, Inc. v. Chase Taxidermy Supply Co., 74 F.3d 488, 492 (4th Cir.1996) (noting that “the originality inherent in each author‘s expression is the essence of the proprietary interest protected“). In Superior Form Builders, we noted that even though the Copyright Act will protect even the minimal quantum of originality—“independent creation plus a modicum of creativity,” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)—the public has an interest in retaining in the public domain “the right to discover facts and exchange ideas freely. Thus, copyright protection does not extend to ideas or facts even if such facts were discovered as the product of long and hard work.” Superior Form Builders, 74 F.3d at 492 (internal citation omitted).
With these general principles of copyright law in hand, we now turn to the question before us of whether the defendants’ use of Bond‘s copyrighted manuscript as evidence in the child-custody proceeding was subject to the fair-use exception defined in
A
The first
Application of this factor weighs heavily against Bond‘s infringement claim. The defendants’ use of Bond‘s copyrighted manuscript is not for any commercial purpose; the defendants are not seeking to exploit the copyrighted material without paying the customary price. Indeed, the defendants’ use is indifferent to Bond‘s mode of expression. Rather, the narrow purpose of defendants’ use of the manuscript is for the evidentiary value of its content insofar as it contains admissions that Bond may have made against his interest when he bragged about his conduct in murdering his father, in taking advantage of the juvenile justice system, and in benefiting from his father‘s estate. These are all facts relevant to the custody decision, and their use does not draw on Bond‘s mode of expression.
Because the challenged use is noncommercial, Bond must demonstrate that the use of the manuscript as evidence in the litigation would harm the potential market for his manuscript. Neither in his brief nor at oral argument has Bond been able to identify any harm or potential harm to his work against which the law of coрyrights protects. The only harm that we can discern from his arguments is a claim that he has lost the right to control the release of a “private” or “confidential” document. But at oral argument, he conceded that the document was not confidential. Indeed, it is apparent that Bond has circulated the document in an effort to have it published. But more importantly, the protection of privacy is not a function of the copyright law. See, e.g., New Era Publications Int‘l ApS v. Henry Holt & Co., 695 F.Supp. 1493, 1504-05 (S.D.N.Y.1988) (Leval, J.). To the contrary, the copyright law offers a limited monopoly to encourage ultimate public access to the creative work of the author. If privacy is the essence of Bond‘s claim, then his action must lie in some common-law right to privacy, not in the Copyright Act. See, e.g., Lawrence v. A.S. Abell Co., 299 Md. 697, 475 A.2d 448, 450-51 (1984).
B
We next consider the second factor, “the nature of the copyrighted work.”
That Bond‘s manuscript is unpublished and contains a stylized mode of expressing his feelings about historical facts weigh against a finding of fair use. See Harper & Row, 471 U.S. at 564, 105 S.Ct. 2218. But, as Campbell instructs, we do not consider the
C
Under the third
It is conceded that the defendants’ challenged use of the manuscript in the state-court proceeding involved all, or nearly all, of the copyrighted work. Its use, however, was not for its expressive content, but rather for its allegedly factual content. The sole purpоse and intent of introducing Bond‘s manuscript was to obtain admissions of fact against his interest in an effort to prove that his home would not be a suitable place for custody of children. The use of the copyrighted material in this context, even the entire manuscript, does not undermine the protections granted by the Act but only serves the important societal interest in having evidence before the factfinder. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 526, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) (“We have often recognized the monopoly privileges that Congress has authorized, while ‘intended to motivate the creative activity of authors and inventors by the provision of a special reward,’ are limited in nature and must ultimately serve the public good“). Because the manuscript was not usеd to undermine any right conferred by the Copyright Act, Bond can derive little benefit from this factor in the context of this case.
D
Finally, we consider the effect of the defendants’ use of Bond‘s copyrighted manuscript “upon the potential market for or value of the copyrighted work.”
On this factor, there is no evidence that the admission into evidence of Bond‘s manuscript would adversely affect its marketability. Indeed, the district court made the observation: “Ironically, if
E
In sum, we conclude that the district court did not err in concluding that the defendants’ use of the manuscript as evidence in the state-court proceeding fell within the scope of fair use authorized by
Purpose and character of [the defendants‘] use has nothing whatsoever to do with any interest that the copyright law was designed to protect. The copyright law was never designed to рrotect content as distinguished from mode of expression.
* * *
It was certainly never intended to utilize, to keep from the public the ability to state the facts in a document as compared to the mode of expression.
* * *
[Moreover], the effect of [defendants‘] use on the potential market for value of the copyrighted work is absolutely zero.
III
Bond also contends that the district court erred in awarding attorneys fees to the individual defendants as prevailing parties, under
Bond does not contest the amount of the awards, but he argues that the district court‘s findings on the factors relevant to an award of attorneys fees were not justified. He argues that he was only seeking to protect his rights under the Copyright Act and that his rights should not be chilled by an assessment of attorneys fees. He argues expansively that the question of whether the introduction of a copyrighted work into evidence was a fair use is a close question, particularly when there are no controlling authorities on point.
We review the district court‘s award of attorneys fees under
The Copyright Act provides:
[T]he court in its discretion may allow the recovery of full costs by or against any party.... Except as otherwise provided by this title, the court may also award a reasonable аttorney‘s fee to the prevailing party as part of the costs.
In applying these factors to the circumstances before it, the district court found that Bond‘s motivation in bringing his copyright infringement action was “to block potentially relevant evidence from being presented” in the child custody proceeding. In essence, the court stated that Bond misused the Copyright Act and that he was motivated by a desire to suppress the underlying facts of his copyrighted work rather than to safeguard its creative
We conclude that the district court, in reaching these conclusions, did not clearly err in its factfinding and, in applying the Rosciszewski factors to award attorneys fees to the prevailing individual defendants, did not abuse its discretion.
IV
The two law-firm defendants—McDaniel, Bennett & Griffin and Adelberg, Rudow, Dorf & Hendler, LLC—also sought attorneys fees under
Because of the absence of judicial precedents and in view of the insight provided by our decision in Doe v. Board of Education of Baltimore County, 165 F.3d 260 (4th Cir.1998) (denying statutory fees to an attorney-parent of a child with a disability who was a prevailing party under
The law firms contend thаt the district court erred in concluding that the law firms were proceeding pro se and that the cases of Kay and Doe preclude an award of fees to them under
This is an issue of first impression in our circuit, but its rеsolution may readily be derived from the Supreme Court‘s decision in Kay and our decision in Doe.
The principle that a pro se litigant who is not a lawyer is not entitled to attorneys fees authorized by a fee-shifting statute is
Even a skilled lawyer who represents himself is at a disadvantage in contested litigation. Ethical considerations may make it inapproрriate for him to appear as a witness. He is deprived of the judgement of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating legal arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom. The adage that “a lawyer who represents himself has a fool for a client” is the product of years of experience by seasoned litigators.
Id. at 437-38, 111 S.Ct. 1435 (footnote omitted).
In Doe, we applied the principles of Kay to a fee-shifting provision in the Individual with Disabilities Education Act (“IDEA“), denying a parent, who was also an attorney, a right to collect fees under thе statute for his representation of his child. 165 F.3d at 265. Even though a parent who was also an attorney was distinct from and therefore an agent for the prevailing child, who would otherwise be entitled to fees under IDEA,
But the principles of Kay and Doe, which were applied to deny a prevailing party attorneys fees under fee-shifting statutes, do not apply in circumstances where entities represent themselves through in-house or pro bono counsel. In Kay, the Supreme Court explained the distinction: “[A]n organization is not comparable to a pro se litigant because the organization is always represented by
Though representation of a law firm by one of its members presents an increased risk of emotional involvement and loss of independence, the law firm still remains a business and professional entity distinct from its members, and the member representing the firm as аn entity represents the firm‘s distinct interests in the agency relationship inherent in the attorney-client relationship. Although a given representation of a law firm by one or more of its members could suffer from a lack of independence, there is no indication in this case of a relationship that tended to distort independent judgment, as existed in Doe.
Because the district court indicated that it was inclined to award the law-firm defendants fees, although not all the fees requested, and would have done so but for the pro se prohibition, we now remand this case to authorize, but not require, the district court to award
V
The law-firm defendants also contend that the district court erred in denying their motion for sanctions under
Without expressing any opinion on how the motion for sanctions should be decided, we remand this issue to the district court for further consideration of the motion, taking into account our decision in Rector.
Accordingly, the judgment of the district court is
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.