Ellen Wright v. Warner Books, Inc. And Margaret Walker, Also Known as Margaret Walker Alexander

GRAAFEILAND, Before VAN McLAUGHLIN, Circuit MESKILL Judges.

MESKILL, Judge: Circuit court: “This In the words of the district chapter next presents the case treatment tinuing narrative of this Circuit’s dispute. That version charge of defense to a fair use published. was never Wright v. infringement.” War Books, ner consent, plaintiff’s Unable obtain question (S.D.N.Y.1990). principal portions of the earlier man- rewrote sparing defendants’ presented is whether published using uscript less of unpub expression from the of creative plaintiff’s Over works. journals of the late au lished letters new, expurgated version objections, this Wright constitutes fair use Richard thor Books Novem- published Warner others question This a matter of law. responded by bringing Plaintiff ber 1988. Wright’s appeal plaintiff Ellen arise from complaint May 1989. Her this lawsuit District of the United States from an order biography’s use of challenged the of New for the Southern District Court range Wright’s letters works: of a wide Walker, York, Judge M. by Circuit John 1930s, in the letters to Dr. Walker written summary designation, granting sitting by Margrit de Sabloni- translator dismissing judgment, plaintiff’s entries, ere, essay “I Choose contract, and libel infringement, breach of including Exile,” published and his works disagree por Although claims. we Son, Spain. Pagan Boy, Black Native analysis, district court’s of the tions entitled to dam- Plaintiff claimed she was conclusions and therefore agree with its copyright infringement, false des- ages for affirm. manuscript ignation origin, breach of a University agreement Yale

access between agreement plain- BACKGROUND Dr. of which and Walker beneficiary, third-party tiff claimed to be a dispute from over the This action stems a sought permanent also a and libel. She Afri- of the late publication prohibiting publication further injunction Wright, Richard can-American author best biography. of the and distribution his Native and Black known for works Son discovery completed, plaintiff in After copyrights holds the Boy. Plaintiff copy- on the summary judgment for unpublished works of her moved published and right Defendants thereafter cross- husband, biography, in 1960. The claims. who died summary judgment on all counts for Wright Daemonic Gen- moved entitled Richard fac- complaint. Finding no material ius, acquaintance of was written an Walker, held that disputes, the district court Wright, Margaret tual defendant Books, factors enumerated the four fair use published by defendant Warner 107 all favored defendants U.S.C. Inc. § summary judgment in their favor granted protracted dispute has taken three This copyright claim. The court dis- turns, par- each of which has narrowed the request permanent a plaintiff’s missed disagreements. Dr. first com- ties’ biogra- injunction and her claim that biography Richard pleted a draft of her Wright’s journals constituted phy’s use of Her Wright early in the to mid-1980s. of a research between breach time, University publisher at the Howard University’s and Yale Beinecke Press, sought plaintiff’s permission in 1984 voluntarily Library. Plaintiff withdrew large portions Wright’s unpub- to use designation origin. claim of false her published biogra- lished and works prejudice dismissed without The court due to its phy. Plaintiff refused. Whether jurisdiction. state law libel claim for lack plaintiff’s consent or to inability to obtain appeal dispute taken one dispute, On other factors unrelated to this most final turn. Plaintiff has abandoned University Press 1986 decided Howard longer chal- original A of her claims. She no publish Dr. Walker’s book. sec- not Dodd, Mead, lenges biography’s agreed then use publisher, ond however, challenge It, too, published works. Nor does she publish the later book. Margrit de the use of the letters written to publish its commitment to withdrew essay “I Ex- to this Sabloniere or of the Choose biography, for reasons irrelevant summary disposition copyright holder challenge the dis- does also ile.” She there are no material of her claims where her libel to dismiss decision court’s trict disputes. original claims factual plaintiffs Two claim. un- (1) biography’s use remain: alleg- letters and

published Copyright Infringement I. constitutes journal entries edly unpublished Copyright Section 106 Revi biography’s infringement, (“Copyright Act” or sion Act of 1976 Dr. Walker’s journal entries violates “Act”), 17 “confers bundle U.S.C. § University. agreement with Yale research rights to the owner of exclusive Row, 471 copyright,” Harper & DISCUSSION among them “the 105 S.Ct. at court’s a district Our review of right publication.” Salinger v. of first is de novo. judgment decision summary (2d House, Random Ins. v. Continental Herbert Const. Co. Cir.), Cir.1991). Co., We see 17 U.S.C. 98 L.Ed.2d all reason ambiguities and draw all Letters, resolve 106(3). literary like other non-moving inferences in favor of the works, able copyright protection, aré entitled party. Id. 94; jour at so also are Salinger, 811 F.2d nal entries. equal apply with principles

These statutory exceptions circumscribe Max Two question of fair use. See force to the First, rights copyright holder. Burtchaell, v. tone-Graham matter, Copy Cir.1986), denied, section 102 of the (2d a threshold 1253, cert. 1257-58 copyright protec 2201, right Act does not extend 1059, 95 L.Ed.2d 107 S.Ct. 481 U.S. Row, Harper or facts. & 471 (1987). a mixed tion to ideas Although use is 856 “[f]air 547, Only “origi fact,” 105 S.Ct. at 2224. Row U.S. at of law and question any tangi authorship fixed Enterprises, 471 U.S. nal works v. Nation Publishers ” 17 2230, expression, U.S.C. 560, 2218, 85 L.Ed.2d ble medium 539, 105 S.Ct. added), bearing 102(a) (emphasis “the (1985), on more than one occasion 588 § copy originality” are stamp of the author’s have resolved fair use courts this Circuit 547, at rightable. Harper & 471 U.S. summary judgment at the determinations Second, permits Act Maxtone-Graham, 2224. See, 803 105 S.Ct. at stage. appropriated Publications, original expression to be 1253; Berlin F.2d v. E.C. 107 Cir.), denied, Section (2d in certain circumstances. cert. 329 541 copyrighted use” of a 822, 46, that the “fair 13 L.Ed.2d 33 states 379 U.S. copyright in Assocs., infringe does not work Time Inc. v. Bernard Geis copyrightable use of (S.D.N.Y.1968). that work. Whether F.Supp. 293 130 “‘[T]he on a case- expression is fair is determined of the fair fact that a determination mere the context of the four by-case within requires an examination of basis question in section factors enumerated not non-exclusive specific facts of each case does 549, at 105 471 U.S. case necessarily mean that in each involv Int'l, 2225; New Era Publications issues be S.Ct. ing use there are factual fair ’ ” (New I), 873 Maxtone-Graham, Henry Holt Co. Era ApS 803 F.2d at tried. Cir.) (Oakes, C.J., 576, (2d concur Nizer, 588 (quoting Meeropol v. 1258 Cir.1989), (2d denied, F.2d 659 ring), reh’g (S.D.N.Y.1976),rev’d in F.Supp. 1094, 110 denied, 493 U.S. S.Ct. rt. 560 F.2d 1061 part grounds, on other ce (1990). Those' Cir.1977), 107 L.Ed.2d (1) purpose and character (1978))(brackets factors are: “the 54 L.Ed.2d 756 use;” (2) copy of the Maxtone-Graham). “the nature The fact- of the inserted (3) work;” “the amount and sub- righted fair use determination driven nature of the in relation to stantiality portion used suggests that a district court should be whole;” as a copyrighted granting Rule 56 motions cautious upon potential area; however, effect of the use protect it “the does examples These are emblematic of copyrighted for or value market reaching para- quoted passages 107. Before from the letters 17 U.S.C. work.” use, however, journals we phrased portions of the letters and question copyright protec- whether should determine that are not entitled to expression. appropriated fact or por- Because we conclude that some tion. and letters con- journal tions of the entries Expression? A. Fact or expression, we dis- tain at least borderline portions the district passages agree which with those Most of the allegations biog- opinion her that intimate that the plaintiff bases court’s ideas. The convey facts or infringement raphy only facts from let- takes journal entries— are ten copyrighted F.Supp. works journals. ters and See January one from Febru eight from entries), (letters). (journal September 1947 — and ary one from interpretation Under a liberal Dr. Wright to Walker. six letters fact/expression dichotomy, para- three paraphrases portions fourteen phrased Wright’s journals sections of portions These the ten entries. quoted four one to All two of them are short. but protected by copyright. letters are Unless long. importantly, Most three sentences applies the doctrine of fair use to these jour taken from the the fourteen sections appropriations, they infringe- constitute three, entries, generous nal under a ment. reading expression, adopt Wright’s crea style. quoted in the district tive Two are B. Fair Use? opinion. court's at 110 n. Purpose Character Use remaining 3. The one involves literary techniques agree he em We the district court’s discussion of the with however, these, ployed in his works. The analysis Even of the first fair use factor: figurative appro biography’s do not involve the kind of purpose and of the character in priation Salinger. that was condemned use of the letters and of Yet, purposes F.2d at 96. clearly See 811 for Wright’s journal entries favors de biography’s appeal, we will treat the 108. Dr. fendants. Id. at Walker’s book portions paraphrased use of three of the such, scholarly biography. “fits As it expression. journal entries as borderline statutory comfortably within several of the categories Congress has indi of uses” that biography’s The use six ‘criticism,’ may cated be fair — “ ‘scholar Wright/Walker letters merits similar treat- ” ship,’ Salinger, and ‘research.’ pas- biography copies ment. The ten brief 96; analytic re at 17 U.S.C. 107. sages paraphrases from the letters and five search contained in Dr. Walker’s para- equally short of them. The goals by furthers the of the laws (includ- phrasing solely communicates facts adding prior intellectual value to labor. ideas) ing relating in some to events Moreover, strong presumption there is a Wright’s life and mutual interests of the if that factor one favors the defendant correspondents. quoted Of the ten sec- allegedly infringing descrip fits the tions, Wright’s stamp four bear of creativi- in 107. tion of uses described section ty and meet the threshold test of “ catego a book falls into one of these protection. tersely convey ‘[I]f six The other criticism, [i.e., research], scholarship ries mundane details of life and serve assessment of the fair use factor first friendship illustrate Dr. Walker's ” end,’ should be at an Era Publications One, New Wright. example, explains with 'l, ApS Publishing Int v. Carol Wright’s regrets having at written ear- (New II), lier; Group Era 156 requests permis- Dr. another Walker’s Cir.) I, (quoting New 884 F.2d at 661 poems; sion to use one of her still another Era (Miner, J., requests clippings regarding concurring rehearing in denial of a murder sto- — banc)), U.S. -, ry; in 111 and a fourth discusses how much mon- ey (1990), Dr. Walker will need to visit New York. S.Ct. 112 L.Ed.2d 251

737 ease, raphy.” at 111. court biog- though, as will often be ” “ journal ruled for the defendants profits,’ also ‘anticipate rapher publisher Although recognizing that most II, (quoting Sal- entries. F.2d at 156 Era New previously entries had “not 96). 811 F.2d at inger, 110, the print,” in id. at appeared only one chal Plaintiff raises neither that factor two “favors determined analysis.. court’s She lenge to the district balance, I overwhelmingly, on side but in faith” Dr. “bad argues that Walker’s it favors defendants.” Id. at clude plaintiff or to give the letters to refusing to princi- The court rested its conclusion “indi permission to use them her obtain (1) pally grounds: three purpose of the the character cates directly quoted, rather “paraphrased, than of ‘criticism’ is outside the realm Book work;” (2) paraphrasing in- ” correctly refers ‘scholarship.’ Plaintiff “straightforward repor- factual volved Supreme Court’s observation tous privacy interests were tage;” and no con propriety of the defendant’s “'the implicated death view ” to the “character” is relevant duct’ disagree at 110-11. We with 1960. Id. Row, U.S. at Harper use. analysis. Nimmer, (quoting Copy at 2231 M. Unpublished works are the favor (1984)). 13.05[A], at 13-72 She right § sons of factor two. “The fact that ite errs, however, concluding Dr. Walk critical element of work is is a Dr. conduct acted in bad faith. Walker’s er ” Row, 471 U.S. at ‘nature.’ practices its similarity sharp no bore “ ‘scope 2233. The 105 S.Ct. at Row where condemned “[t]he respect unpub narrower knowing found that The Nation trial court right to because ‘the author’s lished works’ purloined manuscript.” ly exploited a his public appearance first control Harper & weighs against such use of the expression to Dr. 2232. Here the letters were sent at I, its release.’ New Era work before Walker, recipient not stolen her. As the (Oakes, C.J., concurring) (quot letters, Dr. Walker was entitled ing U.S. at Harper & Salinger, 811 F.2d at 94- keep them. See 2232). biogra the context of In event, gave S.Ct. actually letters, unpublished of we have phers’ use biog the six letters before the plaintiff well inquiry conclud the further. We narrowed published. Equally meritless is raphy was of the issue in paragraph analysis a one failure ed plaintiff’s claim that Dr. Walker’s use is I in this “Where New Era fashion: let get plaintiff’s permission to use the ‘unpublished na of materials of an 'made analysis. this As the district ters affects ture,’ yet factor has the fair use observed, second permission aptly the lack of court infringer, and we applied in favor of an be point” long Dr. as Walk is “beside copyrighted not do so here. ‘Since do use meets standards er’s second factor unpublished, the letters are question F.Supp. at we now weighs heavily in favor Era].’ regard [New to the remain examine further with I, (quoting 873 F.2d at Salin New Era ing factors. then, 97). precedents, ger, 811 F.2d Our for discussion this little room leave Copyrighted 2. Nature Work that the once it been determined factor held that factor The district court copyrighted unpublished. respect to the defendants with favored two there three letters, though Against backdrop, Wright/Walker analysis. court’s problems the district unpublished. support with letters were foremost, (1) gave court conclusion, insuffi- the court noted that First and its letters, status of weight unpublished to the paraphrased the cient Second, as journal not to recre the letters and entries. “used the letters earlier, appropri- of the some expression, creative but sim indicated ate Wright’s expres- conveyed necessary biog- passages ply facts to her ated to establish Third, language. below, (S.D.N.Y. F.Supp. sive the court’s ratio- 1983)). II, are not to factor To nales relevant two. be See New Era 904 F.2d at 158. sure, infringer paraphrased whether the or Quantitatively, the district found copied, he borrowed fact or ex- whether that Dr. Walker used no more than one pression, implicates or whether his use percent letters not, privacy may interests or author’s all journal entries. 748 at 112. infringement equation. They enter into the percentage may higher While this be with just bearing have no on factor two. Factor alone, respect to the letters it is clear that solely two focuses on the nature of the Dr. very portion Walker utilized a small copyrighted explana- work. court’s those letters. Plaintiff does not address apply aspects analysis tions to other the district analysis court’s on this score or in piggyback and cannot be used fashion to any why, offer quantita- rationale from a together hold a weak link in the fair use perspective, percentage tive the minimal Thus, calculation. while these aforemen- the works taken should favor her. may, tioned three concerns and do Qualitatively, plaintiff places undue em- case, help placed to overcome the burden phasis quoted passage on a from one letter on justify defendants who seek to use of paraphrase journal entry. and a from a materials, they figure do not True, fifty-five passage word from the inquiry. into the factor two New See Era gives letter a reflective account of I, (Oakes, C.J., concurring). F.2d at 593 writing, para- views the art of and the plain- We believe that factor two favors the phrase conveys expression regarding some tiff. development views of his as a quoted passage writer. The styl- is indeed Substantiality Amount and However, only quoted piece istic. it is the the Portion Used expression represents anything The district court determined that point close to the central communicated in factor three favored the defendants. We journal entry, of the letters. The al- agree. This factor addresses “the amount though admittedly it deals with a fascinat- and substantiality portion used in ing topic, carefully paraphrased and in relation copyrighted to the work as a way preempts no the other entries. 107(3). whole.” 17 U.S.C. We examine passages, along These other five the volume substantiality of the work copyright protection, that merit have no used with reference to the copyrighted plausible parallel in the passages critical work, allegedly not to the infringing work. taken from President Ford’s memoir dis- Harper 564-65, 471 U.S. at cussing pardon his decision to President 2232-33; II, S.Ct. at New Era 904 F.2d at Nixon, which indeed were the “heart” of But see copyrighted work. 565-66, 105 2232-33; Salinger, Row, 564-65, 471 U.S. at 105 S.Ct. at 2232- (considered F.2d at 99 infra). Both direct Moreover, in contrast to Harper & quotes paraphrases and close count as be Row, it is unclear whether the letters and ing “used.” 811 Salinger, F.2d at 97-98. journal entries in this case even have an quantitative factor also has both a and appropriat- “identifiable core that could be qualitative II, element to it. New Era (This Maxtone-Graham, ed.” 803 F.2d at 1263. result, 904 F.2d at 158. As a the factor has There is some favored confusion whether factor por holders where the tion three significant used formed a also should be examined in percentage relation to work, see, copyrighted allegedly the infringing work. Salinger, New Era (one-third 811 F.2d at II flatly rejected 98 of the seventeen let view that factor three percent ters and ten forty-two should letters be considered relation to the work “ used) or portion where the infringement, used was ‘es accused of yet recognized sentially the heart of’ copyrighted prior the that analyzed cases have the issue work, Harper Row, 471 See, U.S. at perspective. from this e.g., Harper & (quoting S.Ct. at 2233 the district 565-66, S.Ct. 2233- journals. In con- Wright’s letters in in- role a central played (quotes I, marginal New Era per- Salinger to and trast up thirteen made fringing and work taken (quot- expressive content were at 99 it); 811 F.2d amounts Salinger, cent of read- And was tak- worth works. what the book sections ed “ma[de] small, por- briefly factor unfeatured represents discussed It therefore en ing”). at 159. biography in no biography. See The in this context. three tion the lan- II jour- Era and agree with New letters way supplants We us to does not direct guage of section for these Impairment of the market nals. in- to the in relation factor three examine unlikely. works However, our because fringing work. po- has shown insists that she Plaintiff factor gloss to applied this have precedents grounds impairment on the tential market gives perspective three, and because agreed co-editors she and two inquiry, the fair use to added dimension an publish a collec- 1969 to & Row in the amount briefly too consider we letters, plaintiff which tion passages protected substantiality of the include the claims would infringe- accused to the relation agreement an to letters. existence the quantitative perspective, From a ment. however, letters, com- not publish the does slight frac- comprise a expressive plain- factor finding favors pel a most, pages two the tion —at apparently re- the While tiff. pic- qualitative page book. effect, been little has done mains The bor- plaintiff. brighter for is no ture decades, copies though project in two Dr. Walker’s expression enhances rowed given to Wright/Walker letters were her credi- to establish analysis and serves years ago. Plain- five plaintiff more than Wright, who, having one known bility as project that the has offered no evidence tiff Yet it into his career. unique insight ahas there is evidence go forward. What will reading.” worth not “make book does contrary. In a 1979 letter to suggests the at 99. three Factor Salinger, Row, plaintiff wrote Harper & defendants. favors until she obtained wait project should Ellison, Walker, Ralph Wright’s letters on the Market Effect she In the letter George Padmore. dis agree with the Finally, we impor- emphasis on the placed particular four also that factor conclusion trict court’s Padmore obtaining the Ellison and tance fo factor The fourth defendants. favors however, Ellison, refused to has letters. upon the on “the effect cuses possession, in his letters give plaintiff the copy market for or value of potential have been Wright/Padmore letters This, 107(4). 17 U.S.C. work.” righted thus of the collection Publication lost. said, is has “undoubted Supreme Court However, even highly improbable. seems important single element ly the most forward, can go project were if Harper & use.” fair The six Walker of harm. no likelihood see of this factor Analysis at 2233. “ mi- represent a presumably would letters ‘the benefit requires us balance and, collection component of the nor permitted if the use is public will derive of them sparing use event, Dr. Walker’s owner gain personal little, supplant anything, if done if use is denied.’” receive will the realm fact, beyond “it is them. MCA, Inc. v. Wil (quoting at 112 book possibility that Walker’s] [Dr. Cir.1981)). The son, further interest might stimulate must be attributable effect on the market Maxtone-Graham, [Wright’s letters].” biogra in which the seven to the instances F.2d at 1264. expression. Disclosure Wright’s phy takes shown, content, as we have of factual category point under this Plaintiff’s final monopoly. the proscribed by not the argues that She attention. merits brief the incorrectly categorized pose not a district biography does Dr. Walker’s concluded, aas published as market potential the letters significant threat result, already exploit The literary the letters “have se book does not the value that section, part, journals. letters or or at least some Nor does it cured that marketability Wright’s diminish the might hope target.” let plaintiff market the journals publication. ters or for future alleged publica The F.Supp. at 113. biography While the draws on works that printed por occurred Dr. Walker tion when unpublished characterized have for the letters in the tions of some of purposes appeal, of this it takes The court thus in 1971. New Letters protected segments seven from designated all of the let should not have journals. letters and These Moreover, published. it is doubtful ters as insignificant, short possible with the letters, having been disseminat that those exception fifty-five description word infringer by alleged plain without ed the art of writing. This use is de minimis given “publish permission, tiffs should be beyond protection Copyright copy consent of the ed” status. “[T]he (“If Salinger, Act. 811 F.2d at 96 he Cf. right finding is essential to a owner copies (un more than minimal amounts of Janssen, ‘publication.’ Testa published) expressive content, he deserves (W.D.Pa.1980) (citing Bar enjoined.”). short, to be is not Hawkes, Inc., Boosey tok v. reprise of Salinger and New Era I. The (2d Cir.1975)). error, This how biography’s Wright’s expressive use of ever, does not undercut our earlier conclu works is modest and serves either to illus sions. Factor four favors defendants. points trate factual or to establish Dr. correctly The district court held author, relationship Walker’s summary that defendants were entitled to prose. to “enliven” her Because there are judgment. Three of the four fair use no disputes impede material factual clearly factors favor defendants. The our determination of fair we conclude copy one that does not—the nature of the appropriate grant it was defen righted work—raises an obstacle to this dants’ summary judgment motion for conclusion, not an but insurmountable one. plaintiff’s dismiss claim of in In Salinger, we held that fringement. “normally enjoy complete protec works II. Third-Party Beneficiary against copying any protected

tion Contract expres Claim added); sion.” (emphasis 811 F.2d at 97 see Plaintiff also contends that Dr. (“Under S.Ct. at 2228 ordinary circum Wright’s journals Walker’s use of violates stances, right the author’s to control the agreement an between Dr. Walker and public appearance first of his undisseminat University’s Yale Library. Beinecke Plain expression ed outweigh will a claim of fair brings tiff third-party this claim as a bene use.”) added). (emphasis Neither Salin ficiary of the contract—as owner of the

ger, case, nor other copyrights in the materials covered however, per regarding erected a se rule contract. Yale obtained the materials in unpublished works. The fair use test re Archives, Wright including Wright’s totality inquiry, mains a tailored to the journals, $175,000. plaintiff particular facts of each case. Because this record reveals no direct evidence determination, is not a mechanical party signed library need opponent not “shut-out” her issue. For purposes considering defen four tally prevail. factor dants’ summary judgment motion for claim, however, we will assume that Weighing amalgam relevant signed agreement. factors, we are convinced that defendants’ use of works is fair. Dr. Walk- agreement requires the scholar to er’s Wright Richard is a by, among rules, abide other this one: work, scholarly one surely will contrib- University Library manuscripts may “Yale public’s ute to the understanding published of this part not be in or in whole unless important Twentieth Century publication specifically novelist. such authorized.” interpretation restrictive “[A]ny more Wright’s journals did use Dr. Walker’s agreement agreement amount to a find- agreement. The ... would this not breach partial “publication” sought prevent or to ing University wholesale that Yale restricts para- speak not to manuscripts. It does airing facts rather than the of historical ideas, or nor even facts phrasing of of another’s creative exploitation unfair manuscripts. contained expression, style finding at odds imagination or —a earlier, did not indicated As we very purpose great universi- with the Her care- Wright journals. quote from sum, 114. In ty.” Wright, 748 F.Supp. moreover, ex- almost paraphrasing, ful “pub- reference to agreement’s because less factual, exception of with the clusively para- its face refer to lication” does not on insignificant instances than a handful phrasing, plaintiff has offered and because ex- creative adopted borderline she where convincing why the rationale no evidence common sense to It defies pression. prohibit fair af- agreement would scholars agreement giving as this strue court’s decision to dismiss firm the district manuscripts one hand but to access beneficiary third-party claim. plaintiff’s using man- prohibiting them then way with the any meaningful uscripts in CONCLUSION no evidence Plaintiff offered other. judgment of the district so agreement to be intended the that Yale affirmed. pointless. present also has

Plaintiff failed GRAAFEILAND, Judge, indicating Yale intended Circuit evidence VAN Judge preclude fair use. concurring: agreement does found “[t]he Alexander, a distin- Margaret Walker exclu- contemplated the appear to have not teacher, author, has writ- poet and guished by biographers.” of fair use sion includ- of well-known works a number ten agree- Construing similar F.Supp. at 114. which won the ing novel Jubilee ments, a like conclu- Judge Leval reached Fellowship Library Houghton Mifflin Salinger: sion Alex she sued in 1966. Award agree- scope intention [the] [T]he Co., Inc. and Double- Haley, Doubleday & literary property protect are to ments District Publishing in the Southern day Co. give the and not to interests of the owner among things, other alleging, York of New power to arbitrary copyright owner an Roots, by Haley and written book non-infringing use. legitimate block infringed her Doubleday, published _ under- [Tjhis should be restriction made Alexander copyright in her novel. only quotations and applying stood against arguments substantially the same copyright. To excerpts infringe Wright Doubleday that Ellen Haley and forbidding any absolutely them as read lost. making against her. She now is ap- how limited or quotation, no matter granted the Judge Frankel Then District proper, severely inhibit propriate, would summary judgment motion defendants’ an arbi- scholarly place lawful reported at opinion in a well-written trary power the hands F.Supp. 40. beyond protection going far owner if, in the instant ironic indeed It would be by law. provided reversed, role is Alexander’s case where (S.D.N.Y.1986),rev’d my col- fully I again. concur she lost (2d Cir. 811 F.2d 90 grounds, on other litigation leagues’ decision to terminate 1987). Here, para where the material was separately be- I in her favor. write closely in instanc most phrased —not Alexan- arguments I cause believe paradoxical particularly es—it seems ap- than would stronger der’s behalf conferring agreement as construe In the opinion. majority pear from the holder greater protection my far as go as I would place, first Copyright Act. provided by the than that finding copyright- gone colleagues have accurately stated: Judge Walker As 742 O’Neill, 603, air”,

ability. Secondly, determining Lewys the issue v. 49 F.2d 607 (S.D.N.Y.1931), world”, place emphasis Tay I less or “free to the would infring- Studios, allegedly Metro-Goldwyn-Mayer lor 115 the fact that some v. 156, unpublished. F.Supp. (S.D.Cal.1953); 157 nor did it ed matter was encompass incorporated facts or real occur rences, public held to which were be in COPYRIGHTABILITY domain, Enterprises, see Rosemont Inc. v. In.deciding Alexander’s in- whether book House, Inc., 303, 366 309-10 Random fringed Wright’s copyrighted works, upon (2d Cir.1966), denied, 1009, cert. 385 U.S. sight of the we must not lose fact that 714, (1967). 17 87 S.Ct. L.Ed.2d 546 These may popularly much in what is be “[t]here exceptions traditional are now covered copyrighted called a book as which the 102(b), 17 supra. statute. U.S.C. Sim § protection.” affords no Dymow statute v. ply put, may copyright “no author facts or 690, (2d Cir.1926). Bolton, 11 F.2d 691 A Publishers, ideas.” & Row v. Inc. copyright gives in a book the author no 539, 547, Enterprises, 471 Nation U.S. 105 monopoly of its contents. Book Oxford 2218, 2224, (1985). 85 L.Ed.2d 588 Co., College Co. v. Entrance Book 98 F.2d against In Alexander’s unsuccessful suit 688, (2d Cir.1938). 691 “In no case does Haley Doubleday, the court held that copyright protection original for an work of alleged by the similarities Alexander were authorship idea, any procedure, extend to they solely irrelevant because related process, system, operation, method of aspects protect- of her works that were not cept, principle, discovery, regardless by copyright. ed 460 at 44. The described, the form in explained, which it is protection court held copyright that no illustrated, or in such work.” 17 embodied could be claimed similarities matters 102(b). Moreover, U.S.C. because a § fact, contemporary of historical or id. claim to is not examined for basic 44-45, material traceable to common issued, validity before a certificate is sources, custom, public domain or folk 1476, H.R.Rep. Cong., No. 94th 2d Sess. 45, i.e., “incidents, faire, id. or scenes a (1976), reprinted in 1976 U.S.Code settings prac- characters or which are as a Cong. 5659, 5773, pp. & Admin.News indispensable, tical matter or at least stan- presumption validity prescribed in 17 dard, in given topic.” the treatment of a 410(c) U.S.C. does not obviate the need Id. The district court continued: excerpts for a full examination of from a group alleged infringe- Yet another copyrighted work very that are not the ments is best described as cliched lan- event, heart the work itself. guage, metaphors very and the words statutory presumption binding is not language which the is constructed. judiciary, may which make its own unfet- metaphors subject Words and are not tered excerpts decision whether the are copyright protection; phrases nor are Barnhart, copyrightable. See Carol Inc. expressions conveying an idea that 411, Economy Corp., Cover be, typically, expressed can or is in a Cir.1985). stereotyped limited number of fashions. prior Even to the enactment of the first Id. at 46. 1790, American statute recognized course, common law that authors holdings had a Of the district court’s protectable proprietary binding interest in their simply are not on this court be Stein, handiwork. Mazer v. party U.S. cause Alexander was a in both cases. 214-15, 460, 469-70, However, 74 S.Ct. 98 L.Ed. principles summarized above Pictures, sound, Warner Bros. opinion Inc. v. Co and the district court’s Inc., Broadcasting Sys., lumbia approval by 216 F.2d has been cited with several (9th Cir.1954), courts, appellate See, including our own. (1955). 75 S.Ct. 99 L.Ed. Studios, Hoehling City v. Universal However, (2d Cir.), this interest did not include the cert. de ideas, nied, author’s which were said to be “free was of such a nature in that case Corp. v. fendant Games Atari L.Ed.2d 49 condemna the Court such (D.C.Cir.1989); as to elicit from 878, Oman, F.2d “scooped”, “pirated”, “ex 907, (9th tory words Freeman, F.2d v.

Narell “clandestine”, and “purloined”, I principles, ploited”, Cir.1989). by these Guided 556, 562-64, 105 S.Ct. at at copyrighta “chiseler”. Id. amount that the hold would foregoing 2228, 2231-32. Because infringed by Alexan allegedly ble material factors, not an ideal Harper Row is & all, so minimal that der, at was if existent one, the instant for a case like precedent not be reached. need of fair use subject biography that was writ a involves set forth which Wright’s example, statement For subject by friend of the good in faith a opinion, 748 ten district court’s in the infringing uses allegedly in which the a critic had and 3, that the effect 110 n. to at minimal, qua quantitatively both that Wright’s were work condemned See, litatively. shiver, Maxtone-Graham pure state was made him Cir.1986), 1253, (2d Burtchaell, com also was of fact. So ment 1059, 107 denied, fogey rt. The “old “life is cold”. ment ce event, (1987). any In 2201, 95 L.Ed.2d 856 times turning around three superstition” that, Harper remains when fact in footnote is spitting, also contained “the stated cus Court metaphor that Row stereotyped simply a key, though not of a work is substantially the nature expressed ‘[a] in tomarily is determinative, tending factor’ necessarily a pas fifty-five word manner. same use”, id., 471 negate defense of fair correctly de my colleagues sage, which at the Court at 105 S.Ct. U.S. reflective as “a account scribe “expression”, discussing the author’s in writing”, is similar act of view 555-57, Id. at or his facts. his ideas writings to those nature “life, at 2227-28. 105 S.Ct. dealing his with L. Ron Hubbard relations, the religion, human his views sum, colleagues place too my I In believe factu Church, etc.”, described as which we unpublished nature emphasis on much New Era Publications al or informational. See discussing factor in words Publishing 'l, ApS v. Carol Int it is my opinion, In of 17 U.S.C. § Cir.), Group, 904 whether the important determine more — -, 111 S.Ct. author’s work portions of an pertinent (1990). L.Ed.2d expression than facts, ideas or stituted ex- assumes the of fair defense To the ex- published. they were whether if my opinion, infringement. istence or ideas rather they constituted facts tent in instant infringement is there uncopyrightable they expression, than de minim- case, and so it is technical best is irrelevant. publication vel non actionable. as not be outset, I am in whole- As stated at the colleagues’ de- my hearted FAIR USE only to I written affirm. have cision to It is unfortunate my strength of conviction. emphasize case on the issue the seminal supra, separate attempt the Court did not uncopyrightable copyrightable from the Judge detailed fashion the same Appeals. did the Court Kaufman In the words of 202-09. Brennan, who dissented

Justice no majority the Court “[found] copyrightabil- to resolve the threshold

need U.S. at

ity issue.” 471 decisis, it also purposes of stare For of the de- the conduct unfortunate that

Case Details

Case Name: Ellen Wright v. Warner Books, Inc. And Margaret Walker, Also Known as Margaret Walker Alexander

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 21, 1991

Citation: 953 F.2d 731

Docket Number: 1762, Docket 90-9054

Court Abbreviation: 2d Cir.