Mailer v. Zolotow, 73 Civ. 3619 HRT.

• Decision Date: 16 July 1974
• Docket Number: No. 73 Civ. 3619 HRT.,73 Civ. 3619 HRT.
• Citation: Mailer v. Zolotow, 380 F.Supp. 894 (S.D. N.Y. 1974)
• Parties: Norman MAILER, Plaintiff, v. Maurice ZOLOTOW, Defendant.
• Court: U.S. District Court — Southern District of New York

380 F. Supp. 894

Norman MAILER, Plaintiff, v.Maurice ZOLOTOW, Defendant.

No. 73 Civ. 3619 HRT.

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

July 16, 1974.

Rembar, Wolf & Curtis, New York City, for plaintiff.

Seits & Shapiro, New York City, for defendant.

OPINION

TYLER, District Judge.

This is an action for declaratory judgment pursuant to 28 U.S.C. §§ 2201and2202.Defendant Zolotow has moved to dismiss the complaint pursuant to Rule 12(b), F.R.Civ.P., on the grounds that: (1) the complaint fails to set forth the existence of an actual controversy between plaintiff and defendant of which this court has jurisdiction to grant declaratory relief; (2) the existence of a prior pending action in the United States District Court for the Central District of California¹ requires dismissal of this action or consolidation with the California action; (3) the complaint fails to state a claim upon which relief can be granted; and (4)the court lacks jurisdiction over the subject matter.

Suits for declaratory judgments are not uncommon in the area of patents and copyrights.If a defendant has threatened plaintiff with suit, a justiciable controversy is ordinarily present.Technical Tape Corp. v. Minnesota Mining & Mfg. Co., 200 F.2d 876(2d Cir.1952).Indeed, a justiciable controversy exists even where there has been no actual threat of suit, so long as defendant has notified plaintiff that defendant claims his copyright has been infringed.Smith-Corona Marchant Inc. v. American Photocopy Equipment Co., 214 F. Supp. 348(S.D.N.Y.1962).

The present case raises the anomalous situation of a broad threat of a "puffing" nature published in a Hollywood newspaper, followed by the commencement of a suit based on issues structured more narrowly than the threat.Accordingly, plaintiff herein has brought a suit for declaratory judgment, asserting that this "unconsummated" threat retains its vitality — i. e. that there is a residuum of an actual controversy of sufficient immediacy to warrant a declaratory judgment of the respective legal rights of the parties.

The parties are generally in agreement concerning the background facts.Zolotow is the author of a book entitled Marilyn Monroe, which was published by Harcourt, Brace, Jovanovich, Inc.("Harcourt") in 1960.Mailer is the author of the book entitled Marilyn, which was published by Grosset & Dunlap, Inc.("Grosset") in 1973.Mailer requested, through his publisher Grosset, permission to incorporate in his book, with proper attribution to Zolotow, 3,500 words from the latter's book.That permission was granted pursuant to a written contract between Harcourt and Grosset executed on or about May 11, 1973.Mailer extended the preface into a book-length work quoting and commenting on earlier materials concerning Ms. Monroe, including two biographies by Fred Guiles and Zolotow.

Shortly before the publication of the book Marilyn,an article by Will Tusher appeared in The Hollywood Reporter of July 3, 1973, setting forth certain charges against the plaintiff by the defendant.The article was headlined, "War of Marilyn Bios Erupts Again; Zolotow Suing Mailer."As its title indicates, the article concerned a lawsuit that Zolotow was preparing against Mailer on the basis of claims of "plagiarism and professional slander."Zolotow was quoted as saying that Mailer's book is one of the "literary heists of the century."In pertinent part, the article continued:

"Zolotow says his lawyer, John Stockdale, will prepare papers Monday as soon as he returns from Canada.Zolotow plans to seek punitive damages not only to his reputation generally, but to claim injury to the potential on his forthcoming Simon & Schuster book on John Wayne, "Shooting Star."Specific complaints will include unauthorized use of copyright material and slanderous attack on his professional integrity, Zolotow deposes."

The article also discussed the nature of the claims against Mailer.In the article, Zolotow was said to have asserted that the accusations made by Mailer in his book "goes to the heart of Zolotow's professional integrity . . . and he has no intention, therefore, of remaining a silent victim."

On August 3, 1973, Zolotow filed the California suit, asserting claims for libel, invasion of privacy, interference with contractual relationships, and intentional and negligent infliction of emotional distress.The California complaint does not include a claim of unauthorized use of copyright material.Paragraph XI of the complaint, however, does make an inartful reference to a possible infringement claim; it alleges:

"That by discrediting plaintiff and his book, defendants hoped to enhance the sales of their own book and to hide the unauthorized borrowing from plaintiff's

...