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November 5, 1986


The opinion of the court was delivered by: LEVAL



 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Ian Hamilton and Random House, Inc., who are respectively the author and publisher of an unauthorized and as-yet unpublished biography entitled J. D. Salinger: A Writing Life.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 L25,000 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 this research. He had little success until his discovery of "a tremendous autobiographical resource" (Hamilton Aff. P8) -- 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 cause 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. *fn1"

 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. *fn2"


 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., Rehyer v. Children's Television Workshop, 537 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, 54 L. Ed. 2d 756, 98 S. Ct. 727 (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, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (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 the 59 letters consists primarily of a report of such historical fact (or of an idea) which is not protected by the copyright.

 That does not end the inquiry. As noted, the license to report historical fact and idea found in copyrighted material does not carry with it the right to employ the originator's particular words or manner of expression; these are protected by the copyright. See Nation, 105 S. Ct. at 2232-33; Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 980 (2d Cir. 1980), cert. denied, 449 U.S. 841, 66 L. Ed. 2d 49, 101 S. Ct. 121 (1980). Whether there is infringement does not necessarily turn on whether there is direct quotation. If, for example, the original work quotes a third person (as where Salinger in letter no. 7 quoted from a rejection letter he received in 1940 from Esquire), that quotation is a historical fact, it is not an original creation of the copyright holder, and it may be requoted without infringement. Also, the copyright applies only to original creation and not to cliche or ordinary unoriginal combinations of words. See W. Patry, Latman's The Copyright Law 23-24 (1986). Although Salinger's letters are predictably vibrant and full of originality of image, metaphor and expression,. even he occasionally (albeit rarely) employs a cliche or a word-combination that is so ordinary that it does not qualify for the copyright law's protection.

 Thus where Salinger describes himself as one who "could never even put a Tinker-Toy together" (No. 21), or states that he "miss[es] [his] little typewriter terrible" (No. 17), or describes a work as "the religious book of the century" (No. 52), Hamilton's quotation of those words does not implicate the copyright.

 On the other hand, the author's own original image, choice of words, and turn of phrase are protected and there will be infringement (absent justification) when they are appropriated whether by direct quotation or by paraphrase. A few examples follow (all references to Hamilton's text are to a xerox copy of proofs submitted as defendants' Exh. D) (emphases supplied): Salinger Hamilton Describing Wendell Willkie "the sort of fellow who as a phoney, adds that makes his wife keep an he looks "like a guy who album of his press cut- makes his wife keep a scrap- tings." (p. 47) book for him." (No. 11) As to why he writes under " . . . Jerome was such a J.D., complains that dreadful name: however you Jerome is a lousy name. said it, Jerome always "It always sounds so much came out sounding like like Jerome . . . (No. 12) Jerome." (p. 48) The men in my tent -- though (Substantially quoted on a damn nice bunch -- are p. 57.) always eating oranges or listening to quiz programs . . . (No. 18) About a novel he has wanted "Salinger wants to feel to write since he was 17, like ice about this book "until I can get icy about . . . And he is pre- the whole thing . . ., pared to wait. The ici- I'm not going to touch it. ness is deepening, and he I'm getting colder and feels that he will soon be colder on it. Won't be cold enough to make a long. (No. 29) start." (pp. 67-68) "[E]verybody over here "[A]nybody who has 'ever who's ever taught Senior taught Senior English,' English for a couple of however briefly, or been semesters, or worked for employed by 'a good up- a good upholsterer, has holsterer' has reckoned considered himself qual- himself to have the per- ified to collect and edit fect skills for putting a short story anthology." together an anthology of (No. 57) shorter fiction." (p. 157) Describing his life as a "The couple have . . . soldier in the counter- a large dog called Benny. intelligence corps in Ger- Benny rides with them in many after its fall, he the car and lets them know writes that he and his new if he spots any arrestable wife have brought a sportscar, Nazis." (p. 91) and that his big black dog Benny "rides on the running board, pointing out Nazis for me to arrest." (No. 40)

 [See also in No. 39 and at Hamilton, p. 89-90, the reference to being publicly cremated in front of the offices of the Saturday Evening Post in retribution for "treasonous" thoughts; Salinger's bitter fantasy of the domesticity of his once beloved Oona O'Neill with her new aged husband Charlie Chaplin (No. 24 and Hamilton, p. 65); "If [the liberating Americans] had stood on top of the jeep and taken a leak, Paris would have said, 'Ah, the darling Americans! What a charming custom!" (No. 36, Hamilton p. 82)

 As to each of these passages, the biographer has gone beyond the permissible report of a historical fact or an idea and has reproduced an image, literary device, metaphor or choice of words that is protected by the copyright. In total I have found approximately 30 letters from which Hamilton has taken, either by brief quotation or paraphrase, a few words of copyright protected material. Unless excused under the doctrine of fair use, or found to be too insignificant in ...

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