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
 
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Page 808

684 F.Supp. 808 (S.D.N.Y. 1988)

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.

No. 88 Civ. 3126 (PNL).

United States District Court, S.D. New York.

May 13, 1988

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 The plaintiff alleges that the book infringes plaintiff's copyright in unpublished and published works of L. Ron Hubbard, a well-known author and religious figure. As to unpublished copyrighted work, plaintiff contends the defense of fair comment is not available, or in any event restricted in scope.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, ---

Page 809

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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