Meredith Corporation v. Harper & Row, Publishers, Inc.
| Decision Date | 29 May 1974 |
| Docket Number | No. 73 Civ. 5446 R.O.,73 Civ. 5446 R.O. |
| Citation | 378 F. Supp. 686 |
| Parties | MEREDITH CORPORATION, Plaintiff, v. HARPER & ROW, PUBLISHERS, INC., et al., Defendants, Brian Sutton-Smith, an Individual and Prentice-Hall, Inc., a Delaware corporation, Additional Defendants on Counterclaim. |
| Court | U.S. District Court — Southern District of New York |
Howard Abrahams, New York City, for plaintiff.
Edward A. Miller, James A. Fox, New York City, for Harper & Row.
Lankenau, Kovner, Bickford, Abrons & Beer, New York City, for defendants Mussen, Conger and Kagan.
Hahn, Hessen, Margolis & Ryan, New York City, for Brian Sutton-Smith.
Wayne Carson, New York City, for Prentice Hall.
OPINION
Alleging plagiarism, Harper & Row, Inc., publisher, and Drs. Mussen, Conger and Kagan, authors of "Child Development and Personality", third edition,1 move to enjoin the sale of a competing textbook "Child Psychology" prepared by Meredith Corporation,2 published by Prentice-Hall, Inc., with Brian Sutton-Smith as its named author.3 On the record before me there is not only a showing of a probability of success on the merits, but indeed clear and convincing proof of plagiarism,4 and the need for immediate relief being established, I grant the preliminary injunction.5
Mussen, it appears, has been, and is, not only one of Harper's most profitable college texts but also one of the most widely used child development college textbooks in the United States, with approximately thirty percent of the market. While many child development texts compete for this market, no single text may be said to dominate the field.6
In 1971 editors of Meredith decided to publish a textbook in the field of child development. In order to achieve the widest market for its textbook, Meredith ordered a market research study, and thereby identified Mussen's book as the leading child development text in the field. A subsequent internal memorandum reveals that Meredith selected Mussen to serve as the content model "in terms of topics to be included, weighting of topics, and sequencing of the topics." Meredith next prepared initial detailed chapter outlines of Mussen and then rearranged the outlines, often in haec verba for distribution to freelance writers engaged to prepare the initial draft of the proposed Meredith text. The freelance writers engaged were not professional psychologists and often had no background in psychology whatsoever.7
Each writer hired by Meredith was required to furnish a manuscript of each chapter assigned to him within a period of weeks. Meredith's employees then reviewed the manuscripts and were instructed in writing to call the editors' attention to any material omissions or deviations from the Mussen text.8
The conscious paraphrasing of Mussen and simultaneous attempt at disguise is revealed in a Meredith memorandum sent to a development editor dealing with the first draft of chapter 10 of the Meredith book. The memorandum notes that a certain discussion of a phenomenon among the Ibo tribe is taken from the Mussen text and states: "can we find another group besides Ibo as this is a dead giveaway?" There was another "dead giveaway." In the Mussen text, numbers appear following certain studies. These numbers enable the read to go to an index at the end of the text and ascertain the author and year of preparation of each such study. One such number was erroneous. The Meredith text uses the same study and names Mussen's "erroneous" author as its source.
The limited participation of Professor Brian Sutton-Smith as "author" of the Meredith book is also significant. He received only a 3% royalty rather than the traditional 15% royalty received by most authors of college textbooks. He did not write the first draft of any chapter of the Meredith book, and had no knowledge of what the writers had done in preparing the first draft. His was but a part-time commitment to the Meredith book which only extended over a six months period.9
Professor Sutton-Smith was aware of the manner of the preparation of the materials. Indeed he provided Meredith with the outlines of three Mussen chapters with page references. Further, during his supervisory participation, he wrote in various memoranda to Meredith editors as follows: "In socialization . . . My assumption is that you will follow Mussen fairly closely . . ." and "Notes on the adolescent chapter . . . Mussen's material is pretty adequate but could be condensed . . ." and
At one point he even expressed a fear that plagiarism was being committed in the preparation of the Meredith text.10 Notwithstanding his concern, the problem was not solved, and perhaps one-third or more of the Meredith book is in my opinion, a recognizable paraphrase of Mussen, third edition. I have set forth in the Appendix related passages of the two texts demonstrating the copying. These are typical and were selected from the some 400 submitted to me for consideration.
Meredith, in its memorandum, admits some use of Mussen in the preparation of its text but asserts such use is privileged by the doctrine of "fair use". On the record before me the doctrine is hardly applicable.
Fair use is sometimes defined as:
. . . a privilege in other than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner by the copyright.11
Originally "fair use" was based on the assumption that the user might copy an insignificant portion of protected material while freely using unprotected material. The doctrine then developed to permit more than insignificant copying of protected material where such copying was clearly in the public interest and served the underlying purpose of the Copyright Act, to wit:
To promote the Progress of science and useful arts . . . U.S.Const. Article 1 Sec. 8.
Thus, fair use has been recognized as a valid affirmative defense in some cases even where there has been significant copying. The test of whether the use of a significant amount of protected material is fair depends, however, upon many different factors. Nimmer on Copyrights recognizes that there is no absolute standard (p. 645):
Fair use is to be determined by a consideration of all of the evidence, and among other elements entering into the determination of the issue, are the extent and relative value of copyrighted material, and the effect upon the distribution of objects of the original work . . . . Whether a particular use of a copyrighted article, without permission of the owner, is a fair use, depends upon the circumstances of the particular case, and the court must look to the nature and objects of the selections made, the quantity and value of material used, and the degree in which the use may prejudice the sale, diminish the profits, or supersede the objects of the original work . . . fair use is to be determined by a consideration of all the evidence in the case . . . ." Mathews Conveyor Co. v. Palmer-Bee Co., 135 F.2d 73, 85 (6th Cir. 1943); Nimmer, supra.
In determining whether the use here is "fair", I conclude the following three factors should be considered: (1) the competitive effect and function of the usage, (2) the quantity of the materials used, and (3) the purpose of the selections made.
As to (1) the competitive effect of the taking, Nimmer states (p. 646):
. . . it is believed that the actual decisions bearing upon fair use, if not always their stated rationale, can best be explained by looking to the central question of whether the defendant's work tends to diminish or prejudice the potential sale of the plaintiff's work. This determination must be made not by comparing the media in which the two works may appear, but rather in terms of the function of each work regardless of media.
There is no dispute here that these two textbooks compete for sales in the identical market. Indeed Meredith determined that Mussen was the text to be emulated for this market. In view of the clear evidence of copying on this record, I therefore conclude that the sale of the Meredith book in the same marketplace as Mussen would substantially injure the revenues of the Mussen book.
As to (2), the quantity of the materials used, I conclude on the record before me on this motion for a preliminary injunction, that this is not a case of insignificant copying. It is clear from even a cursory comparison of the some 400 passages from both texts submitted to me that substantial amounts of Mussen have been taken and paraphrased by Meredith.12 Further, a comparison of the Meredith chapter outlines prepared from Mussen submitted to me demonstrates an extensive taking of the entire structure and topical sequence of Mussen. This is far beyond any copying sanctioned in Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2nd Cir. 1966) upon which Meredith relies. There the Court stated (p. 310):
The fair use privilege is based on the concept of reasonableness and extensive verbatim copying or paraphrasing of material set down by another cannot satisfy that standard.
See to identical effect Orgel v. Clark Boardman Co., 301 F.2d 119 (2nd Cir.), cert. den., 371 U.S. 817, 83 S.Ct. 31, 9 L.Ed.2d 58 (1962). There the Court rejected the fair use defense and found infringement based on a finding that merely one important section of a law treatise was "strikingly similar" to the copyrighted work and thus the defendant's book was merely a "colorable variation" of the infringed work. The Court stated at p. 120:
Appropriation of the fruits of another's labor and skill in order to publish a rival work without the expenditure of the time and effort required for the independently arrived at result is copyright infringement.
As to (3) the purpose of the "use", there is no question on this record that it was to enable Meredith to compete...
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