*1 OAKES, Before MINER and ALTIMARI, Judges. Circuit MINER, Judge: Circuit Preface re-visit the doctrine of fair use in this We copyright infringement brought action for biography enjoin publication of the Scientology founder L. Ron Hub- Church of *2 filing complaint, diately al- after the New Era damages for the recover and to bard restraining applied temporary for a order. biography, writ- infringement. The leged ten the (hereafter ah: The New Era Publications The holds (“New Hubbard, published and queathed to biography amounts copyrights it holds unpublished material district (“Holt”), “fair” and action, appellee here. meaning of the plaintiff extensive the use of book, by license certain Russell court concluded Era”), is the True who “the book” therefore not is entitled: Bare-Faced Henry Holt and the Church of Miller, died reproduction of Hubbard’s Story a Danish defendant the Hubbard is met Holt’s defense to suit, New Era’s claim Copyright Act. The who or “the 1986. “cannot be held infringement of the that the use International, ApS L. Ron Hubbard appellant infringing within corporation. is not a writings in the copyrights be- Scientology by the action Company, Inc. biography”). materials is publisher party to here, Messi- and to It noting the signed dated it turned plaintiff books Never to collect copies ed the steps to obtain a rary May 4 loading and Canada. Never did the Holt when it would be determine whether shipped beyond 12,000 copies, temporary 3,000 copies that a trucker had failed May restraining in the district Leval, on [1988] book, having printed did the dock, did not take following out, 13, April restraining 1988: to whom this case was as- when it the defendant had which plaintiff 27. With the order. first having sent out copy of the court, in a it differed from the England, publisher’s any legal step sought printing order for By written published. The take sufficient initially waiting plaintiff Australia, exception had book to time, decision publish- control. packed laches, tempo- review denied on the been until ask and therefore found the fair use test” pass orders, had sched- fill additional Holt To degree to some Messiah “that Bare-Faced print May run for uled a second copyrights in some of infringes Hubbard’s International, ApS Era Publications New unpublished works.” New previously his Co., 808, Henry Holt and International, ApS v. Era Publications (S.D.N.Y.1988). 809-10 Co., Holt and Henry 20, 1988, later, May A on after week (S.D.N.Y.1988). For rea- various 1524-25 undertaking to agreed post an New Era however, sons, court declined to the district any “unrecoverable ex- indemnify Holt for relegated instead injunction, an issue during period by Holt penses” incurred damages. remedy We Era to the granted temporary delay, Judge Leval affirm, laches is although conclude that we restraining restraining order distribution injunction. issuance of an the sole bar to According of the book. printing the second parties on signed by the Stipulation ato
I. approved by Judge Leval May 1988 and 3, 1988, expenses” “unrecoverable on June History Procedural overhead, pro “a rata share include preceded by lawsuits This action was 10,000 second respect with enjoin publication in in 1987 to commenced print- from the first printing any books (each of these suits England and Canada Holt, result of the ing as a returned laches) and in Australia was dismissed by the Restraining Order issued Temporary withdrawn). De- (this ultimately was suit incurred with May 1988 and on Court attorney representing spite the fact that to the au- payment advance respect to the correspond- Scientology had Church of advertising publicity.” thor, and for May of 1986 an effort ed Holt Thereafter, with an book, parties proceeded no ac- discourage publication of evidence expedited trial on submissions commenced publication was enjoin tion injunction permanent pertaining to the complaint in until the in the United States opinion and order Judge question. Dis- filed the Southern this action was on Au- was issued denying Imme- May of New York on trict program, far ambitious 16, 1988) founded a August (amended on 9, 1988 gust religion Scientology, a new judg- partial and, August adepts ability to give its “dismissing plaintiffs claimed entered ment was of the mind and complaint diseases all overcome only insofar complaint injunction.” body.... permanent of a entry seeks dam- that trial of the recites judgment years he sailed the nearly ten For *3 in the near conducted not be ages issue will of his the commodore own as oceans “irreparably future; Holt would by nymphet messen- navy, served private judg- a to await final required if harmed” and un- dressed pants in hot who gers claims; that Holt is of all dispositive ment trained like robots him and dressed denying per- judgment a final entitled in tone of voice. relay orders his no “there is and injunction; manent judg- entry such delaying of for just reason 54(b). peripatetic as and years were Fed.R.Civ.P. His last ment.” See par- more youth, and far as his unsettled on Au- court in the district Also entered arrest, disap- he fearing In anoid. vacating the order an 1988 was gust again. He seen and never peared was staying restraining order temporary 1986 under circumstanc- January in died maintain for three weeks the vacatur enigmatic his life mysterious as es application pending an ante quo status itself. 80,1988, August this appeal. On expedited an Era’s motion for in author’s granted is set Court The tone of the book stay continued the appeal and expedited Introduction: argu- Following oral argument. until oral thirty years, Church more than For 30, 1988, stay ment, September vigorously promoted Scientology has decision pending continued Hubbard, founder, L. Ron image itsof Court. and philosopher a romantic adventurer prepared fortuitously early life whose II. Christ, for him, Jesus in the manner of the world. The Book to save declared mission his ‘Ron’, superman and glorification of The the contents summarizes publisher The disregard for saviour, cavalier required a book’s printed on the in book a blurb of the biogra- every is that almost thus it facts: jacket: by the church phy of Hubbard Messiah, biography Bare-Faced lies, and half-truths is interwoven with Hubbard, for extraordi- makes L. Ron The won- ludicrous embellishments. early as a days his reading. From nary deception is that irony of this drous science fiction “pulp” author of penniless is much Ron Hubbard story of L. true end, Hubbard mysterious to his stories improbable, bizarre, more much news, usually odds in the was often lies. any of with trouble society, frequently of a the son factual to contrast purports Born author The law. businessman, he led life in of Hubbard’s struggling Nebraska and fictional accounts youth book, drawing chapter romantic wandering, wildly every almost often gleaned his realities numerous from upon which his dreams and information pub- other stories and newspaper confused. became sources: interviews; let- accounts; personal lished pulps writing While court memoranda; ters; records various a dis- have made 1930s he claimed to under the obtained proceedings; materials psycho- and philosophical of such covery Act United from of Information change Freedom it would logical importance that agencies; publications government discovery States evolved world. From that Scientology; and Hub- Church pros- of Dianetics the “science” unpub- published and writings, own a sea bard’s foundered in briefly then pered writer, and prolific Hubbard was lished. In 1952 Hubbard and writs. of debt at, physics and atomic quotations course molecular biography contains liberal from, graduated George work, unpub- Wash- particularly from his never from his ington University; out do re- journals. started early diaries and lished expedition search in the Caribbean on an chron- proceeds conventional book completed pro- that never was and never commencing Chapter order, ological any research be found at duced that could (“A Prodigy”) with accounts Dubious Michigan Hydro- University or the ancestry early childhood. Hubbard’s Office; graphic spent some time in presented by Hubbard are accounts produced Puerto Rico but no known record exaggerated untrue. For portrayed as mineralogical any research there. example, Hubbard’s contradicts Chapters Both 2 and 3 include extensive that he was descended claims side; quotations that he from Hubbard’s French on his mother’s Count ranch owned Asia Diaries of 1927-1929. Some grew up on an immense cattle Montana; quotations chapters in these are set *4 grandfather in and that found by his opin- comprehensive Pikuni in a blood brother of the forth he became sought years age. denying of ion and order he was ten Indians before by New Era. See 695 at 1512-13. (“Whither did he Wan- Chapter In quoted length The Diaries also are some der?”), refutes Church of Scientol- the book Chapter 1 in the accounts Hubbard’s descriptions of Hubbard’s ogy publication Boy exploits as a Scout. Id. at Sev- travels, teenage said to have been financed enty-three passages of the 132 from Hub- up down wealthy grandfather: and by a unpublished writings by claimed bard’s to several times and the coast of China infringing Era are found in the as (where lived with bandits Tibet Hubbard remaining fifty- Most of the Asia Diaries. life); way in him into their accepted who passages nine are taken from letters writ- (where demonstrat- Manchuria he western ten Hubbard. warlords); horsemanship ruling to ed his to chapters In the book treats with in the South Pacific later an unnamed island science pulp successes as a and (where by exploring Hubbard’s he calmed the natives writer, membership haunted); his admission to and in the fiction to be a cave believed Club, his lead- prestigious Explorers (where night in one a in the Philippines he learned Radio-Experimental ership of the “Alaskan Igoroti). language native known flag, and his Expedition” under the Club’s (“Explorer Man- Disputed Chapter in in a reserve officer 1941 commission as Into in Mission made claims qué”) Navy. It also deals with United States Time, Scientology publication, a Church of contradicting a number information traveling years spent that Hubbard: four times at various claims made Hubbard Asia; study of nuclear in undertook the publications: in repeated and authorized Washington University physics George savage peoples and cultures that he studied taught ever in one of the first courses 1941; 1938 and America between Central university; di- subject at an American pilot; experienced airplane an that he was rected, twenty, age at the the Caribbean Kar- salvaged the careers of Boris that he Expedition, provided Motion Picture Hollywood script Lugosi as a loff and Bela Michigan University of research for the seriously writer; a wound- and that he was Hydrographic films for the and underwater twenty-one hero who was awarded ed war Office; the West Indies Mineral and led medals, of the con- identify only few miner- complete first Survey, said be the tradicted claims. According alogical survey of Puerto Rico. how describes Hubbard book, that Hubbard The book the truth is of Dianet light his new “science brought in the for two months traveled China magazine ics,” in the first in an article during the course company parents of his then in a Fiction and Astounding year-long stay at the United States Science of a Dianetics, Modem Guam, entitled The Sci his father Station in where Naval Health, officer; which became assigned failed the ence Mental was as a naval Chapter 21 is described at Dianetics, tology themes Hubbard claimed In bestseller. Movies”). (“Making Also described of all hidden source found to have “[t]he guilty chapter are the convictions latter human aberration” ills and psychosomatic including Scientologists, Hub- pleas of nine techniques developed advanced and to have wife, involving the bur- offenses bard’s illnesses. physical cure mental offices and the theft glary government large following, gained science” “new The book inti- government documents. Foundation” Dianetic Research “Hubbard rap” “took the wife mates Hubbard’s developed lu- formed, and Hubbard set motion for a scheme that Hubbard training of audi- for the program crative unfa- government records of matter purge Techniques. Dianetic (practitioners) in tors to him to the Church Scien- vorable into Scientolo of Dianetics evolution (“Missing, tology. Chapter Presumed religion Scientology into a gy and of Dead”) concludes the book with account As founder of fully the book. recounted mysterious demise. of Hubbard’s Scientology, is de Hubbard the Church of extensively upon The book draws poseur charlatan and whose picted as a writings of in Dianetics published Hubbard practices religious strange theories upon Scientology well as various aggrandize financial designed for the his followers. issued to bulletins Hubbard Church, ultimately of Hub ment of the sixty-nine found instances Commissioner, Foley v. himself. See bard biogra- material the use of (2d Cir.1988). Although 94, 95-96 844 F.2d all but three of these phy. Since he found many Scientology attracted adherents *5 “fair,” opinion noninfringing or uses world, throughout the Hubbard’s activities court focuses on use the district govern several generated trouble with unpublished materials. previously ments, including government States, challenged III. United to tax-ex of entitlement claim Church’s Opinion District Court Scientology empt status. See Church of use established Applying the rule of fair Commissioner, 823 F.2d of California law, copyright 17 and U.S.C. § — denied, Cir.1987), cert. (9th U.S. Supreme explicated by the Court —, L.Ed.2d 214 Row, Publishers, v. Nation Enter Inc. (1988). Having enormous accumulated 539, 105 S.Ct. prises, 471 U.S. money, according to the narra amounts of (1985), by this L.Ed.2d 588 and Court tive, House, Inc., Salinger v. Random 1967, L. Hubbard raised a Ron — [in] denied, U.S. —, (2d Cir.), cert. himself private navy, appointed Commo- (1987), to the S.Ct. L.Ed.2d dore, dashing uniform of a his donned writings quoted in unpublished Hubbard on an extraordi- design set forth own examination, Judge under the book ships leading a fleet of nary odyssey, body of that there is a mate- conclude[s] variously pursued by across the oceans small, negligible rial of but more CIA, FBI, press international which, size, given strong presump- suspicious govern- miscellany unpublished and a ma- against use of tion fair agencies. terial, pass the fair use ment maritime cannot be held to test in his travels on accompanied Hubbard was finds, wife, and therefore children and high by his seas opinion, Al- and assistants. mandate of the number of associates under that Bare-Faced Messiah to some de- President of the though resigned he copyrights in gree infringes Hubbard’s continued to con- Scientology, he Church previously of his some at sea. its affairs from his base duct works. surreptitious return to the Hubbard’s F.Supp. at 1524-25. Chapter reported is at United States is ar- subsequent determination (“Running Aground”) and his The district court’s examination rived at after close producing films with Scien- excursion into factors, According opinion, which are seen statutory quota- fair use verbatim necessary tion is resolving “the conflict demonstrate Hubbard’s a means of be dishonesty gave in the accounts he of his copying in justification serv tween early put life as by forward the Church of (in public education ing objective Scientology. “It is incompatible with sense) and the owner’s broadest of fair research ends and criticism to ac- reap profits of labor and entitlement dishonesty being permitted cuse without Id. in creative works.” invested talent specify what were the dishonest words.” Examining the nature Specific passages Id. at 1510. must be set work, statutory the second fair copyrighted out, said, subject’s it is to show the boast- factor, 107(2), the district 17 U.S.C. § fulness, pomposity, grandiosity, pretension Supreme on the opinion court reflects self-importance, because is the “[i]t scope that “the of fair Court’s observation subject’s conception of himself that the bi- respect unpub use is narrower ographer convey.” seeks to Id. at 1512. works,” Row, 471 Harper & U.S. lished paranoia supposedly Hubbard’s is demon- 564, 105 interpretation on our S.Ct. by strated certain letters and Church bulle- “[njarrower ‘scope’ seems to refer to quoted tins. The Asia Diaries are “in copying the diminished likelihood that will mockery, to show bigotry, Hubbard’s bias copyrighted fair use when the material and coarse lack of taste.” at 1513. Id. unpublished,” Salinger, 811 F.2d at Cruelty disloyalty displayed in two “[unpub pronouncement and on our having bigamous letters to do with a mar- normally enjoy complete pro works lished] riage, employment and the of Hubbard’s against copying any protected ex tection words this instance is said to “serve[ ] court, pression,” conclud id. district strong purpose.” fair use ing that “diminished likelihood” is not the quotes The book from a letter written “impossibility” and that “normal same as accusing estranged Hubbard to the FBI his “inevitably,” ly” does not mean concludes communist, being wife of bulle- purports one “who to make a fair use urging tins written Hubbard his follow- unpublished copyrighted matter must them, oppose ers to “attack” those “to who *6 particularly compelling demonstra make a aggressiveness illustrate Hubbard’s and vi- upon full justification, tion of consideration scheming against perceived cious tactics of the fair use factors.” relevant Cynicism by enemies.” Id. is illustrated a According F.Supp. at 1503-04. to the dis discussing a confidant Scientolo- letter to court, necessary made the trict Holt has potential gy’s financial a lecture great majority of showing to the “[a]s advantages of deceit. Ex- praising the demonstrating powerfully “a items” cerpts from The Modern taken Dianetics: compelling purpose.” fair use Id. at 1523. Health, work Mental a Hubbard Science of Turning statutory use to the first fair seller, History that remains a best The of factor, the purpose and character of Man, establishing a book the foundations use, 107(1), the district court 17 U.S.C. § Scientology, unpublished letter of and an purpose opinion first reviews the overall boasting ability to heal are of Hubbard’s and then ad- and character of the work derangement, provide examples of said to purposes the fair use of individual dresses pseudo-science. There insanity and bizarre former, the con- passages. As to the court purpose to each compelling is a fair use biography is “a serious cludes that according opinion, excerpts, of the criticism,” responsible historical book of biographer/critic should because “[t]he eligible use express and therefore for fair consider- required simply to ... conclu- profit-making example.” “defendant’s despite defending ation them sions without latter, ap- objective.” opinion Id. at 1507. As to views with Id. at 1517. compelling lifting passages fair from powerfully proval the court finds a of various ego- using “to illustrate Hubbard’s purpose use Hubbard’s own words earlier works diaries,” self-perception early in his traits and centric to reveal Hubbard’s character id., “convey capsule character- and to quality of his ideas. the bizarre earliest that fair use Salinger, would conclude style of Hubbard’s of the ization adequately 1518. has demonstrated.... writing,” id. at been fiction of fair use is far Here demonstration factor, then, the statutory As to the first compelling. Many takings of the “great majority” that the opinion concludes expression Salinger’s of were for “a in the book demonstrate quotations of enlivening purpose of that text with Sal- purpose fair use powerfully compelling genius_ inger’s expressive Hub- accomplished without use that could not be primarily expression is taken bard’s that “in a subject’s own words” but in a manner that show character flaws quotation unpublished few instances of accomplished cannot be without use of material,” compelling is a “much less there his words. justification.” fair use Id. at 1520. passages that the involved opinion observes Nevertheless, the district Id. at referred to “un- in the “few instances” forty-four passages identifies court play filling a role in out the doubtedly unpublished “as to which a fair use works portrait” may “fall short
biographer’s shown,” convincingly purpose is not lead- demonstrating sufficiently powerful ing “I it to observe: cannot conclude that satisfy purpose fair use claim of a Appeals accord fair use the Court scope unpublished of ‘narrower’ test quotations, protection to all of Miller’s material.” Id. biography as a whole would be factor, Examining statutory the third non-infringing.” considered Id. substantiality portion amount Notwithstanding recognition of the its copyrighted work as used in relation to injunctions generally granted are rule that 107(3), whole, the district 17 U.S.C. § prevent copyright infringement, the dis- of 201 instanc- court finds New Era’s count difficulty concluding has “no trict court exaggerated con- infringement es special those circum- one of remains a substantial cludes that “there stances in which the interests of free protected expression taking amount speech overwhelmingly plain- exceed problem a serious sufficient to raise injunction.” tiff’s interest in an Id. at takings if infringement copyright Perceiving creates a at 1522. In protected by fair use.” Id. daunting fair defense obstacle use opinion the district court the fourth materials, against factor, upon of the use statutory effect a need to “focus district court discerns copyrighted potential value of the market intensity potential with new on the conflict 107(4), work, by the said Su- U.S.C. § between the and freedom of single impor- most preme to be “the Court Here, speech.” according at 1526. use,” Row, fair tant element of court, opinion injunc- *7 of the district an cuts in U.S. suppress interesting study an tion would Because the book “is a favor of Holt. important figure, injury resultant an with hostile, using fragmen- biography critical public speech. to the interest in free Un- conclu- tary extracts to demonstrate critical circumstances, injunction der such an Hubbard, in one interested sions about” denied, should be since award of dam- “[a]n writings not be reading would Hubbard’s protect ages profits copy- ... can purchasing from by the extracts dissuaded right injury holder far less with F.Supp. at 1523. larger his works. 695 speech interest in freedom of opinion conclusion of the The ultimate injunction.” perma- 1527. The Id. at the use of fair use is that sought injunction nent here is denied “fair” but that book is materials is prohibitive of the the district court because degree” respect in infringing in “some republishing expense and waste involved in That conclusion is unpublished materials. infringing passages, after deletion of reluctance: arrived at with some public’s deprivation important of an histori- injunction to overall, study and the failure of an it not for cal As to the book interest, as well as the any copyright in ruling Appeals serve of the Court of speech. literary Salinger Id. from a lion like significant injury to free J.D. or a purported prophet like L. Ron Hubbard. opinion
The district court
adds a
gloss
IV.
to the second fair use factor—nature
copyrighted
work—that we think
Analysis
should be removed. While we made it
agree
permanent
We
clear in
works
denied,
wholly
a reason
should be
but for
normally enjoy complete protection, the dis
any
from
different
of those set forth
parse
trict court would
this factor also with
Moreover,
opinion.
we dis-
district court’s
In
a distinction.
this instance the distinc
agree
great
deal of what is said in
with
protected expres
tion is between the use of
opinion.
pro
sion to “enliven” text and the use of
expression
“signifi
tected
to communicate
First, we do not share some of the
points”
subject.
cant
about
We see no
proper
respecting
district court’s views
approach.
need for such an
Where use is
in
application of the four fair use factors
“unpublished
made materials of an
na
this case.
It seems clear to us that
ture,”
yet
the second fair use factor has
factor, purpose of
statutory
first
fair use
applied
infringer,
in
of an
favor
and we
use,
Holt,
weighs in
favor
while
copyrighted
do not do so here. “Since the
factors,
remaining
nature of the
three
unpublished,
are
letters
the second factor
work, amount and
copyrighted
substantiali weighs
heavily
favor of
[New Era].”
used,
portion
and effect of the use
ty of the
agree
analy-
We
with the district court’s
market,
upon
weigh
all
favor of New
sis of the third fair use factor and with its
under examination here is
Era.
finding
taking
that a substantial amount of
Salinger biography
from the
no different
correcting
after
remains even
statutory
purpose
fair use
classifica
its
overcounting.
analysis
Era’s
Our
“criticism,” “scholarship”
“re
tion:
or
factor,
copy-
fourth fair use
effect of the
at 96.
Salinger,
search.”
See
work,
righted
substantially
differs
agree
Salinger, “we
with
Consonant with
that of the district court. Since the district
the first fair use
the District Court that
accepted New Era’s contention that it
court
favor,
weighs
factor
but not that
[Holt’s]
biography
commission an authorized
any
entitles
purpose
use
[it]
[its]
of Hubbard and that all Hubbard’s writ-
at 97. The ten-
special consideration.” Id.
ings, published
unpublished,
would be
opinion
spe
is that
or of the district court
purpose,
available for that
it is diffi-
made
afforded to
cial consideration should be
conclude,
court,
cult to
as does the district
Holt,
words
to the extent that Hubbard’s
published by Holt would have
that the book
quoted
prove
some traits of charac
Era’s
no effect on the market for New
public image
his
ter either at odds with
forthcoming
disagree
We
book.
especially intriguing to the reader. The
application
Leval on the
significant
district court sees a
distinction
factor,
fourth fair use
as we did
Salin-
of an author’s
purpose
between the use
there that
here as we did
ger,
display
of his
words to
the distinctiveness
impairment of the market seems
“some
writing style and the use of an author’s
likely” and that
fourth fair
“[t]he
character,
point
to make a
about his
words
*8
copyright
weighs slightly in
factor
[the
in the lat
greater justification
far
at 99.
favor.” Id.
owner’s]
in the former. We find such a
ter than
Following
analysis
an exhaustive
unnecessary and unwarranted
distinction
use, the district court
purpose
of the doctrine of fair
applying
statutory
fair use
small,
that a
but
any
classified
finds in
event
long
As
as a book can be
factor.
mate
criticism,
negligible, body
unpublished
scholarship or re
as work
test,
here,
given the
search,
pass
cannot
the fair use
the factor
rial
as can the book
against
of un
strong presumption
fair use
publisher,
in favor of the book’s
cuts
Although we would char-
published work.
copyrighted matter is taken
whether the
Nevertheless,
“small,”
equitable
here more than
considera
the use
acterize
injunctive
tions dictate denial of
relief in
difference insofar as entitle
it makes no
prejudice
by
this action. The
suffered Holt
relief
is concerned.
injunctive
ment
as the result of New Era’s unreasonable
copying of “more than minimal
Since
delay
bringing
the ac
and inexcusable
expressive
mate
amounts” of
tion invokes the bar of laches.
Good
See
barring the un
injunction
calls for an
rial
Corp., 606
Douglas
man v. McDonnell
use,
96,
consequences
id. at
authorized
(8th Cir.1979),
denied,
F.2d
cert.
findings seem obvi
of the district court’s
913, 100
1844,
other reasons
the district court
jection
view
breach of
without
necessarily be
ing of
and valuable historical
deletion
“prohibitive” expense
denying
of the district
infringement.
of the fair use defense and its
more an inevitable
copyright,
improperly
only
an
deprived
injunction
of an
court,
and,
infringing
included material is
study,”
republication
of an
following
contrary to the
consequence
“interesting
“significant
would not
one. The
its re-
after
find-
out
court to
with [New Era]
waited until
application
cussions of
good
it had no interest either in
defiant letter in the summer of 1986 that
sional orders of restraint.
causing
reason
explore
at 810.
would have
infringements. There is no
why
[Holt]
May
or in
the issues
[New Era]
[1988]
catastrophic
entering
permitted
to seek
should have
cooperating
An
law with-
harm.
into dis-
earlier
provi-
certainly
interest”
would be
promptly
sought an
If New Era
had
ad-
injunction.
Copyright
served
rights,
might
judication of its
the book
all,
is,
carrying
Act
after
a device for
into
changed minimal cost while
have been
power firmly
Congressional
em-
opportunity
effect
still
to do so. At
there
was an
promote
however,
point,
appears
per-
bedded in our Constitution—“To
it
that a
Arts, by securing
useful
for limited
in the total
the ...
manent
would result
Right
Times Authors
the exclusive
of the work since it is not eco-
...
destruction
_”
*9
U.S. nomically
reprint
the book after
Writings
feasible
respective
their
I,
infringing material. 695
deletion of the
Const. Art.
Sec.
prejudice,
Ordinarily,
brevity
in the interests of
I
F.Supp. at
severe
1528. Such
delay
my
confine this concurrence to
coupled
al would
with the unconscionable
described,
points
disagreement
majority,
with the
ready
mandates denial of
relegating
appendix my very
to an
limited
injunction
relegation
for laches and
of New
disagreement
Judge
with
on his fair
damages remedy.
Era to its
See West
analysis. But
use is
Co.,
because
Thompson
176 F.
“[f]air
Pub. Co. v. Edward
fact,”
question
mixed
(2d Cir.1910);
law
Hayden v.
Chalfant
Row, Publishers,
(S.D.Cal.1959),
Enterpris-
Inc. v. Nation
Press, Inc.,
539, 560,
2218, 2230,
es,
(9th Cir.1960);
471 U.S.
105 S.Ct.
'd,
The
is a bi-
Bare-Faced
stay
granted by
sorts,
heretofore
ography
largely
upon
based
Free-
affirmed.
shall
is vacated. The mandate
this Court
Act materials from
dom
Information
Navy,
Investiga-
issue forthwith.
Bureau of
U.S.
Federal
tion,
Intelligence Agency and other
Central
records;
agency
numerous
OAKES,
United States
Judge (concurring):
Chief
friends,
Scientologists,
with
ene-
interviews
in
the denial of an
agree
I
While
mies,
Hubbard; newspaper
and relatives of
affirmed and hence con
junction should be
stories and
materials about
cur,
unnecessary
to me
for the
it seems
man;
writings,
extensive
Hubbard’s own
anything
majority opinion to do
other
words,
involving literally
pub-
millions of
the denial of an
for laches
affirm
unpublished;
and court records
lished
(even
only remand were
though I would
tax, bankruptcy,
testimony
various
issue).
only
While I do not com
that the
divorce,
proceedings. Like
and other
agree
Judge Leval’s fair use
pletely
with
Leval,
unnecessary
I
it
believe
majority
to me the
un
analysis, it seems
accuracy
reports
Miller’s
or
assess the
goes
way
out of its
to take
necessarily
None-
justification for his conclusions.
opinion,
Era
issue with
reason,
theless,
I
see
there is no
and do not
Int’l, ApS Henry
Holt and
Publications
otherwise,
doing
quarrel
majority
(S.D.N.Y.1988).
Co.,
Do
F.Supp. 1493
“ap-
the book
judge’s
dictum,
so,
ing
by way of
tends to
even
responsible use of its materi-
pears to make
Salinger
in concrete
v. Random
cast
work of criti-
al” and hence is “a serious
Inc.,
(2d Cir.),
House,
cert.
811 F.2d
newsworthy
highly
on a
cism and comment
—
—,
denied,
U.S.
such, it
F.Supp. at 1506. As
subject.” 695
(1987). Salinger
is a decision
L.Ed.2d
qualified for fair use considera-
properly
facts,
which,
rightly
if
decided on its
even
comment,
“criticism,
tion as a work of
latent,
impli
underlying,
privacy
if
involved
..., scholarship,
reporting, teaching
news
present
here
virtue of Hub
cations
research,”
under 17 U.S.C. §
Salinger’s
language, as
bard’s death.
gives due
mention that Messiah
concept of fair
It bears
applied,
here
confines the
preface
to a dedicated member
necessary flexibility
credit
prevents
use and
Scientology for more than
fashioning equitable
remedies in
Church
who,
decade,
Armstrong,
when
might by
Gerry
one
thought
cases.
permission to research an official bi-
given
con
being
literally
taken
another factual
Hubbard,
gone
ography of
is said to have
haunt us. This case
text come back to
material, only
through
filing
six
cabinets of
’Tis the more the
realizes that concern.
totally
with contra-
majority’s “disagree[ment]
to become
disillusioned
pity, since the
family back-
dictory
on Hubbard’s
great
[Judge
opin
material
with a
deal
Leval’s]
careers, fraud-
ion,”
ground,
and academic
majority op. at
can in a real
naval
background, tax evasion and
dictum.
ulent business
sense be considered
*10
rangement,
Armstrong,
insanity,
pseudo-sci-
was
or bizarre
law.
who
evasion
pas-
Church,
Judge
ence.
found that other
Leval
sued
unsuccessfully
sages
necessary to render Hubbard’s
Scientology
Church
California
early
accurately
display
ideas
or to
his
(Super.Ct.Cal.
C. 420153
Armstrong, No.
presentation
himself.
writing style or
concluding that
20,1984),
quoted
as
June
Judge
of these reasons
Leval considered all
man.”
at 6.
“a con
Messiah
Hubbard
they
quoting
directly
Hubbard
because
bearing
purpose
on “the
and charac-
have
Opinion
Judge Leval’s
II.
107(1). In
of the use.” 17 U.S.C.
ter
§
copy-
Messiah’s use of
examples
For
categories
setting forth these
different
material,
refer the reader
righted
I would
use, Judge
stat-
fair
Leval referred to the
comprehensive analysis of
Judge Leval’s
ute,
permits
purposes
use
such
“for
F.Supp.
claims. See
New Era’s
criticism, comment,
reporting,
news
long appendix
judge’s
1507-22. A
...,
teaching
scholarship, or research.”
passages
in Mes-
opinion provides all
(emphasis
added to show statu-
Id. §
infringed
claims
its
which New Era
siah
inclusive);
tory terms not all
see
passages,
of those
copyright, the sources
F.Supp.
opinion
also notes
rulings
passage.
on
judge’s
each
“[although plaintiff does not concede
appendix
published
itself was not
from
justification
quotations
for the
although
Supplement, and
the Federal
works,
previously published
it no doubt rec-
occasionally, I do
appendix
will refer to
ognizes that defendant’s claims of fair use
necessary
publish
it here.
consider it
extremely power-
as to those materials are
pages of the Leval
twenty-two
The first
F.Supp.
ful.” 695
at 1498. New Era’s fire
quotations
Judge
catalog sixty-nine
appeal
or
is not
appendix
directed
Leval’s
material,
published
published
findings
materials. Of
on the
but its
references
use does not
these,
exceptions,1
brief does mention that fair
only three
with
excessive,
multiple,
impor-
extend to
or less
that there was no in-
judge found either
tant illustrations of
characteris-
Hubbard’s
merely
quotations
fringement because
tics,
Judge
opinion
recog-
Leval’s
itself
paraphrases
reported
or ideas and the
facts
not,
nized.
at 1524. New Era does
See id.
expres-
Hubbard’s manner
did not use
however, support
suggestion
spe-
sion,
strong
or
there was a
fair
examples.
cific
Judge
justified,
justification. Fair use was
said,
passages
some of these
because
quotations
appeal
This
instead concerns
Hubbard;
mythology about
embodied false
writings.
unpublished
from the
Hubbard
boastfulness,
dishonesty; his
Hubbard’s
appendix
passages
lists 132
paranoia; his
pomposity,
pretension;
or
his
which New Era
works
Asians,
snobbery, bigotry, disdain for
or
infringed
copyright. Seventy-
claims
its
Orient;
cruelty
disloy-
or
dislike of the
his
Asia
three of these came from Hubbard’s
viciousness,
1927-29,
or
alty;
aggressiveness,
Diaries written in
when Hubbard
his
tactics;
cynicism;
young
or his de-
man. Most of the Asia Dia-
scheming
his
was a
exceptions,
quotations
reading
as follows: “We want clean hands
where
ond
The three
writings
begin
Let’s
were found to be
office in the United States.
Hubbard’s
used,
insignificant
doggedly denying
presidency
fairly
Nixon the
no mat-
are de minimis
his
tries to do to us
fair use factors such as market-
ter what
Secret Service
under the other
Bros.,
police
ability.
Broad-
now.... He hates us and has used what
Warner
Inc. v. American
Cos.,
(2d Cir.1983);
say
please
so. So
casting
force was available to him to
Assocs.,
get busy
on it.” The third consists
two sen-
Time Inc. v. Bernard Geis
130,
book,
(S.D.N.Y.1968);
quoted
Corp.
from Hubbard’s
Mission
Meredith
v. Har-
tences
Row, Publishers, Inc.,
plans
"Hearing
of L. Ron Hubbard’s
per
Into Time:
into,
Cir.1974).
(2d
(S.D.N.Y.),
exploration
research
aff’d,
further
Found.,
Broadcasting
v. American
Inc.
say,
307.
is to
the second
366 F.2d at
That
Cir.1980)).
57,
(2d
Cos.,
60
621 F.2d
public
use must serve the
interest and
require
original
must
use of the
work.
beginning
is not the
Because
Cf.
Superior
Worth Prods. v.
Films
law,
Marvin
previous Sec
and the end of fair use
1269,
(S.D.N.Y.
F.Supp.
Corp., 319
1275
involving biographies,
cases
ond Circuit
1970)(film
life
did not need to use books on
do, I
public information
public figures and
Bruce,
use did not serve
Lenny
think,
Enter
need reference. Rosemont
interest;
distinguished).5
Rosemont
Inc.,
House,
366
v. Random
prises, Inc.
(2d Cir.1966),
F.Supp.
rev’g
Associates,
F.2d 303
Time Inc. v. Bernard Geis
denied,
(S.D.N.Y.),
385 U.S.
(S.D.N.Y.1968),
cert.
F.Supp. 130
involved
(1967),
involved a
'[conflicts
and the
the first amendment
purpose
character
the use—is
by appli
far
resolved
laws thus
have been
premised
illusory
on an
distinction between
”
doctrine.’
672 F.2d
cation of the fair use
quotations
merely
biog-
used
“enliven”
rapher’s
quotations
work and
that are es-
significant points
sential to communicate
Salinger
sum,
Second Cir-
In
before
subject. Judge
about
character
recognized
interest
cuit
Leval,
runs,
argument
improperly
necessity
for the
subject matter and
thought
necessary
quote
it was
use,
important components
fair
use are
Hubbard to communicate character traits
áppro-
doctrine is an
and that the fair use
boastfulness,
dishonesty,
preten-
such as
priate way to resolve conflicts between
tion, and the like.
Amendment.
copyright law and the First
time,
At the same
the commercial motives
Salinger
“biog-
It is
true that
said that a
use, and so
against
of a user
count
fair
will
rapher
right
copy
has no inherent
undermining the mar-
likelihood of
will the
‘accuracy’ or the ‘vividness’ of the letter
protected
for the
work. A court should
ket
Indeed,
expression.
writer’s
‘vividness of
quantitative
consider the use
both
expression’
precisely
an attribute of the
qualitative
Following
Supreme
terms.
expression
author’s
that he is entitled to
Row,
decision
Court’s
Salinger
protect.”
goes
F.2d at 96.
given
has
to the additional
attention
been
quote
on to
the defendant in that case as
significant
it is that the mate-
issue
how
stating,
stylis-
why
copied
when asked
he
copied
unpublished.
rial
was
Salinger’s,
tic device of
that he wanted to
convey
adopting
the fact that
in Messiah
B. Fair
Use
biographer
an ironic tone. The
was then
opin-
appellant
majority
Neither
nor the
asked whether he could have stated that
*15
tone;
disputes Judge
responded
an ironic
he
ion
Leval’s conclusion about
had
“
pedestrian
that all the
that
would make a
sen-
works:
Hubbard’s
‘[t]hat
”
put my
I
name to.’
quotations
paraphrases
or
from these
tence
didn’t wish to
Newman,
Id.
Salin-
non-infringing
fairly
Judge
writing for the
works were either
or
ger panel,
see note 1
(or
minimis,
dealing
de
concluded:
with
implicitly
used
“[W]hen
(or
supra).6
Rather,
biographer
principal
copyrighted expression,
Era’s
ar-
gument
majority opinion
any
copier) may frequently
other
have to
and the
concern
writings.
reporting only the
himself with
Hubbard’s
content
did,
Judge
subject
his
if he
claim is that
Leval’s conclusion that
fact
what
even
material).
question
majority
(publication
defamatory
Finally,
6. New Era does
does not
—the
government
only
apply
that
—whether letters filed with various
the FOIA does not
to materials
agencies
applications
government
be
or
thereto should
con-
arrived in
after its enactment.
files
sure,
published,
placing
sidered
since Hubbard sent them to
in a
To be
the act of
a "work”
agencies
public
inspection
before the Freedom of Information
it is available for
file where
argues,
adopted.
Act was
Holt
on the other
publication
at least
§
not a
under 17 U.S.C.
hand,
applications
1, 1978,
4.07,
or
that Hubbard’s letter
January
after
at 4-39
Nimmer%%
agencies
government
published.
-40,
cited,
4.10 at 4-49 and cases
because the
Nonetheless,
work has not been distributed.
argu-
I
Holt has the better of the
think that
nonexistent,
although case law on this is
I think
may
the FOIA the
ment. While before
letters
government agen-
applications
that letters or
expectation
privacy,
with an
have been sent
agencies
seeking
promoting
action
expectation
longer
cies
or
existed
Hub-
that
no
after
Moreover,
authorship”
publication
are not "works of
bard’s death.
occurred
2.03[A],
very
at
§
§
sense of 17 U.S.C.
102.
id.
in a
real sense when Hubbard wrote the
Cf.
agency
question.
(Congress
government
2-24
did not use its full constitutional
or official in
Cf.
Act).
(Second)
(1977)
powers
"writings” in the
Restatement
Torts
over
§
‘pedestrian’
thereby pens
convey
sentence. The
mayor
fact that the
was not the
copier
liberty
‘pedestrian’ benign
is not at
to avoid
he
thought
character
was
to be
reportage by appropriating
subject’s
his
lit-
particular
without these
expres-
words or
erary devices.” Id. at 96-97. While this
sions.
Judge
Another of
examples
passage
broadly,
apparent-
could be read
quotations
fits the
quite
Messiah
closely:
does, I
ly
majority
do not think that it
religious
A
leader
renowned
his selfless
biographer
reaches the case where the
or
kindness, liberality
spirit
sympathy
using
protected expression
critic is
as a
sufferings
for the
might
of others
well be
prove
fact to
character
trait that is at
exposed by extracts from
letters
his
image
subject
odds with the
that the
journals
displayed greed
or callous
subject’s supporters
attempted
or the
have
employed
indifference and
language
said,
project.
Judge
As
may
it
be
religious
Thus,
racial
bigotry.
Id.
public figure (or
“the words used
[a]
considering the first of the factors identi-
particular
expression)
manner of
that are
by Congress
fied
and the
pur-
courts—the
calling
the facts
for comment.”
695 pose and character of the use—unlike the
entirely
This is
consistent
I
majority,
think the district court made an
Supreme
with the
Court’s comment Har-
appropriate distinction between this case
per
quotations may
& Row that
be “neces-
and Salinger.
sary adequately
convey
the facts.” In
quotations
There are a few
which I
case,
example,
President Ford’s
indistinguishable
nevertheless concede are
characterization of certain White House
from those
improper
held to be
in Salinger,
tapes
“smoking gun”
“perhaps
as the
part
and here I
company
only a lit-
—but
integral
expressed
so
to the idea
as to be
are,
tle—from
Leval. There
for ex-
inseparable
from it.” 471 U.S. at
ample, quotations
eight passages
S.Ct. at 2232.
short-story outlines and drafts to show
agree
words
Leval:
teenage style
writing.
Hubbard’s
calling
are facts
for comment are distin
thought
district court
quotations
that these
guishable
simply
from words that
enliven
properly
could
be used. Salinger makes it
recognizes
text. The law
that words them
clear,
very
however,
quotations
used
may
proven.
selves
facts to
be
For merely to
writing
demonstrate
style may
law,
example,
indepen
in evidence
words
qualify
for the fair use defense. 811
legal significance,
dent
such as a contract
Quotations
F.2d at 96-97.
from those
slander,
hearsay.
acts and
verbal
eight passages, then,
fairly
are not
used.
See McCormick on Evidence
§
Nevertheless, they
quo-
do not—unlike the
(3d
1984). According
732-33
ed.
to Messi
Salinger's
tations from
letters —“make the
ah,
lied, boasted,
Hubbard
etc. These are
reading.”
Rather,
book worth
prove
point,
actions.
In order to
his
Messi
they
only
very
serve
way
limited
ah 's author must recount those actions—
*16
background
majority
information. The
i.e.,
lies,
quote
boasts,
he must
Hubbard’s
opinion disregards this distinction.
Thus,
words,
etc.
in Salinger’s
see
factor,
As to the second
the nature of the
seeks,
quoting
F.2d at
in
Messiah
Hub
copyrighted work, Harper
says
& Row
that
writings,
“reportf only
bard’s
the fact
]
scope
“the
fair
is narrower with
of what
did.”
[Hubbard]
respect
unpublished
because
works”
hypotheti-
Leval offers a colorful
right
“the
pub-
author's
to control the first
support
argument:
cal to
this
popular,
appearance
lic
expression weighs
of his
benign mayor who has sent memoranda to
against
such use
the work before its
opponents
threatening
in
conflicts
various
Thus,
release.”
the fact that a work is
out,”
your
you,”
to “cut
heart
“castrate
unpublished is a
element
“critical
of its
your kneecaps.”
and “bust
at
‘nature.’”
595
Act,
Copyright
language of the
17
appellate
sive
engage
also
my view
(the
“may
grant
52.
502
court
...
...
by Fed.R.Civ.P.
U.S.C.
prohibited
factfinding
§
cases,
past
injunctions”);
e.g.,
final
Dun v.
Remedy
C.
20,
Ass’n, 209 U.S.
Lumbermen’s Credit
335, 337,
(1908)
23-24,
52 L.Ed.
S.Ct.
question
truly critical
I come then
copyright
(discretion “wisely exercised”
starting with
opinion,
majority
the
which
infringement
refusing injunction
case
by reference
deals with
premises,
different
un
against publisher
constitutional
of reference book with
Act and its
solely to the
publication
uses);
even a
“insignificant” improper
does the
of
and the
derpinning:
negligible, body of
small,
justices
Corp.
in Sony
of four
vote
copyright
entitle the
infringing
Studios, Inc.,
material
City
America v. Universal
court
injunction? The district
holder
an
417, 499,
464 U.S.
104 S.Ct.
further distribution
enjoin
refused to
(Blackmun, J.,
(1984)
dissent-
L.Ed.2d
F.Supp. at
Messiah.
Bare-Faced
(award
damages,
continuing roy-
ing)
that,
recognized
fully
The court
1525-28.
injunc-
some form of limited
alties or even
remedy,
is a drastic
injunction
while an
appropriate
“may
tion
well be an
means
Romero-Barcelo, 456 U.S.
v.
Weinberger
case”).
balancing
equities
1798, 1802-03, 72
305, 311-12, 102 S.Ct.
distinguished
Harper
also
Leval
readily find
(1982),
will
courts
L.Ed.2d
The former
Salinger.
and
did
Row
injury in
irreparable
requisite threat of
injunction;
of an
and
the issuance
involve
cases, see, e.g., Wainwright Se
copyright
grant
preliminary
a
did
while
latter
Transcript
curities,
Street
Inc. Wall
perma-
a
question
whether
injunction,
Cir.1977),
(2d
cert.
Corp., 558
not raised.
should issue was
injunction
nent
denied,
434 U.S.
Finally, Judge
F.Supp. at 1526.
However,
(1978).
Judge Leval
L.Ed.2d 759
proposition
Nimmer for
cited Professor
typical
not a
case
this was
found that
injury
great public
that “where
riding.”
“opportunistic free
might
courts
by
injunction, the
worked
“profit
did not
infringement here
involve
property
in other areas of
follow cases
effort
the creative
eering by appropriating
continuing
damages
a
law[,] and award
[or]
F.Supp. at
genius of another.”
such
of an
under
royalty instead
words,
here
injury
In other
1528;
see 3
special circumstances.”
simple case of
It is not a
irreparable.
short,
14.06[B], at 14-56.2. In
Nimmer §
personal
expressions for
stealing another’s
“one of
this was
that
judge
decided
advantage.
circumstances
special
those
Rather,
suppression of Messiah
overwhelmingly ex-
speech
interests
free
said, operate as a
would,
Judge Leval
injunc-
in an
plaintiff’s interest
ceed
“implicate[
concerns
prior restraint
]
F.Supp. at 1528.
tion.”
Judge Leval
Amendment.” Id.
the First
recognize
I
the counter
Rosemont,
(e.g.,
cases
observed
earlier
that
min-
copies more than
that
[an author]
“[i]f
critical bi
suppressing
Meeropol) avoided
expressive
(unpublished)
amounts
imal
finding
Sal
fair use. “Since
ographies
enjoined,” 811
content,
to be
he deserves
however,
free
conflict between
inger,”
“[misapplication of
that
F.2d at
remedy is
injunctive
speech and the
dom of
legal principles constitutes
appropriate
judge con
1526. The
“inescapable.” Id. at
overturning
or is-
the denial
grounds for
“[tjhere may ...
cluded,
agree, that
Id. at
injunction.”
preliminary
suance of
the au
solicitude for
where
be instances
aware
I am also
entitlements, especially
thor’s commercial
may
Amendment concerns
mention of First
court to
motivate
publication,
in first
will
Supreme
easy to reconcile
not be
denying
right by
compensation
protect his
& Row
statements
Court’s
use,
while solicitude
of fair
at odds with
fundamentally
will
“[i]t
free
discussion
press
free
rights
lesser
copyright to accord
scheme
Id. He
injunction.”
require
of an
denial
impor-
greatest
are of
in those works
citing
permis-
supported this view
*19
596
public.
ignores
tance to
Such a
e.g., Rosemont;
the
notion
leading
and the
commenta-
copyright
major premise
injures
the
of
and
concur,
tors
Kaplan,
B.
An Unhurried
alike,”
559,
author and
471 U.S. at
(1967)(“courts
Copyright
View
73
have
2230,
105
at
S.Ct.
The Nation’s
forgotten
injunction
sometimes
that an
expand
First Amendment defense “would
go
course;
does not
the
in dis-
interest
effectively destroy any expecta-
fair use to
may
semination of a work
justify a confine-
copyright protection
tion of
in the work of ment of
remedy
the
to a money recovery”);
557,
public figure,”
a
id.
fringement supported grounds be —can Reeves, Excelsior Coal Co. v. 206 Ark. recognize arguments that do these and the (1944) S.W.2d (trespass; Enjoining publication cited authorities. same); (Second) Restatement Torts is lightly. power book not to be done (1979) (damages comment may § be enjoin, any case, to this as must be awarded injunction in lieu of an because of exercised with a delicate consideration of hardship relative or a countervailing public all consequences. Rosemont, See 366 interest). (discussing 310-11 prelimi- whether I think that the denial of an injunction nary injunction granted). should be Re- appropriate here for four reasons. sponsible biographers and historians con- First, the “economic incentive” the cre- sources, stantly primary letters, use dia- ation and dissemination of ries, ideas that Indeed, and memoranda. it would be provided Act, Copyright irresponsible ignore such sources of Row, 546, 558, 471 U.S. at supra Where, information. See note 3. S.Ct. 2223, 2229, here, is not very served an injunction limited use those materi- als where is no properly impairment has been—I think there demonstrable —found quoted marketability, grant affect their materials’ future market val- denial of an ue. open injunction against remains an Yet an Messiah question, to by carefully certainly prevent be determined would bal- the biography’s appropriate ancing factors. I say that further distribution the United States— open question it is just because the statute legatees the Hubbard sought, un- injunction remedy makes the discretionary, successfully, prevent publication Eng- 502; same, land, Australia, U.S.C. cases do § An injunc- Canada.7 Appellants suggest that all that expense would be re- that "the repub- and waste involved in quired would be revision so as lishing deleting infringing after material infringing portions report delete facts prohibitive." Nothing at 1528. found, however, and ideas. The district court rule, all is discourage the fair after low would therefore case in this tion per Harper & Row. might “equitable” other- nature who publishers writers *20 pow- of biographies critical undertake wise Third, non-injunctive remedy provides serving as an incen- people, without erful copyright the in- the best balance between might say, holders. We copyright tive for interests the First Amendment terests al- here injunction an then, denying of case. In the words in this at stake of the rigid application us “to avoid lows Goldstein, Copyright and the Professor stifle it would when ... statute copyright Amendment, 983, 70 Colum.L.Rev. First is de- law creativity which very the (1970): 1030 Row, 471 Harper & signed to foster.” copy- actionable, invasions of To be 2225 n. 3 3, at 550 n. U.S. and ... economic harm right must effect general) doctrine fair use (describing damages pre- should be of an award 60). State, 621 F.2d Iowa (quoting remedy. injunctive Since ferred militates Second, public interest property has economic value copyright in this case. injunction an granting against permit any pub- would only, principle do, frequently may, and equity of “Courts property in the which participation lic withhold give and both to farther go much impair its tend to value. does not public interest in furtherance relief injunctive damages over preference only go when to they are accustomed requirement corollary of relief is a Mercoid involved.” are interests private first injury. From demonstrable Co., 320 U.S. Inv. Corp. v. Mid-Continent an viewpoint, effect amendment 273, 376 268, 88 L.Ed. 661, 670, 64 S.Ct. infringing injunction is to restrain System v. Virginia Ry. Co. (1944)(quoting which altogether effect expression 592, 552, 515, Federation, S.Ct. U.S. —an necessary to secure is beyond goes what premise of (1937)). The 601, L.Ed. 789 award property. An “the widest is that First Amendment permits which monetary damages, from of information possible dissemination is a reasonable antagonistic expression sources essen- infringing diverse Associ- a first public.” cost, to the welfare tial tolerable States, 326 U.S. Press v. ated United of view. point amendment 1424-25, L.Ed. 2013 S.Ct. to reference Finally, even without in the case certainly applies (1945). This hands, note supra see of unclean doctrine figure. public biography of a argument can be good that a the fact course, fundamental- are Biographies, English made, majority holds and it is both rea- histories and ly personal held, delay that the courts and Canadian biographers customary for sonable this case proceeding Era’s deal- works utilize earlier to refer to and v. laches, see to Goodman amounted work subject of the ing with the Corp., 606 Douglas McDonnell directly from such quote occasionally to are Cir.1979) (elements laches (8th be- permitted practice is This works. delay inexcusable unreasonable encourag- public benefit cause denied, 446 defendant), cert. prejudices and bio- development of historical ing the 1844, 64 L.Ed.2d 913, 100 S.Ct. U.S. distribu- and their graphical works weighed to be factor (1980), is a may not tion, e.g., “that the world so grant whether underlying determination improvements, deprived of relief. injunctive retarded.” arts be progress principles, equitable traditional Applying (citation omit- Rosemont, F.2d at did Judge Leval then, hold that Moore, 1 East. ted) (quoting Sayre an declining issue his discretion abuse (K.B.1801)). Recog- 138, 139 Eng.Rep. Messiah, publication of against determining whether point this nition damages claim as Era a leaving New remedy will swal- grant injunctive clearly erroneous. make the record would we referred little, insignificant very material unfairly
used.
In GOODMAN, re James M. Debtor.
NATIONAL LABOR RELATIONS Sprinkler
BOARD and Road Fitters Union Local a Constituent Unit of Journeymen
United Association Apprentices Plumbing Pipe fitting Industry of the United States Canada, AFL-CIO, Plaintiffs-Ap
pellants-Cross-Appellees,
James M. GOODMAN and Goodman Au Sprinkler Corp.,
tomatic
Defendants-Appellees-Cross-Appellants. 814-816, 88-5033,
Nos. Dockets
88-5039 and 88-5041.
United States Court of Appeals,
Second Circuit.
Argued Feb.
Decided April