United States District Court, Southern District of New York
April 9, 1991
ARICA INSTITUTE, INC., PLAINTIFF,
HELEN PALMER AND HARPER & ROW PUBLISHERS, INC., DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
Plaintiff, a non-profit educational institution, charges
defendants with copyright infringement in violation of the
Copyright Act of 1976, 17 U.S.C. § 101 et seq., trademark
infringement in violation of section 43(a) of the Lanham Act,
15 U.S.C. § 1125(a), and common law unfair competition.
Plaintiff moved by order to show cause for a preliminary
injunction pursuant to Rule 65 of the Federal Rules of Civil
Procedure. For the reasons set forth below, plaintiff's motion
Plaintiff Arica Institute, Inc. ("Arica") is a not-for-profit
tax-exempt educational institution founded in the state of New
York in 1971 by Oscar Ichazo ("Ichazo"). According to Arica's
Executive Director Elliott Dunderdale ("Dunderdale"), Arica
offers training for the whole human being focused on the
clarification of consciousness. Tr. at 270.*fn1 Arica operates
forty franchise training centers throughout the United States,
South America, Europe and Australia which have enrolled from
1971 to present approximately 250,000 students. Tr. at 279-80.
The history of Arica dates back to April 1971 when Oscar
Ichazo conducted the first Arica training in the city of Arica,
Chile.*fn2 Ichazo, born in Bolivia in 1931 and trained in Zen,
Sufism, Yoga, Buddhism, Confucianism, I Ching and the Kabbalah,
taught a system that is now known within Arica as the system of
"ego fixations." Tr. at 272-73, 290-291. Fifty-five people,
including John Lilly ("Lilly"), Joseph Hart ("Hart") and
Claudio Naranjo ("Naranjo"), attended the 1971 seminar in Chile
and tape recorded Ichazo's lectures. Tr. at 274-76. Upon
returning to the United States, every student except Naranjo
returned his or her tapes to Arica's archives. Arica
transcribed the lecture tapes and in 1973 registered them with
the Copyright Office as eight separate volumes which share the
title The Lectures of Oscar Ichazo. Pl. Exh. 15.
"Enneagons" or "enneagrams" are nine-pointed stars typically
surrounded by a circle.*fn3 It is undisputed that enneagrams
have appeared throughout history, although Elliott Dunderdale
("Dunderdale"), Executive Director of Arica since 1989,
testified that no one has used the enneagram in the way Arica
uses it "in terms of the process of the ego fixations as it
applies to human psyche." Tr. at 369. Dunderdale testified that
Arica uses enneagrams as "a map of process or a guide to
process." Tr. at 292. In simplest terms, the Arica system uses
a total of 108 enneagrams,*fn4 which Ichazo claims to have
"discovered,"*fn5 as a "method of working with the nine parts
of the body and nine parts of the human psyche," Tr. at 273,
and as a method of explaining "the [ego] fixations and the
ideas that cure them." Interviews with Oscar Ichazo (Arica
Institute Press 1982) at 13.
From the student's perspective, Arica training comprises nine
successive levels of dietary, physical, meditative, logical and
analytical instruction which can be completed in approximately
three years.*fn6 Tr. at 373.
Tuition for each training ranges in price from $75 to $750 and
several training levels are offered as intensive two-week
residential programs. Tr. at 370-73.
In addition to conducting training sessions, Arica publishes
various training manuals, books by Ichazo, and a journal
entitled The Arican. Over the years, Arica has obtained
copyright registrations for approximately 46 of these works.
Pl. Exh. 15. The copyrighted training manuals, including the
"Manual of the Arica Forty Day Training" and the "Three Month
Manual," are not available to the public — students are
required to return the manuals to Arica at the end of the
training. The student manuals, home study manuals and The
Arican can be purchased at Arica training centers and the book
Interviews with Oscar Ichazo is sold publicly in bookstores.
Tr. at 281-82.
Defendant Helen Palmer ("Palmer") is a psychology professor
who currently resides in California. According to Palmer,
Claudio Naranjo, a Chilean psychologist, had a personal falling
out with Ichazo after the 1971 training in Chile because
Naranjo wanted to apply psychological ideas to Ichazo's
material in order to "bring it into contemporary life and out
of secrecy." Tr. at 183-84. Palmer testified that it was
Naranjo who chose the English words associated with the points
on Ichazo's enneagrams because Ichazo spoke little English when
he lectured in Chile. Tr. at 201, 205.*fn7
After 1971, Ichazo and Naranjo both taught enneagram theory
using a method described as "intense, small group psychological
growth work." Pl. Exhs. 1, 9 at xiv (C. Tart, Preface to H.
Palmer, The Enneagram); Tr. at 225-28. Palmer began studying
under Claudio Naranjo in 1973. Tr. at 184. However at that
time, she was already familiar with enneagrams. Since 1965
Palmer had been associated with the Gurdjieff Society, an
international organization named for a scholar born in 1870 in
Russia named G.I. Gurdjieff. Tr. at 180. Palmer testified that
the enneagram diagram "is almost synonymous with Gurdjieff."
Tr. at 186. According to Palmer, Gurdjieff taught that the nine
points of an enneagram represented the Seven Deadly Sins
(anger, pride, envy, greed, gluttony, lust and sloth) plus two
additional sins Palmer believes were classified by Ichazo as
self-love and fear. Tr. at 186-87. Using the enneagram as a
guide, Gurdjieff identified nine "chief features" of
"temperament," Tr. at 191, or nine personality types. Palmer
testified that after studying with Naranjo she concluded that
Ichazo was teaching Gurdjieff-based material but claiming he
"got it on his own." Tr. at 207.
Palmer began teaching enneagram theory in 1974 when she
founded the Center for the Investigation and Training of
Intuition ("CITI"). Tr. at 172-73. CITI is located in Berkeley,
California and has a yearly enrollment of approximately 1500
students primarily from the psychological community, i.e.,
persons with bachelor's, master's or PhD degrees in psychology.
Tr. at 173-74.
Palmer's book The Enneagram, published by HarperCollins in
hardback in November 1988,*fn8 opens with the passage:
The Enneagram is an ancient Sufi teaching that
describes nine different personality types and
their interrelationships. The teaching can help us
to recognize our own type and how to cope with our
issues; understand our work associates, lovers,
family, and friends; and to appreciate the
predisposition that each type has for higher human
capacities such as empathy, omniscience, and love.
Pl. Exhs. 1, 9 at 3. The Enneagram is 392 pages long and is
divided into two sections, "Orientation to the Enneagram" and
"The Nine Points of the Enneagram." The book also contains a
preface by Charles Tart, a short appendix and notes.
Palmer equates Ichazo's nine "ego fixations" with nine basic
personality types. Tr. at 224. Palmer credits Ichazo with
correctly placing the types around the nine-pointed star "so
that the relationships among the types could be verified
through interviews." Pl.Exhs. 1, 9 at 47. Palmer's nine
personality types are described at length in the nine central
chapters of The Enneagram which have titles such as "Point One:
The Perfectionist," "Point Two: The Giver," "Point Three: The
Performer," etc.*fn9 Palmer testified that she chose the
chapter titles from terms currently used in psychological
typing. Tr. at 212-13. Each chapter contains a banner listing
the main features of that particular personality type. The
terms in the banners features are derived from an all-inclusive
chart on page 50 of The Enneagram showing seven enneagrams. The
text of each chapter profiles that personality type and
concludes with two lists, "What helps [Ones, Twos, etc.]
Thrive" and "What [Ones, Twos, etc.] Should Be Aware Of."
Palmer testified that her sources for The Enneagram included
(1) information she learned from lectures given by Claudio
Naranjo in the early 1970's;*fn10 (2) the Gurdjieff ideas and
material with which she was already familiar;*fn11 (3) a
chapter entitled "The Arica Training" by Hart and Lilly first
published in Charles Tart's Transpersonal Psychologies (Harper
& Row 1975);*fn12 (4) Interviews with Oscar Ichazo (Arica
Institute Press 1982), a collection of interviews by
journalists and members of Arica;*fn13 and (5) conclusions she
has reached from interviews of her students since 1976.*fn14
Palmer has never attended an Arica training and testified that
she has never inspected any Arica works deposited in the
Library of Congress nor seen copies of any of plaintiff's works
other than Interviews with Oscar Ichazo. Tr. at 237-40, 300.
On February 20, 1991, six months after the initiation of this
lawsuit, HarperCollins decided to print 35,000 paperback copies
of The Enneagram for tentative release on March 12, 1991. Tr.
at 449; Pl.Exh. 30. The paperback version of The Enneagram is
substantially identical to the hardcover version except for its
soft cover. Def.Exh. DD. The paperback does, however, contain a
newly-added one-page notice appearing after the preface
relating to this litigation which states that neither Palmer
nor HarperCollins is affiliated with Arica and that The
Enneagram is neither endorsed nor authorized by Arica Institute
or Oscar Ichazo.*fn15 HarperCollins shipped approximately
21,000 copies of the paperback from its central warehouse on
March 11-14, 1991, primarily to fill back orders dating from
September 1990. Tr. at 449-51.*fn16
Lewis Gillenson, a publishing expert, testified that unlike
mass paperbacks, which are sold primarily in drugstores or
transit stations, trade paperbacks are more expensive and are
sold in college and general bookstores. Tr. at 158. Gillenson
testified that as a general rule, a trade paperback will
outsell the hardcover edition of the same book by a ratio of
5:1 or 6:1. Tr. at 159. William Baker, HarperCollins'
vice-president/controller responsible for book distribution in
and after 1971, testified that there is a 1:1 relationship
between sales of hardcovers and trade paperbacks published by
HarperCollins. Tr. at 461.
Arica and HarperCollins began exchanging letters in June
1988, prior to the publication of the hardcover edition of
The Enneagram, when attorneys for Arica were supplied with
galleys and thereafter sent HarperCollins various copyright and
trademark registrations and a copy of Conversations with Oscar
Ichazo. Def.Exh. P; Tr. at 147, 316. On April 13, 1989 Arica
provided HarperCollins with simple charts comparing phrases
appearing in The Enneagram with phrases appearing in Arica's
copyrighted material. Pl.Exh. 4; Tr. at 79-80; Pl.Exhs. 23-25
(full-size charts). On March 9, 1990 Arica provided
HarperCollins with 23 pages of written comparisons which
substantially repeated the information contained in the charts.
Arica filed its complaint in this action on August 6, 1990.
On August 24, 1990 defendants served interrogatories requesting
Arica to identify the specific copyrighted expression it
alleges was copied (and its source) and the corresponding
material in Palmer's The Enneagram. Arica's interrogatory
answers and objections, in the form of a 388-page list of
comparisons (Pl.Exh. 26) which Dunderdale claims he and his
wife compiled for over four months, Tr. at 341, were not served
on defendants until a March 12, 1991 hearing before this Court
at which plaintiff requested a temporary restraining order to
halt release of the paperback edition of The Enneagram. The
Court denied plaintiff's request and held a preliminary
injunction hearing on March 15 and 18, 1991.
Defendants label plaintiff's attempt to halt the release of
the paperback edition of The Enneagram as an effort to prevent
"heresy" not copyright infringement.*fn17 The Court agrees.
Elliott Dunderdale, Executive Director of Arica, testified
that Palmer's The Enneagram:
. . created a tremendous confusion among those
people who have taken Arica trainings, people who
are likely to take Arica trainings and people who
have taken her trainings. . . . [T]he only person
who picks the fixation in the Arica system is
still Oscar Ichazo. . . . [P]eople are led to
believe that they can pick their own fixation
arbitrarily and they do. . . . [T]he net effect of
that is they are relegating themselves and other
people to a further life of ignorance. . . .
Tr. at 352-54. Plaintiff has not shown a likelihood of success
on the merits or even sufficiently serious questions going to
the merits. The analysis set forth below demonstrates (1) that
neither Ichazo's system of the ego fixations nor the individual
words and phrases in Arica materials pertaining to that system
are copyrightable, (2) that the majority of instances cited by
plaintiff as alleged copying do not exhibit substantial
similarity and (3) that the few isolated instances of possible
copying identified by the Court are protected by fair use. Much
of what plaintiff objects to — Palmer's "misappropriation" of
the "same words, same schemas, same theories as Arica"*fn18 —
simply is not protected under the copyright laws. Moreover,
Palmer has a right to present her ideas on how psychological
study of human beings may be assisted using enneagram analysis
regardless of whether her ideas represent the "true philosophy"
of enneagram analysis.*fn19 Works such as The Enneagram which
make fair use of copyrighted materials are justified because
"[a] dwarf standing on the shoulders of a giant can see farther
than the giant himself." Chafee, Reflections on the Law of
Copyright: I, 45 Colum.L.Rev. 503, 511 (1945). It matters not
that the copyright owner thinks the dwarf needs glasses.
1. Standard for Preliminary Injunctive Relief
It is well-settled in this Circuit that in order to obtain a
preliminary injunction, the
moving party must show (1) irreparable harm and (2) either (i)
a likelihood of success on the merits or (ii) sufficiently
serious questions going to the merits to make them fair ground
for litigation and a balance of hardships tipping decidedly in
that party's favor. See Jackson Dairy, Inc. v. H.P. Hood &
Sons, 596 F.2d 70, 72 (2d Cir.1979).
Irreparable harm may ordinarily be presumed in copyright
cases. See Hasbro Bradley, Inc. v. Sparkle Toys, Inc.,
780 F.2d 189, 192 (2d Cir.1985).*fn20 The Court's ruling is based on a
finding that Arica has altogether failed to satisfy the second
prong of the Jackson Dairy test, likelihood of success on the
merits or sufficiently serious questions going to the merits to
make them a fair ground for litigation.
2. Ideas and Unprotected Expression
The elements of a claim of copyright infringement are: (1)
ownership of a valid copyright and (2) unauthorized copying by
the defendant. Defendants do not dispute the ownership or
validity of Arica's copyrights. Defendants do, however,
maintain that much of what plaintiff claims to be infringed is
Section 102(b) of the Copyright Act of 1976 provides:
In no case does copyright protection for an
original work of authorship extend to any idea,
procedure, process, system, method of operation,
concept, principle, or discovery, regardless of
the form in which it is described, explained,
illustrated, or embodied in such work.
17 U.S.C. § 102(b) (1988). Copyright instead protects an
author's particular expression of an idea. See Reyher v.
Children's Television Workshop, 533 F.2d 87, 90 (2d Cir.),
cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588
(1976). Courts will not find copyright infringement where the
only similarity between plaintiff's and defendant's works is
that of an abstract idea, system or discovery because to do so
would unduly inhibit independent creation by others. See Gund,
Inc. v. Smile Intern., Inc., 691 F. Supp. 642, 644 (E.D.N Y
1988), aff'd, 872 F.2d 1021 (2d Cir.1989); Merritt Forbes & Co.
v. Newman Inv. Sec., Inc., 604 F. Supp. 943, 949 (S.D.N Y
Dunderdale admitted on cross-examination that the Arica
system is equivalent to a philosophy or a program. Tr. at 435.
Ichazo's ideas as expressed in the copyrighted books and
manuals embody a theory of nine separate ego fixations having
identifiable traits. Pl. Post-Hearing Mem. filed Mar. 26, 1991
at 22. The Enneagram by Helen Palmer advances a theory of nine
separate personality types. Plaintiff accuses Palmer of
copyright infringement because she used the same words and
phrases to describe each personality type that Ichazo used to
describe the ego fixations, with the added insult that "her
approach is simply to leave important parts of Arica's
philosophy out." Pl. Post-Hearing Mem filed Mar. 26, 1991 at
23. For example, plaintiff cites Palmer's use of the terms
"inner critic," "correctness," or "worry" in the chapter
entitled "Point One: The Perfectionist" as copied from Ichazo's
description of the "resentment ego." Pl.Exh. 26 at 44-45, 55,
The copyright laws do not confer a monopoly on Arica in the
method of describing a particular and interrelated set of
characteristics or traits. See Mihalek Corp. v. State of
Michigan, 630 F. Supp. 9, 13 (E.D. Mich.1985) ("fact that both
plaintiff and the creators of the state's campaign sought to
extol certain features of the state cannot form the basis of an
infringement action"), aff'd, 814 F.2d 290 (6th Cir.), on
821 F.2d 327 (6th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503,
98 L.Ed.2d 502 (1987); McGraw-Hill, Inc. v. Worth Publishers,
Inc., 335 F. Supp. 415, 421 (S.D.N.Y.1971) (defendant's use of
technical jargon in economics textbook did not infringe). The
Court takes judicial notice of the fact that these very same
terms are commonly used to describe the astrological sign of
Virgo, another system of personality types in this genre.*fn21
Plaintiff also complains that the narration of Palmer's nine
personality types is structured in the same fashion as Ichazo's
analysis of the ego fixations. Plaintiff cannot claim
protection for the order of the points on an enneagram, e.g.,
clockwise starting at one o'clock. Dunderdale testified that an
enneagram is recognizable because it is "a list of nine
things." Tr. at 368. Palmer's description of the nine points on
an enneagram in sequential order does not constitute copyright
infringement because that sequence is not copyrightable.
See Hearn v. Meyer, 664 F. Supp. 832, 851 (S.D.N.Y.1987)
(thematic/chronological order not protected).*fn22 Protection
of structure and sequence is more readily available for
fact-based works. See, e.g., Wainwright Sec., Inc. v. Wall St.
Transcript Corp., 558 F.2d 91, 95-96 (2d Cir.1977), cert.
denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978).
Finally, plaintiff complains about Palmer's chapter titles
and about scattered similarities of words and phrases. While
the threshold of originality required to register a work under
the Copyright Act is low, fragmentary words and phrases do not
exhibit the minimal level of creativity necessary for copyright
protection. See Salinger v. Random House, Inc., 811 F.2d 90, 98
(2d Cir.) (cliche or ordinary word combination), reh'g denied,
818 F.2d 252 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct.
213, 98 L.Ed.2d 177 (1987); Alberto-Culver Co. v. Andrea Dumon,
Inc., 466 F.2d 705, 711 (7th Cir.1972) (advertising slogan not
copyrightable); Magic Mktg., Inc. v. Mailing Servs. of
Pittsburgh, Inc., 634 F. Supp. 769 (W.D.Pa.1986) (envelopes
describing contents with phrases such as "PRIORITY MESSAGE" or
"GIFT CHECK" not copyrightable). Cf. Regents of the University
of Minnesota v. Applied Innovations, Inc., 685 F. Supp. 698
(D.Minn.1987) (short, declarative true/false statements
protected), aff'd, 876 F.2d 626 (8th Cir.1989).
The Court's review of the 388-page set of comparisons reveals
many instances of alleged copyright infringement falling within
this rule, including the following:
Arica Palmer, The Enneagram
"Over-observer" "Point Two: The Observer"
(Alpha Heat Meditation manual (1976), ((chapter title, p. 204)
"Nothing is good for him, he is "In an intimate relation-
always bad." ship, this can come out
as repressing anger as a
(Lecture # 38, p. 24) bad emotion. . . ."
(in "Point One: The
Perfectionist," p. 87)
"1. crave security "For example, all Threes
2. crave prestige" will focus a lot (Doors of
Compensation Manual, of attention on security, addendum)
(in "Contributors to the
System," p. 49, 51)
"Virility/Femininity: this is the way the ego feels its
sexuality. If it feels masculine or feminine, it will feel this
point very well covered." (in "Enneagram of Syntony," Three
Month Manual, p. 141) "This ego is tremendously preoccupied
with what others think about him. Hedefends his image more than
anything else." (The Human Process for Enligh- tenment and
Freedom, p. 54)
Tr. at 330, 346, 392-95; Pl.Mem. dated Mar. 11, 1991 at 13.
With respect to these types of passages, plaintiff cannot
demonstrate that what was allegedly copied constitutes
3. Copying of Expression
Plaintiffs in copyright infringement actions are permitted to
prove the second element of their claim — unauthorized copying
by the defendant — indirectly by demonstrating access and
substantial similarity. 3 M. Nimmer & D. Nimmer, Nimmer on
Copyright § 13.01[B] (1990). Access may be inferred when the
defendant has had a "reasonable opportunity to view"
plaintiff's work before creating his own. See Gaste v.
Kaiserman, 863 F.2d 1061, 1067 (2d Cir.1988). There is
substantial similarity when "the ordinary observer, unless he
set out to detect the disparities, would be disposed to
overlook them, and regard [the] aesthetic appeal [of the two
works] as the same." Peter Pan Fabrics, Inc. v. Martin Weiner
Corp., 274 F.2d 487, 489 (2d Cir.1960). In cases where the
trier of fact finds the parties' works not merely substantially
similar but strikingly similar, copying may be proved without
proof of access. See Gaste, 863 F.2d at 1067; Arnstein v.
Porter, 154 F.2d 464, 468 (2d Cir.1946).
a. Striking Similarity
The evidence in this action shows that the only copyrighted
work which Palmer actually saw prior to writing The Enneagram
was Interviews with Oscar Ichazo. Since Arica cannot show
access for the majority of its copyrighted works,*fn23 Arica
relies on the doctrine of striking similarity, arguing that
expression in the Arica materials and in The Enneagram is so
strikingly similar that there can be no conclusion but that
Palmer copied from Arica. Pl.Mem. dated Mar. 11, 1991 at 6.
As an example of striking similarity, Arica points to the
words or labels (such as "resentment," "fear," "courage" and
"me first") appearing around each of the seven enneagrams
printed on page 50 of The Enneagram. Arica argues that these
labels match the labels in the Ichazo's enneagrams used to
describe the particular ego
fixations. Pl.Exh. 5. Assuming for argument's sake only that
the individual labels are copyrightable, there is ample
evidence to rebut any inference of copying.
An acknowledgment beneath Palmer's chart at page 50 reads:
Adapted from Transpersonal Psychologies, Edit.
Charles Tart, Harper & Row, 1975. Reprinted by
Psychological Processes, Inc. 1983, Charles Tart.
Pl.Exhs. 1, 9 at 50; Tr. at 213.*fn24 The evidence indicates
that any similarity between Palmer's labels and Ichazo's labels
stems from one of two sources: (1) Palmer's selection of a
common synonym from among a limited number of synonymous words
(e.g., substituting "veracity (honesty)" for Tart's label
"Truthfulness"); or (2) the fact that Palmer learned Ichazo's
enneagram terminology from Naranjo (e.g., "castle").
Accordingly, plaintiff has not established a likelihood of
success on the issue of whether the chart on page 50 of The
Enneagram constitutes copyright infringement.
b. Substantial Similarity
A review of the 388-page set of comparisons shows that the
majority of instances of alleged infringement bear no relation
whatsoever to copyrighted expression. The following are some
Arica Palmer, The Enneagram
". . . obsession for rigid ". . .as if an old grudge
positions . . ." (in never quite goes away
"Over-Perfectionist," with time."
Protoanalysis Manual, p. 38) (in "Point One: The
Perfectionist," p. 87)
"The hero is the work. . . . ". . . the supermom who
They do trust in their gets the job done . . ."
capacity. There is a demi- (in "Point Three: The
God attitude that they'll Performer," p. 135)
put over their part."
(Three Month Manual p. 156)
"SUPERIORITY "There is . . . a tendency —Feeling
of being to look down on those who destined for
great works." have a 'lesser vision.'" (Protoanalysis
Manual (in "Point Seven: The p. 5) Epicure," p.
Tr. at 396; Pl.Exh. 26 at 114, 293. In some passages the only
similarity is of an abstract idea. Other passages are not
similar because Palmer expresses a different idea in a
different way. See Hearn v. Meyer, 664 F. Supp. 832, 849
(S.D.N.Y.1987). For either type of passage, plaintiff has
failed to demonstrate a likelihood of success on or serious
questions going to the issue of substantial similarity.
Plaintiff propounds other examples as instances where Palmer
closely paraphrased copyrighted expression or copied parts of
Arica Palmer, The Enneagram "In
essence . . .; there is no "In essence we are like
conflict within the person young children: between
head, heart, and stomach there is no conflict . . . ."
between our thoughts, (Interviews with Oscar Ichazo our
emotions, or our in- p. 9) stincts."
(in "Background of the
System," p. 18)
"A contradiction develops "A contradiction
developed between the between the child's
inner feelings of the child central trust of the
and the outer social reality environment and the
to which he must conform." family reality, which
(Id. p. 9) must be obeyed."
(Id. p. 9)
"Personality forms a defensive "From the point of
over the essence. . . ." view of a psychology
(Id.) that includes a concept
develops in order to
protcet and defend
essence from injury in
the material world."
(same, p. 19-20)
HUMILITY: The acceptance "Humility is the recogn- of the
limits of the body's capac- tion of one's exact ities."
needs and the natural "SOBRIETY: . . . inclination to take
The body lives in the momemt, no more and no less in
the moment, taking in no more than what is nece- and no
less than is needed. . . ssary." ." (in "Point Two: The
(Forty Day Manual p. 99) Giver," p. 129)
Tr. at 344-45; Pl.Mem. dated Mar. 11, 1991 at 12-13.
Extensive paraphrasing plainly constitutes copyright
infringement. See Salinger v. Random House, Inc., 811 F.2d 90,
97 (2d Cir.1987), reh'g denied, 818 F.2d 252 (2d Cir.), cert.
denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987). The
similarities shown in the first three examples, while
insignificant in relation to the 388-page of comparisons, are
material because Palmer admits having Interviews with Oscar
Ichazo in her possession prior to writing The Enneagram.
Subconscious copying stemming from having read the copyrighted
work at some time in the past is equally as actionable under
the copyright laws as intentional copying. See ABKCO Music,
Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998 (2d
Cir.1983); Herbert Rosenthal Jewelry Corp. v. Kalpakian,
446 F.2d 738, 741 (9th Cir.1971). However, the defense of fair use
shields Palmer from liability for these isolated instances of
4. Fair Use
Section 107 of the Copyright Act of 1976 provides:
Notwithstanding the provisions of section 106, the
fair use of a copyrighted work, . . . for purposes
such as criticism, comment, news reporting,
teaching (including multiple copies for classroom
use), scholarship, or research, is not an
infringement of copyright. In determining whether
the use made of a work in any particular case is a
fair use the factors to be considered shall
(1) the purpose and character of the use,
including whether such use is of a commercial
nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion
used in relation to the copyrighted work as a
(4) the effect of the use upon the potential
market for or value of the copyrighted work.
17 U.S.C. § 107 (1988).
Of the four non-exclusive factors listed in § 107, only the
second — the nature of the copyrighted work — favors
plaintiff. Because the great majority of Arica's manuals and
lectures, even though they date
back to the early 1970's, are unpublished, they are entitled to
greater copyright protection than published works. See Harper &
Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 564, 105
S.Ct. 2218, 2232, 85 L.Ed.2d 588 (1985). The remaining fair use
factors, viewed in the factual context of this case, are
dispositive in favor of Palmer.
If a book falls into one of the categories listed in the
preamble to section 107, assessment of the first fair use
factor — the purpose and character of the use — should be at
an end. See New Era Publications Int'l, ApS v. Carol Publishing
Group, 904 F.2d 152, 156 (2d Cir.1990), cert. denied, ___ U.S.
___, III S.Ct. 297, 112 L.Ed.2d 251 (1990). Dunderdale admitted
that Palmer's book is "an informational exposition on the
material." Tr. at 356. Although The Enneagram is sold for
profit, Palmer's book undeniably constitutes a combination of
comment, criticism, scholarship and research, all of which
enjoy favored status under § 107. See Maxtone-Graham v.
Burtchaell, 803 F.2d 1253, 1260-62 (2d Cir.1986), cert. denied,
481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987).*fn25
Palmer recites the history of enneagram theory and its
principal proponents, acknowledging Ichazo's contributions to
the theory, explains how the diagram is used in her view and
extols the virtues of applying contemporary psychological
theory to enneagram theory in order to make the theory more
than a method for "a mystical path of transformation." Pl.
Exhs. 1, 9 at 51. It is totally invalid for plaintiff to claim
as it does that when Palmer writes at page 46, "Ichazo named
the higher mental quality the Holy Idea and the higher
emotional quality the Virtue," she infringes the terms "The
Virtues" and "Holy Ideas" which appear in plaintiff's manuals.
Pl.Exh. 26 at 23. The first fair use factor — the purpose and
character of the use — favors Palmer.
The third fair use factor — the amount and substantiality
used — favors Palmer as well. Most if not all of the alleged
infringements constitute cliches or ordinary word combinations.
Giving plaintiff a generous reading, the other alleged
infringements constitute at most close paraphrasing and are
found in Palmer's chapter entitled "Background of the System."
The corresponding copyrighted expression constitutes only a
minor quantity in relation to the 46 copyrighted works as a
whole, which fill two cardboard file boxes. Given that
plaintiff's copyrighted materials span a range of topics, a
conclusion that in these isolated passages Palmer has
appropriated the qualitative "heart" of the copyrighted works
would be more than inappropriate. Cf. Harper & Row, 471 U.S. at
564-65, 105 S.Ct. at 2232-33.
Applying the fourth factor — impairment of value of or
market for the copyrighted works — which the Supreme Court has
deemed the single most important element of fair use, Harper &
Row, 471 U.S. at 566, 105 S.Ct. at 2233, the Court concludes
that publication of a paperback edition of The Enneagram will
not impair either the value of or the potential market for
Arica materials. Since only one of plaintiff's works is sold to
the general public in bookstores, the actual and potential
market for Arica's works comprises Arica members or persons
enrolling in Arica training programs. Thus it is reasonable to
use Arica's student enrollment, which began to decline in
1984-85, as a yardstick for potential harm. Elliott Dunderdale
attributed this decline to the distribution of Palmer's class
notes, Tr. at 304-05, 381, which occurred several years prior
to first publication of The Enneagram in 1988. Tr. at 381. The
decline was also simultaneous with distribution of a paperback
edition of Tart's Transpersonal Psychologies, containing a
chapter on Arica by Hart and Lilly, which had been published in
1983. Finally, publication of Palmer's paperback is merely an
extension of any impairment which may have resulted from
of the hardcover in 1988, for which plaintiff took no legal
action. Plaintiff's evidence that trade paperbacks generally
reach a wider audience than hardcovers was rebutted by the
testimony of William Baker regarding specific sales patterns of
For these reasons, plaintiff's motion for a preliminary
injunction is denied. All counsel are to attend a pretrial
conference on Thursday, May 2, 1991 at 9:00 a.m. in courtroom
IT IS SO ORDERED.