904 F.2d 152 (2nd Cir. 1990), 1204-1376, New Era Publications Intern., ApS v. Carol Pub. Group

Docket Nº:1204-1376, Dockets 90-7181, 90-7193.
Citation:904 F.2d 152
Party Name:14 U.S.P.Q.2d 2030, NEW ERA PUBLICATIONS INTERNATIONAL, ApS, Plaintiff-Appellee/Cross-Appellant, v. CAROL PUBLISHING GROUP, Defendant-Appellant/Cross-Appellee.
Case Date:May 24, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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904 F.2d 152 (2nd Cir. 1990)

14 U.S.P.Q.2d 2030,




CAROL PUBLISHING GROUP, Defendant-Appellant/Cross-Appellee.

Nos. 1204-1376, Dockets 90-7181, 90-7193.

United States Court of Appeals, Second Circuit

May 24, 1990

Argued April 2, 1990.

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Melvin L. Wulf, New York City (Beldock Levine & Hoffman, of counsel), for Defendant-Appellant, Cross-Appellee.

Michael Lee Hertzberg, New York City (Rabinowitz, Boudin, Standard Krinsky & Lieberman, P.C., Eric M. Lieberman, David M. Golove, Jonathan W. Lubell, of counsel), for Plaintiff-Appellee, Cross-Appellant.

Before FEINBERG, PRATT and WALKER, Circuit Judges.

FEINBERG, Circuit Judge:

Defendant Carol Publishing Group appeals from a February 13, 1990 judgment of the United States District Court for the Southern District of New York, Louis L. Stanton, J., permanently enjoining it from publishing a biography in its present form, on grounds of copyright infringement. In an opinion reported at 729 F.Supp. 992, the district court held that the biography's quotations from its subject's writings--all of which had been published--did not constitute "fair use" under 17 U.S.C. Sec. 107, and that the copyright on one of the works quoted from had expired. We disagree with the former conclusion but agree with the latter, and thus reverse in part and affirm in part.


The biography at issue in this appeal is entitled A Piece of Blue Sky: Scientology, Dianetics and L. Ron Hubbard Exposed, and was written by Jonathan Caven-Atack. (We will refer to A Piece of Blue Sky as "the book" and to Caven-Atack as "the author.") The subject of the book is L. Ron Hubbard, the controversial founder of the Church of Scientology (the Church), who died in 1986.

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The author joined the Church when he was 19 and was a member for almost nine years. In 1983, however, according to the author, his faith in the Church was shaken by what he saw as the Church's repressive practices toward dissident members. The author subsequently resigned from the Church, but undertook a thorough investigation into the Church and Hubbard. During the course of this inquiry, the author became convinced that the Church was a dangerous cult, and that Hubbard was a vindictive and profoundly disturbed man.

The author's investigation culminated in the book, which, in its present manuscript form, is 527 double-spaced pages in length. As its title makes plain, the book is an unfavorable biography of Hubbard and a strong attack on Scientology; the author's purpose is to expose what he believes is the pernicious nature of the Church and the deceit that is the foundation of its teachings. The book paints a highly unflattering portrait of Hubbard as a thoroughgoing charlatan who lied relentlessly about his accomplishments. The author's attitude toward his subject can be gauged by his descriptions of Hubbard as "an arrogant, amoral egomaniac," "a paranoid, power hungry, petty sadist," and--perhaps ironically in light of the claims in this case--"an outright plagiarist." 1 The book quotes widely from Hubbard's works, using passages from Hubbard's writings both in the body of the text and at the beginning of many chapters. The author had a rich vein of material to mine, because Hubbard wrote prolifically on a wide variety of subjects, including science fiction, philosophy and religion. We are informed that Hubbard published nearly 600 fiction and non-fiction works during his lifetime, 111 of which are in print.

Plaintiff-appellee/cross-appellant New Era Publications International, ApS is the exclusive licensee of Hubbard's works. After learning that appellant Carol Publishing Group intended to publish the book, appellee sued appellant in the district court. (Although appellee named the author as a defendant, it did not serve him with a summons and complaint, and he has never entered an appearance.) Appellee claimed that the book copied "substantial portions" of certain of Hubbard's works in violation of its exclusive copyright rights under 17 U.S.C. Sec. 106, and accused appellant of willful copyright infringement under 17 U.S.C. Secs. 106 and 501. In particular, appellee argued that 121 passages of the book were drawn from 48 of Hubbard's works. The complaint sought, among other things, an injunction to stop publication of the book. Appellee subsequently moved for a temporary restraining order and a preliminary injunction; by stipulation, the proceedings for a permanent and for a preliminary injunction were later merged.

The district court granted a permanent injunction. It held, first, that the copyright had expired on one of the works quoted in the book, the HCO Manual of Justice. 729 F.Supp. at 995. The court then went on to determine whether the book's use of passages from Hubbard's other works was protected "fair use" under 17 U.S.C. Sec. 107, which is reproduced in the margin. 2 Id. at 995-1001. The district court analyzed the four factors spelled out in Sec. 107, and found that factor one (purpose and character of the use) "strongly" favored appellee, because

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"many of the passages lack any allowable fair use purpose," id. at 998; factor two (nature of the copyrighted work) favored appellee since "so many" of the quoted passages "are expressive rather than factual," id. at 999; factor three (amount used in relation to copyrighted work as a whole) also favored appellee, because the quoted passages amount to a "small, but significant element of" the book, id. at 1000; and that factor four (effect of use on the market for the copyrighted work) did not favor either party. Id. at 1001. The district court thus concluded that appellee was entitled to a permanent injunction against publication of the book in its present form, noting that "[t]he book is still in manuscript form, so deletion of the infringing passages will be relatively simple and inexpensive." Id. at 1001. The district court thereafter entered judgment, listing 103 infringing passages taken from 43 works, all published.

Appellant now appeals from the judgment granting an injunction, and appellee cross-appeals from the district court's determination that the copyright on the HCO Manual had expired.


  1. Fair Use

    Appellant asserts that, contrary to the district court's view, all four fair use factors referred to in Sec. 107 weigh in its favor, while appellee argues to the contrary. At the outset, we note that Sec. 107 "requires a case-by-case determination whether a particular use is fair." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549, 105 S.Ct. 2218, 2225, 85 L.Ed.2d 588 (1985). Furthermore, fair use is a mixed question of law and fact, id. at 560, 105 S.Ct. at 2230, and thus the district court's conclusion on this point is open to full review on appeal. See Puma Indus. Consulting, Inc. v. Daal Assocs., Inc., 808 F.2d 982, 986 (2d Cir.1987). And, "[w]here the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court 'need not remand for further factfinding,' " but may resolve the issue of fair use as a matter of law. Harper & Row, 471 U.S. at 560, 105 S.Ct. at 2230 (quoting Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1495 n. 8 (11th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985)).

    In addition, the structure of Sec. 107 is significant. The section is entitled "Limitations on exclusive rights: Fair use," and the opening sentence makes clear that a "fair use ... is not an infringement of copyright." The same sentence furnishes examples of broad categories of fair use: "criticism, comment, news reporting, teaching ..., scholarship or research." The section then defines four non-exclusive factors to be considered in determining whether a particular use is fair.

    We have quite recently applied the doctrine of fair use in two opinions of this court. See Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 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 been a number of articles on the subject of fair use. See, e.g., Weinreb, Fair's Fair: A Comment on the Fair Use Doctrine, 103 Harv.L.Rev. 1137 (1990). Indeed, several of the articles have been written by some of the judges involved in those decisions. See Oakes, Copyrights and Copyremedies: Unfair Use and Injunctions, to be published in a forthcoming edition of the Hofstra L.Rev.; Leval, Commentary: Toward a Fair Use Standard, 103 Harv.L.Rev. 1105 (1990); Miner, Exploiting Stolen Text: Fair Use or Foul Play?, 37 J. Copyright Soc'y 1 (1989); Newman, Not the End of History: The Second Circuit Struggles with Fair Use, 37 J. Copyright Soc'y 12 (1989). Some of these articles are highly critical of the state of the law with respect to the fair use doctrine and offer suggestions for improvement. But, our task is to apply as best we can the teachings of the governing precedents as we understand them. In doing so, on the facts before us and under the

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    appropriate wide-ranging standard of review, we conclude that all four factors listed in Sec. 107 favor appellant, and that appellant's use was fair.

    A. Factor One: Purpose and Character of the Use

    As noted above, the book is an unfavorable biography. Section 107 provides that use of copyrighted materials for "purposes such as criticism, ... scholarship, or research, is not an infringement of copyright." Our cases establish that biographies in general, and critical biographies in particular,...

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