of the Letter -- which was not his work.
They took my writing, and with mischief in mind, in order to create what they imagined to be a newsworthy or titillating object, went forward and re-created another piece of writing from my writing. I regard that what they did is a horrendous distortion of my intention and an awful use of myself.
(Tr. Lish 694). According to Lish, Harper's aggravated the injury by listing his name in its table of contents, making it appear that he had submitted the piece for publication and approved its final form. (Tr. Lish 426).
Lish's Lanham Act claim is based on the contention that Harper's' edit of the Letter converted it to a work no longer his own. He claims that Harper's distorted his unique style and literary voice and presented a 'garbled' version of the Letter to the public, palming it off as his work. According to Lish, naming him as the author of "A Kind of Magnificence" constitutes a false designation of origin under § 43(a) of the Lanham Act, which provides:
Any person who, on or in connection with any goods or services . . . uses in commerce . . . any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
1) is likely to cause confusion, or to cause mistake, or to deceive as to the . . . origin, sponsorship, or approval of his or her goods . . .
shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such Act.
15 U.S.C. 1125(a).
In moving to dismiss at the end of the plaintiff's case, Harper's' counsel argued that the Lanham Act claim is invalid as a matter of law because (i) the Act encompasses only false and misleading "commercial speech", (ii) courts have construed the Act to require a party suing under the Lanham Act to be in competition with the other party, and (iii) the Lanham Act is not applicable to the contents of a magazine.
However, it is clear that the Lanham Act does apply to a situation such as the one at hand. For example, in Wojnarowicz v. American Family Ass'n, 745 F. Supp. 130 (S.D.N.Y. 1990), in noting examples of "practices commercial in nature" to which the Lanham Act applied, the court cited " Gilliam v. American Broadcasting Cos., 538 F.2d 14 (2d Cir. 1976) (presenting garbled version of plaintiffs' comedy program to public)." Id. at 143. In Gilliam, original Monty Python programs were edited by ABC and rebroadcast as Monty Python work. The court found a violation of § 43 stating:
the edited version broadcast by ABC impaired the integrity of appellants' work and represented to the public as the product of appellants what was actually a mere caricature of their talents.
538 F.2d at 25. The court held
"To deform his work is to present [an artist] to the public as the creator of a work not his own, and thus makes him subject to criticism for work he has not done." Thus an allegation that a defendant has presented to the public a "garbled," distorted version of plaintiff's work seeks to redress the very rights sought to be protected by the Lanham Act . . .
Id. at 24 (citations omitted).
More recently, in Stephen King v. Innovation Books, 976 F.2d 824 (2d Cir. 1992), the Court of Appeals held that "a false reference to the origin of a work, or a reference which, while not literally false, is misleading or likely to confuse, may form the basis of a claim under section 43(a) of the Lanham Act." Id. at 7165 (citations omitted).
However, although Lish's allegations state a claim of false designation of origin under the Lanham Act, the evidence does not support the claim. In the typical Lanham Act case, either the material is false on its face or it is impliedly false. Here the material is not false on its face. "A Kind of Magnificence" was described by Harper's as being from a letter by Gordon Lish. That is true: The published Letter did originate with Lish, the person to whom it is attributed, and, although substantial deletions were made, the published version was taken in its entirety from the original -- no words were added, no phrases changed.
So the burden is on Lish to prove by a preponderance of the evidence that a false message was communicated to a not insubstantial portion of the relevant audience, Harper's' readers. However, Lish has submitted no objective evidence, in the form of a reader survey or otherwise, which establishes the actual reaction of Harper's' readers to the respective versions of the Letter. The only evidence on the question of distortion offered at trial was the opinion testimony of Rosenblatt and Honan, the two expert witnesses, and the testimony of the parties. The testimony of the experts, not surprisingly, was so effectively presented that the opinions of each expert pretty effectively cancelled the other.
In the light of the strongly opposing views of the experts, neither of which was clearly more persuasive than the other, and in the absence of any survey evidence, the finder of fact must rely on his own judgment. Viewing the matter objectively on the scant evidence of record, I conclude that Lish has not proven by a preponderance of the evidence that Harper's' version of the Letter substantially distorted the original.
According to Lish, Harper's "interfered with the logic of the letter" and eliminated its "integrating theme." (Tr. Lish 410). Lish's counsel argued: "The cut was heavy, they changed the theme, they altered the tenor, they did it to make it newsworthy." (Tr. 706). Put another way, Lish contended that the result of the editing was to make him look foolish. The implication is that some contents of the overall Letter which were at least potentially foolish, were so accentuated in the edited version that they realized that potentiality. It is true that the original contained serious passages which were deleted in the published version.
However, the original Letter also contained, as Lish himself admitted, "extravagant" passages (Tr. Lish 605). Without deciding whether an objective reader would have found that the original Letter itself made Lish look foolish, I find that the edited version did not heighten that possibility; that is to say, if there was foolishness in the original it was not unfairly accentuated in the edited version. In sum, the Letter as edited was not unrepresentative of the original Letter and therefore did not constitute false designation of origin.
This conclusion is fortified by the fact that the introduction to the Harper's' version specified that the material was "From an introductory letter sent last summer by Gordon Lish to students enrolled in his fall fiction-writing workshop," which both parties agree at the least signified that the Letter had been excerpted from its source and did not constitute the whole. Lish's argument that the use of the word "from" was insufficient to alert readers to the extent of the edit does not dictate a contrary conclusion. It may be that the absence of ellipses is an item that might tend to confuse the reader, however, the evidence is not decisive on this point.
More importantly, the bottom line is not the use or non-use of ellipses or the meaning of "from," it is whether the printed version departed so substantially from the original as to unfairly represent the original. As discussed above, I find that the version of the letter published in Harper's was representative of the original, and, accordingly, did not falsely designate its origin.
It follows that the Lanham Act claim is dismissed.
Lish asserts that by publishing the severely edited version of the Letter as Lish's original writing, Harper's defamed him. According to Lish, altering prose and sending up a garbled, lesser version of the work as the author's own, historically has been held to constitute libel per se.17
The cause of action for defamation is dismissed. As stated above, the published version of the Letter was representative of the original. Moreover, Lish has presented no evidence whatever of damage to his reputation and it is reasonable to conclude that a reputation such as his, which has been so secure to date, is impervious to the mere publication of the edited version.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Finally, Lish argues that by publishing the edited version of his letter, Harper's intentionally inflicted emotional distress on him.
To establish such a cause of action under New York law, which governs, a plaintiff must prove
(1) an extreme and outrageous act by the defendant; (2) an intent to cause severe emotional distress; (3) resulting severe emotional distress; (4) caused by the defendant's conduct.
Conniff v. Dodd, Mead & Co., 593 F. Supp. 266, 269 (S.D.N.Y. 1984) (citing Burba v. Rochester Gas and Electric Corp., 90 A.D.2d 984, 456 N.Y.S.2d 578, 579 (4th Dep't 1982)). The evidence altogether fails to establish the claim.
To begin with, there is no merit to Lish's claim that Harper's' conduct was "extreme and outrageous." Under New York law, extreme and outrageous conduct is conduct "which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 741, 480 N.E.2d 349 (1985). It would be a travesty to hold that Harper's' conduct was "atrocious and intolerable in a civilized society" under any circumstances, but the claim is utterly negated by the findings above that Harper's' conduct was not in bad faith and that the edited version of the otter was representative of the original.
Moreover, Lish has failed to establish that Harper's acted with the requisite intent to cause him severe emotional distress. Harper's' witnesses have admitted that they knew the publication of the otter would "upset" Lish and that they knew Lish "might get angry" (Tr. MacArthur 341). However, this was not "a deliberate and malicious campaign of harassment or intimidation." Nader v. General Motors Corp., 25 N.Y.2d 560, 307 N.Y.S.2d 647, 654, 255 N.E.2d 765 (1970). Mere awareness that publication of an article might annoy or embarrass the subject does not rise to an "intent to cause severe emotional distress."
Lish also appears to argue that the publication of lengthy excerpts from the Letter by itself constitutes intentional infliction of emotional distress because Harper's "was aware of Mr. Lish's concerns for the 'confidentiality' and 'strictly private' nature" of the class. (Compl. P 52). However, to the extent that Lish's claim is that Harper's violated the privacy of his class, privacy is simply not an interest which the law of intentional infliction of emotional distress protects.
The cause of action for intentional infliction of emotional distress is dismissed.
The sole damages to which Lish is entitled arise under the Copyright Act. § 504(b) provides that a successful plaintiff may recover "the actual damages suffered by him as a result of the infringement, and any profits of the infringer that are attributable to the infringement." 17 U.S.C. § 504(b).
There are no profits attributable to the infringement. While Lish established the gross revenue of Harper's for the December 1990 issue, Harper's has proven by undisputed evidence that its "deductible expenses" substantially exceeded its "gross revenue" (see 17 U.S.C. § 504(b)), so that no profit was realized either for December 1990 or for the entire year (DX FH and FI).
The parties agree that the calculation of damages should be based on the "market value" of the Letter (Tr. 811 and 844), but they disagree as to what that value is or how it is to be determined.
Harper's suggests that it should be valued at $ 250 or less. It proposes three "benchmarks" for determination of the value of the Letter:
1) The price Harper's ordinarily pays for material for the Readings section (19 cents per word according to DX IBA, for a total value of $ 229).
2) Payment at the average rate per word which Lish has received for his short stories and essays (10 cents a word according to DX IR, for a total of $ 120).
3) The highest amount which Harper's has actually paid to Lish for material previously appearing in the Readings section. According to Harper's' counsel, there were two such pieces which were purchased for $ 250 or less.
Lish, on the other hand, contends that he should be paid at least the rate of $ 2 a word, the amount he was recently offered to write a restaurant review for FYI magazine (PX 47 and 48). He argues that the fees which Harper's pays for "Readings" work are inapplicable because the "Readings" material is by and large made up of reprints. He relies also on the fact that Harper's paid him 75 cents a word for an article of his which it published in 1976.
It seems plain that there is no true "market value" for the Letter, and it cannot be said that any of the suggested approaches is economically more persuasive than another. Nevertheless, approaching the market value concept as closely as is possible under these artificial 49 circumstances, Lish is awarded actual damages of $ 2,000.
* * *
In sum, Harper's is found liable in the sum of $ 2,000 for violation of Lish's copyright of his letter and the remaining causes of action for false designation of origin, defamation and intentional infliction of emotional distress, are dismissed.
It is so ordered.
Dated: New York, New York
November 24, 1992
Morris E. Lasker
[SEE EXHIBIT A, B AND C IN ORIGINAL]