Rubin v. Brooks/Cole Pub. Co.
| Decision Date | 29 October 1993 |
| Docket Number | Civ. A. No. 90-12011-Y. |
| Citation | 836 F. Supp. 909 |
| Parties | Zick RUBIN, Plaintiff, v. BROOKS/COLE PUBLISHING CO. and Wadsworth, Inc., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
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David J. Fine, Dangel & Fine, Boston, MA, for plaintiff.
Thomas M. Hemnes, Peter M. Casey, Foley, Hoag & Eliot, Maria E. Recalde, Michael R. Gottfried, Burns & Levinson, Boston, MA, for defendants.
Scarpa v. DuBois, No. Civ. A. 92-12948, 1993 WL 245655 (D.Mass. June 24, 1993). As such, it is one that cries out for a fact-specific judgment, not the application of a sweeping principle. The matter comes before the Court as a case stated. That is, the parties have stipulated to all material facts and it remains for this Court to review the record, draw such inferences as are reasonable and, applying the governing law, enter such judgment as may be appropriate. Continental Grain v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 429 (1st Cir.1992); Boston Five Cents Sav. Bank v. Secretary of Housing & Urban Development, 768 F.2d 5, 12 (1st Cir.1985).
Psychologist and author Zick Rubin ("Rubin") is the creator of a copyrighted psychological instrument known as the "Love Scale." Rubin here sues Brooks/Cole Publishing Co. ("Brooks/Cole") and its parent company Wadsworth, Inc. ("Wadsworth") for copyright infringement under 17 U.S.C. § 501, and for unfair competition and unfair and deceptive business practices under Mass. Gen.L. ch. 93A. Rubin bases his claims upon Brooks/Cole's reproduction of the Love Scale without his permission in several editions of its textbook Social Psychology, initially published in 1986. In resolving Rubin's claims, this Court necessarily must address both the scope of the fair use doctrine and the preemptive reach of the Copyright Act upon related state law causes of action.
In 1968 and 1969, Rubin, who is now an adjunct professor of psychology at Brandeis University, created a self-report instrument called a "Love Scale," together with a parallel "Liking Scale," as a central part of his doctoral work in social psychology at the University of Michigan. In 1969, Rubin published his Love and Liking Scales in his doctoral dissertation, "The Social Psychology of Romantic Love," (Joint Pre-Trial Mem. Ex. 2), for which he secured Copyright No. A146094 in his own name. Rubin's dissertation is based on the theory that love consists of three critical components — "affiliative and dependent need," "pre-disposition to help," and "exclusiveness and absorption" — and incorporates the Love and Liking Scales (which each consists of 13 questions designed to elicit and rate one's feelings toward another person) as research instruments designed to exemplify and validate his theory.
In 1970, Rubin again published the Love and Liking Scales in his article "Measurement of Romantic Love," (Defs.' Mem.Supp. Summ.J.Ex. B), appearing in the October 1970 issue of Journal of Personality and Social Psychology, published by the American Psychological Association ("APA"). The APA secured Copyright No. B624309 on that issue, but in 1978 assigned to Rubin that portion of the copyright which covered his article. In 1973, Rubin published the Love Scale in his social psychology textbook, Liking and Loving: An Approach to Social Psychology, (see Rubin Aff.Ex. D), published by Holt, Rinehart & Winston. Holt, Rinehart & Winston originally secured copyright No. A582977 on the book, but transferred the copyright to Rubin in 1978. Liking and Loving has been widely adopted in social psychology courses and has sold more than 50,000 copies. (Rubin Aff. ¶ 12.) In 1974, an excerpt from Liking and Loving that included the Love Scale was reprinted by permission in an anthology that Rubin edited entitled Doing Unto Others: Joining, Molding, Conforming, Helping, Loving, published by Prentice-Hall Spectrum Books. (Rubin Aff. ¶ 20.) Rubin has received substantial royalties from the sales of Doing Unto Others. (Id.)
In February 1975, Reader's Digest expressed an interest in reprinting the Love Scale and offered to pay Rubin "well" in the event of such a use. (Rubin Aff. ¶ 24 & Ex. K.) Rubin declined such permission. In August 1977, Boston Magazine reprinted the Love Scale (along with the parallel Liking Scale) as a self-test, without receiving permission from Rubin or any other copyright holder. (Rubin Aff. ¶ 25.) Rubin sued Boston Magazine for copyright infringement and was awarded statutory damages and attorney fees. (Id.) The award was upheld by the Court of Appeals for the First Circuit. Rubin v. Boston Magazine Co., 645 F.2d 80 (1st Cir.1981). The Love Scale also appeared in two psychology texts in the mid-1970s without Rubin's permission, and Rubin obtained a promise from at least one of the authors that the Love Scale would be deleted from future editions of that author's book. (Rubin Dep. at 20-25.)
In 1981, Harper & Row published an introductory textbook written by Rubin and a coauthor, The Psychology of Being Human, along with an accompanying activity book by William Gray and Brian Gerrard, Understanding Yourself and Others: A Student Activity Book of Psychological Experiments and Activities. Understanding Yourself and Others was marketed in conjunction with The Psychology of Being Human and included, with Rubin's permission, the full text of the Love Scale to be used as a student self-test. (Rubin Aff. ¶¶ 14-15 & Ex.H.) The Psychology of Being Human sold more than 130,000 copies and Rubin received substantial revenues from those sales. (Rubin Aff. ¶ 16.)
Rubin has received (and continues to receive) many requests from publishing houses and authors to reprint the Love Scale (often together with his parallel Liking Scale) in textbooks and other publications. (Rubin Aff. ¶ 18 & Ex. I; Rubin Dep. at 47.) Rubin has customarily declined such requests to reprint the Love Scale in full, but has consistently given authors and publishers permission to reprint up to three sample items for no fee, and has consistently allowed "legitimate researchers" to use the entire Love Scale in research for no fee. (Rubin Aff. ¶ 19; Rubin Dep. at 57.) Rubin has also allowed the Love Scale to be reprinted in full on at least ten occasions since 1974 either by itself (sometimes together with the Liking Scale) or as part of a longer article or excerpt, on "many" of these occasions for a fee. (Rubin Aff. ¶¶ 19, 21; Rubin Dep. at 13-14.) Rubin's article "Measurement of Romantic Love," for example, has been reprinted in at least six anthologies and books of readings to date, including Wayne Lesko's Readings in Social Psychology, published in 1991. (Rubin Aff. ¶ 21 & Ex. J.)
Rubin's Love Scale is considered by a large number of psychologists and social psychologists to be an important scientific work, (Rubin Aff. ¶ 44), and both "Measurement of Romantic Love" and Liking and Loving are widely available in libraries throughout the United States. (Rubin Aff. ¶ 41; Pollender Aff.) The Love Scale has also been widely used in psychological research, (Rubin Dep. at 29, 58; Rubin Aff. ¶ 43), and has been discussed in virtually every introductory social psychology textbook in the last 20 years (generally with a few sample items appearing). (Rubin Aff. ¶ 44; Krupat Aff. ¶ 3; Peplau Aff. ¶ 4.)
As recently as 1988, the Love Scale was reprinted without Rubin's permission in both a trade book published by Andromeda Oxford Ltd. and in Self Magazine (which purportedly had acquired the right to reprint from Andromeda Oxford Ltd.). As a result of a February 1990 settlement, Rubin was paid $20,000 in damages and permission fees. (Rubin Aff. ¶ 26.)
On three occasions prior to 1986, authors or agents of Brooks/Cole or Wadsworth requested Rubin's permission to publish the Love Scale in Brooks/Cole or Wadsworth textbooks. (Rubin Aff. ¶¶ 27-30 & Exs. M, N, O.) The last two times, in 1978 and 1979, permission was originally sought from the APA and the APA "granted" permission subject to Rubin's approval. (See Rubin Aff. Exs. M, N.) In neither case did the APA mention that it had transferred its Love Scale copyright (the "Measurement of Romantic Love" copyright) to Rubin sometime in 1978 (the 1978 request may have predated the transfer). (See id.) Rubin denied permission to print more than a sample of three items from the Love Scale in both cases. (See id.)
On September 4, 1986, Brooks/Cole sought permission from the APA to reprint the Love Scale in a social psychology textbook written by Donelson Forsyth ("Forsyth") entitled Social Psychology, , scheduled for publication by Brooks/Cole in early October of that same year. (Haga Aff. ¶ 2 & Ex. 1.) Carline Haga ("Haga"), the Permissions Manager at Brooks/Cole since 1982, was unaware of the previous requests by Brooks/Cole or Wadsworth authors to reprint the Love Scale, and sought permission from the APA rather than from Rubin because she believed that the APA still held the copyright to Rubin's work. (Haga Suppl. Aff. ¶¶ 1, 2, 9.) Haga does not explain why she sought the APA's permission to reprint the Love Scale so late in the publication process.
The APA responded by letter to Haga's request several days before the publication of Social Psychology, stating that permission was waived for authors who wished to reproduce a single table or figure provided that the original author's approval was obtained, but also noting that it would waive permission entirely if Rubin could not be located. (Haga Aff. ¶ 3 & Ex. 2.) The APA did not inform Brooks/Cole that it no longer owned the copyright to the Love Scale. (See id.) In view of the short time frame and because, based on the APA's letter, Haga believed that obtaining Rubin's permission was merely a courtesy,...
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