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January 17, 1995

JACK E. ROBINSON, Plaintiff, against RANDOM HOUSE, INC. ET AL., Defendants.

The opinion of the court was delivered by: LORETTA A. PRESKA



 Plaintiff, Jack E. Robinson ("Robinson"), has brought this action seeking a declaration that his book, entitled American Icarus: The Majestic Rise and Tragic Fall of Pan Am (the "Robinson Book"), does not infringe on the copyright and license rights held by defendants (collectively "Daley") in another book, entitled American Saga: Juan Trippe and His Pan Am Empire (the "Daley Book"). Both parties have moved for summary judgment and Daley has moved for a preliminary injunction. Finding that the undisputed facts demonstrate that the Robinson Book infringes on the Daley Book to an extraordinary degree, Daley's motion for summary judgment is granted, and a permanent injunction shall issue prohibiting further distribution of the Robinson Book.


 On February 21, 1980, Random House, Inc. ("Random House") published the Daley Book, a biography of Juan Trippe, the founder of Pan Am Airlines. The copyright in this book, which was duly registered with the U.S. Copyright Office as Registration No. TX 489-231, was effective as of May 29, 1980; the copyright currently is held by Riviera Productions, Ltd. Random House holds licensed distribution rights in the book.

 On October 8, 1992, Robinson entered into a contract with McGraw-Hill, Inc. ("McGraw-Hill") for the publication of his manuscript which concerned the growth and eventual decline of Pan Am. On March 29, 1993, however, McGraw-Hill cancelled its contract with Robinson on the ground that it believed that the Robinson Book infringed upon the copyright held in the Daley Book. Robinson responded to the cancellation by filing an action on April 5, 1993 against McGraw-Hill to enforce his publishing contract. Robinson voluntarily dismissed that action, Robinson v. McGraw-Hill, 93 Civ. 2162 (LAP), on April 16, 1993. Robinson thereafter sought permission from Daley and Random House to use certain portions of the Daley Book in his own treatment of Pan Am. First Random House, on April 27, 1993, then Daley, on May 2, 1993, refused to permit Robinson to use the amount of material that Robinson took from the Daley Book.

 Robinson filed this action seeking a declaration that his manuscript did not infringe on the Daley Book. In his answer, Daley asserted counterclaims alleging that the Robinson manuscript infringed upon his earlier copyrighted work. Both parties moved for summary judgment. Daley did not request an injunction prohibiting publication of the Robinson Book during the motion practice, however, at least in part because of Robinson's representations that no publishing company would publish his manuscript during the pendency of this litigation. Nevertheless, sometime during the summer of 1994, the Robinson Book was published by another publisher, American Literary Press; the book currently is being marketed by that company. After Daley learned that the Robinson Book had been published, he moved for a preliminary injunction prohibiting further marketing of the Robinson Book.

 Robinson admits that "approximately 25-30 percent of the words and phrases in the Daley Book are used verbatim or through close paraphrasing" in his book. (Robinson's Statement Pursuant to Local Rule 3(g) P 4.) Despite this significant use, Robinson neither uses quotation marks nor directly cites to the Daley Book. Indeed, the only acknowledgment to the Daley Book included in the manuscript version of the Robinson Book was deleted in the published version. In fact, despite the direct use of 25-30 percent of the Daley Book, the Daley Book apparently is never mentioned in the published version of the Robinson Book.

 Robinson claims that his book does not infringe upon the Daley Book on two theories: one, he argues that he took no protected material from the Daley Book and, two, even assuming that protected material was taken, he argues that such a taking constituted "fair use" under the copyright laws. Daley, on the other hand, asserts that Robinson copied approximately 735 passages constituting at least 33,000 words from the Daley Book. Such copying, according to Daley, represents unlawful copyright infringement and entitles him to injunctive relief against Robinson and attorney's fees pursuant to 15 U.S.C. §§ 504, 505.


 I. Summary Judgment Standard


Under Rule 56(c), summary judgment


shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 Fed. R. Civ. P. § 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The substantive law determines which facts are material to the outcome of a particular litigation. See Anderson, 477 U.S. at 250; Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)).

 If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).

 Because of the factual nature of many aspects of a copyright case, a district court should be especially wary of granting summary judgment in cases alleging copyright infringement. See Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.) (summary judgment traditionally frowned upon in copyright litigation), cert. denied, 449 U.S. 841, 66 L. Ed. 2d 49, 101 S. Ct. 121 (1980). In cases involving the fair use doctrine in particular, such as the instant case, "because the fair use question is so highly dependent on the particular facts of each case, courts . . . have usually found it appropriate to allow the issue to proceed to trial." Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1258 (2d Cir. 1986), cert. denied, 481 U.S. 1059, 95 L. Ed. 2d 856, 107 S. Ct. 2201 (1987).

 A number cases in this circuit have demonstrated, however, that summary judgment on the fair use issue is appropriate under some circumstances. Several cases, for example, have upheld the granting of summary judgment in favor of defendant when there has been a finding that no copyrightable material was taken or when a finding of fair use was made as a matter of law. See, e.g., Wright v. Warner Books, 953 F.2d 731 (2d Cir. 1991) (use of copyrighted material not unfair as a matter of law) Maxtone-Graham, 803 F.2d 1253 (same); Hoehling, 618 F.2d 972 (summary judgment appropriate when no copyrighted material taken).

 Other cases in this circuit have made it clear that a reflection of the fair use defense and a subsequent finding in favor of a copyright plaintiff also may be appropriate at the summary judgment stage. In Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.), cert. denied, 121 L. Ed. 2d 278, 113 S. Ct. 365 (1992), for example, the Court of Appeals held that summary judgment in favor of plaintiff on the fair use issue was proper when the direct evidence is undisputed, or when the evidence was such that no reasonable jury could differ. See id.; see also United Feature Syndicate, Inc. v. Koons, 817 F. Supp. 370 (S.D.N.Y. 1993) (granting summary judgment in favor of plaintiff after rejecting fair use defense).

 II. Copyright Infringement

 To prove a claim of copyright infringement, a plaintiff must show ownership of a valid copyright and unauthorized copying of protected material. See Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir. 1992); Rogers, 960 F.2d at 306. In the instant case, Robinson concedes that Daley *fn1" is the owner of a valid copyright in the Daley Book. He also concedes that he copied between 25-30 percent of the Daley Book verbatim or through close paraphrase. (Robinson's Statement Pursuant to Local Rule 3(g) P 4.) Robinson argues, however, that the material he took from the Daley Book was not protected material because (a) it was factual, historical material about the life of Juan Trippe, and (b) that the copied material consisted of only stock scenes or scenes a faire. Alternatively, Robinson argues that, even if he took copyrighted material, his taking was excusable under the fair use doctrine.

 A. Robinson Took Protected Material

 Robinson certainly is correct that historical fact is not copyrightable. See Wright, 953 F.2d at 735 ("As a threshold matter, section 102 of the Copyright Act does not extend copyright protection to ideas or facts.") No biographer, for example, holds a monopoly in the story of the subject's life. See Hoehling, 618 F.2d at 978 n.5 (citing cases). Moreover, because the retelling of history necessarily proceeds in a certain chronological order, an author cannot hold a copyright in the sequence of the story's elements. See Arica, 970 F.2d at 1075 (chronological narration of events not protected); Hoehling, 618 F.2d at 978 ("There cannot be any such thing as copyright in the order of presentation of the facts, nor, indeed, in their selection." (quoting Myers v. Mail & Express Co., 36 C.O. Bull. 478, 479 (S.D.N.Y. 1919) (Hand, J.)).

 What Robinson fails to recognize, however, is that an author's expression of historical facts is protected by the Copyright Act. As the Court of Appeals has opined,


What is protected is the manner of expression, the author's analysis or interpretation of events, the way he structures his material and marshals facts, his choice of words, and the emphasis he gives to particular developments. Thus, the essence of infringement lies not in taking a general theme or in coverage of the reports as events, but in appropriating the 'particular expression through similarities of treatment, details, scenes, events and characterization.'

 Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95-96 (2d Cir. 1977) (quoting Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir.), cert. denied, 429 U.S. 980, 50 L. Ed. 2d 588, 97 S. Ct. 492 (1976)), cert. denied, 434 U.S. 1014 (1978). This fact/expression dichotomy *fn2" also applies to cases involving biographies or historical non-fiction. See Salinger v. Random House, Inc. 811 F.2d 90, 96-97 (2d Cir.), cert. denied, 484 U.S. 890, 98 L. Ed. 2d 177, 108 S. Ct. 213 (1987); Craft v. Kobler, 667 F. Supp. 120, 123 (S.D.N.Y. 1987). Indeed, the Salinger case illustrates the rights of a subsequent biographer to use the facts contained in a copyrighted work without appropriating the protected expression of his or her source:


When dealing with copyrighted expression, a biographer (or any other copier) may frequently have to content himself with reporting only the fact of what his subject did, even if he thereby pens a 'pedestrian' sentence. The copier is not at liberty to avoid 'pedestrian' reportage by appropriating his subject's literary devices.

 Salinger, 811 F.2d at 96-97. It is clear in the instant case that the Robinson Book went far beyond the use of mere facts contained in the Daley Book -- the appropriation included Daley's expression. Indeed, no reasonable jury could find otherwise. Even the briefest examination of the side-by-side comparison of the two books demonstrates that Robinson used Daley's "particular expression through similarities of treatment, details, scenes, events and characterization." The following passage are examples of such wholesale appropriation of Daley's expression. Robinson Book Daley Book Unfortunately, Postmaster Unfortunately, Postmaster General Brown saw little merit General Brown saw little merit in competitive bidding for in competitive bidding for foreign airmail contracts--so foreign airmail contracts--so he later testified before he later testified before Congress--and still less merit Congress--and still less merit in giving NYRBA the Buenos in giving NYRBA the Buenos Aires-Dutch Guiana contract. Aires-Dutch Guiana contract. NYRBA, as Brown saw it, was NYRBA, as Brown saw it, was merely trying to use airmail merely trying to use airmail pay to enter the markets that pay to enter the markets that Pan Am and Trippe had staked Pan Am and Trippe had staked out. Whatever the law stated out. Whatever the law stated about competitive bidding, about competitive bidding, Brown had become convinced Brown had become convinced that the interests of the that the interests of the United States were best served United States were best served by a single airline operating by a single airline operating abroad. And as far as Brown abroad. And as far as single was concerned, he was satisfied airlines went, he was satisfied with Trippe's. with Trippe's. Robinson Book at 38. Daley Book at 84. But Trippe refused to Trippe found he didn't believe what the maps told believe the maps. There must him. There must be some tiny be be some tiny island the map some tiny island the map makers had makers had overlooked. There overlooked. There just had to must be something. There was be something. So he decided one further place to look for to look in one last place, the the island he had to have, the logs of the old clipper ships logs of the clipper ships from the l800s which had which during the previous traversed the sea under sail, and century had plied the Pacific he asked the librarian to pull under sail and now he approached the captains' notes out of the the information desk dusty archives. He knew about and asked to see them. He their existence because, 90 knew about them because, ninety years before, his own family years before, his family had been in the clipper ship had been in the clipper business business. The handwritten The handwritten documents documents that were given to that were given to him him him were brittle with age, and were brittle with age and even for a moment he succumbed to a pragmatist like the big the romance and history they burly Trippe succumbed, for a embodied. Then he got down to few minutes, to the romance work, searching for the island they seemed to contain. Then stepping-stone he sensed just he got down to business, searching had to be there. Then, in a for the island stepping-stone state of awe and high excitement, he sensed must be there. he found what he was In a state of high excitement looking for--mention of Wake he found what he was looking Island. It lay approximately for--mention of Wake Island. halfway between Midway and It lay approximately halfway Guam--exactly where it had to between Midway and Guam--exactly be. It was out there all where it had to be. It alone, in the middle of the was all alone out there, a vast and empty Pacific, a single tiny island. But a single tiny atoll. But it was single island was all he needed. there and all of Trippe's His inchoate dreams hardened. dreams suddenly became possible. He would cross the He would cross the Pacific Pacific via Wake. via Wake Island; an isolated Pacific Atoll which, Daley Book at 108. in effect, was rediscovered in modern times in the Map Room of the New York Public Library by Juan Trippe. Robinson Book at 47.


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