645 F.2d 80 (1st Cir. 1981), 80-1549, Rubin v. Boston Magazine Co.

Docket Nº:80-1549.
Citation:645 F.2d 80
Party Name:Isaac Michael RUBIN, Plaintiff, Appellee, v. BOSTON MAGAZINE COMPANY and D. Herbert Lipson, Defendants, Appellants.
Case Date:March 26, 1981
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 80

645 F.2d 80 (1st Cir. 1981)

Isaac Michael RUBIN, Plaintiff, Appellee,


BOSTON MAGAZINE COMPANY and D. Herbert Lipson, Defendants, Appellants.

No. 80-1549.

United States Court of Appeals, First Circuit

March 26, 1981

Argued Jan. 8, 1981.

Page 81

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

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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...

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