695 F.Supp. 1493 (S.D.N.Y. 1988), 88 Civ. 3126, New Era Publications Intern., ApS v. Henry Holt and Co., Inc.

Docket Nº:88 Civ. 3126 (PNL).
Citation:695 F.Supp. 1493
Party Name:8 U.S.P.Q.2d 1713 NEW ERA PUBLICATIONS INTERNATIONAL, APS, A corporation of Denmark, Plaintiff, v. HENRY HOLT AND COMPANY, INC., A New York Corporation, Defendant.
Case Date:August 09, 1988
Court:United States District Courts, 2nd Circuit, Southern District of New York

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695 F.Supp. 1493 (S.D.N.Y. 1988)

8 U.S.P.Q.2d 1713

NEW ERA PUBLICATIONS INTERNATIONAL, APS, A corporation of Denmark, Plaintiff,


HENRY HOLT AND COMPANY, INC., A New York Corporation, Defendant.

No. 88 Civ. 3126 (PNL).

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

Aug. 9, 1988

As Amended Aug. 16, 1988.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Michael Lee Hertzberg, New York City, Finnegan, Henderson, Farabow, Garrett & Dunner, Washington, D.C. (Michael C. Elmer, of counsel), Lubell and Lubell, New York City (Jonathan Lubell, of counsel), for plaintiff.

Satterlee Stephens Burke & Burke, New York City (Robert M. Callagy, Mark A. Fowler, of counsel), for defendant.


LEVAL, District Judge.

This is an action to enjoin the publication of a critical biography on grounds that the biographer has infringed the copyrights of the subject. The subject of the biography is the deceased L. Ron Hubbard, founder of the Church of Scientology. Plaintiff, New Era Publications International, ApS, a Danish corporation, is related to the Church of Scientology and was founded to hold and exploit Hubbard's copyrights. The author of the biography is Russell Miller. His book is entitled Bare-Faced Messiah: The True Story of L. Ron Hubbard, published by Henry Holt & Co., Incorporated, which is the sole defendant in the suit. The author was not named. The book includes numerous quotations from Hubbard's writings. The defense relies on the doctrine of fair use, which permits limited use of copyrighted material for purposes of "criticism, commentary, news reporting, teaching, scholarship or research." 17 U.S.C. § 107. The defendant contends also that even if fair use is not found for all takings of Hubbard's words, the remedy should be limited to damages, rather than an injunction suppressing the distribution of a critical historical study. The action raises issues of significant importance for the writing of history, journalism and criticism, and for the public's opportunity to be informed in matters of public interest.


The history of the action is set forth in part in the opinion on the application for a temporary restraining order. New Era Publications International, ApS v. Henry Holt & Co., Inc., 684 F.Supp. 808 (S.D.N.Y.1988). Bare-Faced Messiah has been published in England, Australia, and Canada in substantially similar form to the United States edition. The Church of Scientology sued to enjoin publication in those countries without success.

The first publication was in England in October 1987 after the British courts denied an application for a preliminary injunction. That suit alleged that the book employed confidential church documents, embezzled by a Church employee who had been appointed official biographer of Hubbard and became disaffected. The British courts concluded that the litigation was instituted to "stifle criticism" and not "to protect any legitimate interest of the church in preserving confidentiality." Church of Scientology v. Russell Miller, High Ct. of Justice, Ch. Div., Oct. 9, 1987, at 16. The court also found laches, based on the tardy institution of the suit, when the book was already in print. See Church of Scientology v. Miller & Anor, Ch. 1986 C. No. 6140, Sup.Ct. of Judic., Oct. 22, 1987, at 10.

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On November 19, 1987, New Era commenced action in the Federal Court of Canada alleging that the book infringed the Hubbard copyrights. That court also denied the application for a preliminary injunction on the grounds of laches. New Era Publications, International ApS v. Key-Porter Books Limited, No. T-2433-87, Fed.Ct.Can.Trial Div. (Dec. 2, 1987). On December 14, an action to enjoin publication of the book in Australia was withdrawn. By January 1988, Bare-Faced Messiah was publicly distributed in England, Canada and Australia.

This action was commenced on May 4, 1988 by application for a temporary restraining order. Two years earlier, the Church had sent Holt letters threatening an action for defamation. During February and March 1988, the Church made overtures to dissuade Holt from publishing the book. When the application for a TRO was heard on May 5, 1988, it came out that a first printing of 12,000 copies had already been substantially distributed and that the second printing was scheduled for the following morning. By reason of laches and consequent financial injury to the defendant, I declined to enjoin the second printing. See Order of May 13, 1988. On May 20, 1988, however, after plaintiff agreed to indemnify the defendant in the event of production losses, I granted a TRO restraining distribution of the second printing pending complete submission of proofs. The parties then agreed to bypass the preliminary injunction stage and proceed directly to the submission of an expedited trial seeking a permanent injunction.

There is no dispute that the biography quotes extensively from Hubbard's writings. Plaintiff has submitted a two-column table setting forth (on the left) each passage of Bare-Faced Messiah which it contends is an infringement of its copyrights, together with the passage from the copyrighted texts which it contends is infringed. The table consumes 65 pages; the first 22 pages involve quotes from published books; the remaining 43 are quotes and paraphrases of unpublished matter consisting primarily of Hubbard letters and diary entries.

Although plaintiff does not concede justification for the quotations from the previously published works, it no doubt recognizes that defendant's claims of fair use as to those materials are extremely powerful. The dispute focuses rather on Miller's use of extracts from letters and journals that have not been previously published.

Plaintiff contends that the holder of a copyright in unpublished matter enjoys virtually complete protection against claims of fair use. This is to protect the value of the copyright by preserving the copyright holder's control over the first publication of the work. Plaintiff cites recent opinions of the Supreme Court and the Court of Appeals in this Circuit. 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). Holt acknowledges that the doctrine of fair use has far less application to unpublished material than to previously published work. It argues, however, that plaintiff overstates the rule--that there is a difference between very limited application and none at all. Where the fair use justification is sufficiently powerful to pass an exacting scrutiny, defendant contends that it will permit appropriate quotation from unpublished matter to make an instructive point.

Holt contends there is powerful justification for Miller's quotations from Hubbard's letters and journals. It argues that these are not appropriations of Hubbard's efforts and talents in literary expression, but demonstrations through Hubbard's words of his flaws of character. The thesis of Bare-Faced Messiah is that Hubbard was dishonest, pretentious, boastful, paranoid, cowardly, cruel, disloyal, aggressive, bizarre and finally even insane in his pseudoscientific fantasies and his obsessions.1 Defendant argues that a portrait of these qualities is almost impossible to convey without reliance on the subject's own

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words, and that the use made of Hubbard's words must be considered fair use even under the restrictive standards of Nation and Salinger.

Finally Holt argues that, even if it fails to establish fair use as to each of the quotations from Hubbard writings, injunction is not the appropriate remedy. It argues that plaintiff is invoking copyright protection, not in good faith for its intended purpose of protecting the value of publication rights, but rather to suppress a derogatory study of the founder of the Church of Scientology.2 Defendant contends that First Amendment values are at stake and that, if any remedy is called for, it should be an award of money rather than a prior restraint quashing a critical study of a prominent public figure.


I. Fair Use

The doctrine of fair use must be understood in the context of the purposes of copyright protection. Article 1, Section 8, clause 8 of the Constitution authorizes the Congress, "To promote the progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The copyright thus is designed to encourage artistic endeavor by securing for the artist or author the commercial benefits of exploitation of his creations. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984); Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954); Berlin v. E.C. Publications Inc., 329 F.2d 541, 543 (2d Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964). Recognizing that damages can be difficult to prove, the law generally presumes harm and makes injunctions easily available. See Hasbro Bradley Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985). The Copyright Act also provides heavy damage remedies. 17 U.S.C. § 504.

Although the law zealously protects the commercial interests of the artist from unscrupulous opportunistic interlopers, it recognizes that not all copying of artistic invention is necessarily undesirable piracy. Certain forms of copying of artistic creation are indispensable to education, journalism, history, criticism, humor and other informative endeavors; the statute therefore allows latitude in appropriate circumstances for copying of protected artistic expression and exempts such copying from a finding of infringement....

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