560 F.2d 1061 (2nd Cir. 1977), 886, Meeropol v. Nizer

Docket Nº:886, Docket 76-7434.
Citation:560 F.2d 1061
Party Name:Michael MEEROPOL and Robert Meeropol, Plaintiffs-Appellants, v. Louis NIZER, Doubleday & Co., Inc. and Fawcett Publications, Inc., Defendants-Appellees.
Case Date:July 28, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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560 F.2d 1061 (2nd Cir. 1977)

Michael MEEROPOL and Robert Meeropol, Plaintiffs-Appellants,


Louis NIZER, Doubleday & Co., Inc. and Fawcett Publications,

Inc., Defendants-Appellees.

No. 886, Docket 76-7434.

United States Court of Appeals, Second Circuit

July 28, 1977

Argued May 19, 1977.

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[Copyrighted Material Omitted]

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Marshall Perlin, New York City (Kristin Booth Glen, New York City, Samuel Gruber, Stamford, Conn., and Max R. Millman, Philadelphia, Pa., of counsel), for plaintiffs-appellants.

Robert M. Callagy, New York City (Satterlee & Stephens, James Rittinger, New York City, of counsel), for defendants-appellees Doubleday & Co., Inc. and Fawcett Publications, Inc.

George Berger, New York City (Phillips, Nizer, Benjamin, Krim & Ballon, Martin Stein, New York City, of counsel), for defendant-appellee Louis Nizer.

Before MOORE, SMITH and MULLIGAN, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Michael and Robert Meeropol appeal from dismissal on summary judgment in the United States District Court for the Southern District of New York, Harold R. Tyler, Jr. and Lee P. Gagliardi, Judges, of a three-count complaint alleging infringement of statutory copyright (Count I), invasion of privacy and defamation (Count II), and infringement of common law copyright (Count III). Jurisdiction is based on 28 U.S.C. §§ 1338, 1331 and 1332.

Appellants are the natural children of Julius and Ethel Rosenberg. Their parents were executed in June 1953 after conviction for conspiring to transmit information relating to the national defense to the Soviet Union. Appellees Louis Nizer ("Nizer"),

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Doubleday & Co., Inc. ("Doubleday") and Fawcett Publications, Inc. ("Fawcett") are the author and publishers respectively of an account of the events surrounding the Rosenberg trial entitled The Implosion Conspiracy, published in 1973. Plaintiffs-appellants alleged that Nizer incorporated in his book substantial portions of copyrighted letters written by Ethel and Julius Rosenberg without authorization and that this use constituted infringement of their statutory and common-law copyright. Nizer's allegedly inaccurate, misleading and fictionalized account of the events surrounding the trial, it is claimed, constitutes defamation and invasion of privacy as to appellants.

In June 1973 appellants filed a complaint in the Southern District of New York seeking injunctive relief and damages for copyright infringement, defamation, and invasion of privacy from defendants Nizer and Doubleday. Judge Tyler held that the Meeropols had not established sufficient likelihood of success on the merits and denied the request for injunctive relief. At the same time he denied defendants' cross-motion to dismiss the complaint. Meeropol v. Nizer, 361 F.Supp. 1063 (S.D.N.Y.1973). Judge Tyler's decision rested in part on the possible availability to defendants of the "fair use" defense which might require the subordination of copyright claims to the greater public interest in the dissemination of knowledge. He refused to dismiss the complaint in order to give plaintiffs an opportunity to establish the facts, especially since it is not altogether clear whether letters stand on the same footing as "historical facts" in relation to the "fair use" doctrine. 361 F.Supp. 1067, 1070.

Following discovery proceedings and pretrial motions, the appellees, defendants below in the Southern District action, moved in January 1974 for partial summary judgment on the defamation and privacy claims of Count II. This motion was granted July 31, 1974 by Judge Tyler. 381 F.Supp. 29 (S.D.N.Y.1974). In the meantime the Meeropols had commenced a similar action against Fawcett, publishers of a paperback edition of the Nizer book, in the District Court for the District of Connecticut. Fawcett moved to stay the Connecticut action and sought leave to intervene in the New York action. These motions were granted in an unreported opinion by Judge Tyler, affirmed by this court October 12, 1974. Meeropol v. Nizer, 505 F.2d 232 (2d Cir. 1974). 1

On January 30, 1975 defendants moved to dismiss the remaining copyright counts, I and III, of the complaint. This motion was granted by Judge Gagliardi to whom the case had been reassigned following Judge Tyler's resignation from the bench. The present appeal is from the final judgment entered July 23, 1976 dismissing all counts of the complaint against all of the defendants, based on Judge Tyler's grant of partial summary judgment dismissing Count II dated July 31, 1974 and on an opinion and order of Judge Gagliardi dated July 20, 1976 dismissing Counts I and III of the original complaint and all three counts of the supplemental complaint. Meeropol v. Nizer, 417 F.Supp. 1201 (S.D.N.Y.1977). We affirm the dismissal of Counts II and III, and reverse and remand for further proceedings on Count I.

The Defamation Claim

Plaintiffs sought one million dollars in damages for defamation and invasion of privacy in Count II of their complaint. They alleged that the juxtaposition in Nizer's book of excerpts of the private letters of their parents with "false, fictitious and distorted" statements was designed to deceive the reader and impress the public with the authenticity of Nizer's account in order to embarrass, humiliate, and ridicule plaintiffs and their parents.

In dismissing the defamation count the court below applied the standards set forth in Gertz v. Welch, 418 U.S. 323, 94 S.Ct.

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2997, 41 L.Ed.2d 789 (1974), Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), and New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). It held that because they were the sons of the Rosenbergs, Michael and Robert were "public figures" and that in order to recover plaintiffs would have to establish that defendants' book was published with reckless disregard for the truth. The court analyzed the passages in the book alleged to be libelous. It found that

The record as a whole, thus, establishes that there was no knowledge of falsity (if indeed, there is a falsity), no serious doubt concerning the truth of any statement in the article (sic) and certainly no reckless disregard of whether statements in the book were false.

To the extent that The Implosion Conspiracy contains minor fictionalization or approximations of conversations that may have taken place between plaintiffs and their parents, these cannot be considered defamatory. Such techniques do not rise to the constitutional level of a clear and convincing showing of reckless disregard. As in Miller v. News Syndicate, 445 F.2d 356 (2d Cir. 1971), any "deviations from or embellishments upon" the information obtained from the primary sources relied upon were minuscule and can be attributed to the leeway afforded an author who attempts to recount and popularize an historic event.

381 F.Supp. 35.

We have carefully reviewed the portions of The Implosion Conspiracy which appellants have cited as defamatory. We agree with the district court that no passages are defamatory on their face. Of 77 pages cited, only 29 passages refer to appellants. Most of these passages contain innocuous references to the Rosenberg children and their interaction with their parents. While some of the accounts are undoubtedly somewhat fictionalized and inaccurate, almost none would be viewed as defamatory by any reasonable reader. Appellants were asked to specify in what respect the passages were false in answer to interrogatories from appellees. Their answers consisted in general allegations that the account misrepresented historical facts and cast their parents and their supporters in an unfavorable light. Three charges of falsity relating specifically to appellants are however included in the answers to the interrogatories.

On page 400 of his book Nizer writes, "Bloch (the Rosenberg's attorney) had placed Michael, nine years old, and Robert, five years old, in a Bronx shelter home." Appellants counter that they were never placed in a shelter by their parents' attorney. In fact the children were, at one point, transferred to a foster home because their paternal grandparents were ill and unable to care for them. 2

Nizer's account of the evening of the Rosenberg's execution contains the following account on page 483:

On the evening of the execution, the kind woman with whom the children were staying sought to shield Michael from the shock. There was a baseball game between the New York Yankees and Detroit Tigers on television. She lured him into watching it. She had underestimated the overriding interest in the case. Suddenly, there was a fearful scream like those that ejected him from his nightmares. A bulletin had flashed across the screen: "President Eisenhower has turned down Ethel and Julius' final appeal. They must die tonight."

She rushed into the room and found Michael curled up in a corner of the big leather chair in a fetal position, whimpering. With difficulty, she lifted him in her arms and carried him to bed, where she held him tenderly during the sleepless night.

This constitutes an untrue description according to appellants because "Plaintiff sat

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quietly with his hands folded looking down. Plaintiff did not cry." 3

Passages at pages 23, 242 and 366-67 of Nizer's book refer to the neurotic behavior of Michael and Robert as children. The accuracy of these descriptions has been documented in appellants' own book and in other sources. 4 The allegations that Nizer distorted the trial record, deleted relevant parts of letters by their parents which were quoted in the book, or cast their parents' actions in a false light are irrelevant to an action for defamation brought by Michael and Robert Meeropol. 5 The literary and historical worth and accuracy of Nizer's account are not in issue before us, however important they may be to appellants. We may consider only...

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