811 F.2d 90 (2nd Cir. 1987), 657, Salinger v. Random House, Inc.

Docket Nº:657, Docket 86-7957.
Citation:811 F.2d 90
Party Name:Copr.L.Dec. P 26,060, 1 U.S.P.Q.2d Jerome D. SALINGER a/k/a J.D. Salinger, Plaintiff-Appellant, v. RANDOM HOUSE, INC. and Ian Hamilton, Defendants-Appellees.
Case Date:January 29, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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811 F.2d 90 (2nd Cir. 1987)

Copr.L.Dec. P 26,060,

1 U.S.P.Q.2d

Jerome D. SALINGER a/k/a J.D. Salinger, Plaintiff-Appellant,


RANDOM HOUSE, INC. and Ian Hamilton, Defendants-Appellees.

No. 657, Docket 86-7957.

United States Court of Appeals, Second Circuit

January 29, 1987

Argued Dec. 3, 1986.

Opinion Supplemented and Rehearing Denied May 4, 1987.

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[Copyrighted Material Omitted]

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Marcia B. Paul, New York City (R. Andrew Boose, Jeremy Nussbaum, M. Graham Coleman, 2d, Kay Collyer & Boose, New York City, on the brief), for plaintiff-appellant.

Robert M. Callagy, New York City (Mark A. Fowler, Satterlee & Stephens, New York City, on the brief), for defendants-appellees.

Before, NEWMAN and MINER, Circuit Judges. [*]

JON O. NEWMAN, Circuit Judge:

This appeal presents the issue whether the biographer of a renowned author has made "fair use" of his subject's unpublished letters. The issue arises on an expedited appeal from an order of the District Court for the Southern District of New York (Pierre N. Leval, Judge) denying a preliminary injunction sought by the well-known writer, J.D. Salinger, against Ian Hamilton and Random House, Inc., the author and publisher, respectively, of a book about Salinger and his writings. For reasons that follow, we conclude that a preliminary injunction should be issued.


The plaintiff J.D. Salinger is a highly regarded American novelist and short-story writer, best known for his novel, The Catcher in the Rye. He has not published since 1965 and has chosen to shun all publicity and inquiry concerning his private life. The defendant Ian Hamilton is a well-respected writer on literary topics. He serves as literary critic of The London Sunday Times and has authored a biography of the poet Robert Lowell. In July 1983 Hamilton informed Salinger that he was undertaking a biography of Salinger to be published by Random House and sought the author's cooperation. Salinger refused, informing Hamilton that he preferred not to have his biography written during his lifetime. Hamilton nevertheless proceeded and spent the next three years preparing a biography titled J.D. Salinger: A Writing Life.

An important source of material was several unpublished letters Salinger wrote between 1939 and 1961. Most were written to Whit Burnett, Salinger's friend, teacher, and editor at Story magazine, and Elizabeth Murray, Salinger's friend. A few were written to Judge Learned Hand, 1 Salinger's

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friend and neighbor in New Hampshire, Hamish Hamilton and Roger Machell, Salinger's British publishers, and other individuals, including Ernest Hemingway.

Ian Hamilton located most, if not all, of the letters in the libraries of Harvard, Princeton, and the University of Texas, to which they had been donated by the recipients or their representatives. Prior to examining the letters at the university libraries, Hamilton signed form agreements furnished by the libraries, restricting the use he could make of the letters without permission of the library and the owner of the literary property rights. The Harvard form required permission "to publish the contents of the manuscript or any excerpt therefrom." The Princeton form obliged the signer "not to copy, reproduce, circulate or publish" inspected manuscripts without permission.

By May 1986 Hamilton had completed a version of his biography. Salinger received a set of the galley proofs of this version (the "May galleys") and learned from the galleys and the footnote citations to his letters that the letters had been donated to university libraries. In response, he took two actions. First, he registered 79 of his unpublished letters for copyright protection. Second, he instructed his counsel to object to publication of the biography until all of Salinger's unpublished materials were deleted.

In response to Salinger's objection, Hamilton and Random House revised the May galleys. In the current version of the biography (the "October galleys"), much of the material previously quoted from the Salinger letters has been replaced by close paraphrasing. 2 Somewhat more than 200 words remain quoted. Salinger has identified 59 instances where the October galleys contain passages that either quote from or closely paraphrase portions of his unpublished letters. These passages draw upon 44 of the copyrighted letters, 20 to Burnett, 10 to Murray, 9 to Hamish Hamilton, 3 to Judge Hand, 1 to Machell, and 1 to Hemingway. 3

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On October 3, 1986, Salinger sued Ian Hamilton and Random House, seeking an injunction against publication of Hamilton's biography and damages. In addition to copyright infringement, the complaint alleged unfair competition and breach of contract. The unfair competition claim was based on instances in the biography where Hamilton uses phrases such as "he states" or "he writes" to introduce close paraphrases of portions of Salinger's letters; Salinger claimed that readers would be deceived into thinking that they were reading Salinger's exact words. The breach of contract claim was based on the form agreements that Hamilton signed with the Harvard, Princeton, and University of Texas libraries. Salinger alleged that he was a third-party beneficiary of those agreements.

Judge Leval granted a temporary restraining order but subsequently issued an opinion denying a preliminary injunction. 650 F.Supp. 413 (1986). In the District Judge's view, the extent of copying of expressive material entitled to copyright protection was "minimal," amounting to "about 30 instances of the use of a word or a phrase or an image." Id. at 423. Building on the premise that only such fragmentary copying of protected material was involved, Judge Leval concluded that "Hamilton's appropriations of copyrighted expressions are too minimal to subject Salinger to any serious harm," id. at 428, and that such use as Hamilton had made was "fair use" within the meaning of the Copyright Act, 17 U.S.C. Sec. 107 (1982). Judge Leval rejected the unfair competition claim, finding "no showing of distortions that would give rise to a Lanham Act claim." Id. at 427. He also rejected the contract claim, concluding that the library agreements are to be construed not to prevent all quotations but only "quotations and excerpts that infringe copyright." Id. at 427 (emphasis in original). The claim therefore fell with the conclusion that the infringement claim was defeated by the defense of fair use. Judge Leval also noted that the letters in the Harvard and Texas libraries had not been directly quoted and that the Princeton form did not expressly forbid quotation.

The District Court granted a limited stay, which this Court extended pending an expedited appeal.


Rulings on applications for a preliminary injunction are reviewed under an "abuse of discretion" standard, Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975); LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 74 (2d Cir.1985). Misapplication of the appropriate legal principles constitutes grounds for overturning the denial or issuance of a preliminary injunction. See Parents' Association of P.S. 16 v. Quinones, 803 F.2d 1235, 1239 (2d Cir.1986); Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 315 (2d Cir.1982); see generally 7 Moore's Federal Practice p 65.04 at 65-48-49, p 65.21 at 65-154-57 (2d ed. 1986 & Supp. 1986-87).

To a large extent the appropriate legal principles are not in dispute on this appeal, though their application is seriously contested. The author of letters is entitled to a copyright in the letters, as with any other work of literary authorship. See Meeropol v. Nizer, 560 F.2d 1061, 1069 (2d Cir.), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1977); Folsom v. Marsh, 2 Story 100, 9 F.Cas. 342, 346 (C.C.D.Mass.1841) (No. 4,901); 1 Nimmer on Copyright Sec. 5.04 (1986); W. Patry, Latman's The Copyright Law 130 (6th ed. 1986). Prior to 1978, unpublished letters, like other unpublished works, were protected by common law copyright, but the 1976 Copyright Act preempted the common law of copyright, 17 U.S.C. Sec. 301(a), and brought unpublished works under the protection of federal copyright law, which includes the right of first publication among the rights accorded to the copyright owner, id. Sec. 106(3). The copyright owner owns the literary property rights, including the right to complain of infringing copying, while the recipient of the letter retains

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ownership of "the tangible physical property of the letter itself." 1 Nimmer, supra, Sec. 5.04 at 5-32 (footnote omitted). Having ownership of the physical document, the recipient (or his representative) is entitled to deposit it with a library and contract for the terms of access to it. As with all works of authorship, the copyright owner secures protection only for the expressive content of the work, not the ideas or facts contained therein, see Reyher v. Children's Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976), a distinction fundamental to copyright law and of special significance in determining whether infringement has occurred in a work of biography or other account of historical or contemporary events. See Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546, 2232-34 (1967).

Central to this appeal is the application of the defense of "fair use" to unpublished works. Though common law, especially as developed in England, appears to have denied the defense of fair use to unpublished works, see W. Patry, The Fair Use Privilege in Copyright Law 436-41 (1985), the 1976 Act explicitly makes all of the rights protected by copyright, including the right of first publication, subject to the defense of fair use. See 17 U.S.C. Sec. 107. That fair...

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