BONSAL, District Judge.
Defendants Louis Nizer ("Nizer") and Doubleday & Company, Inc. ("Doubleday") move pursuant to F.R.Civ.P. 56 for summary judgment dismissing plaintiff Virginia Gardner's complaint on the ground there is no genuine issue as to any material fact.
Plaintiff, author of the book The Rosenberg Story ("plaintiff's book"), a biographical study of Julius and Ethel Rosenberg, consisting of 126 pages and approximately 47,900 words, published by Masses & Mainstream, Inc. ("Masses") in 1954, instituted this action contending that the defendants infringed the statutory Copyright No. A 146205, registered in the name of Masses but assigned to plaintiff, by publishing and placing on the market for sale The Implosion Conspiracy ("defendants' book"), a book of 495 pages and 228,900 words, written by defendant Nizer and published in 1973 by defendant Doubleday.
Masses obtained a copyright on plaintiff's book, No. A 146205, in 1954. In the copyright application the publisher indicated that the book was a "serial republished in book form with new matter" and stated that it
In her affidavit,
Defendants answered plaintiff's complaint by pleading general denials and asserting several affirmative defenses. Thereafter defendants filed the instant motion for summary judgment.
Extent of Plaintiff's Copyright Interest
Plaintiff states in her answer to defendants' Interrogatory No. 2 that she is suing on Copyright No. A 146205, which was validly assigned to her by letter from the registered copyright holder, Masses.
This assignment to plaintiff of Copyright No. A 146205 gives her a copyright interest in the matter published in her book which did not previously appear in the series of articles "Two Immortals", published in The Worker, since only new and original matter is protected under the copyright laws. See 17 U. S.C. § 7;
In addition, even if New Press obtained copyrights on the articles "Two Immortals",
Therefore, the only matters in which plaintiff has an enforceable copyright interest are those 20 passages she enumerated in her answer to defendants' Interrogatory No. 6(a) as previously unpublished material. See G. P. Putnam's Sons v. Lancer Books, Inc., supra.
Validity of Plaintiff's Claims of Infringement
By plaintiff's own description, her book is a "biographical study" of the Rosenbergs. The passages on which she claims infringement and for which she has an enforceable copyright interest are related to the proceedings in the United States Supreme Court in 1953 subsequent to the Rosenbergs' conviction, the petitions for clemency submitted on their behalf to the President, the appeals for mercy by various persons in Europe and the articles in the national and foreign press. At the time of these events, they were the subject of innumerable newspaper reports, magazine articles, pamphlets and books and have been the source of plays and television documentaries over the last 21 years. Thus they clearly fall within the realm of "historical facts and events".
Both plaintiff and defendant Nizer state that in addition to many of these news sources and discussions with various people, they each relied upon interviews with Gloria Agrin, Esq., one of the attorneys for the Rosenbergs, for descriptions of the events that transpired during the last stages of the Rosenbergs' appeals for clemency.
In considering the protection afforded by copyrights relating to historical events such as contained in plaintiff's biographical study, Judge Leon Yankwich stated the applicable principle:
Therefore, historical facts and events in themselves are not protected by copyright. Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). Because biographical works are basically personal histories, two biographies of an individual will necessarily be similar in content and copyright protection
Copyright infringement will be found only when there is "substantial" or "material" copying, appropriation or taking of the copyrighted work. See Alexander v. Irving Trust Co., 132 F.Supp. 364 (S.D.N.Y.1955), aff'd, 228 F.2d 221 (2d Cir. 1955), cert. denied, 350 U.S. 996, 76 S.Ct. 545, 100 L.Ed. 860 (1956); Oxford Book Co. v. College Entrance Book Co., 98 F.2d 688 (2d Cir. 1938). Indeed, the copying must be even more substantial to constitute infringement when historical works are involved. See Oxford Book Co. v. College Entrance Book Co., supra at 691; Nimmer, supra § 29.2, at 128-29.
A comparison of the phrases identified by plaintiff in defendants' book with the respective passages in plaintiff's work convinces the Court that insufficient similarity exists to warrant a finding of infringement. Typical of plaintiff's claims is the following instance of alleged infringement. From her own book, plaintiff quotes:
And from defendants' book, plaintiff quotes:
Another illustration of infringement relied upon by plaintiff is:
which she alleges was copied by defendants in the following sentence:
As is evident from these illustrative quotations, most of the allegedly infringing passages merely recount factual events with little or no similarity in style or form of expression. In only three instances could sentences in defendants' book be said to have been copied in part from plaintiff's book,
In addition, the doctrine of "fair use" precludes plaintiff's recovery.
Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d at 306, quoting Ball, Copyright and Literary Property 260 (1944). The Second Circuit specifically has ruled that the fair use doctrine is applicable to biographies because of "the public benefit in encouraging the development of historical and biographical works and their public distribution", so long as the similarity is not virtually complete or verbatim. Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d at 307, 310; Nimmer, supra § 145, at 651. See Rohauer v. Killiam Shows, Inc., 379 F.Supp. 723, 733 (S.D.N.Y.1974). Thus, even if this Court had found the defendants had copied portions of plaintiff's book, the similarity between the works is sufficiently small to permit the defendants to successfully assert the defense of fair use.
Accordingly, defendants' motion for summary judgment is granted.
Settle order on notice.
17 U.S.C. § 7.
A. From plaintiff's book:
From defendants' book:
B. From plaintiff's book:
From defendants' book:
C. From plaintiff's book:
From defendants' book: