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

Docket Nº:Docket Nos. 88-7707, 88-7795.
Citation:884 F.2d 659
Party Name: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.
Case Date:August 29, 1989
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 659

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


Denmark, Plaintiff-Appellant-Cross-Appellee,


HENRY HOLT, CO., A New York Corporation,


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


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

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therefore seems to parse the first fair use factor, purpose of the use, without good reason. What the panel majority opinion says, consonant...

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