417 F.Supp. 1201 (S.D.N.Y. 1976), 73 Civ. 2720, Meeropol v. Nizer

Docket Nº:73 Civ. 2720.
Citation:417 F.Supp. 1201
Party Name:191 U.S.P.Q. 346 Michael MEEROPOL and Robert Meeropol, Plaintiffs, v. Louis NIZER et al., Defendants.
Case Date:July 20, 1976
Court:United States District Courts, 2nd Circuit

Page 1201

417 F.Supp. 1201 (S.D.N.Y. 1976)

191 U.S.P.Q. 346

Michael MEEROPOL and Robert Meeropol, Plaintiffs,


Louis NIZER et al., Defendants.

No. 73 Civ. 2720.

United States District Court, D. New York

July 20, 1976

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[Copyrighted Material Omitted]

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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.


GAGLIARDI, District Judge.

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:

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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. s 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. s 1331 . . . 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"). 2

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.

The Implosion Conspiracy has enjoyed considerable popular success since its publication in February (1973). 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.

. . . for the purposes of this motion, plaintiffs, in my view, have made a sufficient offer of proof that they are the equitable, if not legal, owners of the statutory claim. . . .

Nonetheless, upon evaluation of the entire record before the court, I conclude that the plaintiffs cannot meet their burden of establishing likelihood of success in this case. . . .

A major reason for concluding that the plaintiffs have fallen short of showing likelihood of success is the fair use defense raised by the defendants. . . .

. . . the continuing interest in and importance of the celebrated Rosenberg case probably entitles the defendants' new book to invocation of the fair use doctrine. . . .

Plainly, as defendants concede, The Implosion Conspiracy was designed and has been sold as a trade book for commercial gain . . . The book's commercial success, however, is no reason to conclude that it should be denied the benefits of the fair use doctrine. As I read The Implosion Conspiracy, the quotations were used with discretion and with demonstrable purpose to illustrate, from an historical and legal point of view, the post-conviction appeals and petitions for clemency which were filed by and for Mr. and Mrs. Rosenberg. The relevant portions

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of the book almost certainly will provide reasonably valuable source material for future historians, biographers and social scientists. Indeed, the conceded fact that the letters have been out of publication here and abroad for almost twenty years, in my view, tends to enhance the likelihood that defendants can prove fair use of the letters in question. Thus defendants are likely to prove that their book is a serious, full and readable account of what was a trial of great historical interest; that resort to quotations of certain of the Rosenbergs' letters is important to any serious book on their trial; and that there is little possibility of injury to the plaintiffs. Indeed, defendants may be able to show that their book has enhanced the value of plaintiffs' copyright. . . .

In their papers opposing plaintiffs' motion, defendants have suggested and indeed urged that the record is sufficient for this court to dismiss the first claim on this ground. But "fair use" would seem to be a function of all of the circumstances, and plaintiffs should have the opportunity to rebut the presumption that arises from the nature of the materials and the circumstances described herein. It is not altogether clear that letters stand on the same footing as "historical facts", which are the product of research and in turn form the basis for subsequent works. See Rosemont (v. Random House, 366 F.2d 303 (2 Cir. 1966)), supra. And the relatively slight quantitative significance of the quotations perhaps overstates their qualitative impact. Defendant Nizer, moreover, is a lawyer; he knew about Death House Letters and its copyright, yet made only one somewhat ambiguous attempt to obtain permission to cite the letters in his book. Finally, although this is not stressed by the parties, it appears that defendant Doubleday published another book, Invitation to an Inquest. In the original version of that book, excerpts of certain of the Rosenberg letters appeared; but there is evidence that Doubleday would not permit such use unless written consent was obtained. Thus, it would seem that both defendants were well aware of the potential copyright infringement represented by quotations of the letters in The Implosion Conspiracy. Accordingly, defendants' motion to dismiss the first claim is denied without prejudice.

To summarize, then, the plaintiffs' motion for temporary injunctive relief is denied in all respects; further, the defendants' cross motion to dismiss the first stated claim in the complaint is denied without prejudice to renewal thereof upon an expanded record. 361 F.Supp. at 1065, 1067-68, 1070.

The defendants now renew their motion for dismissal of the complaint on the basis of an "expanded record."

I. Invasion of Privacy and Defamation Claim

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.

II. Copyright Claims

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...

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