684 F.Supp. 808 (S.D.N.Y. 1988), 88 Civ. 3126, New Era Publications Intern., ApS v. Henry Holt & Co., Inc.
|Docket Nº:||88 Civ. 3126 (PNL).|
|Citation:||684 F.Supp. 808|
|Party Name:||7 U.S.P.Q.2d 1086 NEW ERA PUBLICATIONS INTERNATIONAL, ApS, a corporation of Denmark, Plaintiff, v. HENRY HOLT & CO., INC., a New York corporation, Defendant.|
|Case Date:||May 13, 1988|
|Court:||United States District Courts, 2nd Circuit, Southern District of New York|
Michael Hertzberg, Michael C. Elmer, Arthur J. Levine, John F. Hornick, Finnegan, Henderson, Farabow, Garrett & Dunner, Washington, D.C., for plaintiff.
Robert M. Callagy, Satterlee Stephens Burke & Burke, New York City, for defendant.
OPINION AND ORDER
LEVAL, District Judge.
Plaintiff, New Era Publications International, ApS ("New Era"), moves for a temporary restraining order enjoining the printing, publication and distribution of a book entitled Bare-Faced Messiah: The True Story of L. Ron Hubbard by Russell Miller. The defendant, Henry Holt & Co., Inc. ("Holt"), is the United States publisher of the book. The plaintiff alleges that the book infringes plaintiff's copyright in unpublished and published works of L. Ron Hubbard, a well-known author and religious figure. As to unpublished copyrighted work, plaintiff contends the defense of fair comment is not available, or in any event restricted in scope. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, ---
U.S. ----, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987).
I find that for reasons of strategy or neglect or both, plaintiff has been tardy in taking steps to seek this relief. As the result of plaintiff's tardiness, the grant of a temporary restraining order would subject the defendant to very great harm and loss that would have been altogether avoidable if plaintiff had moved more promptly. I conclude that plaintiff is chargeable with laches and that the temporary restraining order should not be granted for that reason.
Plaintiff's counsel brought the motion ex parte at 5:00 p.m. on May 4, 1988, and were told to return the following morning with counsel for the defendant. I spent most of the day on May 5 hearing counsel and made a preliminary ruling orally that evening. On May 6, plaintiff's counsel filed new papers seeking reconsideration. I directed response by defendant and heard counsel once again on Monday, May 9. After hearing counsel that day and considering new affidavits, I declined to change my ruling. This opinion summarizes the rulings initially set forth orally on the record.
The affidavits and representations to the court establish the following. The book, Bare-Faced Messiah:...
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