803 F.2d 1253 (2nd Cir. 1986), 92, Maxtone-Graham v. Burtchaell

Docket Nº:92, Docket 86-7349.
Citation:803 F.2d 1253
Party Name:Katrina MAXTONE-GRAHAM, Plaintiff-Appellant, v. James Tunstead BURTCHAELL, Andrews & McMeel, Inc., and Harper & Row Publishers, Inc., Defendants-Appellees.
Case Date:October 15, 1986
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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803 F.2d 1253 (2nd Cir. 1986)

Katrina MAXTONE-GRAHAM, Plaintiff-Appellant,


James Tunstead BURTCHAELL, Andrews & McMeel, Inc., and

Harper & Row Publishers, Inc., Defendants-Appellees.

No. 92, Docket 86-7349.

United States Court of Appeals, Second Circuit

October 15, 1986

Argued Sept. 11, 1986.

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Steven L. Abel, Reeder, Abel & Kossin, New City, N.Y., for plaintiff-appellant.

David R. Schlee, Smith, Gill, Fisher & Butts, Inc., Kansas City, Mo., Randy Lipsitz, Bluhm, Kaplan, Friedman, Silberman & Beran (of counsel), New York City, for defendants-appellees.

Before KAUFMAN, WINTER and PRATT, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

Nearly half a century ago, a distinguished panel of this Court including Learned Hand called the question of fair

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use "the most troublesome in the whole law of copyright," Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir.1939) (per curiam). That description remains accurate today. Since Judge Hand's time, the common law doctrine has been inscribed into the Copyright Act, but the fair use inquiry continues to require a difficult case-by-case balancing of complex factors. The purpose of fair use is to create a limited exception to the individual's private property rights in his expression--rights conferred to encourage creativity--to promote certain productive uses of existing copyrighted material. Fair use has been defined as "a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner [by the copyright]." 1

In this case, we are asked to decide whether the district court properly granted summary judgment in favor of the defendants on the basis of the affirmative defense of fair use in an action for copyright infringement. Plaintiff had published a book of interviews with women discussing their experiences with abortion and unwanted pregnancy. Several years later, defendant Burtchaell was preparing a series of essays on abortion, and requested permission to quote extensively from plaintiff's interviews. Despite the denial of permission, he included numerous verbatim quotations in his book.

Plaintiff commenced an action for copyright infringement in the Southern District of New York (Charles L. Brieant, District Judge ), 631 F.Supp. 1432. Defendants moved for summary judgment, pursuant to Fed.R.Civ.P. 56, on two grounds: failure to file the copyright assignments and fair use. Plaintiff then unsuccessfully cross-moved for summary judgment on the question of liability. Defendants' motion contended first that the district court lacked jurisdiction because plaintiff failed to record with the Copyright Office the assignments that she obtained from the women interviewed. Defendants maintained that the 1976 amendments to the Copyright Act, which require that such transfer agreements be filed, applied retroactively to plaintiff's pre-1976 assignments. 2 The district court rejected defendants' interpretation of the copyright amendments and declined to grant summary judgment on this basis.

Because we now affirm the lower court's grant of summary judgment on the fair use defense, we find it unnecessary to reach the recordation argument. Instead, we shall assume arguendo that the plaintiff's copyrights were valid and proceed directly to the fair use question. At the outset, we acknowledge that summary judgment on the question of fair use has been the exception rather than the rule. After analyzing the alleged facts in dispute and the fair use factors, however, we conclude that the fair use defense was properly sustained at the summary judgment stage, even when the

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facts are considered in the light most favorable to plaintiff.

  1. FACTS

    1. Pregnant by Mistake

      In 1973, Katrina Maxtone-Graham published a book entitled Pregnant by Mistake, consisting of interviews with 17 women who had discussed with her their unwanted pregnancies. The names of the interviewees were changed to assure anonymity. Most of the women discussed the circumstances surrounding their abortions, but some explained decisions to carry a pregnancy to term and either to give the child up for adoption or raise the child themselves. Maxtone-Graham tape recorded all of the interviews, and after having transcripts prepared, she edited the texts to avoid repetition and unnecessary verbiage. At the time of the interviews, all of the women signed copyright assignments in favor of the plaintiff, but these agreements were never recorded with the Copyright Office.

      In August 1973, Liveright published Pregnant by Mistake, and 2,349 copies of the book were sold from the day of publication (August 31, 1973) to the day it went out of print (March 31, 1982), with almost 2,000 of the sales occurring within four months of publication. On February 25, 1982, just before her book was to go out of print, Maxtone-Graham obtained from Liveright all publishing rights to Pregnant by Mistake. Maxtone-Graham owns a small publishing company, and her stated intention was to produce a "very small printing for people who have requested copies" at an indefinite time in the future. To date, no second edition of the book has been published.

    2. Rachel Weeping

      James Tunstead Burtchaell is a Catholic priest and professor of theology at the University of Notre Dame, where he has served on the faculty since 1966. He first decided to write Rachel Weeping, the sixth of his books, in 1976 and completed the title essay in August 1978. This essay is the only one in the book containing quotations from Pregnant by Mistake. Burtchaell maintains that the purpose of Rachel Weeping was to critique the published accounts of "abortion veterans," and that the book was aimed at the relatively small group of people interested in the public debate on abortion. He drew upon two primary sources in the title essay: Pregnant by Mistake and The Ambivalence of Abortion by Linda Bird Francke. Burtchaell offered a general characterization of Maxtone-Graham's book in his essay and mentioned the author's name. When he quoted from Pregnant by Mistake, he usually credited the source.

      In the first few pages of his essay, Burtchaell explained that he regarded Maxtone-Graham's interviews as helpful source material, but that his own intention was to move beyond anecdotal reflection and offer a framework for analysis of the women's experiences. 3 In a deposition, Burtchaell said he considered paraphrasing from the interviews, but felt "it [was] essential for the credibility of my essay that the words of abortion veterans themselves appear." He also decided that, as a Catholic priest, conducting his own interviews would pose credibility problems and that his book

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      would be perceived as fairer if he relied on interviews conducted by those who sympathize with the "pro-choice" view of abortion.

      The first essay in Rachel Weeping was approximately 37,000 words long, and about 7,000 of these were direct quotations from the interviews in Pregnant by Mistake. Burtchaell's book contains 325 pages of text, and the title essay filled 60 pages. The district court found that Rachel Weeping includes 4.3 percent of the words in Pregnant by Mistake.

    3. Denial of Permission to Quote

      Burtchaell first requested permission to quote from Pregnant by Mistake "beyond the usual 500 or 1,000 word limit" in a letter to Liveright dated August 17, 1978. He sent the letter shortly after completing the first Rachel Weeping essay. When he received no reply to the letter, Burtchaell telephoned Liveright and was told that detailed production and financial information would have to be provided before his request could be considered. The next communication was in June 1981, when Burtchaell furnished the information and again requested permission, stating that he wished to quote about 5,000 words. In August 1981, Liveright asked Burtchaell to supply a copy of the essay for Maxtone-Graham to examine, and he did so. On November 4, 1981, Mary Ryan, an employee of Liveright, telephoned Burtchaell to inform him that Maxtone-Graham opposed granting permission and that Liveright would honor her request.

      On November 6, 1981, Burtchaell wrote directly to Maxtone-Graham through Liveright, setting forth his predicament and urging her to reconsider. He explained to her that he had undertaken an analytical work, and thought it natural for him to comment on her essentially reportorial book. 4 By letter dated December 7, 1981, Maxtone-Graham once again denied permission. She explained that the interviewees "told their stories in order to further understanding of the Pro-Choice view," and that she promised to honor their wishes. After consulting counsel, Burtchaell and Andrews & McMeel, the hardcover publisher, decided to proceed with publication of Rachel Weeping as written. The book was published on April 1, 1982, and Harper & Row produced a softcover edition in 1984.

      Maxtone-Graham makes several arguments on appeal in her attempt to demonstrate that the grant of summary judgment in favor of defendants was improper. First, she alleges that Burtchaell made numerous errors in quoting from her book. She concedes that many of the mistakes were trivial, but she also argues that Burtchaell misled his readers by quoting women describing their experiences with adoption as if they were discussing abortion. These errors, she maintains, rob the work of scholarly quality and make Burtchaell's purpose in quoting from Pregnant by Mistake suspect. Among her other claims is that the quantum of use was excessive and that the infringement harmed her economic interests. Maxtone-Graham also maintains that Burtchaell acted unfairly by first seeking permission and then proceeding to quote from the interviews after permission had been denied. Finally, she argues that there is a real issue concerning her motivation in denying...

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