Weissmann v. Freeman

Citation684 F. Supp. 1248
Decision Date06 May 1988
Docket NumberNo. 87 Civ. 6069 (MP).,87 Civ. 6069 (MP).
PartiesHeidi S. WEISSMANN, M.D., Plaintiff, v. Leonard M. FREEMAN, M.D., Defendant.
CourtU.S. District Court — Southern District of New York

COPYRIGHT MATERIAL OMITTED

Vladeck, Waldman, Elias & Englehard, P.C., New York City by Judith P. Vladeck, Julian R. Birnbaum, Jill R. Roisen, for plaintiff.

Summit, Rovins & Feldesman, New York City by Guy R. Fairstein, for defendant.

DECISION AND OPINION

MILTON POLLACK, Senior District Judge.

In an uncommon controversy, the issues presented are whether a medical paper represents joint or individual authorship and whether it may ground an infringement claim under the Copyright Act, 17 U.S.C. § 101, et seq. The action was tried to the Court at a Bench trial.

The parties are both nuclear medicine physicians. The plaintiff, Heidi S. Weissmann, M.D. ("Weissmann") charges infringement by the defendant, Leonard M. Freeman, M.D. ("Freeman"), of a syllabus entitled "Hepatobiliary Imaging" which she presented at a nuclear medicine refresher course sponsored by the Radiological Society of North America ("RSNA") in 1985. A booklet containing the syllabus compiled the papers submitted by the physicians lecturing at the RSNA course and was copyrighted by RSNA.

Two years later, Freeman planned to utilize a copy of the same syllabus at a nuclear medicine review course ("the review course"), where he was to be the lecturer at a seminar scheduled for August 24-27, 1987, at the Mount Sinai School of Medicine ("Mount Sinai"). Only two changes were made in the syllabus: 1) plaintiff's name, which appeared at the upper right corner of alternate pages in the 1985 syllabus, was deleted from the Mount Sinai 1987 review course syllabus and replaced with defendant's name; and 2) the title "Hepatobiliary Imaging," used on the earlier syllabus, was changed in the 1987 syllabus to "Gastrointestinal Nuclear Medicine Hepatobiliary Imaging".1

Prior to the date for the Mount Sinai review course, plaintiff obtained a copy of the syllabus which was to be handed out to the attendees. On August 19, 1987, she inquired from RSNA whether it had given permission for the use described above. The RSNA told plaintiff that no permission had been sought by anyone for such use.

Plaintiff thereupon requested the director of the review course not to circulate the syllabus and to inform all recipients that she claimed sole authorship thereof. The administrator at Mount Sinai was similarly advised. It was quickly decided that the material would be removed from all copies of the review course handouts and the nine copies already distributed to employees were retrieved. Freeman had no objection to the removal of the disputed material from the lecture hand-outs and went on with the review course lecture without it.

Nonetheless, on the next day, August 20, 1987, this suit was filed, alleging copyright infringement in violation of 17 U.S.C. § 501 and seeking a preliminary injunction. In her prayer for relief, plaintiff sought: a declaration that Freeman had committed actionable infringement; an order permanently restraining him from infringement; an award of actual damages and profits; and full costs and attorneys' fees.

Plaintiff then amended the complaint to seek, in addition to declaratory and injunctive relief, damages only with respect to defendant's economic gain from the alleged infringement and statutory costs and attorney's fees. The claim for attorneys' fees was dismissed at the close of plaintiff's case, with plaintiff's consent, because the copyright was not registered before this suit was commenced and registration is a statutory prerequisite to such a claim. 17 U.S.C. § 412.2 Jurisdiction herein is based upon 28 U.S.C. § 1338(a) and 17 U.S.C. § 501(b).

Several months after inception of this suit, plaintiff obtained a registration of a copyright in her name covering the same syllabus she had used in 1985 at RSNA. The registration was issued to her on November 9, 1987 and states her contention to the Register of Copyrights that the copyrightable material in the syllabus consists of "amplification, revision and reorganization of pre-existing material; review and update of relevant literature to add new references; substantial new textual material and compilation of photographs." Plaintiff relies on the registration issued to her as well as the registration of the RSNA booklet.

Defendant denied liability for infringement and asserts that the syllabus was the product of lengthy collaborative research and joint authorship, largely copied verbatim from earlier papers created either solely by him or in whole or in part in his role as principal investigator, collaborator, writer and chief of the nuclear medicine department in which plaintiff was employed; that he was entitled to use the paper as stemming from his own contribution to the syllabus, for lecture, teaching and study purposes; that it was a fair use; and that the content was in the public domain. Further, in his Answer, defendant seeks 1) a declaration that he and plaintiff are joint authors of the allegedly infringed work, 2) a dismissal of the amended complaint and 3) costs and a reasonable attorney's fee.

I. Background

To place the dispute in focus, it is necessary to consider: the origin and development of the syllabus in light of the parties' relationship, the stature of the defendant in the medical profession and in the field of nuclear medicine in particular, the development of the plaintiff's career in the field under defendant's supervision, guidance and control as defendant's junior associate, and the parties' use of radioactive substances on humans in imaging of the gall bladder and liver under authorizations issued to defendant alone.

From the inception of the parties' professional association in 1977 to plaintiff's termination in 1987, defendant was the Chief of the Division of Nuclear Medicine at Montefiore Medical Center ("Montefiore") and plaintiff, starting as a fourth-year radiology resident under defendant, was the developing junior member of the association. Their work was laid down in papers, syllabi and articles, in evolutionary stages, jointly conceived and executed. Each had a hand in propelling that evolution. To a large extent it was plaintiff's part of the joint enterprise to write down the results of their activity, with defendant always on top of what was in progress, by actually supervising the investigations, writing portions of papers, reviewing drafts, commenting on the scripts and lending credibility thereto and to the project by his standing, reputation, knowledge, perception, and experience.

The item presently under consideration ultimately evolved in that manner. The writing at issue here was no more than a stock piece of what the parties had already worked up, nothing new or newly communicated, merely freshened up to take in evolutionary detail on what had already been compiled; it did not report any new studies.

In those circumstances, in August 1987, when invited to speak at a review course at Mount Sinai, the defendant felt comfortable in planning to hand out the syllabus at the course. He placed his name on the hand-out rather than plaintiff's, since she was not scheduled to give any part of the review lecture on that occasion. Plaintiff's sensitivity to this conduct, which to her was a seeming by-pass of her participation in the work, galvanized this suit, with its highly emotional overtones and accusatory concepts. Suffice it to say the piece was not used by the defendant and he delivered the lecture without a syllabus hand-out.

II. In More Detail
A. The Parties
1. The Defendant—Freeman

In the order of seniority, we discuss the defendant first—the Chief of the Department of Nuclear Medicine at Montefiore. Freeman is Board Certified in Radiology, Nuclear Medicine and Diagnostic Radiology, with special competence in Nuclear Radiology. He is a professor of Radiology and of Nuclear Medicine at the Albert Einstein College of Medicine ("Einstein"), where he has held faculty appointments since July 1964, is an attending physician in Radiology and Nuclear Medicine at Montefiore and also serves as Director of the Nuclear Medicine Service at Montefiore and Vice-Chairman of the Department of Nuclear Medicine at Einstein.

Freeman was President of the Society of Nuclear Medicine in 1979-80, President-Elect of the Society in 1978-79 and its Vice-President in 1977-78. He holds editorships in specialty publications: co-editor of "The Seminars in Nuclear Medicine," now in its 18th volume; co-editor of "Nuclear Medicine Annual"; co-editorial consultant of the Physicians' Desk Reference for Radiology and Nuclear Medicine; medical editor of "Current Concepts in Diagnostic Nuclear Medicine"; and editor of a textbook called Freeman and Johnson's Radionuclide Imaging. Freeman is well-published in diverse areas of nuclear imaging, including hepatic (liver), renal (kidney), and bone imaging, especially using Rose-Bengal, the forerunner of the radioactive material referred to as the IDA compounds. It is evident from Freeman's curriculum vitae and list of major presentations that Freeman is a prolific author on a broad range of organ systems susceptible of diagnosis by radionuclide imaging, a much sought-after speaker at national and international meetings and before professional societies and medical institutions and an esteemed physician and researcher in the field of nuclear medicine and radiology.

2. The Plaintiff—Weissmann

Plaintiff is a graduate of Mount Sinai School of Medicine and licensed to practice medicine in the State of New York. At the time plaintiff commenced this action, she held appointments as an associate professor of Nuclear Medicine and Radiology at Einstein and as an attending physician employed by Montefiore.

Weissmann began her professional association with the defendant in the fourth year of her residency in radiology at...

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