No. 1762, Docket 90-9054.United States Court of Appeals, Second Circuit.Argued May 24, 1991.
Decided November 21, 1991.
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Andres J. Valdespino, New York City (Walsh Valdespino, of counsel), for plaintiff-appellant.
Robert M. Callagy, New York City (Mark A. Fowler, Carol Fein Ross, Satterlee Stephens Burke Burke, of counsel), for defendants-appellees.
Charles S. Sims, Jon Baumgarten, Proskauer Rose Goetz
Mendelsohn, New York City, for amicus curiae, Ass’n of American Publishers.
Leon Friedman, Hofstra Law School, Hempstead, N.Y., for amicus curiae, PEN American Center.
Floyd Abrams, Cahill, Gordon Reindel, New York City, for amicus curiae, The Authors Guild, Inc.
William E. Nelson, New York City, for amici curiae, American Council of Learned Societies, American Historical Ass’n, American Political Science Ass’n, Modern Language Ass’n of America, and Organization of American Historians.
Appeal from the United States District Court for the Southern District of New York.
Before VAN GRAAFEILAND, MESKILL and McLAUGHLIN, Circuit Judges.
MESKILL, Circuit Judge:
[1] In the words of the district court: “This case presents the next chapter in the continuing narrative of this Circuit’s treatmentPage 734
of the fair use defense to a charge of copyright infringement.”Wright v. Warner Books, Inc., 748 F.Supp. 105, 107 (S.D.N.Y. 1990). The principal question presented is whether defendants’ sparing use of creative expression from the unpublished letters and journals of the late author Richard Wright constitutes fair use as a matter of law. This question and others arise from plaintiff Ellen Wright’s appeal from an order of the United States District Court for the Southern District of New York, by Circuit Judge John M. Walker, sitting by designation, granting summary judgment, dismissing plaintiff’s copyright infringement, breach of contract, and libel claims. Although we disagree with portions of the district court’s analysis, we agree with its conclusions and therefore affirm.
[2] BACKGROUND
[3] This action stems from a dispute over the publication of a biography of the late African-American author Richard Wright, best known for his works Native Son and Black Boy. Plaintiff holds the copyrights in the published and unpublished works of her husband, who died in 1960. The biography, entitled Richard Wright Daemonic Genius, was written by an acquaintance of Wright, defendant Dr. Margaret Walker, and published by defendant Warner Books, Inc. in 1988.
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She also does not challenge the district court’s decision to dismiss her libel claim. Two of plaintiff’s original claims remain: (1) the biography’s use of the unpublished Wright/Walker letters and allegedly unpublished journal entries constitutes infringement, and (2) the biography’s use of the journal entries violates Dr. Walker’s research agreement with Yale University.
[8] DISCUSSION
[9] Our review of a district court’s summary judgment decision i de novo. Herbert Const. Co. v. Continental Ins. Co., 931 F.2d 989, 993 (2d Cir. 1991). We resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Id.
(2d Cir. 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978)) (brackets inserted by Maxtone-Graham). The fact-driven nature of the fair use determination suggests that a district court should be cautious in granting Rule 56 motions in this area; however, it does not protect the copyright holder from summary disposition of her claims where there are no material factual disputes. [11] I. Copyright Infringement
[12] Section 106 of the Copyright Revision Act of 1976 (“Copyright Act” or “Act”), 17 U.S.C. § 106, “confers a bundle of exclusive rights to the owner of the copyright,” Harper Row, 471 U.S. at 546, 105 S.Ct. at 2223, among them “the right of first publication.” Salinger v. Random House, Inc., 811 F.2d 90, 95 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987); see 17 U.S.C. § 106(3). Letters, like other literary works, are entitled to copyright protection, Salinger,
811 F.2d at 94; so also are journal entries. [13] Two statutory exceptions circumscribe the rights of a copyright holder. First, as a threshold matter, section 102 of the Copyright Act does not extend copyright protection to ideas or facts. Harper Row, 471 U.S. at 547, 105 S.Ct. at 2224. Only “original works of authorship fixed in any tangible medium o expression,” 17 U.S.C. § 102(a) (emphasis added), bearing “the stamp of the author’s originality” are copyrightable. Harper Row, 471 U.S. at 547, 105 S.Ct. at 2224. Second, the Act permits even original expression to be appropriated in certain circumstances. Section 107 states that the “fair use” of a copyrighted work does not infringe the copyright in that work. Whether use of copyrightable expression is fair is determined on a case-by-case basis within the context of the four non-exclusive factors enumerated in section 107. Harper Row, 471 U.S. at 549, 105 S.Ct. at 2225; New Era Publications Int’l, ApS v. Henry Holt Co. (New Era I), 873 F.2d 576, 588 (2d Cir.) (Oakes C.J., concurring), reh’g denied, 884 F.2d 659 (2d Cir. 1989) cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.Ed.2d 1071 (1990). Those factors are: (1) “the purpose and character of the use;” (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
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market for or value of the copyrighted work.”17 U.S.C. § 107. Before reaching the question of fair use, however, we should determine whether the biography has appropriated fact or expression.
[14] A. Fact or Expression? [15] Most of the passages on which plaintiff bases her allegations of copyright infringement convey facts or ideas. The copyrighted works are ten journal entries — eight from January 1945, one from February 1945, one from September 1947 — and six letters from Wright to Dr. Walker. Dr. Walker paraphrases fourteen portions of the ten journal entries. These portions are short. All but two of them are one to three sentences long. Most importantly, of the fourteen sections taken from the journal entries, only three, under a generous reading of expression, adopt Wright’s creative style. Two are quoted in the district court’s opinion. See 748 F.Supp. at 110 n. 3. The remaining one involves Wright’s discussion of the literary techniques he employed in his works. Even these, however, do not involve the kind of figurative appropriation that was condemned in Salinger. See 811 F.2d at 96. Yet, for purposes of this appeal, we will treat the biography’s use of three portions of the paraphrased journal entries as borderline expression. [16] The biography’s use of the six Wright/Walker letters merits similar treatment. The biography copies ten brief passages from the letters and paraphrases five equally short portions of them. The paraphrasing solely communicates facts (including some ideas) relating to events in Wright’s life and mutual interests of the correspondents. Of the ten quoted sections, four bear Wright’s stamp of creativity and meet the threshold test of copyright protection. The other six tersely convey mundane details of Wright’s life and serve only to illustrate Dr. Walker’s friendship with Wright. One, for example, explains Wright’s regrets at not having written earlier; another requests Dr. Walker’s permission to use one of her poems; still another requests clippings regarding a murder story; and a fourth discusses how much money Dr. Walker will need to visit New York. These examples are emblematic of the quoted passages from the letters and paraphrased portions of the letters and journals that are not entitled to copyright protection. Because we conclude that some portions of the journal entries and letters contain at least borderline expression, we disagree with those portions of the district court’s opinion that intimate that the biography takes only facts from Wright’s letters and journals. See 748 F.Supp. at 110, 114 (journal entries), 111 (letters). [17] Under a liberal interpretation of the fact/expression dichotomy, three paraphrased sections of Wright’s journals and four quoted portions of the Wright/Walker letters are protected by copyright. Unless the doctrine of fair use applies to these appropriations, they constitute infringement. [18] B. Fair Use?[19] 1. Purpose and Character of the Use
[20] We agree with the district court’s analysis of the first fair use factor: The purpose and character of the biography’s use of the Wright/Walker letters and of Wright’s journal entries clearly favors defendants. Id. at 108. Dr. Walker’s book is a scholarly biography. As such, it “fits comfortably within several of the statutory categories of uses” that Congress has indicated may be fair — “`criticism,’ `scholarship,’ and `research.'” Salinger,
811 F.2d at 96; 17 U.S.C. § 107. The analytic research contained in Dr. Walker’s biography furthers the goals of the copyright laws by adding value to prior intellectual labor. Moreover, there is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in section 107. “`[I]f a book falls into one of these categories [i.e., criticism, scholarship or research], assessment of the first fair use factor should be at an end,'” New Era Publications Int’l, ApS v. Carol Publishing Group (New Era II), 904 F.2d 152, 156 (2d Cir.) (quoting New Era I, 884 F.2d at 661 (Miner, J., concurring in denial of rehearing in banc)), cert. denied, ___ U.S. ___, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990), even
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though, as will often be the case, the biographer and publisher “`anticipate profits,'” New Era II, 904 F.2d at 156 (quotin Salinger, 811 F.2d at 96).
[21] Plaintiff raises only one challenge to the district court’s analysis. She argues that Dr. Walker’s “bad faith” in refusing to give the letters to plaintiff or to obtain her permission to use them “indicates that the character and purpose of the Book is outside the realm of `criticism’ and `scholarship.'” Plaintiff correctly refers us to the Supreme Court’s observation that “`the propriety of the defendant’s conduct'” is relevant to the “character” of the use. Harper Row, 471 U.S. at 562, 105 S.Ct. at 2231 (quoting 3 M. Nimmer, Copyright § 13.05[A], at 13-72 (1984)). She errs, however, in concluding that Dr. Walker acted in bad faith. Dr. Walker’s conduct bore no similarity to the sharp practices condemned in Harper Row where “[t]he trial court found that The Nation knowingly exploited a purloined manuscript.” See Harper Row, 471 U.S. at 563, 105 S.Ct. at 2232. Here the letters were sent to Dr. Walker, not stolen by her. As the recipient of the letters, Dr. Walker was entitled to keep them. See Salinger, 811 F.2d at 94-95. In any event, Dr. Walker actually gave plaintiff the six letters well before the biography was published. Equally meritless is plaintiff’s claim that Dr. Walker’s failure to get plaintiff’s permission to use the letters affects this analysis. As the district court aptly observed, the lack of permission is “beside the point” as long as Dr. Walker’s use meets the standards of fair use, 748 F.Supp. at 108, a question we now examine further with regard to the remaining factors.[22] 2. Nature of the Copyrighted Work
[23] The district court held that factor two favored the defendants with respect to the Wright/Walker letters, even though the letters were unpublished. In support of its conclusion, the court noted that (1) Dr. Walker paraphrased the letters, and (2) Dr. Walker “used the letters not to recreate Wright’s creative expression, but simply to establish facts necessary to her biography.” 748 F.Supp. at 111. The court also ruled for the defendants on the journal entries. Although recognizing that most of the journal entries had “not previously appeared in print,”id. at 110, the court determined that factor two “favors neither side overwhelmingly, but on balance, I conclude that it favors defendants.” Id. at 111. The court rested its conclusion principally on three grounds: (1) Dr. Walker “paraphrased, rather than directly quoted, Wright’s work;” (2) the paraphrasing involved “straightforward factual reportage;” and (3) no privacy interests were implicated in view of Wright’s death in 1960 Id. at 110-11. We disagree with this analysis.
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language. Third, the court’s rationales are not relevant to factor two. To be sure, whether the infringer paraphrased or copied, whether he borrowed fact or expression, or whether his use implicates the author’s privacy interests or not, all may enter into the infringement equation. They just have no bearing on factor two. Factor two focuses solely on the nature of th copyrighted work. The court’s explanations apply to other aspects of the analysis and cannot be used in piggyback fashion to hold together a weak link in the fair use calculation. Thus, while these aforementioned three concerns may, and do in this case, help to overcome the burden placed on defendants who seek to justify use of unpublished materials, they do not figure into the factor two inquiry. See New Era I, 873 F.2d at 593 (Oakes C.J., concurring). We believe that factor two favors the plaintiff.
[26] 3. Amount and Substantiality of the Portion Used
[27] The district court determined that factor three favored the defendants. We agree. This factor addresses “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). We examine the volume and substantiality of the work used with reference to the copyrighted work, not to the allegedly infringing work. Harper Row, 471 U.S. at 564-65, 105 S.Ct. at 2232-33; New Era II, 904 F.2d at 158. But see Harper Row, 471 U.S. at 565-66, 105 S.Ct. at 2232-33; Salinger, 811 F.2d at 99 (considered infra). Both direct quotes and close paraphrases count as being “used.”Salinger, 811 F.2d at 97-98. This factor also has both a quantitative and a qualitative element to it. New Era II, 904 F.2d at 158. As a result, the factor has favored copyright holders where the portion used formed a significant percentage of the copyrighted work, see, e.g., Salinger, 811 F.2d at 98 (one-third of seventeen letters and ten percent of forty-two letters used) or where the portion used was “`essentially the heart of'” the copyrighted work, Harper Row, 471 U.S. at 565, 105 S.Ct. at 2233 (quoting the district court below, 557 F.Supp. 1067, 1072 (S.D.N.Y. 1983)). See New Era II, 904 F.2d at 158.
803 F.2d at 1263. [30] There is some confusion whether factor three also should be examined in relation to the allegedly infringing work. New Era II flatly rejected the view that factor three should be considered in relation to the work accused of infringement, yet recognized that prior cases have analyzed the issue from this perspective. See, e.g., Harper Row, 471 U.S. at 565-66, 105 S.Ct. at 2233-34
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(quotes played a central role in infringing work and made up thirteen percent of it); Salinger, 811 F.2d at 99 (quoted sections “ma[de] the book worth reading”). It therefore briefly discussed factor three in this context. See 904 F.2d at 159. We agree with New Era II that the language of section 107 does not direct us to examine factor three in relation to the infringing work. However, because our precedents have applied this gloss to factor three, and because this perspective gives an added dimension to the fair use inquiry, we too briefly consider the amount and substantiality of the protected passages in relation to the work accused of infringement. From a quantitative perspective, the expressive portions comprise a slight fraction of the biography — at most, two pages of a 428 page book. The qualitative picture is no brighter for plaintiff. The borrowed expression enhances Dr. Walker’s analysis and serves to establish her credibility as one who, having known Wright, has a unique insight into his career. Yet it does not “make the book worth reading.” See Salinger, 811 F.2d at 99. Factor three favors defendants.
[31] 4. Effect on the Market
[32] Finally, we agree with the district court’s conclusion that factor four also favors defendants. The fourth factor focuses on “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). This, the Supreme Court has said, is “undoubtedly the single most important element of fair use.” Harper Row, 471 U.S. at 566, 105 S.Ct. at 2233. Analysis of this factor requires us to balance “`the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.'” 748 F.Supp. at 112 (quoting MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981)). The effect on the market must be attributable to the seven instances in which the biography takes Wright’s expression. Disclosure of factual content, as we have shown, is not proscribed by the copyright monopoly.
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result, that the letters “have already secured that section, or at least some part, of the market plaintiff might hope to target.” 748 F.Supp. at 113. The alleged publication occurred when Dr. Walker printed portions of some of the letters in the journal New Letters in 1971. The court thus should not have designated all of the letters as published. Moreover, it is doubtful that those letters, having been disseminated by the alleged infringer without plaintiff’s permission, should be given “published” status. “[T]he consent of the copyright owner is essential to a finding of `publication.'” Testa v. Janssen, 492 F.Supp. 198, 202 (W.D.Pa. 1980) (citing Bartok v. Boosey Hawkes, Inc., 523 F.2d 941, 945 (2d Cir. 1975)). This error, however, does not undercut our earlier conclusions. Factor four favors the defendants.
[36] The district court correctly held that defendants were entitled to summary judgment. Three of the four fair use factors clearly favor the defendants. The one that does not — the nature of the copyrighted work — raises an obstacle to this conclusion, but not an insurmountable one. In Salinger, we held that unpublished works “normally enjoy complete protection against copying any protected expression.” 811 F.2d at 97 (emphasis added); see Harper Row, 471 U.S. at 555, 105 S.Ct. at 2228 (“Unde ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.”) (emphasis added). Neither Salinger, Harper Row, nor any other case, however, erected a per serule regarding unpublished works. The fair use test remains a totality inquiry, tailored to the particular facts of each case. Because this is not a mechanical determination, a party need not “shut-out” her opponent on the four factor tally to prevail. [37] Weighing the amalgam of relevant factors, we are convinced that defendants’ use of Wright’s works is fair. Dr. Walker’s biography of Richard Wright is a scholarly work, one that surely will contribute to the public’s understanding of this important Twentieth Century novelist. The book does not exploit the literary value of Wright’s letters or journals. Nor does it diminish the marketability of Wright’s letters or journals for future publication. While the biography draws on works that we have characterized as unpublished for the purposes of this appeal, it takes only seven protected segments from Wright’s letters and journals. These portions are short and insignificant, with the possible exception of a fifty-five word description of the art of writing. This use is de minimis and beyond the protection of the Copyright Act. Cf. Salinger, 811 F.2d at 96 (“If he copies more than minimal amounts of (unpublished) expressive content, he deserves to be enjoined.”). In short, this is not a reprise of Salinger and New Era I. The biography’s use of Wright’s expressive works is modest and serves either to illustrate factual points or to establish Dr. Walker’s relationship with the author, not to “enliven” her prose. Because there are no material factual disputes that impede our determination of fair use, we conclude that it was appropriate to grant defendants’ motion for summary judgment and dismiss plaintiff’s claim of copyright infringement. [38] II. Third-Party Beneficiary Contract Claim
[39] Plaintiff also contends that Dr. Walker’s use of Wright’s journals violates an agreement between Dr. Walker and Yale University’s Beinecke Library. Plaintiff brings this claim as a third-party beneficiary of the contract — as owner of the copyrights in the materials covered by the contract. Yale obtained the materials in the Wright Archives, including Wright’s journals, from plaintiff for $175,000. The record reveals no direct evidence that Dr. Walker signed the library agreement at issue. For purposes of considering defendants’ motion for summary judgment on this claim, however, we will assume that Dr. Walker signed the agreement. [40] The agreement requires the scholar to abide by, among other rules, this one: “Yale University Library manuscripts may not be published in whole or in part unless such publication is specifically authorized.”
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Dr. Walker’s use of Wright’s journals did not breach this agreement. The agreement restricts wholesale or partial “publication” of manuscripts. It does not speak to paraphrasing of facts or ideas, nor even of expression, contained in the manuscripts. As we indicated earlier, Dr. Walker did not quote from the Wright journals. Her careful paraphrasing, moreover, was almost exclusively factual, with the exception of less than a handful of insignificant instances where she adopted borderline creative expression. It defies common sense to construe this agreement as giving scholars access to manuscripts with one hand but then prohibiting them from using the manuscripts in any meaningful way with the other. Plaintiff has offered no evidence that Yale intended the agreement to be so pointless.
[41] Plaintiff also has failed to present any evidence indicating that Yale intended this agreement to preclude fair use. Judge Walker found that “[t]he agreement does not appear to have contemplated the exclusion of fair use by biographers.” 748 F.Supp. at 114. Construing similar agreements, Judge Leval reached a like conclusion in Salinger:[42] 650 F.Supp. 413, 427 (S.D.N.Y. 1986), rev’d on other grounds, 811 F.2d 90 (2d Cir. 1987). Here, where the material was paraphrased — not even closely in most instances — it seems particularly paradoxical to construe the agreement as conferring greater protection on the copyright holder than that provided by the Copyright Act. As Judge Walker accurately stated: [43] “[A]ny more restrictive interpretation of the agreement . . . would amount to a finding that Yale University sought to prevent the airing of historical facts rather than the unfair exploitation of another’s creative imagination or style — a finding at odds with the very purpose of a great university.”Wright, 748 F.Supp. at 114. In sum, because the agreement’s reference to “publication” does not on its face refer to paraphrasing, and because plaintiff has offered no evidence or convincing rationale why the agreement would prohibit fair use, we affirm the district court’s decision to dismiss plaintiff’s third-party beneficiary claim.[T]he intention and scope of [the] agreements are to protect the literary property interests of the owner and not to give the copyright owner an arbitrary power to block legitimate non-infringing use.
. . . . [T]his restriction should be understood as applying only to quotations and excerpts that infringe copyright. To read them as absolutely forbidding any quotation, no matter how limited or appropriate, would severely inhibit proper, lawful scholarly use and place an arbitrary power in the hands of the copyright owner going far beyond the protection provided by law.
[44] CONCLUSION
[45] The judgment of the district court is affirmed.
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Secondly, in determining the issue of fair use, I would place less emphasis on the fact that some of the allegedly infringed matter was unpublished.
[49] COPYRIGHTABILITY
[50] In deciding whether Alexander’s book infringed upon Wright’s copyrighted works, we must not lose sight of the fact that “[t]here may be much in what is popularly called a copyrighted book as to which the statute affords no protection.” Dymow v. Bolton, 11 F.2d 690, 691 (2d Cir. 1926). A copyright in a book gives the author no monopoly of its contents. Oxford Book Co. v. College Entrance Book Co., 98 F.2d 688, 691 (2d Cir. 1938). “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). Moreover, because a claim to copyright is not examined for basic validity before a certificate is issued, H.R.Rep. No. 1476, 94th Cong., 2d Sess. 157 (1976), reprinted in 1976 U.S.Code Cong. Admin.News pp. 5659, 5773, the presumption of validity prescribed in 17 U.S.C. § 410(c) does not obviate the need for a full examination of excerpts from a copyrighted work that are not the very heart of the work itself. In any event, the statutory presumption is not binding on the judiciary, which may make its own unfettered decision whether the excerpts are copyrightable. See Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411, 414 (2d Cir. 1985).
at 44-45, material traceable to common sources, the public domain or folk custom, id. at 45, or scenes a faire, i.e.,
“incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Id. The district court continued:
[53] Id. at 46. [54] Of course, the district court’s holdings are not binding on this court simply because Alexander was a party in both cases. However, the principles summarized above are sound, and the district court’s opinion has been cited with approval by several appellate courts, including our own. See, e.g., Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.) cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66Yet another group of alleged infringements is best described as cliched language, metaphors and the very words of which the language is constructed. Words and metaphors are not subject to copyright protection; nor are phrases and expressions conveying an idea that can only be, or is typically, expressed in a limited number of stereotyped fashions.
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L.Ed.2d 49 (1980); Atari Games Corp. v. Oman, 888 F.2d 878, 886 (D.C.Cir. 1989); Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989). Guided by these principles, I would hold that the amount of copyrightable material allegedly infringed by Alexander, if existent at all, was so minimal that the subject of fair use need not be reached. For example, Wright’s statement set forth in the district court’s opinion, 748 F.Supp. at 110 n. 3, to the effect that a critic had condemned Wright’s work and that the work made him shiver, was a pure statement of fact. So also was Wright’s comment that “life is cold”. The “old fogey superstition” of turning around three times and spitting, also contained in footnote 3, is simply a stereotyped metaphor that customarily is expressed in substantially the same manner. The fifty-five word passage, which my colleagues correctly describe as “a reflective account of Wright’s view on the act of writing”, is similar in nature to those writings in the biography of L. Ron Hubbard dealing with his “life, his views on religion, human relations, the Church, etc.”, which we described as factual or informational. See New Era Publications Int’l, ApS v. Carol Publishing Group, 904 F.2d 152, 157 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990).
[55] The defense of fair use assumes the existence of infringement. In my opinion, if there is any infringement in the instant case, it is technical at best and so de minimis as not to be actionable.[56] FAIR USE
[57] It is unfortunate that in Harper Row, supra, the seminal case on the issue of fair use, the Court did not attempt to separate the copyrightable from the uncopyrightable in the same detailed fashion that Judge Kaufman did in the Court of Appeals See 723 F.2d 195, 202-09. In the words of Justice Brennan, who dissented in Harper Row, the Court majority “[found] no need to resolve the threshold copyrightability issue.” 471 U.S. at 580, 105 S.Ct. at 2240. For purposes of stare decisis, it also is unfortunate that the conduct of the defendant in that case was of such a nature as to elicit from the Court such condemnatory words as “scooped”, “pirated”, “exploited”, “purloined”, “clandestine”, and “chiseler”. Id. at 556, 562-64, 105 S.Ct. at 2228, 2231-32. Because of the foregoing factors, Harper Row is not an ideal precedent for a case like the instant one, which involves a biography that was written in good faith by a friend of the subject and in which the allegedly infringing uses were minimal, both quantitatively and qualitatively. See, e.g., Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1263 (2d Cir. 1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987). In any event, the fact remains that, when the Harper Row Court stated that “the unpublished nature of a work is `[a] key, though not necessarily a determinative, factor’ tending to negate a defense of fair use”, id., 471 U.S. at 555, 105 S.Ct. at 2227, the Court was discussing the author’s “expression”, not his ideas or his facts. Id. at 555-57, 105 S.Ct. at 2227-28.
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