366 F.2d 303 (2nd Cir. 1966), 473, Rosemont Enterprises, Inc. v. Random House, Inc.

Docket Nº:473, 30672.
Citation:366 F.2d 303, 150 U.S.P.Q. 715
Party Name:ROSEMONT ENTERPRISES, INC., Plaintiff-Appellee, v. RANDOM HOUSE, INC. and John Keats, Defendants-Appellants.
Case Date:August 17, 1966
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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366 F.2d 303 (2nd Cir. 1966)

150 U.S.P.Q. 715



RANDOM HOUSE, INC. and John Keats, Defendants-Appellants.

No. 473, 30672.

United States Court of Appeals, Second Circuit.

Aug. 17, 1966

Argued Aug. 1, 1966.

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Edward C. Wallace, New York City (Weil, Gotshal & Manges, Horace S. Manges and Marshall C. Berger, New York City, of counsel), for defendant-appellant, Random House, Inc.

Robert W. Maris, Philadelphia, Pa. (William T. Coleman, Jr., Dilworth, Paxson, Kalish, Kohn & Dilks, Philadelphia, Pa.), for defendant-appellant, John Keats.

Jack Katz, New York City (Katz, Moselle & Schier, Chester C. Davis, New York City, of counsel), for plaintiff-appellee.

Before LUMBARD, Chief Judge, and MOORE and HAYS, Circuit Judges.

MOORE, Circuit Judge.

On May 26, 1966, plaintiff-appellee, Rosemont Enterprises, Inc. (Rosemont) commenced this action in the district court alleging that copyrights which it owned on a series of articles entitled 'The Howard Hughes Story' which appeared in Look Magazine in early 1954 were infringed by a book entitled 'Howard Hughes-- a Biography by John Keats' published on May 23, 1966 by defendant-appellant, Random House, inc. In June, Rosemont made a motion for a preliminary injunction restraining the sale, publication, distribution and advertisement of the biography pending final determination of the action on the ground that it had made out a prima facie case of infringement. The defendants, Random House, Inc. and John Keats, opposed the motion on the grounds, inter alia, that the copying which was done was insubstantial and that, in any event, whatever use was made of the Look articles constituted a fair use and, thus, was privileged. The district court granted the motion for a preliminary injunction 1 and, in rejecting defendants' claim of fair use, narrowly confined the privilege to materials 'used for purposes of criticism or comment or in scholarly works of scientific or educational value.' In the district court's view, if a work is published 'for commercial purposes' and is designed for the popular market, those responsible for its appearance are precluded from invoking the fair use privilege, regardless of the nature of the work involved. Since the court found that the Hughes biography 'can scarcely be said to be a scholarly, scientific or educational work,' and was designed for the popular market, it concluded that the fair use privilege was inappropriate here. For the reasons set forth below, we reverse.

The only issue presently before this court is: Was the preliminary injunction erroneously issued as a matter of law?

The articles entitled 'The Howard Hughes Story' published in three issues

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of Look Magazine dated February 9, 23 and March 9, 1954, and copyrighted by its publisher, Cowles Communications, Inc., in January and February 1954 and the allegedly offending book, published in 1966, 'Howard Hughes-- a Biography by John Keats,' are before the court. The nature and extent of the infringement, if any, can be gauged by a comparison of the two writings. For the purposes of this appeal, an attempt will be made to restrict the factual statement to those undisputed items which bear upon a preliminary injunction.

The Circumstances Under Which Plaintiff Acquired the Look Copyrights

At the outset, defendants assert that plaintiff's conduct in acquiring the copyrights indicates that they were purchased solely for the purpose of bringing this lawsuit and, hence, plaintiff is deprived 'of the right to relief as a matter of law and as a matter of equitable discretion.'

From the facts as outlined in the district court's opinion, it appears that for some time prior to 1962 Random House had been considering a biography of Howard Hughes who by reason of his remarkable exploits and achievements, primarily in the aviation and motion picture fields, had become quite a public figure despite a publicized passion for personal anonymity. To prepare such a biography, Random House in September of 1962 engaged the services of Thomas Thompson, a member of the staff of Life Magazine. After submitting his draft manuscript, Thompson for business reasons could not continue with the additional work necessary for its completion. In the latter part of 1964, Random House obtained the services of an author, the defendant, John Keats, who took the Thompson manuscript, news and copyrighted magazine articles, including the 1954 Look articles, and various public documents, and produced the biography now before the court.

Apparently Hughes and/or his attorneys learned of the forthcoming Random House publication, and his attorney warned Random House that Hughes was opposed to the biography 'and would make trouble if the book was published.' The legal effect of the 'trouble' should not be pre-judged at this time, except as certain aspects bear upon the granting of the preliminary injunction. Whether there be any reality to the claim that the plaintiff Rosemont, organized in September 1965 by Hughes' attorney and two officers of his wholly-owned Hughes Tool Company, is engaged in writing a Hughes biography, must await the trial. For the present, it is sufficient to note that in February 1966 plaintiff, having by some means obtained a galley proof of the forthcoming biography, brought an action against defendants in the Supreme Court of New York alleging in substance a plan to exploit commercially the name and personality of Hughes and an invasion of his right of privacy.

On May 20, 1966, plaintiff obtained from Cowles Communications, Inc. (Look), the copyrights to the 1954 Look articles, so advised Random House the next day and brought this suit five days later. Apparently Look had done nothing with the articles since 1954; they had not been compiled into book form or reprinted or offered to the public in any manner except as articles in three February and March 1954 editions of Look. Nor is there any indication that Look, although advised of the proposed Random House biography, intended to bring an infringement action or to seek an injunction. However, whether the 'trouble' threatened will have legal consequences sufficient to constitute a defense cannot be determined upon the facts as adduced at this stage. Nevertheless, we have referred with approval to the rule that "The interference of the court by injunction being founded on pure equitable principles, a man who comes to the court must be able to show that his own conduct in the transaction has been consistent with equity." T. B. Harms & Francis, Day & Hunter v. Stern, 231 F. 645, 649 (2 Cir., 1916).

A Comparison of the 1954 Look Articles and the 1966 Biography

The three 1954 Look articles contain some 13,500 words and would have,

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if published in book form (which they were not), filled some 36 to 39 book-size pages. The 1966 biography consists of some 116,000 words and 304 pages. The Look articles do not purport to be a biography in the accepted meaning of the word but narrate certain phases or highlights of Hughes' quite eventful career. Naturally, any writing purporting to deal with the life of a public figure is bound to touch upon the same events as have given rise to the publicity. In addition, various incidents of interest to the reading public can usually be developed from friends, neighbors, teachers, business associates, employees, newspaper and magazine articles and public and private records. And so here the biography gives evidence of such source material. Moreover, there can be little doubt that portions of the Look articles were copied. Two direct quotations and one eight-line paraphrase are attributed to Stephen White, the author of the articles. A mere reading of the Look articles, however, indicates that there is considerable doubt as to whether the copied and paraphrased matter constitutes a material and substantial portion of those articles. On the other hand, the material at most forms an insubstantial part of the 304-page biography. Furthermore, while the mode of expression employed by White is entitled to copyright protection, he could not acquire by copyright a monopoly in the narration of historical events. Finally, in an affidavit submitted to the district court, Thompson asserted that he engaged in extensive research while preparing his manuscript, which included personal interviews with many people familiar with Hughes' activities (fifteen of whom he listed by name) 2 and the employment of a Houston newspaper man to conduct additional interviews for him. There is no dispute that defendant Keats, named as author of the biography, was retained solely to revise Thompson's manuscript which, as described in his contract with Random House, was to include rewriting and reorganization; rechecking facts against the sources used; and such additional research as was necessary to 'update the work and fill in facts and events.' 3 In any event, the extent of Keats' independent research is of little relevance since Thompson's work, embodied in the manuscript, formed the core of the published biography.

While it is undoubtedly true, as the district court observed, that 'the book does rely heavily on previously published newspaper and magazine articles and similar material,' that fact does not create a presumption of infringement. At this time, we are not prepared to hold that as a matter of law there has been a clear showing of probable success at a trial with respect to the extent and quality of infringement of the Look articles which warrants the grant of a preliminary injunction.

Fair Use

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