Lish v. Harper's Magazine Foundation

• Decision Date: 07 January 1993
• Docket Number: No. 91 Civ. 0782 (MEL).,91 Civ. 0782 (MEL).
• Citation: 807 F. Supp. 1090
• Parties: Gordon LISH, Plaintiff, v. HARPER'S MAGAZINE FOUNDATION, Defendant.
• Court: U.S. District Court — Southern District of New York

807 F. Supp. 1090

Gordon LISH, Plaintiff, v. HARPER'S MAGAZINE FOUNDATION, Defendant.

No. 91 Civ. 0782 (MEL).

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

November 24, 1992.

As Amended December 1 and December 3, 1992.

On Reconsideration January 7, 1993.

COPYRIGHT MATERIAL OMITTED

Skadden, Arps, Slate, Meagher & Flom, New York City, for plaintiff; Jonathan J. Lerner, Paul Dutka, John Horan, of counsel.

Patterson, Belknap, Webb & Tyler, New York City, for defendant; Gregory L. Diskant, Rhonda Brown, Ellen Rothschild, of counsel.

LASKER, District Judge.

The December 1990 issue of Harper's Magazine contained a piece under the title of "A Kind of Magnificence," which the table of contents described as by Gordon Lish. The magazine was distributed to more than 200,000 readers.

Lish is a well-known and controversial figure in the publishing industry — an avant-garde fiction writer associated with minimalism, an editor at Alfred A. Knopf Inc. and a teacher of creative writing. His writing class "was then and probably still is one of the most famous, well known, controversial creative writing classes in the country."¹ "A Kind of Magnificence" was a consolidation of excerpts from a letter Lish sent to 49 prospective students introducing them to his fall 1990 writing class (the "Letter").² It was published without a request for or receipt of Lish's permission.

Harper's is a monthly magazine which covers politics and culture. Each issue contains a section or department designated "Readings," devoted to noteworthy documents and materials which Harper's' editors describe as "found objects." These include speeches, letters, memos and the like which circulate in the community and which are informative or illustrative of contemporary society.

Harper's received a copy of the Letter in the late summer of 1990 from one of its "stringers," individuals employed on a freelance basis and paid on a retainer to procure material for possible publication in Harper's. The stringer had in turn obtained the Letter from a person (the "source") who had indicated to Lish an interest in joining the class. The Letter was delivered to Michael Pollan, executive editor of Harper's who has primary responsibility for Readings.

Pollan concluded that the Letter was an ideal candidate for inclusion in Readings, but knew that Lish would probably be upset by its publication and so brought the Letter to the attention of Lewis Lapham, editor-in-chief, and John R. MacArthur, the publisher, of Harper's. Lapham and MacArthur approved publication of the Letter.

The Letter as edited was printed with a brief introduction in the December 1990 issue. It was decided that because of limited magazine space available the Letter should be cut to approximately half its size: The Letter was reduced from 2,308 to 1,206 words. (The length of items in Readings varies from 100 to 3,000 words, and averages about 1,000 words.) The deletions — totalling approximately 48% of the excerpt — were not marked by ellipses. The only indication in the magazine that the Letter had been edited at all was the statement in the introduction, "From an introductory letter sent last summer by Gordon Lish to students enrolled in his fall fiction writing workshop."³

Lish claims that the publication of the edited version of the Letter infringed his copyright, defamed him, falsely designated the origin of the Letter, and intentionally inflicted emotional distress on him.

Lish copyrighted the Letter. It clearly enjoys protection under § 106 of the Act unless its publication falls within the exception for fair use under § 107. The question whether the publication constitutes fair use is the principal issue in this case.

The case has been tried to the bench.

I. Lish

Lish is well-known as an editor and discoverer of literary talent; "his area of writing is modern fiction and he is an exponent of minimalism, a new genre of writing" (Tr Lish Opening Statement at 2). He has sponsored and edited the writings of, among others, Harold Brodkey, Cynthia Ozick, Don DeLillo, Barry Hannah, Raymond Carver, Yannick Murphy, Richard Selzer, David Leavitt, Nancy Lemann, Amy Hempel, Denis Donoghue, Bette Pesetsky, Janet Kauffman, and Mary Robison. From 1969 to 1977, Lish was fiction editor at Esquire magazine. Since 1977, he has been an editor at Alfred A. Knopf, Inc., and is the editor of The Quarterly, a literary journal.

Lish has also written eighteen works of fiction and non-fiction, including six novels, as well as numerous short stories, essays, and articles, of his own. In addition, he has been a teacher of writing on the faculties of Yale, Columbia, and New York Universities. However, the principal source of his fame/notoriety in recent years has been private writing seminars he began teaching five years ago. The classes, attended by many well-known writers, meet in private homes in New York City. Between 20 and 25 students attend each class. The classes meet for twelve weekly sessions once a week for approximately six hours. Lish currently teaches two sections of classes in both the fall and spring.

Lish's admirers describe him as an inspirational teacher, who has brought many of America's best young writing talents to the literary scene. His detractors regard his teaching methods as unconventional, even cult-like. Whatever the judgment, the cognoscenti seem to agree that he is one of the more visible and noteworthy American literary figures. In its August 1987 "Guide to the Literary Universe," Esquire magazine described Lish as being at the "red hot center" of the American literary scene. Lish himself testified at trial: "Do I believe that I have `powerfully and indelibly entered the literary history of this century?' It's a most exorbitant statement but I think it has more than a core of truth in it, yes." (Tr. Lish 485).⁴

Lish has not shunned publicity. He has cooperated with the press on a number of occasions on stories about his teaching and writing and has been profiled in Vanity Fair, Spy Magazine, the New Republic, and Esquire, among other magazines. In addition, his writing seminars have been the subject of at least fifteen articles in recent years. What happens in his class, however, has on the whole been kept mysterious. Lish's course is conducted in an atmosphere of great privacy, and Lish imposes strict confidentiality upon his students. The first page of the Letter, for example, admonishes:

To violate the confidentiality of the class is to dishonor yourself irreparably — and, further, to expose yourself to the lifelong contempt of those who took you to be a citizen of the humane arts.

Harper's

Harper's is a venerable periodical which was revived from decline by its current publisher John R. MacArthur in 1984. It is one of a limited number of magazines which cover both politics and culture and deal in "serious ideas" (Tr. Pollan 92). Its contents are known for being fast-paced and witty, and it has a reputation for printing material of a high literary caliber. Harper's' audience is exceptionally well educated and literate: 87.5% are college graduates, 49.7% hold a post-graduate degree, 97.1% have bought books in the past twelve months (in comparison to 40.4% of the population at large); they purchased an average of 23.5 books in 1990, and 26.6% have written material that has been published. (Defendant's Exhibit HK, 1991 Subscriber Study, Harper's Magazine).

"Readings" was initiated in 1984 by MacArthur and Lapham, the editor-in-chief. It specializes in bringing primary source material to light. Its contents are printed with minimal editorial comment in order to permit the reader to make his or her own judgment about the work. According to Pollan, two types of documents appear in Readings: (a) creative works written for sale, for which Harper's seeks the author's permission before publication (Harper's usually pays for these items) and (b) documents such as "form letters, court transcripts, and government memos that are circulating in the society" for which Harper's does not seek the author's permission (Tr. Pollan 96).

The Letter

In describing his decision to print the Letter, MacArthur, the publisher, testified:

A. I put several questions to Pollan. I asked him, first of all, if he thought it was really newsworthy. And he said, "Yes." And from his description of the letter it sounded very newsworthy to me.

Q. I don't mean to interrupt you. With respect to Mr. Pollan's description that led you to conclude it was newsworthy, "it sounded newsworthy to me," what did he say about the letter that led you to that conclusion?

A. He said it was a letter from Mr. Lish that gave a kind of inside look at a very famous writing workshop in New York. And would be of great interest to our readers because we serve — well, I didn't go that far. He just said that it was an inside look, a unique document that he thought would be very interesting for people to read. For our readers.

....

Q. What if anything did Mr. Pollan say to you that led you to conclude that it was unique?

A. It was in Mr. Lish's voice. It was like many Readings documents. It was a primary document. One that you wouldn't get — you get something from it that you wouldn't get from an account, a secondhand account.

(Tr. MacArthur 341-42). One may conclude from the spirit of their testimony that MacArthur and Harper's' editors were also intrigued by the aura of Lish's personality as reflected in the Letter.

The Letter contains a variety of material ranging from nuts and bolts details about the logistics of the class, instructions as to how students are expected to behave in class, to passages of exuberant rhetoric exhorting students to heroic efforts. The Letter was interesting both for its factual and stylistic content. As Harper's' own witnesses repeatedly testified, Lish's rhetoric was a significant aspect of the Letter. According to Harper's, one of the four principal components of the Letter was Lish's ...