953 F.2d 731 (2nd Cir. 1991), 1762, Wright v. Warner Books, Inc.

Docket Nº:1762, Docket 90-9054.
Citation:953 F.2d 731
Party Name:20 U.S.P.Q.2d Ellen WRIGHT, Plaintiff-Appellant, v. WARNER BOOKS, INC. and Margaret Walker, also known as Margaret Walker Alexander, Defendants-Appellees.
Case Date:November 21, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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953 F.2d 731 (2nd Cir. 1991)

20 U.S.P.Q.2d

Ellen WRIGHT, Plaintiff-Appellant,


WARNER BOOKS, INC. and Margaret Walker, also known as

Margaret Walker Alexander, Defendants-Appellees.

No. 1762, Docket 90-9054.

United States Court of Appeals, Second Circuit

November 21, 1991

Argued May 24, 1991.

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[Copyrighted Material Omitted]

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Andres J. Valdespino, New York City (Walsh & Valdespino, of counsel), for plaintiff-appellant.

Robert M. Callagy, New York City (Mark A. Fowler, Carol Fein Ross, Satterlee Stephens Burke & Burke, of counsel), for defendants-appellees.

Charles S. Sims, Jon Baumgarten, Proskauer Rose Goetz & Mendelsohn, New York City, for amicus curiae, Ass'n of American Publishers.

Leon Friedman, Hofstra Law School, Hempstead, N.Y., for amicus curiae, PEN American Center.

Floyd Abrams, Cahill, Gordon & Reindel, New York City, for amicus curiae, The Authors Guild, Inc.

William E. Nelson, New York City, for amici curiae, American Council of Learned Societies, American Historical Ass'n, American Political Science Ass'n, Modern Language Ass'n of America, and Organization of American Historians.


MESKILL, Circuit Judge:

In the words of the district court: "This case presents the next chapter in the continuing narrative of this Circuit's treatment

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of the fair use defense to a charge of copyright infringement." Wright v. Warner Books, Inc., 748 F.Supp. 105, 107 (S.D.N.Y.1990). The principal question presented is whether defendants' sparing use of creative expression from the unpublished letters and journals of the late author Richard Wright constitutes fair use as a matter of law. This question and others arise from plaintiff Ellen Wright's appeal from an order of the United States District Court for the Southern District of New York, by Circuit Judge John M. Walker, sitting by designation, granting summary judgment, dismissing plaintiff's copyright infringement, breach of contract, and libel claims. Although we disagree with portions of the district court's analysis, we agree with its conclusions and therefore affirm.


This action stems from a dispute over the publication of a biography of the late African-American author Richard Wright, best known for his works Native Son and Black Boy. Plaintiff holds the copyrights in the published and unpublished works of her husband, who died in 1960. The biography, entitled Richard Wright Daemonic Genius, was written by an acquaintance of Wright, defendant Dr. Margaret Walker, and published by defendant Warner Books, Inc. in 1988.

This protracted dispute has taken three turns, each of which has narrowed the parties' disagreements. Dr. Walker first completed a draft of her biography of Richard Wright in the early to mid-1980s. Her publisher at the time, Howard University Press, sought plaintiff's permission in 1984 to use large portions of Wright's unpublished and published works in the biography. Plaintiff refused. Whether due to its inability to obtain plaintiff's consent or to other factors unrelated to this dispute, Howard University Press in 1986 decided not to publish Dr. Walker's book. A second publisher, Dodd, Mead, then agreed to publish the book. It, too, however, later withdrew its commitment to publish the biography, for reasons irrelevant to this dispute. That version of the biography was never published.

Unable to obtain plaintiff's consent, Dr. Walker rewrote portions of the earlier manuscript using less of Wright's published and unpublished works. Over plaintiff's objections, this new, expurgated version was published by Warner Books in November 1988. Plaintiff responded by bringing this lawsuit in May 1989. Her complaint challenged the biography's use of portions of a wide range of Wright's works: letters to Dr. Walker written in the 1930s, letters to Wright's translator Margrit de Sabloniere, journal entries, the essay "I Choose Exile," and his published works including Black Boy, Native Son, and Pagan Spain. Plaintiff claimed she was entitled to damages for copyright infringement, false designation of origin, breach of a manuscript access agreement between Yale University and Dr. Walker of which agreement plaintiff claimed to be a third-party beneficiary, and libel. She also sought a permanent injunction prohibiting further publication and distribution of the biography.

After discovery was completed, plaintiff moved for summary judgment on the copyright claims. Defendants thereafter cross-moved for summary judgment on all counts in the complaint. Finding no material factual disputes, the district court held that the four fair use factors enumerated in 17 U.S.C. § 107 all favored defendants and granted summary judgment in their favor on the copyright claim. The court dismissed plaintiff's request for a permanent injunction and her claim that the biography's use of Wright's journals constituted a breach of a research agreement between Dr. Walker and Yale University's Beinecke Library. Plaintiff voluntarily withdrew her claim of false designation of origin. The court dismissed without prejudice the state law libel claim for lack of jurisdiction.

On appeal this dispute has taken one final turn. Plaintiff has abandoned most of her original claims. She no longer challenges the biography's use of Wright's published works. Nor does she challenge the use of the letters written to Margrit de Sabloniere or of the essay "I Choose Exile."

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She also does not challenge the district court's decision to dismiss her libel claim. Two of plaintiff's original claims remain: (1) the biography's use of the unpublished Wright/Walker letters and allegedly unpublished journal entries constitutes infringement, and (2) the biography's use of the journal entries violates Dr. Walker's research agreement with Yale University.


Our review of a district court's summary judgment decision is de novo. Herbert Const. Co. v. Continental Ins. Co., 931 F.2d 989, 993 (2d Cir.1991). We resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Id.

These principles apply with equal force to the question of fair use. See Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1257-58 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987). Although "[f]air use is a mixed question of law and fact," Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985), on more than one occasion courts in this Circuit have resolved fair use determinations at the summary judgment stage. See, e.g., Maxtone-Graham, 803 F.2d 1253; Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964); Time Inc. v. Bernard Geis Assocs., 293 F.Supp. 130 (S.D.N.Y.1968). " '[T]he mere fact that a determination of the fair use question requires an examination of the specific facts of each case does not necessarily mean that in each case involving fair use there are factual issues to be tried. ' " Maxtone-Graham, 803 F.2d at 1258 (quoting Meeropol v. Nizer, 417 F.Supp. 1201, 1208 (S.D.N.Y.1976), rev'd in part on other grounds, 560 F.2d 1061 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978)) (brackets inserted by Maxtone-Graham ). The fact-driven nature of the fair use determination suggests that a district court should be cautious in granting Rule 56 motions in this area; however, it does not protect the copyright holder from summary disposition of her claims where there are no material factual disputes.

I. Copyright Infringement

Section 106 of the Copyright Revision Act of 1976 ("Copyright Act" or "Act"), 17 U.S.C. § 106, "confers a bundle of exclusive rights to the owner of the copyright," Harper & Row, 471 U.S. at 546, 105 S.Ct. at 2223, among them "the right of first publication." Salinger v. Random House, Inc., 811 F.2d 90, 95 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987); see 17 U.S.C. § 106(3). Letters, like other literary works, are entitled to copyright protection, Salinger, 811 F.2d at 94; so also are journal entries.

Two statutory exceptions circumscribe the rights of a copyright holder. First, as a threshold matter, section 102 of the Copyright Act does not extend copyright protection to ideas or facts. Harper & Row, 471 U.S. at 547, 105 S.Ct. at 2224. Only "original works of authorship fixed in any tangible medium of expression, " 17 U.S.C. § 102(a) (emphasis added), bearing "the stamp of the author's originality" are copyrightable. Harper & Row, 471 U.S. at 547, 105 S.Ct. at 2224. Second, the Act permits even original expression to be appropriated in certain circumstances. Section 107 states that the "fair use" of a copyrighted work does not infringe the copyright in that work. Whether use of copyrightable expression is fair is determined on a case-by-case basis within the context of the four non-exclusive factors enumerated in section 107. Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2225; New Era Publications Int'l, ApS v. Henry Holt & Co. (New Era I), 873 F.2d 576, 588 (2d Cir.) (Oakes, C.J., concurring), 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). Those factors are: (1) "the purpose and character of the use;" (2) "the nature of the copyrighted work;" (3) "the amount and substantiality of the portion used in relation to the copyrighted work as a whole;" and (4) "the effect of the use upon the potential

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market for or value of the copyrighted work." 17 U.S.C. § 107. Before reaching the question of fair use, however, we should determine whether the biography has appropriated fact or expression.

A. Fact or Expression?

Most of the passages on which plaintiff bases her allegations of copyright infringement convey...

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