Radji v. Khakbaz, Civ. A. No. 84-0641.

Decision Date30 April 1985
Docket NumberCiv. A. No. 84-0641.
Citation607 F. Supp. 1296
PartiesParviz C. RADJI, Plaintiff, v. Javad KHAKBAZ, et al., Defendants.
CourtU.S. District Court — District of Columbia

COPYRIGHT MATERIAL OMITTED

Claudia Ribet, Grove, Engelberg & Gross, Washington, D.C., Sheldon Bardach, Los Angeles, Cal., for plaintiff.

William A. Dobrovir, Dobrovir & Gebhardt, Washington, D.C., for defendants.

MEMORANDUM ORDER

HAROLD H. GREENE, District Judge.

Parviz C. Radji, the last Ambassador to Great Britain for the government of the late Shah of Iran brought this copyright infringement action against the Iran Times Corporation and Javad Khakbaz, the sole owner and editor of the Iran Times, a newspaper printed in English and Farsi which is published here in the District of Columbia and distributed throughout the United States, Canada, and various other countries. Plaintiff alleges that defendants copied and translated substantial excerpts from his book entitled In the Service of the Peacock Throne, which were published in the Sunday Times of London, and that they reprinted these excerpts in the Iran Times without plaintiff's permission and without compensating him. The parties have filed cross-motions for summary judgment on the issue of liability. For the reasons stated below, plaintiff's motion will be granted and defendants' motion will be denied.

I

There are no genuine issues of material fact. While plaintiff was serving as the Shah's Ambassador to Great Britain, i.e., from June 4, 1976 to January 26, 1979, he kept a daily diary of his experiences. In January of 1983, he published these diaries under the title In the Service of the Peacock Throne. The book was registered on January 14, 1983, under the copyright laws of the United Kingdom, and it was later registered with the United States Register of Copyrights.1

In January and February of 1983, the Sunday Times ran a series of three articles consisting of verbatim excerpts from plaintiff's book. These excerpts comprised over eighty days of daily entries from plaintiff's diary (approximately ten percent of the book) and covered nine pages of newspaper text. In exchange for the exclusive right to publish these excerpts, the Sunday Times paid plaintiff 15,000 pounds. The articles also acknowledged and identified plaintiff as the owner of the copyright.

After reading the Sunday Times articles, defendants decided that the excerpts from plaintiff's book would also be of interest to the readers of the Iran Times. Although defendant Khakbaz called the Sunday Times in order to secure permission from plaintiff to reprint the articles,2 he never received such permission either from that newspaper or from the plaintiff. Nevertheless, defendants proceeded to copy 86 percent of the excerpts from plaintiff's book quoted in the Sunday Times articles, translated them into Farsi, and reprinted them in a series of articles in 12 separate editions of the Iran Times.3 Upon learning of these articles, plaintiff demanded that defendants cease any further publications, and he thereafter filed this lawsuit. See note 6, infra.

II

There are essentially two elements in a copyright infringement action: ownership of the copyright by the plaintiff, and copying by the defendant. 3 Nimmer on Copyright § 13.01 at 13-3 (1984). Defendants here concede that plaintiff owns the copyright in the book and that they copied and translated verbatim excerpts from plaintiff's book reprinted in the Sunday Times, so that they could reprint them in their own newspaper, the Iran Times.4 Notwithstanding these concessions, defendants maintain that their copying is not actionable under the Copyright Act because (1) the similarity between the works is insubstantial; and (2) the use of passages from plaintiff's book constituted fair use.5 Neither point has merit.6

III

Defendants' argument relating to substantial similarity and appropriation of expression is premised upon the erroneous assumption that because they translated portions of plaintiff's book from English to Farsi, and because the Court does not read or understand Farsi, plaintiff has failed to provide a basis upon which the Court could determine whether the Iran Times articles were substantially similar to the excerpts from plaintiff's book and whether defendants copied plaintiff's protected expression.

The Court need not be fluent in Farsi to find that defendants have infringed plaintiff's copyright where, as here, they have admitted that the Iran Times articles were composed entirely of translated quoted passages from plaintiff's book reprinted in the Sunday Times.7 A translation, by definition, uses different language than that in the original. That, however, does not exempt translations from the provisions of the Copyright Act. To the contrary, the Act gives the copyright holder the exclusive right to prepare derivative works, which includes the right to make translations. 17 U.S.C. § 106(2).8 Thus, in the absence of authorization, only the plaintiff had the right to translate and reprint his book into Farsi.

IV

The fair use doctrine, now embodied in section 107 of the Copyright Act, permits the limited use of copyrighted material, without the author's consent for purposes "such as criticism, comment, news reporting, teaching ..., scholarship, or research ..." In determining whether a particular use is fair, the Court must consider the following four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use on the potential market for or value of the copyrighted work.

17 U.S.C. § 107. After considering these factors in the context of this case, the Court concludes that defendants' copying cannot be considered fair use.

First. Defendants' reprinting of the 80 days of diary entries in a commercial publication was presumably intended to boost sales and thus was for commercial rather than non-profit educational purposes. To be sure, defendants regarded plaintiff's book as newsworthy, and they reprinted the excerpts because they thought it would be of interest to their readership. However, an argument of newsworthiness can always be made where the author of the original work is a well-known person or where the book or article describes political or other events of significance, but that is not per se a defense to an infringement action.

To be sure, newsworthy items may be entitled to less protection than purely fictional works,9 but the "expression" of such works is still protected from wholesale copying. See also, pp. 1301-1302, infra.

Because the fair use doctrine presupposes that defendants acted in good faith, the propriety of their conduct must also be weighed in analyzing the purpose and character of the use. Marcus v. Rowley, 695 F.2d 1171, 1175-76 (9th Cir.1983). Here, defendants state that they knew the material in question was copyrighted and that permission from the copyright holder was needed; yet they decided to copy the article anyway. This fact further undercuts their reliance on the first element of the fair use doctrine.

Second. Plaintiff's book is in essence a diary, a introspective and highly subjective account of his experiences as the Shah's Ambassador to Great Britain during the two and one-half years immediately preceding the overthrow of the Shah's government.10 To be sure, many entries in plaintiff's book contain factual and historical information which is not copyrightable, but the expression of that information is, particularly in a case such as this where the expression of those facts is highly anecdotal.11 Thus, while defendants were free to recount historical and biographical facts described in plaintiff's book, or to comment thereon,12 they could do so only in their own words — they could not expropriate plaintiff's expression.13

The case of Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (2d Cir.1983), cert. granted, ___ U.S. ___, 104 S.Ct. 2655, 81 L.Ed.2d 362 (1984), upon which defendants rely heavily, is not to the contrary. In that case, Harper & Row, the publisher of former President Ford's memoirs, sued The Nation magazine for copyright infringement for its use of materials contained in Ford's memoirs, particularly that information relating to the pardon of former President Nixon. The Second Circuit, reversing the decision of the District Court, held that The Nation's use of such material constituted fair use. The court made it plain that it ruled as it did because The Nation merely drew upon scattered parts of Ford's memoirs,14 noting specifically that

If The Nation had taken ... all of the book or all of a chapter and merely changed the language here and there, paraphrasing would not and should not suffice to protect it.

723 F.2d at 203.

Moreover, although the memoirs of former President Ford also contained information concerning private aspects of his life and his personal reflections, the court found that "all the information contained in The Nation article dealt with Ford's public and political life." 723 F.2d at 199.15 By contrast, the defendants here made no attempt to ferret out the newsworthy or historical facts in plaintiff's book; they simply copied virtually all the excerpts appearing in the Sunday Times, historical and personal alike.

It is finally worthy of note that much of the information in The Nation article concerning the Nixon pardon had already been presented by President Ford during a 1974 Congressional committee investigation and printed in government documents. 723 F.2d at 198, 205. There is no evidence in this case that the biographical and other personal information contained in plaintiff's book was otherwise available to the public.16

Third. The Iran Times articles at issue consisted entirely of...

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