Rosemont Enterprises, Inc. v. Random House, Inc., 66 Civ. 1532.

• Decision Date: 25 June 1966
• Docket Number: No. 66 Civ. 1532.,66 Civ. 1532.
• Citation: 256 F. Supp. 55
• Parties: ROSEMONT ENTERPRISES, INC., Plaintiff, v. RANDOM HOUSE, INC. and John Keats, Defendants.
• Court: U.S. District Court — Southern District of New York

256 F. Supp. 55

ROSEMONT ENTERPRISES, INC., Plaintiff, v. RANDOM HOUSE, INC. and John Keats, Defendants.

No. 66 Civ. 1532.

United States District Court S. D. New York.

June 25, 1966.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Katz, Moselle & Schier, New York City, for plaintiff; Jack J. Katz, Chester C. Davis, New York City, of counsel.

Weil, Gotshal & Manges, New York City, for defendant Random House, Inc.; Edward C. Wallace, Horace S. Manges, Marshall C. Berger, New York City, of counsel.

Robert W. Maris, Philadelphia, Pa., for defendant John Keats.

OPINION

FREDERICK van PELT BRYAN, District Judge.

In this action for copyright infringement seeking injunctive relief, damages and an accounting, plaintiff moves pursuant to 17 U.S.C. §§ 101 and 112¹ and Rule 65, F.R.Civ.P., for a preliminary injunction against further publication, distribution, advertising and sale of the allegedly infringing publication.

Plaintiff Rosemont Enterprises, Inc. (Rosemont) is the present owner of the copyrights of three articles entitled "The Howard Hughes Story" by Stephen White, which were published in Look magazine in the issues of February 9, February 23 and March 9, 1954. On May 23, 1966 defendant Random House, Inc. (Random House) published a book entitled "Howard Hughes, a biography by John Keats" (defendant Keats). Howard Hughes is a rather enigmatic contemporary personality of considerable public interest.

Rosemont claims that the Random House biography of Hughes infringes the copyrighted Look articles which it owns by (1) directly quoting passages from the articles, (2) by copying material from the articles which is paraphrased in the book, and (3) by appropriating information from the articles obtained as a result of the author's research in lieu of independent research of its own. It urges that a prima facie case of infringement has been made out and that it is entitled to a preliminary injunction to prevent irreparable damage.

Defendants Random House and Keats deny any infringement of the Look copyrights and claim that whatever use was made of the material contained in such articles in their Hughes biography was permissible "fair use." They further claim that preliminary injunctive relief should be denied to Rosemont on various equitable considerations, including the "unclean hands" doctrine and failure to show any irreparable damage.

There is no dispute as to the validity of the copyrights on the Look articles or that Rosemont purchased them from Cowles Magazines, Inc., the publishers of Look, on May 20, 1966. Nor is there any question that Random House and Keats had access to the articles and were thoroughly familiar with them.

The basic questions presented here are (1) what use was made of the Look articles in the Random House book; (2) was such use a prima facie infringement of the Look copyrights as Rosemont claims; or (3) was such use permissible "fair use" as Random House contends.

The background facts here are of considerable importance.

(1)

Stephen White, the author of the Look articles was Assistant Managing Editor of Look and on its full-time staff. According to the affidavit of Leslie Midgley, the then Managing Editor of Look, under whose direction and supervision the articles were researched and written, White, Midgley and others on the Look staff worked on the project for some eight months; White interviewed dozens of people, assembled information from sources in various sections of the country, and had a number of personal conferences with Howard Hughes over some five months. The articles were based on this research.

The Look articles contain some 13,500 words and cover 18 of the over-size pages of Look interspersed with illustrations. The written material in the articles would fill from 36 to 39 pages of the size used in the Random House biography. The Look articles were characterized by Loomis, the senior Random House editor in charge of its Hughes biography as "by far the most authoritative pieces on Howard Hughes ever done."

(2)

Random House had been considering a biography of Hughes for some time prior to 1962. The preparation of the book seems to have been precipitated by an article on Hughes which appeared in the September 7, 1962 issue of Life magazine written by Thomas Thompson, a member of the Life staff. On the day that issue appeared, Random House wrote to Thompson proposing that he write a biography of Hughes for publication by it. On September 28, 1962 Thompson agreed to deliver a completed manuscript on the life of Hughes in seven to eight months, while retaining his full-time employment with Life. He was given a $5,000 advance for writing and research and his total compensation was to be $12,500 and royalties. Random House knew that Thompson could only work on this book in his spare time since he was employed full-time by Life.

Thompson states that he did research on Hughes, personally interviewing some 15 people listed by name and a number of others, and employed a Texas newspaper man part-time to interview a number of Houston people.

Thompson was unable to produce a publishable manuscript within the seven to eight months allotted. However, he eventually submitted a draft manuscript which Loomis, the Random House editor, considered to require substantial additional work. By then Thompson had assumed added responsibilities in the Life organization and was unable to go further with the project.

Little additional was done on the book from the middle of 1963 to the latter part of 1964. Random House then sought another author to complete the book based on the work which Thompson had done and the materials available to him. Defendant Keats who had written several successful non-fiction books was engaged to complete the Hughes biography on that basis. Thompson's manuscript, news and copyrighted magazine articles, including the Look articles, and various other materials were turned over to Keats.

However, Keats was anxious to have further research done and requested that Random House provide him with a research assistant or funds for research. He also suggested that he attempt to interview Hughes in order to verify and supplement the material available. Finally, he suggested that permission be obtained for the use of copyrighted material before him. All of these requests were turned down by Loomis and Keats was directed to proceed with the material he had at hand. At about this time Loomis wrote to Keats specifically calling his attention to the "authoritative" Look articles in case he had not already seen them.

During the editing of Keats' manuscript, there were numerous discussions about problems of copyright infringement and suggestions were made by Loomis that there be more paraphrasing and less quoting.

The Random House biography covering Hughes' activities through roughly 1965 is 304 pages long and contains about 116,000 words. Its publication date was May 23, 1966.

(3)

Rosemont is a Nevada corporation organized in September 1965 by two officers of the Hughes Tool Company and Hughes' attorney in New York, who are the sole stockholders. Its California offices were leased and furnished by one of Hughes corporations and its New York offices are those of Hughes' attorney. Even before it was formally organized, Rosemont entered into a contract with Howard Hughes on July 2, 1965, granting it the exclusive rights to publish and sell an authorized Hughes biography. Rosemont claims that it is presently engaged in preparing an authoritative biography of Hughes, has engaged a researcher and a writer and has spent or obligated some $27,000 on the project. Rosemont makes the further claim that the research necessary for a comprehensive Hughes biography would take two years to complete and would require an investment of over $100,000.

After negotiations, commenced in early April 1966, Rosemont, on May 20, 1966, acquired from Cowles Magazines, Inc., the publishers of Look, the copyrights for the Look articles for a consideration which included the grant to Look magazine of the right to negotiate with Rosemont for the exclusive serial rights on its authorized Hughes biography. The next day, counsel for Random House were informed that Rosemont claimed infringement. This action followed on May 26, 1966.

There had been several earlier conversations between attorneys for Hughes and executives of Random House in 1965 in which it was indicated that Hughes was opposed to the publication of the Random House biography and would make trouble if the book was published.

On February 17, 1966 Rosemont commenced suit in the New York Supreme Court against Random House and Keats. The precise nature of this action has not been made clear but as far as I can ascertain it is an action in the nature of unfair competition and invasion of rights of privacy. Depositions were taken in that action, several of which were made part of the record on this motion.

(4)

The basic test of copyright infringement is "whether the one charged with infringement has made an independent production, or made a substantial and unfair use of the complainants' work." Nutt v. National Institute Inc. for Improvement of Memory, 31 F.2d 236, 237 (2 Cir. 1929); Davis v. E. I. DuPont de Nemours & Co., 240 F.Supp. 612, 617 (S.D.N.Y.1965); see Orgel v. Clark Boardman Co., 301 F.2d 119, 120 (2 Cir.), cert. den., 371 U.S. 817, 83 S.Ct. 31, 9 L.Ed.2d 58 (1962).

In order to determine whether there is infringement in a given case it is necessary to consider the extent to which use was made of the work claimed to be infringed and of its author's creative effort, expression, and original research as well as the nature of the work which is claimed to infringe and the amount of independent and original creative effort and research which went into its production.

(a)

The length of the three Look articles (some 13,500 words or 36 to 39 book size pages) is somewhat more than 11% of the length of the Random House book ...