Meeropol v. Nizer
Decision Date | 20 July 1976 |
Docket Number | No. 73 Civ. 2720.,73 Civ. 2720. |
Citation | 417 F. Supp. 1201 |
Parties | Michael MEEROPOL and Robert Meeropol, Plaintiffs, v. Louis NIZER et al., Defendants. |
Court | U.S. District Court — Southern District of New York |
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Marshall Perlin, New York City, for plaintiffs.
Philips, Nizer, Benjamin, Krim & Ballon, New York City, by George Berger, Martin Stein, New York City, for defendant Nizer.
Satterlee & Stephens, New York City, by Robert M. Callagy, James F. Rittinger, New York City, for defendants Doubleday & Company, Inc. and Fawcett Publications, Inc.
This is a copyright infringement and invasion of privacy suit by Robert and Michael Meeropol against Louis Nizer ("Nizer"), author of the book The Implosion Conspiracy, Doubleday & Company, Inc. ("Doubleday"), the book's hardcover publisher, and Fawcett Publications, Inc. ("Fawcett"), the paperback publisher. The complaint alleges that The Implosion Conspiracy, which is about the espionage trial and conviction of Julius and Ethel Rosenberg, the plaintiffs' natural parents, invades the plaintiffs' privacy and infringes on common law and statutory copyrights they hold on letters their parents wrote while in jail awaiting execution.
Three opinions have already been rendered in this case by former Judge Harold R. Tyler, Jr.: the first denied a preliminary injunction on the copyright claim on the ground that the plaintiffs had not shown a substantial likelihood of success, 361 F.Supp. 1063 (S.D.N.Y.1973);1 the second, which was subsequently affirmed by the Court of Appeals, stayed a similar action brought by plaintiffs in Connecticut against Fawcett on condition that Fawcett intervene in this action, 73 Civ. 2720 (April 3, 1974) (unreported) aff'd 505 F.2d 232 (2d Cir. 1974); the third dismissed on the merits without leave to replead plaintiffs' invasion of privacy and defamation claim. 381 F.Supp. 29 (S.D.N.Y.1974). Plaintiffs have served a supplemental complaint including the same invasion of privacy claim in slightly different language. Defendants now move for summary judgment dismissing plaintiffs' complaint in its entirety.
While complete familiarity with all Judge Tyler's opinions is necessary for a full understanding of the issues here involved, the following extracts from the first opinion set forth the basic facts:
The defendants now renew their motion for dismissal of the complaint on the basis of an "expanded record."
Before discussing the other issues raised by the present motion it is well to dispose of the restated invasion of privacy and defamation claim. As this claim was previously dismissed without leave to replead by Judge Tyler, it is not properly before this court at this time. The supplemental complaint merely repleads and embellishes the allegations of the original complaint with respect to this claim in slightly more colorful language. Any new allegations in the supplemental complaint were previously considered and rejected by Judge Tyler at the time of the original dismissal of the claim. Count II of plaintiffs' supplemental complaint must thus again be dismissed on the ground of law of the case.
The defendants have expanded the record by providing (1) financial statements of Jero Publishing Co. and the Rosenberg Children's Trust Fund, showing no income from the Death House Letters after 1957 and (2) examples of 16 biographical and historical works containing excerpts of letters used to illustrate and explain historical events. Plaintiffs have expanded the record with (1) affidavits of college history professors and authors of other books about the Rosenberg trial stating that The Implosion Conspiracy is...
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