Harper & Row, Publishers v. Nation Enterprises

• Decision Date: 21 October 1980
• Docket Number: No. 80 Civ. 856.,80 Civ. 856.
• Citation: 501 F. Supp. 848
• Parties: HARPER & ROW, PUBLISHERS, INC. and the Reader's Digest Association, Inc., Plaintiffs, v. NATION ENTERPRISES and the Nation Associates, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

501 F. Supp. 848

HARPER & ROW, PUBLISHERS, INC. and the Reader's Digest Association, Inc., Plaintiffs, v. NATION ENTERPRISES and the Nation Associates, Inc., Defendants.

No. 80 Civ. 856.

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

October 21, 1980.

Roger L. Zissu, Cowan, Liebowitz & Latman, P. C., New York City, Edward A. Miller, New York City, for plaintiffs.

Floyd Abrams, Andrew L. Deutsch, Cahill, Gordon & Reindel, New York City, Bruce J. Ennis, American Civil Liberties Union, New York City, for defendants; Leon Friedman, Hempstead, N. Y., of counsel.

MEMORANDUM AND ORDER

OWEN, District Judge.

In this action under the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (the "Copyright Act"), the defendants Nation Enterprises and The Nation Associates, Inc. (hereinafter collectively referred to as "The Nation") have moved to dismiss plaintiffs' pendant state law claims of conversion (Second Count) and tortious interference with contract (Third Count).¹

The central allegations of the amended complaint may be summarized as follows. In February 1977, plaintiffs Harper & Row, Publishers, Inc. ("Harper & Row") and The Reader's Digest Association, Inc. ("Reader's Digest") entered into an agreement with former President Gerald Ford to publish his memoirs. The memoirs were to discuss Mr. Ford's actions and personal reflections on his experiences as Vice President and President of the United States, focusing in particular on the resignation and pardon of former President Richard M. Nixon. Under the terms of their contract, Mr. Ford granted plaintiffs the exclusive rights to publish his memoirs in book form and to sell pre-book publication rights to newspapers and periodicals.

In March 1979, after Mr. Ford produced a typescript of the memoirs, plaintiffs entered into an exclusive agreement with Time, Inc. to publish selected portions of the memoirs dealing with the Nixon resignation and Mr. Ford's early days as President in advance of plaintiffs' release of the complete memoirs in book form.² Time, Inc. was "licensed to publish" excerpts only in its April 23, 1979 issue to be on sale April 16, 1979. Plaintiffs agreed not to authorize publication of any portion of the manuscript in the United States or Canada prior to April 23, 1979. In addition, the contract provided for renegotiation of a $12,500 payment in the event that any of the material was published before the Time article was released.

To the plaintiffs' surprise, however, in the April 7, 1979 issue of The Nation there appeared an article entitled, "The Ford Memoirs, Behind the Pardon" ("The Nation article"). Plaintiffs allege that The Nation article, which focuses specifically on Mr. Ford's account of the Nixon pardon, was prepared from a copy of the unpublished manuscript of Mr. Ford's memoirs which defendants somehow obtained and used without plaintiffs' authorization.³ Plaintiffs further contend that as a result of The Nation article, Time, Inc. cancelled its proposed publication of selections from the memoirs, and refused, under the renegotiation clause of its contract with plaintiffs, to pay the $12,500 which would otherwise have been due.⁴

The amended complaint pleads three causes of action arising out of the facts described above: copyright infringement (First Count),⁵ conversion (Second Count), and interference with contract (Third Count). Defendants have moved to dismiss the Second and Third Counts on the grounds, inter alia, that these state law claims are expressly preempted by the federal copyright law.⁶ Section 301 of the Copyright Act, 17 U.S.C. § 301 ("§ 301") provides the statutory basis for preemption. That section states, in pertinent part:

(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

(b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to-

* * * * * *

(3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by Section 106.

Congress clearly indicated that "the intention of Section 301 is to preempt and abolish any rights under the common law or statutes of a state that are equivalent to copyright and that extend to works within the scope of the Federal copyright law." H.R.Rep.No.94-1476, 94th Cong., 2d Sess. at 130 (1976) (hereinafter "House Report."), U.S.Code Cong. & Admin.News 1976, pp. 5659, 5746. Consistent with this purpose, the statute establishes a two-pronged test for preemption focusing on the nature of the work in question and the rights claimed in that work under state law. Cf. 1 Nimmer on Copyright, § 101(B) at 1-9. First, the nature of the "work of authorship in which rights are claimed," i. e., the manuscript of the Ford memoirs, must come within the "subject matter of copyright" as defined in Sections 102 and 103 of the Copyright Act. Second, the rights granted under state law, i. e., the common law torts of conversion and interference with contract, must be "equivalent to any of the exclusive rights within the general scope of copyright as specified by Section 106 of the Copy-right Act ...."

In this case, the preemption analysis begins with the question of whether the unpublished manuscript of Mr. Ford's memoirs falls within the definition of copyrightable works under §§ 102 or 103 of the Copyright Act. Section 102 provides in relevant part:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works; ....

The unpublished manuscript of the Ford memoirs, as described in the amended complaint and not disputed by defendants, is an autobiographical work comprised of a recitation, through Mr. Ford's eyes and in his own words, of events in the former President's public and private life. As such, it is an "original work of authorship fixed in tangible form" or a "literary work" of non-fiction. The fact that, as defendants suggest, much or some of its contents may be categorized as "news events," see Time, Inc. v. Bernard Geis Associates, 293 F.Supp. 130, n.3 (S.D.N.Y.1968), or matters within the public domain, see R. Dakin & Co. v. A & L Novelty Co., Inc., 444 F.Supp. 1080 (E.D.N. Y.1978), not entitled to copyright protection, does not necessarily negate its originality.⁷ As the Second Circuit recently explained:

In considering the copyright protections due a report of news events or factual developments, it is important to differentiate between the substance of the information contained in the report, i. e., the event itself, and "the particular form of collocation of words in which the writer has communicated it." International News Service v. Associated Press, 248 U.S. 215, 234, 39 S.Ct. 68, 70, 63 L.Ed. 211 (1918); see Chicago Record-Herald Co. v. Tribune Ass'n, 275 F. 797 (7th Cir. 1921). What is protected is the manner of expression, the author's analysis or interpretation of events, the way he structures his material and marshals facts, his choice of words, and the emphasis he gives to particular developments.

Wainright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95-96 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978). Furthermore, for purposes of preemption under § 301, it is not necessary to establish that the work has sufficient originality to qualify for copyright protection under § 102. It is sufficient if the work falls within the general category of works which may qualify for copyright protection, e. g., a literary work as opposed to facts constituting "hot news." See International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918). As Congress has stated:

As long as a work fits within one of the general subject matter categories of section 102 and 103 sections 102 and 103 of this title, the bill prevents the States from protecting it even if it fails to achieve Federal statutory copyright because it is too minimal or lacking in originality to qualify, or because it has fallen into public domain.

House Report at 131, U.S.Code Cong. & Admin.News 1976, p. 5747. It is evident from the foregoing analysis that the Ford memoirs fall within the subject matter of the Copyright Act.

The question remains, however, whether the rights which plaintiffs seek to protect under state law are equivalent to the rights enumerated in § 106 of the Copyright Act. That section⁸ identifies the general nature of the rights which fall "within the general scope of copyright:" the right to exclusive reproduction, performance, distribution, or display of copyrightable work whether in original or derivative form.⁹See 1 Nimmer on Copyright § 101B1 at 1-10, 1-11. In assessing whether a cause of action under state law is "equivalent" to a claim of copyright infringement, the court must compare the rights sought to be protected under the federal and state laws. The fact that the state cause of action is composed of fewer elements of proof than a copyright infringement claim is not in itself dispositive. The state cause of action must protect rights under the facts of a particular case which are qualitatively different from the rights...