Hemingway's Estate v. Random House, Inc.

• Decision Date: 12 December 1968
• Citation: 296 N.Y.S.2d 771,244 N.E.2d 250,23 N.Y.2d 341
• Parties: , 244 N.E.2d 250, 32 A.L.R.3d 605, 160 U.S.P.Q. 561 ESTATE of Ernest HEMINGWAY et al., Appellants, v. RANDOM HOUSE, INC., et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 771

296 N.Y.S.2d 771

23 N.Y.2d 341, 244 N.E.2d 250, 32

A.L.R.3d 605, 160 U.S.P.Q. 561 ESTATE of Ernest HEMINGWAY et al., Appellants, v. RANDOM HOUSE, INC., et al., Respondents.

Court of Appeals of New York.

Dec. 12, 1968.

Joseph Calderon, New York City, for appellants.

Mervin Rosenman, Philip L. Hummer and Simon J. Hauser, New York City, for A. E. Hotchner, respondent.

Horace S. Manges and Marshall C. Berger, New York City, for Random House, Inc., respondent.

FULD, Chief Judge.

On this appeal--involving an action brought by the estate of the late Ernest Hemingway and his widow against the publisher and author of a book, entitled 'Papa Hemingway'--we are called upon to decide, primarily whether conversations of a gifted and highly regarded writer may become the subject of common-law copyright, even though the speaker himself has not reduced his words to writing.

Hemingway died in 1961. During the last 13 years of his life, a close friendship existed between him and A. E. Hotchner, a younger and far less well-known writer. Hotchner, who met Hemingway in the course of writing articles about him, became a favored drinking and traveling companion of the famous author, a frequent visitor to his home and the adapter of some of his works for motion pictures and television. During these years, Hemingway's conversation with Hotchner, in which others sometimes took part, was filled with anecdote, reminiscence, literary opinion and revealing comment about actual persons on whom some of Hemingway's fictional characters were based. Hotchner made careful notes of these conversations soon after they occurred, occasionally recording them on a portable tape recorder.

During Hemingway's lifetime, Hotchner wrote and published several articles about his friend in which he quoted some of this talk at length. Hemingway, far from objecting to this practice, approved of it. Indeed, the record reveals that other writers also quoted Hemingway's conversation without any objection from him, even when he was displeased with the articles themselves.

After Hemingway's death, Hotchner wrote 'Papa Hemingway,' drawing upon his notes and his recollections, and in 1966 it was published by the defendant Random House. Subtitled 'a personal memoir', it is a serious and revealing biographical portrait of the world-renowned writer. Woven through the narrative, and giving the book much of its interest and character, are lengthy quotations from Hemingway's talk, as noted or remembered by Hotchner. Included also are two chapters on Hemingway's final illness and suicide in which Hotchner, writing of his friend with obvious feeling and sympathy, refers to events, and even to medical information, to which he was privy as an intimate of the family. Hemingway's widow, Mary, is mentioned frequently in the book, and is sometimes quoted, but only incidentally.

The complaint, which seeks an injunction and damages, alleges four causes of action. The first three, in which the Estate of Hemingway and his widow join as plaintiffs, are, briefly stated, (1) that 'Papa Hemingway' consists, in the main, of literary matter composed by Hemingway in which he had a common-law copyright; (2) that publication would constitute an unauthorized appropriation of Hemingway's work and would compete unfairly with his other literary creations; and (3) that Hotchner wrongfully used material which was imparted to him in the course of a confidential and fiduciary relationship with Hemingway. In the fourth cause of action, Mary Hemingway asserts that the book invades the right to privacy to which she herself is entitled under section 51 of the Civil Rights Law, Consol.Laws, c. 6.

The plaintiffs moved for a preliminary injunction. The motion was denied (49 Misc.2d 726, 268 N.Y.S.2d 531, affd. 25 A.D.2d 719, 269 N.Y.S.2d 366), and the book was thereafter published. After its publication, the defendants sought and were granted summary judgment dismissing all four causes of action. The Appellate Division unanimously affirmed the resulting orders and granted the plaintiffs leave to appeal to this court.

Turning to the first cause of action, we agree with the disposition made below but on a ground more narrow than that articulated by the court at Special Term. It is the position of the plaintiffs (under this count) that Hemingway was entitled to a common-law copyright on the theory that his directly quoted comment, anecdote and opinion were his 'literary creations', his 'literary property', and that the defendant Hotchner's note-taking only performed the mechanics of recordation. And, in a somewhat different vein, the plaintiffs argue that '(w)hat for Hemingway was oral one day would be or could become his written manuscript the next day', that his speech, constituting not just a statement of his ideas but the very form in which he conceived and expressed them, was as much the subject of common-law copyright as what he might himself have committed to paper.

Common-law copyright is the term applied to an author's proprietary interest in his literary or artistic creations before they have been made generally available to the public. It enables the author to exercise control over the first publication of his work or to prevent publication entirely--hence, its other name, the 'right of first publication'. (Chamberlain v. Feldman, 300 N.Y. 135, 139, 89 N.E.2d 863, 864) ¹ No cases deal directly with the question whether it extends to conversational speech and we begin, therefore, with a brief review of some relevant concepts in this area of law.

It must be acknowledged--as the defendants point out--that nearly a century ago our court stated that common-law copyright extended to "(e)very new and innocent product of mental labor which has been Embodied in writing, or some other material form". (Palmer v. De Witt, 47 N.Y. 532, 537; emphasis supplied.) And, more recently, it has been said that 'an author has no property right in his ideas unless * * * given embodiment in a tangible form.' (O'Brien v RKO Radio Pictures, D.C., 68 F.Supp. 13, 14.) However, as a noted scholar in the field has observed, 'the underlying rationale for common law copyright (i.e., the recognition that a property status should attach to the fruits of intellectual labor) is applicable regardless of whether such labor assumes tangible form' (Nimmer, Copyright, § 11.1, p. 40). The principle that it is not the tangible embodiment of the author's work but the creation of the work itself which is protected finds recognition in a number of ways in copyright law.

One example, with some relevance to the problem before us, is the treatment which the law has accorded to personal letters--a kind of half-conversation in written form. Although the paper upon which the letter is written belongs to the recipient, it is the author who has the right to public them or to prevent their publication. (See Baker v. Libbie, 210 Mass. 599, 605, 606, 97 N.E. 109, 37 L.R.A.,N.S., 944.) In the words of the Massachusetts court in the Baker case (210 Mass., at pp. 605--606, 97 N.E. at p. 111), the author's right 'is an interest in the intangible and impalpable thought and the particular verbal garments in which it has been clothed.' Nor has speech itself been entirely without protection against reproduction for publication. The public delivery of an address or a lecture or the performance of a play is not deemed a 'publication,' and, accordingly, it does not deprive the author of his common-law copyright in its contents. (See Ferris v. Frohman, 223 U.S. 424, 32 S.Ct. 263, 56 L.Ed. 492; King v. Mister Maestro, Inc., 224 F.Supp. 101, 106; Palmer v. De Witt, 47 N.Y. 532, 543, supra; see, also, Nimmer, Copyright, § 53, p. 208.)

Letters, however--like plays and public addresses, written or not--have distinct, identifiable boundaries and they are, in most cases, only occasional products. Whatever difficulties attend the formulation of suitable rules for the enforcement of rights in such works (see, e.g., Note, Personal Letters: In Need of a Law of Their Own, 44 Iowa L.Rev. 705), they are relatively manageable. However, conversational speech, the distinctive behavior of man, is quite another matter, and subjecting any part of it to the restraints of common-law copyright presents unique problems.

One such problem--and it was stressed by the court at Special Term (SCHWEITZER, J.) ²--is that of avoiding undue restraints on the freedoms of speech and press and, in particular, on the writers of history and of biographical works of the genre of Boswell's 'Life of Johnson'. The safeguarding of essential freedoms in this area is, though, not without its complications. The indispensable right of the press to report on what people have Done, or on what has Happened to them or on what they have Said in public (see Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456; Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094; Associates Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed. 1094) does not necessarily imply an unbounded freedom to publish whatever they may have Said in private conversation, any more than it implies a freedom to copy and publish what people may have put down in Private writings.

Copyright, both common-law and statutory, rests on the assumption that there are forms of expression, limited in kind, to be sure, which should not be divulged to the public without the consent of their author. The purpose, far from being restrictive, is to encourage and protect intellectual labor. (See Note, Copyright: Right to Common Law Copyright in Conversation of a Decedent, 67 Col.L.Rev. 366, 367, commenting on the decision denying the plaintiffs before us a preliminary injunction, 49 Misc.2d 726, 268 N.Y.S.2d 531.) The essential thrust of the First Amendment is to prohibit improper restraints on the Voluntary public expression of ideas; it shields the man who wants to speak or publish when others...