884 F.2d 659 (2nd Cir. 1989), 88-7707, New Era Publications Intern., APS v. Henry Holt, Co.

Docket NºDocket Nos. 88-7707, 88-7795.
Citation884 F.2d 659
Party NameNEW ERA PUBLICATIONS INTERNATIONAL, APS, A Corporation of Denmark, Plaintiff-Appellant-Cross-Appellee, v. HENRY HOLT, CO., A New York Corporation, Defendant-Appellee-Cross-Appellant.
Case DateAugust 29, 1989
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

Page 659

884 F.2d 659 (2nd Cir. 1989)

NEW ERA PUBLICATIONS INTERNATIONAL, APS, A Corporation of

Denmark, Plaintiff-Appellant-Cross-Appellee,

v.

HENRY HOLT, CO., A New York Corporation,

Defendant-Appellee-Cross-Appellant.

Docket Nos. 88-7707, 88-7795.

United States Court of Appeals, Second Circuit

August 29, 1989

Prior Reports: 873 F.2d 576 (2d Cir.1989); 695 F.Supp. 1493 (S.D.N.Y.1988).

Page 660

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING IN BANC

A petition for rehearing containing a suggestion that the action be reheard in banc having been filed herein by counsel for defendant-appellee-cross-appellant, Henry Holt, Co.

Upon consideration by the panel that heard the appeal, it is,

ORDERED that said petition for rehearing is DENIED.

It is further noted that a request for an in banc vote having been made by a judge of the court, and a poll of the judges in regular active service having been taken and there being no majority in favor thereof, rehearing in banc is DENIED.

MINER, Circuit Judge, concurs in a separate opinion, and MESKILL, PIERCE and ALTIMARI, Circuit Judges, join.

JON O. NEWMAN, Circuit Judge, dissents in a separate opinion from the denial of the rehearing in banc, and OAKES, Chief Judge, KEARSE and WINTER, Circuit Judges, join.

MINER, Circuit Judge, with whom MESKILL, PIERCE and ALTIMARI, Circuit Judges, join, concurring in the denial of rehearing in banc:

I of course concur in the Court's decision to reject the unprecedented proposal for in banc hearing suggested by a prevailing party dissatisfied with certain nondispositive language in the panel majority opinion. I write only to comment on the "expression of views" by which the in banc minority seeks "to allay ... misunderstanding" purportedly created by the panel majority in regard to the limits of permissible fair use and to establish what it perceives to be the proper standards. My comment may be summarized as follows: First, the panel majority opinion is consistent with settled law and leaves no room for misunderstanding. Second, a dissent from a denial of rehearing in banc lacks the authority to dispel misunderstanding in any event. Third, whether or not "this Circuit is committed to the language of the panel opinion," it surely is not committed to the language of the appended dissenting opinion.

Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985), reversing 723 F.2d 195 (2d Cir.1983), teaches that unpublished, copyrighted material very rarely will be the subject of fair use. It recognizes that the right not to publish is a most important one and that "[t]he right of first publication encompasses not only the choice whether to publish at all, but also the choices of when, where, and in what form first to publish a work." Id. at 564, 105 S.Ct. at 2232. The case at bar did not present one of those rare situations where fair use might be found. The District Judge determined that a "more than negligible" amount of purloined, unpublished and copyrighted material was lifted and that the "amount and substantiality" fair use factor, 17 U.S.C. Sec. 107(3), therefore favored the plaintiff. The panel majority agreed. The District Judge also found that the first fair use factor, purpose of the use, id. Sec. 107(1), favored the defendant and that the second fair use factor, nature of the copyrighted work, id. Sec. 107(2), favored the plaintiff, and the panel majority agreed with these findings as well. Only with respect to the fourth factor, effect of the use upon the potential market, id. Sec. 107(4), did the panel majority disagree with the District Judge, who found that this factor favored the defendant. The disagreement made no difference, however, because the District Court found that Holt & Co. had failed the fair use test.

The dissenting opinion would make a "distinction between copying expression to enliven the copier's prose and doing so where necessary to report a fact accurately and fairly," apparently for the purpose of affording special consideration to material used for factual reportage. It observes that the distinction "has never been rejected even as to unpublished writings." Of course, the distinction never has been recognized as an element in the fair use balance either, and the dissenting opinion

Page 661

therefore seems to parse the first fair use factor, purpose of the use, without good reason. What the panel majority opinion says, consonant with settled law, is that in applying the first factor the distinction has no importance. See Salinger v. Random House, Inc., 811 F.2d 90, 97 (2d Cir.) ("we agree with the District Court that the first fair use factor weighs in [the biographer's] favor, but not that the purpose of his use entitles him to any special consideration"), reh'g denied, 818 F.2d 252 (2d Cir.) (per curiam), cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987). In the case at bar, as in Salinger, the first factor was found to weigh in favor of the publisher because the book was a work of criticism, scholarship or research. If a book falls into one of these categories, assessment of the first fair use factor should be at an end. Moreover, I question whether judges, rather than literary critics, should decide whether literary material is used to enliven a text or demonstrate truth. It is far too easy for one author to use another's work on the pretext that it is copied for the latter purpose rather than the former.

It is heartening to note that the dissenters "are confident that [the panel majority] has not committed the Circuit to the proposition that the copying of some small amounts of unpublished expression to report facts accurately and fairly can never be fair use." This confidence is not misplaced, of course, because there is nothing in the panel majority opinion that suggests otherwise! Indeed, the panel majority does not even bar the use of "small amounts of unpublished expression" to enliven the text. A different finding on the "amount and substantiality" fair use factor in the case at bar well might have dictated the same outcome in the case were laches not available as a defense. But that outcome would not have hinged on the distinction between factual reportage and text enlivening. Instructive in this regard is Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044 (2d Cir.1983), reh'g in banc denied, 730 F.2d 47 (2d Cir.), cert. denied, 469 U.S. 823, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984), cited in the dissenting opinion. The defendants in that case were found to have made "relatively insubstantial use" of published material in using in its advertising an evaluation of its product taken from the well-known Consumer Reports publication. Id. at 1050. Only one phrase was taken for one advertisement; twenty-nine words were taken for another. The key to that decision was not the need for copying in the interest of accuracy but the insubstantiality of the use. Moreover, in light of the reversal by the Supreme Court of our Harper and Row decision, the following in Consumers Union turned out to be an incorrect statement of the law: "Implicit in that decision [our Harper & Row ] is an...

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21 practice notes
  • 761 F.Supp. 1056 (S.D.N.Y. 1991), 90 Civ. 5153, Arica Institute, Inc. v. Palmer
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • April 9, 1991
    ...criticism do not lose fair use protection simply because author has profit-making objective), aff'd, 873 F.2d 576 (2d Cir.), reh'g denied, 884 F.2d 659 (2d Cir.1989), cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.Ed.2d 1071 (1990)....
  • 807 F.Supp. 1090 (S.D.N.Y. 1992), 91 Civ. 0782, Lish v. Harper's Magazine Foundation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • November 24, 1992
    ...direct quotation of the author is necessary to report a fact accurately and fairly. In New Era Publications Int'l, ApS v. Henry Holt, Co., 884 F.2d 659 (2d Cir. 1989), Judge Newman, joined by Chief Judge Oakes and Judges Kearse and Winter, Page 1100 dissenting from denial of rehearing en ba......
  • 37 F.3d 881 (2nd Cir. 1994), 1479, American Geophysical Union v. Texaco Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • October 28, 1994
    ..." Wright, 953 F.2d at 736 (quoting New Era II, 904 F.2d at 156 (quoting New Era Publications Int'l, ApS v. Henry Holt & Co., 884 F.2d 659, 661 (2d Cir.1989) (Miner, J., concurring in denial of rehearing in banc))). This is so "even though, as will often be the case," the ......
  • 904 F.2d 152 (2nd Cir. 1990), 1204-1376, New Era Publications Intern., ApS v. Carol Pub. Group
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • May 24, 1990
    ...213, 98 L.Ed.2d 177 (1987); New Era Publications Int'l, ApS v. Henry Holt & Co., 873 F.2d 576 (2d Cir.), petition for reh'g denied, 884 F.2d 659 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1168, 107 L.Ed.2d 1071 (1990). Since the decisions in Salinger and New Era, there have b......
  • Request a trial to view additional results
18 cases
  • 761 F.Supp. 1056 (S.D.N.Y. 1991), 90 Civ. 5153, Arica Institute, Inc. v. Palmer
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • April 9, 1991
    ...criticism do not lose fair use protection simply because author has profit-making objective), aff'd, 873 F.2d 576 (2d Cir.), reh'g denied, 884 F.2d 659 (2d Cir.1989), cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.Ed.2d 1071 (1990)....
  • 807 F.Supp. 1090 (S.D.N.Y. 1992), 91 Civ. 0782, Lish v. Harper's Magazine Foundation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • November 24, 1992
    ...direct quotation of the author is necessary to report a fact accurately and fairly. In New Era Publications Int'l, ApS v. Henry Holt, Co., 884 F.2d 659 (2d Cir. 1989), Judge Newman, joined by Chief Judge Oakes and Judges Kearse and Winter, Page 1100 dissenting from denial of rehearing en ba......
  • 37 F.3d 881 (2nd Cir. 1994), 1479, American Geophysical Union v. Texaco Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • October 28, 1994
    ..." Wright, 953 F.2d at 736 (quoting New Era II, 904 F.2d at 156 (quoting New Era Publications Int'l, ApS v. Henry Holt & Co., 884 F.2d 659, 661 (2d Cir.1989) (Miner, J., concurring in denial of rehearing in banc))). This is so "even though, as will often be the case," the ......
  • 904 F.2d 152 (2nd Cir. 1990), 1204-1376, New Era Publications Intern., ApS v. Carol Pub. Group
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • May 24, 1990
    ...213, 98 L.Ed.2d 177 (1987); New Era Publications Int'l, ApS v. Henry Holt & Co., 873 F.2d 576 (2d Cir.), petition for reh'g denied, 884 F.2d 659 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1168, 107 L.Ed.2d 1071 (1990). Since the decisions in Salinger and New Era, there have b......
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3 books & journal articles
  • An empirical study of U.S. copyright fair use opinions, 1978-2005.
    • United States
    • University of Pennsylvania Law Review Vol. 156 Nbr. 3, January 2008
    • January 1, 2008
    ...id. at 1394-97 (Merritt, J., dissenting); id. at 1397-1412 (Ryan, J., dissenting); New Era Publ'ns Int'l, APS v. Henry Holt, Co., 884 F.2d 659, 662-64 (2d Cir. 1989) (Newman, J., dissenting). (99) Kevin M. Scott, Understanding Judicial Hierarchy: Reversals and the Behavior of Intermediate A......
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    • Intellectual Property and Technology Due Diligence
    • January 1, 2018
    ...copyright term; court held that motion picture was not fair use of the story). 115. New Era Publ’ns Int’l v. Henry Holt & Co., 884 F.2d 659, 660 (2d Cir. 1989) cert. denied, 493 U.S. 1094 (1990). Court found that interest in free speech overwhelmingly exceeded L. Ron Hubbard’s estate’s ......
  • Table of Cases
    • United States
    • Copyright Law Chapter 8: State Law and Its Preemption
    • October 28, 1991
    ...Cir.), cert. denied, 111 S. Ct. 297 (1990), 98. New Era Pubs. Int'l v. Henry Holt & Co., 873 F.2d 576 (2d Cir.), reh'g en banc denied, 884 F.2d 659 (2d Cir. 1989), cert. denied, 110 S. Ct. 1168 (1990), 98. Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), 18, 34, 74. Ocas......