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LISH v. HARPER'S MAGAZINE FOUND.

November 24, 1992

GORDON LISH, Plaintiff,
v.
HARPER'S MAGAZINE FOUNDATION, Defendant.


Lasker


The opinion of the court was delivered by: MORRIS E. LASKER

LASKER, D.J.

The December 1990 issue of Harper's Magazine contained a piece under the title of "A Kind of Magnificence," which the table of contents described as by Gordon Lish. The magazine was distributed to more than 200,000 readers.

  Lish is a well-known and controversial figure in the publishing industry -- an avant-garde fiction writer associated with minimalism, an editor at Alfred A. Knopf Inc. and a teacher of creative writing. His writing class "was then and probably still is one of the most famous, well known, controversial creative writing classes in the country." *fn1" "A Kind of Magnificence" was a consolidation of excerpts from a letter Lish sent to 49 prospective students introducing them to his fall 1990 writing class (the "Letter"). *fn2" It was published without a request for or receipt of Lish's permission.

 Harper's is a monthly magazine which covers politics and culture. Each issue contains a section or department designated "Readings," devoted to noteworthy documents and materials which Harper's' editors describe as "found objects." These include speeches, letters, memos and the like which circulate in the community and which are informative or illustrative of contemporary society.

 Harper's received a copy of the Letter in the late summer of 1990 from one of its "stringers," individuals employed on a freelance basis and paid on a retainer to procure material for possible publication in Harper's. The stringer had in turn obtained the Letter from a person (the "source") who had indicated to Lish an interest in joining the class. The Letter was delivered to Michael Pollan, executive editor of Harper's who has primary responsibility for Readings.

 Pollan concluded that the Letter was an ideal candidate for inclusion in Readings, but knew that Lish would probably be upset by its publication and so brought the Letter to the attention of Lewis Lapham, editor-in-chief, and John R. MacArthur, the publisher, of Harper's. Lapham and MacArthur approved publication of the letter.

 The Letter as edited was printed with a brief introduction in the December 1990 issue. It was decided that because of limited magazine space available the Letter should be cut to approximately half its size: The Letter was reduced from 2,308 to 1,206 words. (The length of items in Readings varies from 100 to 3,000 words, and averages about 1,000 words.) The deletions -- totalling approximately 48% of the excerpt -- were not marked by ellipses. The only indication in the magazine that the Letter had been edited at all was the statement in the introduction, "From an introductory letter sent last summer by Gordon Lish to students enrolled in his fall fiction writing workshop." *fn3"

 Lish claims that the publication of the edited version of the Letter infringed his copyright, defamed him, falsely designated the origin of the Letter, and intentionally inflicted emotional distress on him.

 Lish copyrighted the Letter. It clearly enjoys protection under § 106 of the Act unless its publication falls within the exception for fair use under § 107. The question whether the publication constitutes fair use is the principal issue in this case.

 The case has been tried to the bench.

 I.

 Lish

 Lish is well-known as an editor and discoverer of literary talent; "his area of writing is modern fiction and he is an exponent of minimalism, a new genre of writing" (Tr Lish Opening Statement at 2). He has sponsored and edited the writings of, among others, Harold Brodkey, Cynthia Ozick, Don DeLillo, Barry Hannah, Raymond Carver, Yannick Murphy, Richard Selzer, David Leavitt, Nancy Lemann, Amy Hempel, Denis Donoghue, Bette Pesetsky, Janet Kauffman, and Mary Robison. From 1969 to 1977, Lish was fiction editor at Esquire magazine. Since 1977, he has been an editor at Alfred A. Knopf, Inc., and is the editor of The Quarterly, a literary journal.

 Lish's admirers describe him as an inspirational teacher, who has brought many of America's best young writing talents to the literary scene. His detractors regard his teaching methods as unconventional, even cult-like. Whatever the judgment, the cognoscenti seem to agree that he is one of the more visible and noteworthy American literary figures. In its August 1987 "Guide to the Literary Universe," Esquire magazine described Lish as being at the "red hot center" of the American literary scene. Lish himself testified at trial: "Do I believe that I have 'powerfully and indelibly entered the literary history of this century?' It's a most exorbitant statement but I think it has more than a core of truth in it, yes." (Tr. Lish 485). *fn4"

 Lish has not shunned publicity. He has cooperated with the press on a number of occasions on stories about his teaching and writing and has been profiled in Vanity Fair, Spy Magazine, the New Republic, and Esquire, among other magazines. In addition, his writing seminars have been the subject of at least fifteen articles in recent years. What happens in his class, however, has on the whole been kept mysterious. Lish's course is conducted in an atmosphere of great privacy, and Lish imposes strict confidentiality upon his students. The first page of the Letter, for example, admonishes:

 To violate the confidentiality of the class is to dishonor yourself irreparably--and, further, to expose yourself to the lifelong contempt of those who took you to be a citizen of the humane arts.

 Harper's

 Harper's is a venerable periodical which was revived from decline by its current publisher John R. MacArthur in 1984. It is one of a limited number of magazines which cover both politics and culture and deal in "serious ideas" (Tr. Pollan 92). Its contents are known for being fast-paced and witty, and it has a reputation for printing material of a high literary caliber. Harper's' audience is exceptionally well educated and literate: 87.5% are college graduates, 49.7% hold a post-graduate degree, 97.1% have bought books in the past twelve months (in comparison to 40.4% of the population at large); they purchased an average of 23.5 books in 1990, and 26.6% have written material that has been published. (Defendant's Exhibit HK, 1991 Subscriber Study, Harper's Magazine).

 "Readings" was initiated in 1984 by MacArthur and Lapham, the editor-in-chief. It specializes in bringing primary source material to light. Its contents are printed with minimal editorial comment in order to permit the reader to make his or her own judgment about the work. According to Pollan, two types of documents appear in Readings: (a) creative works written for sale, for which Harper's seeks the author's permission before publication (Harper's usually pays for these items) and (b) documents such as "form letters, court transcripts, and government memos that are circulating in the society" for which Harper's does not seek the author's permission (Tr. Pollan 96).

 The Letter

 In describing his decision to print the Letter, MacArthur, the publisher, testified:

 A. I put several questions to [Pollan]. I asked him, first of all, if he thought it was really newsworthy. And he said, "Yes." And from his description of the letter it sounded very newsworthy to me.

 Q. I don't mean to interrupt you. with respect to Mr. Pollan's description that led you to conclude it was newsworthy, "it sounded newsworthy to me," what did he say about the letter that led you to that conclusion?

 A. He said it was a letter from Mr. Lish that gave a kind of inside look at a very famous writing workshop in New York. And would be of great interest to our readers because we serve -- well, I didn't go that far. He just said that it was an inside look, a unique document that he thought would be very interesting for people to read. For our readers.

 . . . .

 Q. What if anything did Mr. Pollan say to you that led you to conclude that it was unique?

 A. It was in Mr. Lish's voice. It was like many Readings documents. It was a primary document. One that you wouldn't get -- you get something from it that you wouldn't get from an account, a secondhand account.

 (Tr. MacArthur 341-42). One may conclude from the spirit of their testimony that MacArthur and Harper's' editors were also intrigued by the aura of Lish's personality as reflected in the Letter.

 The Letter contains a variety of material ranging from nuts and bolts details about the logistics of the class, instructions as to how students are expected to behave in class, to passages of exuberant rhetoric exhorting students to heroic efforts. The Letter was interesting both for its factual and stylistic content. As Harper's' own witnesses repeatedly testified, Lish's rhetoric was a significant aspect of the Letter. According to Harper's, one of the four principal components of the Letter was Lish's "inspirational rhetoric." (Tr. Pollan 102-103).

 Harper's listed the Letter in the table of contents of the December 1990 issue, naming it "A Kind of Magnificence," a phrase borrowed from the Letter itself. *fn5" Lish was shown as the author without any indication that the Letter had been severely edited or that it was printed without Lish's permission.

 In addition, Harper's took steps to procure advance publicity about its prospective publication of Lish's letter. Pollan assigned this responsibility to Ellen Ryder, Harper's' Vice President and publicist, who informed New York Magazine of the expected publication. As a result, the November 1990 issue of New York Magazine, which appeared on the newsstand prior to the December 1990 issue of Harper's, included a brief item about the publication-to-be of Lish's Letter in Harper's. The New York Magazine article quoted verbatim passages from the Letter. Pollan agreed, when questioned at trial, that it was "fair to say that in doing so Ms. Ryder, the publicist, was seeking to generate publicity about Harper's' printing of Mr. Lish's letter" and that that was done to enhance sales and awareness of the magazine. (Tr. Pollan 25, 144-45).

 Witnesses

 The fact witnesses at trial consisted of Lish, MacArthur, Pollan, and Lapham. In addition, each side called an expert witness to testify about common practices in the industry with respect to editing, use of ellipses and other related topics. Plaintiff's expert, Roger Rosenblatt, is a contributing editor of Vanity Fair, the New Republic, and Family Circle, essayist for the MacNeil/Lehrer News Hour, teacher of creative writing, and the author of four books and numerous articles. Rosenblatt has previously been a literary editor of the New Republic, the editor of the World section of Time, an editor of U.S. World and News Report, and a professor of literature and writing at Harvard.

 Harper's' expert, William A. Honan, is the chief cultural correspondent for the New York Times. Honan has been on the staff of the Times since 1969 and was its chief cultural editor from 1982 to 1989. He has also been an editor at the Saturday Review, the New Yorker and Newsweek, and has written two books and numerous articles.

 I believe that journalism protects itself when it owns up to its mistakes and doesn't hurt people. So my reasons for testifying really are in support of journalism rather than against it.

 (Tr. Rosenblatt 508-09).

 When asked why he was testifying, Honan stated:

 A: Well, I believe the case is important.

 Q: Why is that?

 A: Well, I think it strikes to the heart of freedom to publish and First Amendment rights which are fundamental to our democratic society.

 (Tr. Honan 720).

 II.

 Harper's contends that its publication of the edited version of the Letter constituted a fair use of the material, permissible under the Copyright Act. Section 107 of the Copyright Act provides:

 Limitations on exclusive rights: Fair use

 Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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 include--

 (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose;

 (2) the nature of the copyrighted work;

 (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

 (4) the effect of the use upon the potential market for or value of the copyrighted work.

 17 U.S.C. § 107.

 The doctrine of fair use "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." New Era Publications Int'l. ApS v. Henry Holt and Co., 873 F.2d 576, 589 (2d Cir. 1989), cert. denied, 493 U.S. 1094, 107 L. Ed. 2d 1071, 110 S. Ct. 1168 (1990) (Oakes, C.J., concurring).

 The governing principle in the application of fair use is that it is an "equitable rule of reason." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 448, 78 L. Ed. 2d 574, 104 S. Ct. 774 & n.31 (1984), quoted in New Era, 873 F.2d at 589. Accordingly, each case requires a particular determination whether a specific use is fair. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985) ("Nation"). *fn6"

 A. THE PURPOSE AND CHARACTER OF THE USE

 Whether the defendant acted in good faith in using the appropriated material is an element under the first fair use factor. Nation, 471 U.S. at 562 ("relevant to the 'character' of the use is 'the propriety of the defendant's conduct'"). Lish contends that Harper's acted in bad faith in the manner in which it obtained and edited the Letter.

 In Nation, the Supreme Court held that it makes a difference whether a user obtained his copy of the original work lawfully or by theft:

 "Fair use presupposes 'good faith' and 'fair dealing.'" The trial court found that The Nation knowingly exploited a purloined manuscript.

 Nor is there merit to Lish's assertion of bad faith in connection with Harper's' editing of the Letter. Lish argues that Harper's malevolently distorted the Letter and falsely presented it to the public as Lish's own work. Fairness of the treatment or editing of the material is an element of good faith. However, Pollan testified credibly, upon searching and lengthy examination by Lish's counsel (see, e.g., Tr. 73-90, 108-110 and 121-128), to his and Harper's' motives and reasons for the decision to publish the Lish material and for the particular deletions made; and his testimony (supplemented by that of Lapham and MacArthur) emphatically established Harper's' good faith in the circumstances. Furthermore, as discussed below, Lish has failed to prove that the Letter was substantially distorted.

 Factor one, therefore, turns solely on the nature of Harper's' use of the Letter.

 * * *

 Harper's argues that its publication of the Letter was for the protected purposes of criticism, commentary and news reporting -- to provide an "inside look" at Lish's class. (Tr. MacArthur 341). § 107 provides that fair use may be made of material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." 17 U.S.C. § 107.

 Lish contends that Harper's' use of the Letter falls into none of these categories since Harper's published the copied portion of the Letter without any accompanying criticism, scholarship, research, or commentary. He asserts that Harper's' use constituted a purely reproductive taking -- a clear form of commercial piracy. However, this view of the matter is too narrow. Although the published material contained no accompanying criticism or commentary, the Letter itself was newsworthy because of the notoriety of the Lish writing classes and of Lish's persona. As Honan testified:

 In the world of culture and publishing, Mr. Lish is known and he is controversial. That in a very fundamental way makes it newsworthy.

 In addition to that, when you read this letter, you recognize that here is a teacher who is certainly not your usual type of teacher who is a specialist and perceptive and thoughtful . . . . Here in fact is a teacher, a kind of guru, who tells his students to do exactly as I say, including down to bathroom conduct and eating habits and so forth, and if you do, I will then make you worthy of the notice of history.

 Well, that is quite heady stuff, and it smacks of the sorts of appeals that are used by the leaders of the EST movement, the transcendental meditation movement, and so forth, and to find a prominent New York publisher using these same techniques is indeed newsworthy.

 (Tr. Honan 723).

 "There is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in § 107 [i.e., criticism, scholarship, news report or research)." Wright, 953 F.2d at 736. Nevertheless, qualification of the Letter as newsworthy is not the end of the question. The Supreme Court has held that "The fact that the words the author has chosen to clothe his narrative may of themselves be 'newsworthy' is not an independent justification for unauthorized copying of the author's expression prior to publication." Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 557, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985). The Court further noted: "The fact that an article is originally 'news' and therefore a productive use is simply one factor in a fair use analysis." Id. at 561.

 In the present case, it is admitted that a fundamental reason for Harper's' publication of the Letter was to present Lish's expression, or, as Harper's' witnesses put it, Lish's "inspirational rhetoric."

 Q. You would agree with me that Mr. Lish's letter contains his own unique style of ...


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