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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, ...

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