Rubin v. Boston Magazine Co.

• Decision Date: 26 March 1981
• Docket Number: No. 80-1549,80-1549
• Citation: 645 F.2d 80
• Parties: , 1978-81 Copr.L.Dec. 25,243, 7 Media L. Rep. 1148 Isaac Michael RUBIN, Plaintiff, Appellee, v. BOSTON MAGAZINE COMPANY and D. Herbert Lipson, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 80

645 F.2d 80

209 U.S.P.Q. 1073, 1978-81 Copr.L.Dec. 25,243,

7 Media L. Rep. 1148

Isaac Michael RUBIN, Plaintiff, Appellee, v. BOSTON MAGAZINE COMPANY and D. Herbert Lipson, Defendants, Appellants.

No. 80-1549.

United States Court of Appeals, First Circuit.

Argued Jan. 8, 1981.

Decided March 26, 1981.

Joseph D. Steinfield, Boston, Mass., with whom Gilbert B. Kaplan and Hill & Barlow, Boston, Mass., were on brief, for defendants, appellants.

Jeffrey F. Jones, Boston, Mass., with whom Eric F. Menoyo, and Palmer & Dodge, Boston, Mass., were on brief, for plaintiff, appellee.

Before CAMPBELL and BREYER, Circuit Judges, and WYZANSKI, Senior District Judge. ^*

WYZANSKI, Senior District Judge.

This is an appeal from a judgment for plaintiff in a non-jury copyright case in which none of the primary facts is disputed.

The plaintiff, Isaac Michael Rubin, now a professor of social psychology at Brandeis University, in 1969 submitted in partial fulfillment of the University of Michigan requirements for the degree of doctor of philosophy a dissertation entitled "The Social Psychology of Romantic Love" for which on May 4, 1970 he secured Copyright No. 146094. The dissertation purports to establish and validate a so-called "construct of romantic love" to be used in research by psychologists concerned with social relationships. The dissertation is based upon the theory that the three critical components of a relationship of love are "affiliative and dependent need," "predisposition to help" and "exclusiveness and absorption." The dissertation sets forth at pages 44-45 a "love scale" and "liking scale" which consist of 26 questions designed to elicit one's feeling about another.

Dr. Rubin used verbatim his scales in his article "Measurement of Romantic Love" appearing in the October 1970 issue of Journal of Personality and Social Psychology. The American Psychological Association, Inc. on November 2, 1970 secured copyright No. B624309 on that issue, and on March 20, 1970 assigned to Dr. Rubin so much of that copyright as covered his article. Dr. Rubin again used verbatim his scales in a scholarly book entitled Liking and Loving: An Invitation to Social Psychology. The publisher Holt, Rinehart and Winston, on October 8, 1974, secured on that book copyright No. A 582977 which on March 27, 1978 it assigned to Dr. Rubin.

On February 14, 1975 Reader's Digest sought Dr. Rubin's permission to use his scales in one of its articles, and promised to "pay you well if it comes off." But Dr. Rubin declined to give such permission.

The defendant Boston Magazine Company is the owner of, and the defendant D. Herbert Lipson is the publisher of, a magazine called Boston. The August 1977 issue of Boston has an article having as its main title "OOO-OOO-WAH OOO-OOO-WAH WHY DO FOOLS FALL IN LOVE?" The cover of the magazine features the article under the headline "How's Your Love Life?" and the sub-caption "Who Turns You On and Why? Science may have the answer." The body of the article refers to scholarly publications of many psychologists and sociologists, including Dr. Rubin, and sets forth verbatim Dr. Rubin's scales in a large box entitled "The Test of Love. How to Tell If It's Really Real."

The author of the Boston article admitted that he copied the scales from either Dr. Rubin's article in the October 1970 Journal of Personality and Social Psychology or his book Liking and Loving: An Invitation to Social Psychology.

Upon the basis of the foregoing evidence the district judge in a brief statement from the bench found that the defendant Boston Magazine Company copied "from at least two of Dr. Rubin's copyrighted articles" and that this "was done in a purely commercial, hopefully money-making, non-scientific way" and was not "intended to acquaint the Greater Boston reading public with the level of psychological and scientific research in the community." The district court awarded the plaintiff $5,000 damages and a $2,500 attorney's fee, and entered judgment for the plaintiff ¹ for those amounts.

It is agreed that because the claimed infringements occurred in 1977 this case, in accordance with § 112 of the Copyright Act of October 19, 1976, 90 Stat. 2541, 2600, is governed by the 1909 Copyright Act, Act of March 4, 1909, 35 Stat. 1075 et seq., formerly 17 U.S.C. § 1 et seq., Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc., 621 F.2d 57, 60 n.5 (2d Cir. 1980).

The first argument presented to us by defendants is that the scales are not copyrightable because they are a scientific discovery.

Under the Copyright Act of 1909, as under earlier copyright law and indeed as under § 101(b) of the Copyright Act of 1976, 17 U.S.C. § 102(b), there is no copyright protection for an idea, concept, principle or discovery. Mazer v. Stein, 347 U.S. 201, 217-218, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954); Baker v. Selden, 101 U.S. 99, 102-103, 25 L.Ed. 841 (1879); Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678-679 (1st Cir. 1967). See 1 Nimmer on Copyright (1980) § 2.03(D). But there may be a valid copyright on an original form of expression of an idea, concept, or discovery. Ibid.

The basis of the defendants' contention that the scales are a discovery is the claim made by Dr. Rubin in his article in the Journal of Personal and Social Psychology, in his book Liking and Loving, and in his testimony in the trial court that his scales are a scientifically valid method of determining whether two persons are in love. But whatever may be the contribution of the scales to the behavioral sciences, they are certainly not a "discovery" as that term is used in copyright law. In copyright law a "discovery" refers primarily to the disclosure of a hitherto unknown fact, principle, or theory. See 1 Nimmer on Copyright (1980) § 2.03(E). The text of the scales makes it plain that they do not disclose any fact, principle or theory.

The scales are nothing but 26 questions which, on the basis of his theory that the essential components of a love relationship are "affiliative and dependent need," "predisposition to help" and "exclusiveness and absorption," Dr. Rubin with some degree of originality phrased and organized into two tables. Dr. Rubin does not claim copyright protection for his theory as to the essential components of love. What he claims is copyrightable are the scales setting forth questions based upon that theory. The scales are subject to copyright on the ground that they are an original form of expression. They have at least as much originality as other writings which have been thought subject to copyright. Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951), 1 Nimmer on Copyright (1980) § 2.01(B).

It is of no significance that the scales are in the form of questions. United States Constitution Article I § 8, ch. 8 gives Congress power to secure to authors the exclusive right to their respective "writings," and § 4 of the Copyright Act of 1909, formerly 17 U.S.C. § 4 permits copyright for "all the writings of an author." Since the term "writings," as used in the Constitution and in the statute, is intended to be read expansively, International News Service v. Associated Press, 248 U.S. 215, 234, 39 S.Ct. 68, 63 L.Ed. 211 (1918), Deutsch v. Arnold, 98 F.2d 686, 688 (2d Cir. 1938), the term covers sets of questions as well as other forms of expression.

Nor are the scales uncopyrightable because to give copyright protection to the scales will give Dr. Rubin a monopoly of the theory on which the scales are based. There are an infinite number of ways of stating Dr. Rubin's theory and an infinite number of questions which may be asked in order to find out whether two persons have the characteristics to which the theory refers.

The defendants' next principal contention is that even if the scales are a copyrightable component of the plaintiff's dissertation, nonetheless the defendants are not infringers because they made only a "fair use" of the plaintiff's copyrighted dissertation.

The doctrine of fair use had its origin in the opinion of Mr. Justice Story in Folsom v. Marsh, No. 4,901, 9 F.Cas. 342 (C.C.D.Mass.1841). "Fair use" is a "privilege in others than the owner of a copyright to use copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner." Ball, The Law of Copyright and Literary Property (1944) 260 quoted in Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir. 1966) cert. den. 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967) and in Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1174 (5th Cir. 1980). "The fundamental justification for the privilege lies in the constitutional purpose in granting copyright protection in the first instance, to wit 'To Promote the Progress of Science and the Useful Arts.' U.S.Const. art. 1 § 8." Rosemont Enterprises, Inc. v. Random House, Inc. supra, 307. In Iowa State University Research Foundation, Inc. v. American Broadcasting Co., 621 F.2d 57, 60 (2d Cir. 1980) Chief Judge Kaufman stated:

The doctrine of fair use, originally created and articulated in case law, permits courts to avoid rigid application of the copyright statute when, on...