Wright v. Warner Books, Inc.

• Decision Date: 19 September 1990
• Docket Number: No. 89 Civ. 3075 (JMW).,89 Civ. 3075 (JMW).
• Citation: 748 F. Supp. 105
• Parties: Ellen WRIGHT, Plaintiff, v. WARNER BOOKS, INC. and Margaret Walker, a/k/a Margaret Walker Alexander, Defendants.
• Court: U.S. District Court — Southern District of New York

748 F. Supp. 105

Ellen WRIGHT, Plaintiff, v. WARNER BOOKS, INC. and Margaret Walker, a/k/a Margaret Walker Alexander, Defendants.

No. 89 Civ. 3075 (JMW).

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

September 19, 1990.

COPYRIGHT MATERIAL OMITTED

Andres J. Valdespino, Walsh & Valdespino, New York City, for plaintiff.

Robert M. Callagy, Mark A. Fowler, Satterlee Stephens Burke & Burke, New York City, for defendants.

OPINION AND ORDER

WALKER, Circuit Judge:¹

This case presents the next chapter in the continuing narrative of this Circuit's treatment of the fair use defense to a charge of copyright infringement. The parties have cross-moved for summary judgment on this claim. For the reasons set forth below, defendants' motion is granted. In addition, defendants have moved for summary judgment on plaintiff's breach of contract and libel claims. The court grants the motion with respect to the contract claim. The libel claim is dismissed without prejudice for want of jurisdiction.

In keeping with familiar legal principles, on the motions for summary judgment made pursuant to Fed.R.Civ.P. 56, the court will resolve all ambiguities and draw all reasonable inferences against the moving party in whose favor it finds. See, e.g., Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987).

BACKGROUND

In 1988, defendant Warner Books, Inc. ("Warner") published a biography entitled Richard Wright Daemonic Genius, written by defendant Dr. Margaret Walker. The book examines the life and career of the writer Richard Wright, whose acclaimed works include Native Son and Black Boy. Wright died in 1960. The novelist's widow, plaintiff Ellen Wright, who holds the copyrights to the published and unpublished works of her late husband, now claims that the book's use of certain published and unpublished materials written by Wright infringes her copyrights.

At the heart of this suit stand a series of unpublished letters Wright sent Walker during the late 1930s. Plaintiff also challenges the use of passages from additional works she deems unpublished as well, including Wright's journals, Wright's letters to his translator Margrit de Sabloniere, and the essay "I Choose Exile." Finally, plaintiff challenges the use of passages from indisputably published works that include Black Boy, Native Son, and Pagan Spain, a now out of print autobiographical account of Wright's travels through Spain.

At the outset, it bears stating that the court has, of course, reviewed the extensive submitted materials and has read defendant Walker's biography of Wright, paying particular attention to those passages quoted from the novelist's published and unpublished works.

DISCUSSION

Plaintiff claims that defendants' use of certain copyrighted materials constitutes infringement under Title 17, United States Code, governing protection of copyrights in original works of authorship. Under 17 U.S.C. § 106, the copyright owner has the exclusive right to reproduce the copyrighted work and to prepare derivative works based on the copyrighted work, and to authorize others to do so. Section 106 is expressly made subject to 17 U.S.C. § 107, however, which provides that "the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research, is not an infringement of copyright." Defendants contend that their use of the Richard Wright materials at issue constitutes protected fair use.

A. The Fair Use Defense:

Section 107 "requires a case-by-case determination whether a particular use is fair." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549, 105 S.Ct. 2218, 2224, 85 L.Ed.2d 588 (1985). Section 107 provides four non-exclusive factors for a court to consider when determining whether a given use is fair. I will discuss each in the context of Walker's biography.

1. Factor one: purpose and character of the use:

Section 107 provides that use of copyrighted materials for "purposes such as criticism, ... scholarship, or research, is not infringement of copyright." Biographies in general, and critical biographies in particular, fit "comfortably within" these statutory categories "of uses illustrative of uses that can be fair." Salinger v. Random House, Inc., 811 F.2d 90, 96 (2d Cir.), petition for reh'g denied, 818 F.2d 252, cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987). There is a strong presumption that if the allegedly infringing work is a biography, factor one favors the biographer. New Era Publications International, ApS v. Carol Publishing Group, 904 F.2d 152, 156 (2d Cir. 1990) ("New Era II"); New Era Publications International, APS v. Henry Holt & Co., 884 F.2d 659, 661 (2d Cir.1989) (Miner, J., concurring), denying reh'g of, 873 F.2d 576 (2d Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1168, 107 L.Ed.2d 1071 (1990) ("New Era I").

Notwithstanding plaintiff's attempts to establish the contrary, it cannot be seriously disputed that this first factor favors defendants. Defendants submitted a number of book reviews that praise Walker's book as a serious work of biography and criticism. Regardless of its critical reception in the literary world — and it is not for this court to pass on its literary merits — Walker's book remains, without doubt, a work of criticism and scholarship. On this score, the plaintiff's arguments about Walker's alleged failure to win Mrs. Wright's permission is irrelevant; if defendants' use of Wright's work is fair, then permission from his widow is beside the point.

Factor one favors defendants.

2. Factor two: nature of the copyrighted work:

The occasionally ambiguous publication histories of the works involved in this case require a more extended discussion of this factor than might otherwise be necessary.

Whether or not a work is published is critical to its nature under factor two, because "the scope of fair use is narrower with respect to unpublished works." Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2232; see also New Era I, 873 F.2d at 583; Salinger, 811 F.2d at 96. "Even substantial quotations might qualify as fair use in a review of a published work." Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2232. The scope of fair use is also greater with respect to factual rather than non-factual works. New Era II, 904 F.2d at 157. The former category includes works that are "essentially factual in nature," Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1263 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987), or are "primarily informational rather than creative," Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1049 (2d Cir.1983), petition for reh'g denied, 730 F.2d 47, cert. denied, 469 U.S. 823, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984).

The first, and less ambiguous, task is to address the published works at issue. "Biographies, of course, are fundamentally personal histories and it is both reasonable and customary for biographers to refer to and utilize earlier works dealing with the subject of the work and occasionally to quote directly from such works." Maxtone-Graham, 803 F.2d at 1263 (quoting Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967)). In almost each case, Walker has quoted roughly from .01% to .34% of the published works. She has quoted roughly 1% of Pagan Spain, which is no longer in print. I have little trouble concluding that such limited use of previously published works is fair, particularly where, as here, they are used more for primarily informational, rather than creative purposes. See Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d at 1049. Where Walker has adopted Wright's previously published creative expression she has done so precisely to demonstrate its creativity, not simply to enliven her text. Cf. Salinger, 811 F.2d at 96. She has used such expression to help provide substance to her literary critique of an artist, not to report facts in a poetic style that might remain beyond her reach, or for that matter the reach of any biographer. It would be hard to imagine reading a piece of literary criticism that could not quote even the relatively minimal passages quoted by Walker. A critic does not make her arguments or observations in a vacuum, and could not hope to persuade a reader of the correctness of her perceptions without reference to the very works at issue.

With respect to the indisputably published works, factor two favors defendants.

There remains some disagreement over the publication status of the next group of works. Plaintiff originally claimed that three paraphrased portions and one directly quoted passage from Wright's letters to his translator Margrit de Sabloniere, the essay "I Choose Exile," and 14 paraphrased passages from Wright's journals were all unpublished and, given the Supreme Court's holding in Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2232 — "The fact that a work is unpublished is a critical element of its `nature'" — factor two favored a finding of infringement. But by summarily asserting that these works were "unpublished," see, e.g., First Wright Aff. ¶ 4, plaintiff ignored certain salient facts, chief among them this: a considerable amount of what she claims has never been published has, in fact, been published.

Thus, after defendants provided references to passages in an authorized biography of Wright written by Michel Fabre (The Unfinished Quest of Richard Wright) and a critical examination by Constance Webb (Richard Wright), plaintiff revised her earlier position. She now concedes that two of the de Sabloniere passages have been "previously published in their entirety." Second Wright Aff. ¶ 6. She also now admits that "the first sentence of a third entry was also previously published." Id. Her concession...