Robinson v. Random House, Inc.

• Decision Date: 26 March 1995
• Docket Number: No. 93 Civ. 3108 (LAP).,93 Civ. 3108 (LAP).
• Citation: 877 F. Supp. 830
• Parties: Jack E. ROBINSON, Plaintiff, v. RANDOM HOUSE, INC. et al., Defendants.
• Court: U.S. District Court — Southern District of New York

877 F. Supp. 830

Jack E. ROBINSON, Plaintiff, v. RANDOM HOUSE, INC. et al., Defendants.

No. 93 Civ. 3108 (LAP).

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

January 18, 1995.

Modification of Order March 26, 1995.

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Jack E. Robinson, pro se.

Mark A. Fowler, Satterlee Stephens Burke & Burke, New York City, for defendants.

MEMORANDUM AND ORDER

PRESKA, District Judge.

Plaintiff, Jack E. Robinson ("Robinson"), has brought this action seeking a declaration that his book, entitled American Icarus: The Majestic Rise and Tragic Fall of Pan Am (the "Robinson Book"), does not infringe on the copyright and license rights held by defendants (collectively "Daley") in another book, entitled American Saga: Juan Trippe and His Pan Am Empire (the "Daley Book"). Both parties have moved for summary judgment and Daley has moved for a preliminary injunction. Finding that the undisputed facts demonstrate that the Robinson Book infringes on the Daley Book to an extraordinary degree, Daley's motion for summary judgment is granted, and a permanent injunction shall issue prohibiting further distribution of the Robinson Book.

BACKGROUND

On February 21, 1980, Random House, Inc. ("Random House") published the Daley Book, a biography of Juan Trippe, the founder of Pan Am Airlines. The copyright in this book, which was duly registered with the U.S. Copyright Office as Registration No. TX 489-231, was effective as of May 29, 1980; the copyright currently is held by Riviera Productions, Ltd. Random House holds licensed distribution rights in the book.

On October 8, 1992, Robinson entered into a contract with McGraw-Hill, Inc. ("McGraw-Hill") for the publication of his manuscript which concerned the growth and eventual decline of Pan Am. On March 29, 1993, however, McGraw-Hill cancelled its contract with Robinson on the ground that it believed that the Robinson Book infringed upon the copyright held in the Daley Book. Robinson responded to the cancellation by filing an action on April 5, 1993 against McGraw-Hill to enforce his publishing contract. Robinson voluntarily dismissed that action, Robinson v. McGraw-Hill, 93 Civ. 2162 (LAP), on April 16, 1993. Robinson thereafter sought permission from Daley and Random House to use certain portions of the Daley Book in his own treatment of Pan Am. First Random House, on April 27, 1993, then Daley, on May 2, 1993, refused to permit Robinson to use the amount of material that Robinson took from the Daley Book.

Robinson filed this action seeking a declaration that his manuscript did not infringe on the Daley Book. In his answer, Daley asserted counterclaims alleging that the Robinson manuscript infringed upon his earlier copyrighted work. Both parties moved for summary judgment. Daley did not request an injunction prohibiting publication of the Robinson Book during the motion practice, however, at least in part because of Robinson's representations that no publishing company would publish his manuscript during the pendency of this litigation. Nevertheless, sometime during the summer of 1994, the Robinson Book was published by another publisher, American Literary Press; the book currently is being marketed by that company. After Daley learned that the Robinson Book had been published, he moved for a preliminary injunction prohibiting further marketing of the Robinson Book.

Robinson admits that "approximately 25-30 percent of the words and phrases in the Daley Book are used verbatim or through close paraphrasing" in his book. (Robinson's Statement Pursuant to Local Rule 3(g) ¶ 4.) Despite this significant use, Robinson neither uses quotation marks nor directly cites to the Daley Book. Indeed, the only acknowledgment to the Daley Book included in the manuscript version of the Robinson Book was deleted in the published version. In fact, despite the direct use of 25-30 percent of the Daley Book, the Daley Book apparently is never mentioned in the published version of the Robinson Book.

Robinson claims that his book does not infringe upon the Daley Book on two theories: one, he argues that he took no protected material from the Daley Book and, two, even assuming that protected material was taken, he argues that such a taking constituted "fair use" under the copyright laws. Daley, on the other hand, asserts that Robinson copied approximately 735 passages constituting at least 33,000 words from the Daley Book. Such copying, according to Daley, represents unlawful copyright infringement and entitles him to injunctive relief against Robinson and attorney's fees pursuant to 17 U.S.C. §§ 504, 505.

DISCUSSION

I. Summary Judgment Standard

Under Rule 56(c), summary judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. § 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The substantive law determines which facts are material to the outcome of a particular litigation. See Anderson, 477 U.S. at 250, 106 S.Ct. at 2511; Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)).

If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).

Because of the factual nature of many aspects of a copyright case, a district court should be especially wary of granting summary judgment in cases alleging copyright infringement. See Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.) (summary judgment traditionally frowned upon in copyright litigation), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980). In cases involving the fair use doctrine in particular, such as the instant case, "because the fair use question is so highly dependent on the particular facts of each case, courts ... have usually found it appropriate to allow the issue to proceed to trial." Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1258 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987).

A number of cases in this circuit have demonstrated, however, that summary judgment on the fair use issue is appropriate under some circumstances. Several cases, for example, have upheld the granting of summary judgment in favor of defendant when there has been a finding that no copyrightable material was taken or when a finding of fair use was made as a matter of law. See, e.g., Wright v. Warner Books, 953 F.2d 731 (2d Cir.1991) (use of copyrighted material not unfair as a matter of law); Maxtone-Graham, 803 F.2d 1253 (same); Hoehling, 618 F.2d 972 (summary judgment appropriate when no copyrighted material taken).

Other cases in this circuit have made it clear that a rejection of the fair use defense and a subsequent finding in favor of a copyright plaintiff also may be appropriate at the summary judgment stage. In Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992), for example, the Court of Appeals held that summary judgment in favor of plaintiff on the fair use issue was proper when the direct evidence is undisputed, or when the evidence was such that no reasonable jury could differ. See id.; see also United Feature Syndicate, Inc. v. Koons, 817 F.Supp. 370 (S.D.N.Y.1993) (granting summary judgment in favor of plaintiff after rejecting fair use defense).

II. Copyright Infringement

To prove a claim of copyright infringement, a plaintiff must show ownership of a valid copyright and unauthorized copying of protected material. See Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir.1992); Rogers, 960 F.2d at 306. In the instant case, Robinson concedes that Daley¹ is the owner of a valid copyright in the Daley Book. He also concedes that he copied between 25-30 percent of the Daley Book verbatim or through close paraphrase. (Robinson's Statement Pursuant to Local Rule 3(g) ¶ 4.) Robinson argues, however, that the material he took from the Daley Book was not protected material because (a) it was factual, historical material about the life of Juan Trippe, and (b) that the copied material consisted of only stock scenes or scenes a faire. Alternatively, Robinson argues that, even if he took copyrighted material, his taking was excusable under the fair use doctrine.

A. Robinson Took Protected Material

Robinson certainly is correct that historical fact is not copyrightable. See Wright, 953 F.2d at 735 ("As a threshold matter, section 102 of the Copyright Act does not extend copyright protection to...