NEW ERA PUBLICATIONS INTERN. v. Henry Holt & Co.

• Decision Date: 13 May 1988
• Docket Number: No. 88 Civ. 3126 (PNL).,88 Civ. 3126 (PNL).
• Citation: 684 F. Supp. 808
• Parties: NEW ERA PUBLICATIONS INTERNATIONAL, ApS, a corporation of Denmark, Plaintiff, v. HENRY HOLT & CO., INC., a New York corporation, Defendant.
• Court: U.S. District Court — Southern District of New York

684 F. Supp. 808

NEW ERA PUBLICATIONS INTERNATIONAL, ApS, a corporation of Denmark, Plaintiff, v. HENRY HOLT & CO., INC., a New York corporation, Defendant.

No. 88 Civ. 3126 (PNL).

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

May 13, 1988.

Michael Hertzberg, Michael C. Elmer, Arthur J. Levine, John F. Hornick, Finnegan, Henderson, Farabow, Garrett & Dunner, Washington, D.C., for plaintiff.

Robert M. Callagy, Satterlee Stephens Burke & Burke, New York City, for defendant.

OPINION AND ORDER

LEVAL, District Judge.

Plaintiff, New Era Publications International, ApS ("New Era"), moves for a temporary restraining order enjoining the printing, publication and distribution of a book entitled Bare-Faced Messiah: The True Story of L. Ron Hubbard by Russell Miller. The defendant, Henry Holt & Co., Inc. ("Holt"), is the United States publisher of the book. The plaintiff alleges that the book infringes plaintiff's copyright in unpublished and published works of L. Ron Hubbard, a well-known author and religious figure. As to unpublished copyrighted work, plaintiff contends the defense of fair comment is not available, or in any event restricted in scope. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987).

I find that for reasons of strategy or neglect or both, plaintiff has been tardy in taking steps to seek this relief. As the result of plaintiff's tardiness, the grant of a temporary restraining order would subject the defendant to very great harm and loss that would have been altogether avoidable if plaintiff had moved more promptly. I conclude that plaintiff is chargeable with laches and that the temporary restraining order should not be granted for that reason.

Plaintiff's counsel brought the motion ex parte at 5:00 p.m. on May 4, 1988, and were told to return the following morning with counsel for the defendant. I spent most of the day on May 5 hearing counsel and made a preliminary ruling orally that evening. On May 6, plaintiff's counsel filed new papers seeking reconsideration. I directed response by defendant and heard counsel once again on Monday, May 9. After hearing counsel that day and considering new affidavits, I declined to change my ruling. This opinion summarizes the rulings initially set forth orally on the record.

The affidavits and representations to the court establish the following. The book, Bare-Faced Messiah: The True Story of L. Ron Hubbard, has already been published in the United Kingdom, Canada, and Australia. Publication in those countries occurred in the fall of 1987, despite litigation brought in those countries by plaintiff and the Church of Scientology, a religious organization to which it is related, to restrain publication on copyright and other grounds. In the Canadian litigation, an employee of the Legal Division of the Church of Scientology of California, Mr. Kenneth D. Long, apparently submitted a lengthy affidavit comparing Mr. Hubbard's unpublished documents with the alleged infringing material in Mr. Miller's book. New Era Publications Int'l, ApS v. Levy-Porter Books Ltd., No. T-2433-87, at 3-4 (Federal Court of Canada, Trial Div. Dec. 2, 1987). Plaintiffs have submitted a similar affidavit by Mr. Long in this litigation. The applications for preliminary relief were denied in Canada and England. In Australia the plaintiff withdrew its suit.

Defendant's submissions indicate that plaintiff has been aware since the spring of 1986 that Mr. Miller's book would be published in the United States. Correspondence was sent in May 1986 by Jonathan Lubell, an attorney then representing the Church of Scientology and now representing plaintiff, to the publisher Henry Holt. Those letters seek to dissuade Holt from publishing the book. The correspondence includes a letter sent by Mallory Rintoul, General Counsel of Holt, to Mr. Lubell dated August 18, 1986 which suggests in strong terms that Holt will not be deterred from publication and will not be cooperative with efforts to stop publication of the book. Mr. Rintoul's letter says, "We didn't reply to your first letter, we don't intend to reply to your second letter. Don't read anything into our failure to reply except that we don't choose to reply." Essentially, it is a letter that takes an adversarial and not a conciliatory position toward the plaintiff.

In October 1987, plaintiff sent a private investigator to the defendant making overtures toward the suppression of the book, suggesting that it was defamatory and unreliable. In late 1987 plaintiff and the Church of Scientology sued in England, Canada and Australia. In mid-February 1988 Mr. Lubell wrote to the defendant asking for a copy of the book and speaking of copyright infringement. In mid-March Mr. Lubell met with the defendant, again spoke of copyright infringement, and offered to buy out defendant's rights. Holt refused the offer. The plaintiff wrote again on April 18, 1988 alleging copyright infringement. By this time, the first printing of the book was virtually completed and it was in the process of being bound and packed for shipment, which was to begin on April 27.

Never did the plaintiff take sufficient steps to obtain a copy of the book to determine whether it differed from the books published in England, Australia, and Canada. Never did the plaintiff ask Holt when it would be published. The plaintiff did not take any legal step until May 4 when it sought the temporary restraining order. By that time, as it turned out, the defendant had published the book, having printed and packed 12,000 copies, and having sent out review copies on April 27. With the exception of 3,000 copies that a trucker had failed to collect and which were waiting on the loading dock, the first printing had been shipped beyond the publisher's control. To fill additional orders, Holt had scheduled a second print run for May 6. If that run had been cancelled, defendant would have had to...