Salinger v. Random House, Inc.

• Citation: 650 F. Supp. 413
• Decision Date: 05 November 1986
• Docket Number: No. 86 Civ. 7574(PNL).,86 Civ. 7574(PNL).
• Parties: Jerome D. SALINGER, a/k/a J.D. Salinger, Plaintiff, v. RANDOM HOUSE, INC. and Ian Hamilton, Defendants.
• Court: U.S. District Court — Southern District of New York

650 F. Supp. 413

Jerome D. SALINGER, a/k/a J.D. Salinger, Plaintiff, v. RANDOM HOUSE, INC. and Ian Hamilton, Defendants.

No. 86 Civ. 7574(PNL).

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

November 5, 1986.

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COPYRIGHT MATERIAL OMITTED

Kaye Collyer & Boose, New York City (R. Andrew Boose, Jeremy Nussbaum, Marcia B. Paul, M. Graham Coleman, 2d of counsel), for plaintiff.

Satterlee & Stephens, New York City (Robert M. Callagy, Mark A. Fowler, of counsel), for defendants.

LEVAL, District Judge.

J.D. Salinger, the celebrated author of The Catcher in the Rye, Franny and Zooey, Raise High the Roof Beam, Carpenters, and many short stories, brings this action against Ian Hamilton and Random House, Inc., who are respectively the author and publisher of an unauthorized and as-yet unpublished biography entitled J.D. Salinger: A Writing Life. The biography draws heavily from copyrighted letters written by Salinger many years ago. The complaint alleges copyright infringement, unfair competition, and breach of undertakings Hamilton made with libraries as a condition of access to some of the letters. Salinger moves for a preliminary injunction restraining distribution of the biography.

Hamilton is a writer, literary critic, and poet. After Random House published his well-respected Robert Lowell: A Biography in 1982, Hamilton set out to chronicle Salinger's life. He received advances of $100,000 from Random House and £25,000 from the British publisher William Heinemann. In July 1983, he wrote to Salinger requesting his cooperation.

Salinger for some 30 years had maintained a reclusive privacy, avoiding all publicity. He replied that he would regard any biography written during his lifetime as an invasion of privacy.

Hamilton nonetheless proceeded with his research. He had little success until his discovery of "a tremendous autobiographical resource" (Hamilton Aff. ¶ 8) — several series of letters written by Salinger years before, some of which had been lodged by the recipients (or their estates) in research libraries at Harvard, Princeton, and the University of Texas. Hamilton also found a bibliography of Salinger materials, edited by Jack Sublette and published by Garland Press, Inc. in 1984, which referred to and quoted letters deposited with Princeton's library. Salinger was unaware of the Sublette bibliography and of the deposits of his letters in the libraries.

In order to gain access to the letters at Princeton, Harvard, and the University of Texas, Hamilton signed the libraries' standard form agreements in which he undertook not to publish the documents without their permission and that of the copyright holder. The "Princeton University Library Request for Access to Manuscripts," for example, states in part:

I understand that Princeton University holds manuscripts for purposes of research and scholarship. I agree not to copy, reproduce, circulate or publish them without the permission of Princeton University Library and of the owner of the literary property rights, if any. I assume all responsibility for any infringement by me of the literary property rights held by others in the material requested.

Hamilton submitted his manuscript in September 1985. It contained very substantial quotation from approximately 70 of the letters. In May 1986, galleys were sent to book reviewers, as well as to potential licensees in the publishing industry, and some advance reviews appeared.

Salinger somehow received a copy of the May Galleys. Then realizing that copies of his letters had been donated by their recipients to the libraries, he caused the letters to be registered for copyright protection in his name. On May 30, 1986, his attorneys wrote to Hamilton and Random House demanding that the book not be published unless and until all of Salinger's unpublished materials were deleted. Defendants then sought the libraries' permission to quote from the correspondence, but without success.

In response to Salinger's demand, Hamilton revised the book to reduce drastically the amount of direct quotation. He revised, rewrote or paraphrased most of the previously quoted material, limiting quotation to no more than 10% of any one letter and, in most cases, no more than 10 words from any one letter. In the new September proofs (Exh. D to the Timberman affidavit), there remain between 200 and 300 words of direct quotation, representing something between 0.8% and 2.0% of the content of the copyrighted correspondence. Because the Princeton, Harvard, and Texas libraries refused permission to quote from their letters, Hamilton eliminated all direct quotations from letters available only at those libraries. He retained certain quotations from letters at Princeton that are also found in the Sublette bibliography.¹

The September proofs use the letters as an important source to report Salinger's opinions, thoughts, feelings, and fantasies as a young man. A substantial percentage of the book consists of material learned by Hamilton from the letters.

By agreement with Salinger, defendants submitted the revised September page proofs to his attorneys on September 18, 1986. Salinger promptly brought suit, asserting that the biography infringes his copyrights and that he will be irreparably harmed if publication and distribution are allowed to proceed. On October 3, 1986, I granted a temporary restraining order to preserve the status quo. Defendants agreed to extend the TRO until today's date to permit discovery, submission of a hearing record, briefing and ruling on Salinger's motion for a preliminary injunction. For the reasons set forth below, that motion is now denied.²

Discussion

1. The Scope of Copyright Protection.

The first question to be considered is whether and to what extent Hamilton's book takes material from Salinger's letters that is protected by the copyright. Salinger contends the taking goes far beyond the 200-300 quoted words. He contends that lengthy portions of numerous letters are tracked and paraphrased in a manner that misappropriates his copyrighted expression. He argues that the material so taken constitutes the "heart" not only of his letters, but also of Hamilton's book. Cf. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 2233-34, 85 L.Ed.2d 588 (1985).

Salinger is correct that copyright infringement is not limited to verbatim quotation. Paraphrase that reproduces the original author's protected expression also is a violation. See, e.g., Donald v. Zack Meyer's T.V. Sales and Service, 426 F.2d 1027, 1030 (5th Cir.1970); Davis v. E.I. DuPont de Nemours & Co., 240 F.Supp. 612, 621 (S.D.N.Y.1965).

On the other hand the copyright does not protect all of the material in an author's original work. The importance of free public dissemination of ideas and matters of historical fact dictates that they should not be subject to private ownership or control. It is therefore axiomatic that the copyright does not encompass facts or ideas. What is protected is the art, or craftsmanship — the author's particular manner of expression. See, e.g., Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir.1976) (quoting Chafee, Reflections on the Law of Copyright, 45 Colum.L.Rev. 503, 513 (1945)); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960).

To make a determination of the extent of taking of copyrighted material, it is therefore necessary to examine closely the comparison of the copyrighted and the accused passages, not only to determine the extent and nature of similarity but also to ascertain whether what was taken is in the protected category or in the unprotected realms of fact and idea. See, e.g., Werlin v. Reader's Digest Ass'n, 528 F.Supp. 451, 462 (S.D.N.Y.1981). To facilitate this test, plaintiff has submitted at the court's request a compilation of 59 instances of comparative texts representing "as complete a picture as possible" of the alleged infringements. (The list, set forth as Exhibit A to the Coleman affidavit of October 16, 1986, is hereafter referred to as "Exhibit A".)

The comparison reveals that the vast majority of the material taken by Hamilton from the letters is not copyright protected. Salinger's letters are full of information about his life upon which the biographer has drawn. Such information is not protected by the copyright. Unprotected information of this nature includes far more than the where, when and with whom. Information as to the subject's thoughts and feelings is vital historical fact for the biographer and belongs in the unprotected categories, so long as the biographer does not overstep permissible limits by taking the author's craftsmanship. See, e.g., Meeropol v. Nizer, 417 F.Supp. 1201, 1211 (S.D.N.Y.1976), rev'd on other grounds, 560 F.2d 1061 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978); see also Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 105 & n. 14 (2d Cir.1983), rev'd on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). Furthermore, the ideas revealed in a copyrighted work are not protected by the copyright.

For the biographer to report in his own words Salinger's ideas drawn from the letters or the fact that Salinger was depressed, elated, or angry, does not violate the copyright. His resentment against literary critics who, having never taken the risks or braved the pains and difficulties of creative writing, presume to pass judgment on serious authors (Letter No. 34) may be drawn from his letter without infringement, both as an idea and as a historical fact. Likewise, his evaluations of Hemingway (Nos. 37 & 38); his difficulty sustaining his infatuations with girls (Nos. 23 & 32); his determination at one point to write for Hollywood and riches (No. 26); his reticence to yield any of his freedom by accepting an advance (No. 28), etc.

I find that virtually every passage taken by Hamilton from...