Meeropol v. Nizer, 73 Civ. 2720.

• Decision Date: 18 July 1973
• Docket Number: No. 73 Civ. 2720.,73 Civ. 2720.
• Parties: Michael MEEROPOL and Robert Meeropol, Plaintiffs, v. Louis NIZER and Doubleday & Company, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

361 F. Supp. 1063

Michael MEEROPOL and Robert Meeropol, Plaintiffs, v. Louis NIZER and Doubleday & Company, Inc., Defendants.

No. 73 Civ. 2720.

United States District Court, S. D. New York.

July 18, 1973.

Marshall Perlin, New York City, for plaintiffs.

Phillips, Nizer, Benjamin, Krim & Ballon by George Berger, New York City, for defendant Louis Nizer.

Satterlee & Stephens by Robert M. Callagy, New York City, for defendant Doubleday & Co., Inc.

OPINION

TYLER, District Judge.

By order to show cause filed on June 21, 1973, plaintiffs have moved for an order restraining defendants pendente lite from infringing upon their claimed copyright in the letters of Julius and Ethel Rosenberg and from publishing, selling or disposing of copies of the book entitled The Implosion Conspiracy, written by the defendant Nizer and published by the defendant Doubleday & Company, Inc. ("Doubleday"). 17 U.S.C. §§ 101 and 112; Rule 65, F.R.Civ.P. The motion for temporary injunctive relief was heard by the court on June 29, 1973. For reasons to be discussed hereinafter, the motion is denied in all respects.

Plaintiffs are the natural children of Julius and Ethel Rosenberg, who were executed in June, 1953 after their trial for treason in this court. Their complaint, filed on or about the same day as the present motion, sets out three separate claims: (1) for statutory copyright infringement pursuant to 17 U.S.C. § 101, with a prayer for permanent injunctive relief; (2) for damages of $1,000,000 for malicious defamation and invasion of plaintiffs' privacy through the publication of The Implosion Conspiracy; and (3) for money damages of $1,000,000 for common law infringement of and for injury to plaintiffs' property rights in unpublished and uncopyrighted works of their parents. Alleging diversity of citizenship, plaintiffs assert that this court has jurisdiction of the second and third claims pursuant to the provisions of 28 U.S.C. § 1331. As plaintiffs concede, however, their present motion is keyed entirely to the first or statutory copyright claim. In essence, it is charged that Nizer in his book quoted all or portions of some 29 letters of Ethel and Julius Rosenberg, which appeared in the book Death House Letters of Ethel and Julius Rosenberg, copyrighted in the United States in 1953 by the Jero Publishing Company, Inc. ("Jero").

Nizer and Doubleday contend, inter alia, that the challenged quotations constitute fair use of the material, that a significant part of the allegedly infringed material, if not all of it, is already in the public domain, that the plaintiffs are not the true copyright owners as asserted, and that they are barred by laches from bringing this action. Defendants also urge that a 1953 English edition of Death House Letters was offered for sale and sold in the United States, in violation of 17 U.S.C. §§ 10, 16, and 22.

Death House Letters was published on June 10, 1953 by Jero, which obtained a United States copyright, registration number 96637, Class A, on June 24, 1953. Apparently by express agreement with Jero, Dennis Dobson in November, 1953 reprinted Letters in London under the title The Rosenberg Letters. In the acknowledgement page of The Implosion Conspiracy, Mr. Nizer acknowledges that he used portions of the letters from this latter "Dobson edition".

The Implosion Conspiracy was first published in this country on February 9, 1973. To date, Doubleday has printed 100,000 hard cover copies, of which 85,000 have been sold to the trade. Thus, Doubleday has 15,000 copies remaining in inventory. Also, it appears that book clubs have sold and distributed about 40,000 copies. Pre-publication publicity was started as early as May, 1972, and Doubleday alleges without contradiction that it has expended $120,000 for advertising and incurred editorial, production and sales expenses totalling about $300,000.

The Implosion Conspiracy has enjoyed considerable popular success since its publication in February. In essence, it purports to be a factual but readable account of the trial and post-conviction legal proceedings in the celebrated Rosenberg case. A subordinate but nevertheless important theme of the author, as I understand his work, centers upon legal efforts of Emanuel Bloch and his total professional and emotional dedication to his clients, Julius and Ethel Rosenberg. Although the plaintiffs apparently claim otherwise, my reading of the book indicates that by and large it is a sympathetic and sensitive account of the Rosenbergs' personal, political and legal problems during the years of the trial and post-conviction appeals.

The parties agree that Death House Letters has been out of publication for almost twenty years. There is no evidence that the Dobson edition has been available since 1967. One copy of the latter edition is available in the New York Public Library, apparently because of a gift to that institution by the late Emanuel Bloch. It is likely, however, that an occasional copy of Death House Letters might be found in book stores in New York City at the present time.

Turning to the use by defendants of all or portions of 29 letters of the Rosenbergs in The Implosion Conspiracy, it is to be noted that there has been considerable confusion in the parties' papers and briefs concerning the pages where the quotations appear. As I read the copy of The Implosion Conspiracy available to me,¹ the pages differ markedly from the pages submitted by plaintiffs and those by the defendants. Nevertheless, this confusion is one of detail only. There can be and are no differences in the actual quotations and where they appear by chapter in defendants' book. According to the pagination of my copy, the first quotation from a letter of the Rosenbergs appears in Chapter 37, at page 423. The other quoted references to the letters appear at the pages cited in the footnote below.² From a quantitative viewpoint, the quoted letters make up a very small portion of The Implosion Conspiracy.

It is important to trace carefully plaintiffs' allegations concerning the chain of title by which they lay claim to ownership of the original copyright issued by the United States Copyright Office for Death House Letters. As previously noted, plaintiffs are the sole issue and heirs of Julius and Ethel Rosenberg. They contend that when their parents composed and compiled their letters, they would deliver them to their lawyer, Emanuel Bloch, with instructions to him to turn the letters over to a corporation for publication and copyrighting, and to hold the same in trust for plaintiffs. As plaintiffs apparently concede, however, there is no written documentation of either delivery or instructions. In any event, Jero was organized as a New York corporation in April, 1953, and copyright registration number 96637 issued to it on June 24, 1953.

Plaintiffs also allege that on August 19, 1953, an indenture of trust was drafted appointing five trustees, including Mr. Bloch. This trust indenture came to be known as "The Rosenberg Children's Trust Fund" (hereinafter "the Fund"). It is asserted that the Fund took title to all of the stock of Jero. As far as can be determined, there is no documentary evidence of this stock transfer before the court.

On January 30, 1954, Mr. Bloch died and was succeeded as one of the five trustees by another New York lawyer, Gloria Agrin Josephson. Three years later, on January 25, 1957, a certificate of dissolution of Jero was issued by the Secretary of State for the State of New York; the assets of the corporation, including the copyright, passed by operation of law to the sole stockholder, the Fund. Thereafter, according to the complaint, the Fund was terminated and its assets were assigned to plaintiffs. In a reply affidavit filed on the day of the hearing of this motion, plaintiffs' counsel submitted to the court a copy of a purported assignment from the Fund which was apparently dated on June 20, 1973 and was verified by the trustees who signed same on June 12 and 13 of this year.

In their moving papers, plaintiffs demand sweeping injunctive relief. Specifically, they seek an order enjoining the defendants from infringing the copyright of plaintiffs in any manner and from selling or disposing of any copies of The Implosion Conspiracy; directing that defendants deliver up for impounding all copies of the book under their control, all plates, molds and other printing materials, and all advertising and promotional materials which include any references to the letters of Ethel and Julius Rosenberg. At oral argument, however, plaintiffs' counsel took what he styled to be a more realistic approach and requested delivery only of the 15,000 inventory hard cover copies from the warehouse of Doubleday, and the enjoining of any possible paperback publication, or sale of any movie or television rights to the book by the defendants.³

Plaintiffs' counsel argued that once this court is satisfied that plaintiffs have made out a prima facie case that the statutory copyright exists and has been assigned to them, and further that Nizer and Doubleday have quoted portions of the letters, such evidence is sufficient to permit and, indeed, require the issuance of an injunction pendente lite as prayed. To the extent that plaintiffs' counsel contends that this court should ignore traditional equitable principles in determining whether or not to grant the drastic relief of a preliminary injunction, I cannot agree. It is true that §§ 101 and 112 of the Copyright Act, for example, talk specifically about the power of a federal court to issue injunctions in copyright cases. It does not follow from this fact, however, that the court can grant such relief on the comparatively meager showing as advocated by plaintiffs. See, e. g., Rosemont Enterprises, Inc. v. Random House Inc., 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). Generally speaking, the law is clear that a court in...