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NOTES
A NEW ERA FOR COPYRIGHT LAW: RECONSTITUTING THE

FAIR USE DOCTRINE*
I. INTRODUCTION
The conflict that develops when an author wielding the power of
first amendment guarantees confronts an author shielded by copyright
is one of the most intriguing in law and literature. Justice Cardozo
once wrote, "The reconciliation of the irreconcilable, the merger of an-
titheses, the synthesis of opposites, these are the great problems of the
law." 1 In copyright litigation, where Author v. Author often represents
a clash between two constitutional principles, the fair use doctrine is
one of the legal creations that seeks to reconcile the irreconcilable.
The fair use doctrine is an affirmative defense to copyright in-
fringement that, when properly applied, strikes a delicate balance be-
tween an author's interest in commercially exploiting her work and the
public interest in the free flow of information and ideas.2 The doctrine,
grounded in the common laws and codified in the Copyright Act of
* An earlier draft of this Note was entered in the Nathan Burkan Memorial
Competition, sponsored by the American Society of Composers, Authors and Publishers.
1. B. CARDOZO, THE PARADOXES OF LEGAL SCIENCE 4 (1928).
2. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1984) (task of defin-
ing scope of limited monopoly involves difficult balance between interests of authors and
inventors and society's competing interest in the free flow of ideas, information, and
commerce); see also Goldstein, Copyright and the First Amendment, 70 COLUM. L. REV.
983, 991 (1970) (reconciliation of copyright with the first amendment requires the strik-
ing of a balance between the property interest of the copyright holder and the public
interest).
3. Justice Story is considered the first jurist to have recognized the fair use doctrine,
in a case involving the unauthorized use of George Washington's letters. Folsom v.
Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901). Justice Story wrote:
[A] reviewer may fairly cite largely from the original work, if his design be really
and truly to use the passages for the purposes of fair and reasonable criticism.
On the other hand, it is as clear that, if he thus cites the most important parts of
the work, with a view, not to criticise, but to supersede the use of the original
work, and substitute the review for it, such a use will be deemed in law a piracy.
Id. at 344-45.
In developing the doctrine, the courts relied on a substantial body of English case
law. The first of these cases was Gyles v. Wilcox, 2 Atk. 141, 26 Eng. Rep. 489 (1740),
cited in Fisher, Reconstructing the Fair Use Doctrine, 101 HARV. L. REv. 1661, 1663
(1988). A review of the English precedents appears in W. PATRY, THE FAIR USE PRIVILEGE
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 34
1976, 4 attempts to harmonize two potentially conflicting clauses of the

United States Constitution: the first amendment, which guarantees
freedom of speech and the press,' and the copyright clause, which
grants to authors "the exclusive right to their respective writings."
Copyright infringement cases often involve factual or biographical
works of great public interest.' A copyrighted work may contain first-
hand information about a presidential pardon, clues about an assassi-
nation, or simply insight into the mind of a writer. The informational
IN COPYRIGHT LAW 6-17 (1985).

Among the more recent cases involving the common-law doctrine of fair use are
Meeropol v. Nizer, 417 F. Supp. 1201 (S.D.N.Y. 1976), aff'd in part, rev'd in part, 560
F.2d 1061 (2d Cir. 1977) (no fair use in biographer's use of 2000 words from copyrighted
letters of Julius and Ethel Rosenberg), cert. denied, 434 U.S. 1013 (1978); Time, Inc. v.
Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y. 1968) (book containing 22 sketches
copied directly from frames in copyrighted film of President Kennedy's assassination not
an infringement); Rosemont Enters. v. Random House, 366 F.2d 303 (2d Cir. 1966), cert.
denied, 385 U.S. 1009 (1967) (defendant's use of quotations and paraphrases from copy-
righted articles in biography of Howard Hughes not an infringement).
The Supreme Court has considered the statutory fair use doctrine twice, in Sony
Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1984) (home time-shifting found to
constitute a fair use) and Harper & Row v. Nation Enters., 471 U.S. 539 (1985) (the
publication of an article which draws upon an author's copyrightable expression in an as
yet unpublished work, is not a fair use).
4. 17 U.S.C. § 107 (1982). Prior to the enactment of the Copyright Act of 1976, no
United States copyright statute contained a fair use provision, although it was recog-
nized as "one of the most important and well-established limitations on the exclusive
right of copyright owners." NoTEs OF COMMITTEE ON THE JUDICIARY, H.R. REP. No. 1476,
94th Cong., 2d Sess. 65, reprinted in 1976 U.S. CODE CONG. & ADMIN. NEws 5659, 5678
[hereinafter HousE REPORT]. See also Consumers Union of United States v. General Sig-
nal Corp., 724 F.2d 1044, 1048 (2d Cir. 1983) ("[Flair use is a codification of decisional
law in an effort to prevent rigid application of the Copyright Act where such application
would unreasonably prevent the dissemination of information."), cert. denied, 469 U.S.
823 (1984); Iowa State Univ. Research Found. v. American Broadcasting Cos., 621 F.2d
57, 60 (2d Cir. 1980) ("The doctrine of fair use ... permits courts to avoid rigid applica-
tion of the copyright statute when, on occasion, it would stifle the very creativity which
that law is designed to foster.").
5. U.S. CONsT. amend. I.
6. U.S. CONST. art. I, § 8, cl. 8.
7. Perhaps the most interesting of these cases involves works of public interest on
both sides of the dispute, i.e., the alleged infringing work as well as the works from which
it took. This Note will discuss three of the most recent fair use cases involving public
figures and matters of public interest. See infra notes 50-202 and accompanying text. For
earlier cases, see supra note 3.
Public interest is not one of the fair use factors enumerated in section 107 of the
Copyright Act of 1976. The list of factors-the purpose of the use, the nature of the
copyrighted work, the amount and substantiality of the taking, and the effect on the
market-is not exhaustive, however, and courts may consider others. "[S]ince the doc-
trine is an equitable rule of reason, no generally applicable definition is possible, and
each case raising the question must be decided on its own facts." HousE REPORT, supra
note 4, at 65, reprinted in 1976 U.S. CODE CONG. & ADMIN. NEWS at 5679.
1989] NOTES
value of these works may have come about by design, diligence, or

quite by accident, as in the case of a Dallas dress manufacturer who
left his office early one November afternoon to film President Ken-
nedy's motorcade and returned with one of the most significant docu-
mentaries of our time.'
Whether the work comes about by luck or design, the creator is
entitled to copyright protection, provided that certain requirements of
the Copyright Act are met.' Copyright gives the creator rights to con-
trol the dissemination of her work, to reap the profits, and to receive
credit for her contribution to society. The author's rights under the
Act, however, are not absolute. Given that a primary purpose of copy-
right is to promote learning and foster creativity, the public has lim-
ited rights to use the author's work. 10 Insofar as these rights are explic-
itly conferred by the statute, there is no first amendment conflict.
Sometimes, however, the demand for public access to information,
by a journalist, an author, or a biographer can be at odds with the
copyright holder's monopoly, thereby giving rise to free speech or free
press concerns.' The public interest in the free flow of information' 2
8. Abraham Zapruder's "home movie" of President Kennedy's assassination now sits

in the United States Archives. He sold the 468-frame film to Time, Inc. for $150,000 two
days after the slaying. The Zapruder family still collects royalties on the film, which was
the subject of a lawsuit in Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y.
1968). See Margolick, Owning History: Does Film of Kennedy AssassinationBelong to
All or to One?, N.Y. Times, Nov. 25, 1988, at B20, col. 1.
9. The touchstone for protection under the Copyright Act of 1976 is fixation. 17
U.S.C. § 301(a) (1982). The applicable definition states:
A work is "fixed" in a tangible medium of expression when its embodiment in a
copy or phonorecord, by or under the authority of the author, is sufficiently per-
manent or stable to permit it to be perceived, reproduced, or otherwise commu-
nicated for a period of more than transitory duration. A work consisting of
sounds, images, or both, that are being transmitted, is "fixed" for purposes of
this title if a fixation of the work is being made simultaneously with its
transmission.
Id. § 101.
Some of the formal requirements for copyright protection under the Act have been
eliminated following the United States' decision to join the Berne Convention for the
Protection of Literary and Artistic Works. For example, the copyright notice require-
ment under section 401 was made optional. The Act also made optional the recordation
of transfer and the registration of copyright as a prerequisite to a suit for infringement
under sections 205 and 411(a). These changes were made in the Berne Convention Im-
plementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (1988), and took effect
March 1, 1989, simultaneously with the effective date of the United States' adherence to
the Berne Convention.
10. See sections 107-112 of the Copyright Act (Limitations on Exclusive Rights), 17
U.S.C. §§ 107.112 (1982).
11. Free speech interests implicitly are involved in every copyright case because the
goal of copyright law is the promotion of education and learning. The internal consis-
tency of the copyright clause-the balance of individual property interests against the
may require that the putative infringement be viewed within the

framework of first amendment law as well as copyright law." The first
amendment, which protects and promotes the robust public debate
necessary in a free society, may override the author's proprietary inter-
common good-convinces many judges that first amendment values are adequately pro-
tected by the copyright scheme and courts consistently have rejected the free speech
defense in copyright infringement actions. One district court upheld the first amendment
defense in Triangle Publications, Inc. v. Knight-Ridder Newspapers, 445 F. Supp. 875
(S.D. Fla. 1978), but the Fifth Circuit rejected the defense on appeal and affirmed on fair
use grounds. 626 F.2d 1171 (5th Cir. 1980). Cases in which the free speech defense was
rejected include Roy Export Co. Estab. v. Columbia Broadcasting Sys., 672 F.2d 1095 (2d
Cir.), cert. denied, 459 U.S. 826 (1982), Walt Disney Prods. v. Air Pirates, 581 F.2d 751
(9th Cir. 1978), Sid & Marty Krofft Television Prods. v. McDonald's Corp., 562 F.2d
1157 (9th Cir. 1977), and Wainwright Secs., Inc. v. Wall Street Transcript Corp., 558
F.2d 91 (2d Cir. 1977), cert. denied, 434 U.S. 1014 (1978).
One commentator has noted: "In general, these cases were sound in rejecting the
free speech defense as being the last refuge of an infringing scoundrel. The denigration
of the defense caused by its use by blatant infringers, however, should not be allowed to
obscure its importance in an appropriate case." Patterson, Free Speech, Copyright, and
Fair Use, 40 VAND. L. REV. 1, 35 n.110 (1987). See also PATRY, supra note 3, at 466 ("the
only possible conflict between the First Amendment and the Copyright Act lies in the
author's expression .... No court has ever held that the public has the right to know
expression.")
12. Public interest itself represents one of the conflicts inherent in the copyright
realm. Some commentators have argued that courts engaging in a fair use analysis have
given too much weight to the short-term public interest in information on demand and
not enough to the long-term public interest in the stability of the copyright scheme. See,
e.g., Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 COPYRIGHT L,
SYmP. (ASCAP) 43 (1969). Sobel argues that using public interest as a factor undermines
the copyright scheme:
[T]he principle that when the public interest in access to certain materials is
great enough, the copyright holder does not have the exclusive rights he other-
wise would have had ... does violence to the whole notion of copyright protec-
tion, because it affords the greatest protection to those materials which serve the
public interest least despite the fact that copyright protection was intended to
promote the progress of science and useful arts!
Id. at 76 (emphasis in original); see also Goldstein, supra note 2, at 1016 (immediate
public interest is asserted by the alleged infringer, and the long-term public interest by
the copyright owner). See generally Comment, Copyright and the First Amendment:
Where Lies the Public Interest?, 59 TUL. L. REV. 135 (1984).
Public interest, standing alone, should not be dispositive in any case. The fair use
analysis involves a balancing test and proper weight should be accorded all relevant fac-
tors. But as another commentator stated:
[Any interpretation of copyright law sensitive to first amendment values must
give sufficient room to the principle of fair use to accommodate the public inter-
est in being informed at the same time we protect the private interest-of enor-
mous public benefit-of authors to be assured that they and not others will be
compensated for their creative efforts.
Abrams, First Amendment and Copyright: The Seventeenth Donald C. Brace Memorial
Lecture, 35 J. COPR. Soc'y 1, 4 (1987).
13. See Abrams, supra note 12, at 3.
1989] NOTES
est when an issue of public interest is at stake. 4

Copyright law contains two important mechanisms that implicitly
protect first amendment values. The first is the idea/expression dichot-
omy, which ensures that copyright protection extends only to the ex-
pression of an idea, not to the idea itself.1 5 In many cases, this distinc-
tion accommodates all important interests: it protects the author's
unique contribution while giving a user, and by extension the public,
access to the information and ideas contained in the work.
In other cases, however, the idea/expression filter does not ade-
quately accommodate first amendment interests,16 either because the
idea and its expression are so intertwined that the two cannot be sepa-
rated1 7 or because there is no substitute for the copyrighted work it-
self.18 In these instances, the fair use doctrine acts as a second safe-
guard for first amendment values. Unlike the idea/expression
14. See Goldstein, supra note 2, at 988 (accommodative principles of first amend-
ment values require that "copyright infringement be excused if the subject matter of the
infringed material is relevant to the public interest and appropriator's use of the mate-
rial independently advances the public interest."). For an example of a case in which
property rights were subordinated to first amendment principles in another context, see
PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) (state constitutional provi-
sions that permit individuals to exercise free speech and petition rights in privately
owned shopping center do not violate property owner's right to exclude or other property
rights under fifth and fourteenth amendments).
15. The idea/expression dichotomy is codified at section 102 of the Copyright Act of
1976: "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 discov-
ery, regardless of the form in which it is described, explained, illustrated, or embodied in
such work." 17 U.S.C. § 102(b) (1982). See also Warner Bros. v. American Broadcasting
Cos., 720 F.2d 231, 240 (2d Cir. 1983) (idea/expression dichotomy is a useful, though
imprecise analytic tool for separating infringing from non-infringing works); Rehyer v.
Children's Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, 429 U.S. 980
(1976); Mazer v. Stein, 347 U.S. 201, 217 (1954); Baker v. Selden, 101 U.S. 99, 102-03
(1879).
16. See 1 M. NIMMER, NIMMER ON COPYRIGHT § 1.10[C] (1984) [hereinafter 1 M.
NIMMER].
17. Nimmer gives two graphic examples of an "idea" that is inseparable from its ex-
pression: the photographs of the My Lai massacre during the Vietnam conflict, and the
Zapruder film of President Kennedy's assassination, supra note 8. In regard to the My
Lai photographs, Nimmer wrote, "No amount of words describing the 'idea' of the mas-
sacre could substitute for the public insight gained through the photographs .... It
would be intolerable if the public's comprehension of the full meaning of My Lai could
be censored by the copyright owner of the photographs." 1 M. NIMMER, supra note 16, §
1.10[C], at 1-82. Similarly, the Zapruder film "gave the public authoritative answers that
it desperately sought; answers that no other source could supply with equal credibility."
Id. at 1-83. Nimmer floated the idea of a special category limited to "news photographs"
that might be inappropriate for full copyright protection. Id. at 1-84.
18. This category is limited to the demands of necessity and public interest and does
not extend to instances where copying merely will save the user time. See 1 M. NIMMER,
supra note 16, § 1.10[D], at 1-90.
NEW YORK LAW SCHOOL LAW REVIEW [Vol, 34
dichotomy, which filters out unprotectable elements, the fair use doc-
trine involves balancing an author's rights against the public interest in
the dissemination of information."
The fair use doctrine developed as judges wrestled with conflicts
between copyright law and the first amendment. Recently, however,
some courts seem to have lost sight of the doctrine's constitutional un-
derpinnings. 20 Several recent decisions reflect the belief that the copy-
right scheme fully accommodates first amendment interests, and have
thus narrowly construed the fair use doctrine.21 These decisions have
caused much consternation in the publishing community among biog-
raphers and researchers because they pose a challenge to the authors'
ability to quote from letters, diaries, and other primary sources.22
This Note submits that the idea/expression dichotomy does not
always adequately protect free speech values, and proposes that the
fair use doctrine be reevaluated and its constitutional framework rein-
forced. The first prong of this theory will be illustrated by examining
three important cases in which the fair use defense was rejected. The
proposal for "reconstituting" the doctrine does not suggest that works
of public interest be relegated to a separate category that per se affords
lesser copyright protection, or that journalists and researchers be given
carte blanche to raid such works in the name of freedom of the press.
First amendment principles, however, must be accorded proper weight
in a defense to copyright infringement of factual or historic works.
H. THE EVOLUTION AND APPLICATION OF THE FAIR USE DOCTRINE
A. The Copyright Clause

The Constitution gives Congress the power "to promote the pro-
gress of science and useful arts, by securing for limited times to au-
thors and inventors the exclusive right to their respective writings and
discoveries." '2' The underlying premise of the copyright clause is that if
an author, artist, or inventor is granted exclusive rights to exploit her
work commercially, she will have the incentive to create, thus contrib-
uting to the progress of the arts and sciences, in particular, and society
in general.2 4 The benefit of the copyright clause belongs ultimately to
19. Warner Bros., 720 F.2d at 242; Consumers Union of United States v. General
Signal Corp., 724 F.2d 1044, 1048 (2d Cir. 1983), cert. denied, 469 U.S. 823 (1984).
20. See supra note 2 and accompanying text.
21. See infra notes 50-53 and accompanying text.
22. See, e.g., Kaplan, Copyright Ruling CreatesFuror,Nat'l L.J., May 15, 1989, at 3,
col. 1; McFadden, Court Challenges Scholars' Right to Quote from PrivateDocuments,
N.Y. Times, Apr. 28, 1989, at Al, col. 5; McDowell, Salinger v. Random House, A Gray
Area for Publishers,N.Y. Times, Jan. 31, 1987, at All, col. 5.
23. U.S. CONsT. art. I, § 8, cl. 8.
24. 1 M. NIMMER, supra note 16, § 1.03[A], at 1-31 ("[t]he primary purpose of copy-
1989] NOTES
the public; 25 the author's gain is almost

26
incidental-a carrot on a
stick.
Constitutional provisions that grant authors a copyright monop-
oly 27 on one hand and permit unfettered speech on the other, might
seem hopelessly in conflict. This is not so, for several reasons. First,
Congress is not obligated to grant authors copyright protection. The
copyright clause is permissive, not mandatory.28 On the other hand, the
first amendment is a command, to Congress and, through the four-
teenth amendment, to the states. "Congress shall make no law . . .
abridging the freedom of speech, or of the press."2 9 Second, some com-
mentators have suggested that since the first amendment is an amend-
right is not to reward the author, but is rather to secure 'the general benefits derived by
the public from the labors of authors.' ") (quoting Fox Film Corp. v. Doyal, 286 U.S. 123,
127 (1932)); see also Mazer v. Stein, 347 U.S. 201, 219 (1954) (the economic philosophy
behind the copyright clause is the conviction that "encouragement of individual effort by
personal gain is the best way to advance public welfare through the talents of authors
and inventors."); Warner Bros., 720 F.2d 231, 240 ("it is a fundamental objective of the
copyright law to foster creativity.").
25. Because the public is supposed to be the ultimate beneficiary of the constitu-
tional grant of copyright monopoly, it follows that in most cases the public also benefits
from a successful suit for copyright infringement. Such a suit "involves more than just a
vindication of private property rights, for if the [copyright statute] were not enforced by
private suits, the incentives Congress established to encourage authorship would have
little effect." Quinto v. Legal Times of Washington, Inc., 511 F. Supp. 579, 581 (D.D.C.
1981).
26. See Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 429 (1984) (mo-
nopoly privilege that Congress may authorize is not primarily designed to provide a spe-
cial benefit, but, rather, is a means by which an important public purpose may be
achieved).
27. Subject to limitations laid out in sections 107-118, the copyright owner has the
exclusive right to do or to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public
by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, to perform the
copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the individual
images of a motion picture or other audiovisual work, to display the copyrighted
work publicly.
17 U.S.C. § 106 (1982).
28. Brief for Respondents at 42, Harper & Row v. Nation Enters., 471 U.S. 539 (1985)
(No. 83-1632) (citing Deepsouth Packing Co. v. Liatram Corp., 406 U.S. 518, 530 (1972))
[hereinafter Brief for Respondents]. James Madison wrote that copyright protection was
"too valuable to be wholly renounced" but dangerous enough so that the people should
retain the right "to abolish the privilege at a price to be specified in the grant of it." 3
RooTs OF THE BILL OF RIGHTS 617 (B. Schwartz ed. 1980).
29. U.S. CONsT. amend. 1.
ment, it supersedes anything in the original Constitution with which it

conflicts.3 0 Thus, to the extent that copyright law encroaches on free-
dom of speech and the press, the first amendment compels the prop-
erty interest to yield.3 1 Both views of the interplay between the copy-
right clause and the first amendment help to explain why there is only
limited conflict between the provisions. A more fundamental reason is
that copyright law itself is built on the same bedrock as the first
amendment, the principle that information cannot be monopolized.
B. The Idea/Expression Dichotomy

Copyright law contains several built-in safeguards for the protec-
tion of first amendment values. One is the idea/expression dichotomy.
Simply put, expression is copyrightable; ideas and facts are not.3 2 Since
first amendment values generally control the dissemination of ideas
and information, copyright, which protects only expression, should
erect no barriers to the unfettered dissemination of information. A user
is free to copy the ideas and information in a work. Ideally, therefore,
copyright promotes the public interest in free speech.3 3 As long as the
30. See 1 M. NIMMER, supra note 16, § 1.10[A], at 1-64. Even assuming the original
Constitution and the Bill of Rights should be viewed as a single instrument rather than
an amended document, the constitutional grants of power to Congress must be subject to
the limitations imposed by the Bill of Rights, or such limitations would be meaningless.
Id.
31. The proprietary nature of copyright is of relatively recent vintage. Copyright in
England originally was a tool of censorship. The Star Chamber Decree of 1637 and the
Licensing Act of 1662 created and preserved for the crown, control over England's bur-
geoning printing industry. The Licensing Act required all printing presses to be regis-
tered with the Stationers' Company and that copies of printed books be sent to His
Majesty's Library and public libraries. Members of the Stationers' Company, who in-
cluded printers, sellers, and bookbinders, had been granted a charter by the crown in
1557 that gave them an industry monopoly throughout the nation. The stationers devel-
oped a private copyright system to strengthen its grip on the industry. The Statute of
Anne, enacted in 1710, attempted to destroy the stationers' monopoly by supplanting the
private copyright with statutory copyright. The Statute of Anne served as a model for
the copyright clause of the United States Constitution. Thus, the roots of copyright in
the United States are regulatory, not proprietary. The regulatory concept seems more
compatible with the goal of the copyright clause: to promote the sciences and useful arts.
See generally Patterson, supra note 11; Comment, A Regulatory Theory of Copyright:
Avoiding a First Amendment Conflict, 35 EMORY L.J. 163 (1986).
32. See supra note 15 and accompanying text; see also S. REP. No. 983, 93rd Cong.,
2d Sess. 107 (1974) ("Copyright does not preclude others from using the ideas or infor-
mation revealed by the author's work. It pertains to the literary ... form in which the
author expressed intellectual concepts.").
33. H.R. REP. No. 2222, 60th Cong., 2d. Sess. 7 (1909), reprinted in 6 LEGISLATIVE
HISTORY OF THE 1909 COPYRIGHT ACT, pt. S, at 7 (1976), which states:
The enactment of copyright legislation by Congress under the terms of the Con-
stitution is not based upon any natural right that the author has in his writings
... but upon the ground that the welfare of the public will be served and pro-
1989] NOTES
user does not adopt the author's expression, no infringement will be

found.
The court's first step in obeying the constitutional mandates of
copyright law is to rigorously apply the idea/expression distinction to
the putatively infringed work.34 A judge must weed out uncopyright-
able material from that which can be protected. Implicit in this dis-
tinction is the first amendment principle that the free flow of informa-
tion be promoted. By distinguishing between idea and expression, a
court obeys not only the mandate of the first amendment, but of the
copyright clause itself. 5
If, after running through this qualitative analysis, the court con-
cludes that some of the material taken is copyrightable, the fair use
doctrine must be applied.
C. The Fair Use Doctrine

The second free speech safeguard in the copyright scheme is a ju-
dicial creation, the fair use doctrine.3 The doctrine, which has been
described as an equitable rule of reason, 37 developed as courts recog-
nized that some uses of copyrighted work should be permitted. The
common-law doctrine was codified in the Copyright Act of 1976:
[T]he fair use of a copyrighted work.., for purposes such as
criticism, comment, news reporting, teaching,.... 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 educa-
tional purposes;
gress of science and useful arts will be promoted by securing to authors for lim-
ited periods the exclusive rights to their writings. The Constitution does not es-
tablish copyrights, but provides that Congress shall have the power to grant such
rights if it thinks best. Not primarily for the benefit of the author, but for the
benefit of the public, such rights are given.
34. Harper & Row v. Nation Enters., 471 U.S. 539, 580 (Brennan, J., dissenting) (de-
termining copyrightability is a threshold issue).
35. In many cases, of course, the line between idea and expression is difficult to draw.
See Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282
U.S. 902 (1931).
36. For a discussion of the development of the fair use doctrine, see supra note 3.
37. HousE REPORT, supra note 4, at 66, reprinted in 1976 U.S. CODE CONG. & ADMIN.
NEws at 5680.
38. See Iowa State Univ. Research Found. v. American Broadcasting Cos., 621 F.2d
57, 60 (2d Cir. 1980) (fair use doctrine "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.").
(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in re-
lation to the copyrighted work as a whole;
(4) the effect of the use upon the potential market for or
value of the copyrighted work. 9
In giving statutory status to the fair use doctrine, Congress recog-
nized its importance in limiting a copyright holder's monopoly. 40 Con-
gress also recognized that "[alithough the courts have considered and
ruled upon the fair use doctrine over and over again, no real definition
4
of the concept has ever emerged." '
The fair use doctrine has been described as "a privilege in others
than the owner of a copyright to use the copyrighted material in a rea-
sonable manner without his consent, not-withstanding the monopoly
granted to the owner by the copyright."'42 Fair use has been interpreted
in two different ways. 43 At times it has been construed as "a technical
infringement which is nevertheless excused."' 44 This view recognizes
that the user infringed the copyright, but for equitable reasons the use
is privileged.
The second interpretation of fair use is "based on a concept of fair
use as an appropriation of unprotected material."'45 Courts employing
this construction regard fair use not as an excuse or privilege for in-
fringement, but as a recognition that there has been no infringement
because the material taken fell outside the scope of copyright
4
protection. 6
The second view of fair use is unduly restrictive, because it does

not allow for the possibility that material may be copyrightable but
nonetheless subject to certain uses by others. If the material is outside
the scope of copyright protection, fair use is irrelevant. On the other
hand, if the material is copyrightable, courts that view fair use as ap-
plicable only to an appropriation of uncopyrightable material, inevita-
bly will fail to find fair use.
The dangers of this catch-22 are readily ascertainable. For exam-
ple, assume a biographer uses several copyrightable quotations from a
book written on her subject. The court must first filter the material
39. 17 U.S.C. § 107 (1982).

40. HOUSE REPORT, supra note 4, at 56-57, reprinted in 1976 U.S. Code Cong. & Ad-
min. News at 5659.
41. Id.
42. W. BALL, THE LAW OF COPYRIGHT AND LITERARY PROPERTY 260 (1944).
43. See A. Latman, Fair Use of Copyrighted Works (1958), reprinted as STUDY No.
14 IN COPYRIGHT LAW REVISION STUDIES Nos. 14-16, PREPARED FOR SENATE COMMITTEE ON
THE JUDIcIARY, 86th Cong., 2d Sess., at 41 (1960).
44. Id.
45. Id.
46. Id.
1989] NOTES
through the idea/expression dichotomy. The residue must then be sub-

jected to fair use balancing. If the court interprets the fair use defense
as applicable only to the taking of unprotectable material, the inquiry
may as well stop there. The court, consciously or unconsciously, will
not find fair use because its definition of fair use is linked to
copyrightability.
Under the first interpretation of fair use, however, the court is not
trapped by its definition. A court relying on the first interpretation rec-
ognizes that the fair use doctrine evolved to give the public access to
copyrighted works in certain, instances.4 7 The court may or may not
find fair use in the hypothetical above, but its fair use balancing will
not be skewed by pressing the judicial thumb down on the side of
copyright.
The first amendment compels the courts to adhere to a fair use
doctrine that truly allows fair use of copyrighted material, not a doc-
trine that permits only minimal or insubstantial uses. This is particu-
larly important with regard to unpublished works, which are inaccessi-
ble and may remain so for the 50-100 years of copyright protection.4 8
The fair use doctrine, properly applied, recognizes that material is
copyrightable, but that public interest or other considerations may
compel a judgment for the defendant. Given that injunctive relief is so
readily available in copyright cases,49 the need for a first amendment-
friendly fair use doctrine is even more apparent.
III. A THREE-CASE STUDY OF THE FAIR USE DOCTRINE
The first amendment question raised by the copyright clause was

framed in three recent cases: Harper & Row v. Nation Enterprises,052
51
Salinger v. Random House, and New Era v. Henry Holt and Co.
Each involved the unpublished works of an author of great fame or
notoriety.5 3 In each case, the defendant was a prominent publisher and
47. See supra notes 2-3 and accompanying text.

48. Copyright in a work created after Jan. 1, 1978, subsists for a term of the life of
the author plus 50 years. 17 U.S.C. § 302(a) (1982). For joint works, the 50-year term
runs from the death of the last surviving author. 17 U.S.C. § 302(b) (1982). Renewal
terms of pre-1978 work were extended to run a total of 75 years from the date of copy-
right. 17 U.S.C. § 304(b) (1982).
49. See Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985).
50. 557 F. Supp. 1067 (S.D.N.Y), rev'd, 723 F.2d 195 (2d Cir. 1983), rev'd, 471 U.S.
539 (1985).
51. 650 F. Supp. 413 (S.D.N.Y. 1986), rev'd, 811 F.2d 90 (2d Cir.), cert. denied, 484
U.S. 890 (1987).
52. 695 F. Supp. 1493 (S.D.N.Y. 1988), aff'd on other grounds, 873 F.2d 576 (2d Cir.),
reh'g denied, 884 F.2d 659 (2d Cir. 1989).
53. Harper & Row involved the soon-to-be published memoirs of former President
Gerald R. Ford. Salinger involved the unpublished letters of J.D. Salinger, the author of
the alleged infringement involved matters of public interest or histori-

cal import.
A. Harper& Row v. Nation Enterprises

In 1977, Harper & Row had contracted to publish former Presi-
dent Ford's memoirs, A Time to Heal: The Autobiography of Gerald
R. Ford."' The book was to contain "significant hitherto unpublished
material about (1) Mr. Ford's relationship with former President
Nixon, [and] (2) the circumstances and reasoning surrounding the par-
don of Mr. Nixon by Mr. Ford, '" 5 unquestionably matters of great
public interest. Prior to publication of the 200,000-word, 655-page
book, Harper & Row sold first serial rights to Time magazine for
$25,000.58 The agreement granted Time the right to publish a 7,500-
word excerpt from the memoirs
57
about a week before its scheduled pub-
lication by Harper & Row.
Shortly before the Time excerpt was to appear, The Nation editor
Victor Navasky obtained a copy of the Ford manuscript.5 8 The Nation
published a 2,250-word article entitled The Ford Memoirs: Behind the
Nixon Pardon,which contained some 300 words of quotation from the
manuscript." Following the appearance of The Nation's article, Time
cancelled its agreement with Harper & Row, which subsequently sued
The Nation for the $12,500 balance of payment it did not receive from
60
Time.
The district court began its analysis by examining the news value
of Ford's memoirs. In Judge Owen's view, the question was whether
The Nation's article was news reporting and if so, whether The Nation
had made fair use of the material taken.6 1 The judge pointed out that
much of the so-called "news" about the Nixon pardon had in fact been
The Catcher in the Rye and several volumes of short stories. New Era concerned the
unpublished writings of L. Ron Hubbard, the late founder of the Church of Scientology
and author of numerous books, including the best-selling Dianetics: The Modern Sci-
ence of Mental Health.
54. Harper & Row, 471 U.S. at 542.
55. Brief for Respondents, supra note 28, at 2.
56. Harper & Row, 471 U.S. at 542.
57. Id. at 543.
58. Navasky testified that he had neither solicited nor paid for delivery of the manu-
script. 723 F.2d at 198.
59. Id. at 206.
60. Id. at 199. Time had a clause in its contract with Harper & Row that entitled the
magazine to ask for a renegotiation in the event that any of the material it was to ex-
cerpt appeared in some other medium. Brief for Respondents, supra note 28, at 3. After
The Nation's article appeared, Time's managing editor called Harper & Row and re-
quested that Time be permitted to publish its excerpts one week earlier. Harper & Row
refused. Harper& Row, 723 F.2d at 199.
61. 557 F. Supp. at 1070.
19891 NOTES
the subject of detailed testimony before a Congressional committee five

years earlier.6 2 Judge Owen concluded that "the 'revelations' of the
Ford memoirs were not such news, 'hot' or otherwise, to permit the use
of author Ford's copyrighted material."6 "
Judge Owen gave short shrift to the fair use balancing, summariz-
ing his analysis in one paragraph. Only after addressing fair use did
he turn to The Nation's argument that many elements of the memoirs
were uncopyrightable, namely: (1) historical facts, (2) texts of govern-
ment memoranda prepared by individuals other than Ford, and (3)
quoted conversations of persons other than Ford. 5 Judge Owen, ac-
knowledging that these materials were not copyrightable per se and
citing no authority, held that "it is the totality of these facts and mem-
oranda collected together with Ford's reflections that made them of
value to The Nation. Correspondingly, it is this same totality that is
protected by the copyright laws.""' '
This totality principle, the judge wrote, governed the parts of
Ford's memoirs reciting statements of individuals other than Ford, as
well. 6 7 Declining to "enter the thicket of deciding which statements...
were merely reconstructions of statements pieced together by
Ford-and therefore copyrightable," 68 Judge Owen brought quoted
conversations of other individuals within the protective sphere of the
totality principle. Stating that The Nation "had no interest in present-
ing these historical facts.., memoranda [and quotations] in isolation,"
but rather was interested only in Ford's views about them,6 9 the judge
concluded that The Nation had infringed Harper & Row's copyright. 70
The Second Circuit, in a 2-1 decision, reversed.7 Writing for the
majority, Judge Kaufman first addressed the copyrightability of Ford's
62. Id. at 1071.

63. Id. at 1072.
64. This is the judge's succinct analysis of why there could be no fair use of Ford's
work by The Nation:
First, the article was published for profit. Second, the infringed work was soon-
to-be published. Third, The Nation took what was essentially the heart of the
book, and fourth, the effect of the Nation's extensive use of the Nixon pardon
material caused the Time agreement to be aborted and thus diminished the
value of the copyright.
Id. (footnotes omitted).
65. Id.
66. Id.
67. Id.
68. Id. at 1072-73.
69. Id. at 1072.
70. Id. at 1073. Harper & Row was awarded the $12,500 it was damaged by Time's
non-performance and lost profits.
71. 723 F.2d 195 (2d Cir. 1983). Judges Kaufman and Pierce voted to reverse the
finding of copyright infringement and upheld the district court's dismissal of plaintiff's
state law claims. Id. at 209.
memoirs. He noted that the case law and legislative history consist-
ently held that facts and historical events were not copyrightable.72
While acknowledging that copyright could extend to the structure and
"overall arrangement" of factual works, 73 the majority believed The
Nation drew only on scattered pieces of the Ford book and then de-
scribed the information in its own words. 74" The scope of copyright in
works such as Ford's, the court held, was more narrowly5 circumscribed
and expressive content was to be strictly determined .
After filtering out the uncopyrightable material from The Nation's
article, the Second Circuit found that approximately 300 copyrightable
words remained."6 It then applied the fair use factors. First, it rejected
77
the district court's conclusion that The Nation article was not news.
Next, it determined that the "heart of the book" consisted of material
that was primarily factual in nature.7 8 In doing so, it rejected the dis-
trict court's totality theory, holding that the combination of copyright-
able expression with facts and information does not transform the
whole work into a protected body.79 The district court's construction of
the law, the majority said:
is tantamount to permitting a public official to take private
possession of the most important details of a nation's historical
and political life by adding language here and there on the per-
ceptions or sentiments he experienced while in office and in-
sisting the work's entire contents are thereby made his alone
by virtue of copyright. The Copyright Act was not intended to
72. Id. at 202. The court cited Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130
(S.D.N.Y. 1968), International News Serv. v. Associated Press, 248 U.S. 215 (1918) (news
events not copyrightable), Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d
Cir.), cert. denied, 449 U.S. 841 (1980) (historical facts not protected by copyright), and
Rosemont Enters. v. Random House, 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S.
1009 (1967).
73. 732 F.2d at 203.
74. Id.
75. Id. at 204. Judge Kaufman wrote:
Nowhere could the need to construe the concept of copyrightability in accord
with first amendment freedoms be more important than in the instant case.
Here we are presented with an article describing political events of major signifi-
cance, involving a former President of the United States. The paraphrasings
concern the very essence of news and of history. In such works, courts have care-
fully confined that troublesome concept "expression" to its barest elements-the
ordering and choice of the words themselves.
Id. at 204.
76. Id. at 206.
77. Id. at 207. Judge Kaufman agreed with the dissenter, Judge Meskill, that courts
should be "chary" of determining what was bona fide news and stick to examining
whether a claim of "news reporting" was false. Id.
78. Id. at 208.
79. Id. at 205.
1989] NOTES
provide such a private monopoly of fact at the expense of the

public's need to be informed."s
The United States Supreme Court reversed and remanded the

Second Circuit's decision."' Writing for the six-Justice majority, Justice
O'Connor placed particular emphasis on the fact that President Ford's
memoirs were unpublished. 8' While acknowledging that even the right
of first publication was made subject to the fair use provision of the
Copyright Act,83 Justice O'Connor stated that "the unpublished nature
of a work is '[a] key, though not necessarily determinative, factor'
tending to negate a defense of fair use."84'
5
The majority rejected The Nation's argument that the news
value of the manuscript counterbalanced the fact that it was unpub-
lished,8" saying "[w]e see no warrant for expanding the doctrine of fair87
use to create what amounts to a public figure exception to copyright.
But The Nation was not requesting a "public figure exception,"8 "
80. Id.
81. 471 U.S. 539 (1985).
82. Id. at 554. Under the 1909 Copyright Act, federal protection extended only to
published works. Unpublished works enjoyed perpetual common-law protection, so long
as they remained unpublished. Until Congress enacted the 1976 Copyright Act, fair use
was "traditionally not recognized as a defense to charges of copying from an author's as
yet unpublished works" because the doctrine "was predicated on the author's implied
consent to 'reasonable and customary' use when he released his work for public con-
sumption." Id. at 550. The 1976 Act eliminated publication as a dividing line between
statutory and common-law protection and made the right of first publication subject to
the provisions of section 107. Id. at 552.
83. Id.
84. Id. at 554 (quoting S. REP. No. 473, 94th Cong., 1st Sess. 65 (1975)). Justice
O'Connor wrote that "[u]nder ordinary circumstances, the author's right to control the
first public appearance of his undisseminated expression will outweigh a claim of fair
use." Id. at 555. The right of first publication is also linked to the first amendment right
not to speak. See, e.g., West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)
(holding unconstitutional state law requiring all public school children to salute and
pledge allegiance to the flag of the United States).
85. Justice O'Connor was joined by Chief Justice Burger and Justices Blackmun,
Powell, Rehnquist, and Stevens. Harper & Row, 471 U.S. at 541.
87. 471 U.S. at 560. In constitutionalizing libel law, however, the Court had placed
public figures in a separate, less protective category. See New York Times Co. v. Sulli-
van, 376 U.S. 254 (1964); St. Amant v. Thompson, 390 U.S. 727 (1968); Curtis Publishing
Co. v. Butts, 388 U.S. 130 (1967); Rosenblatt v. Baer, 383 U.S. 75 (1966). See generally
Goldstein, supra note 2 (libel and privacy cases provide apt analogy to copyright in-
fringement for definition of public interest and determination of when it should override
individual interests).
88. See Brief for Respondents, supra note 28, at 42 ("Given the scope of the protec-
tions built into the copyright laws to accommodate First Amendment interests, it re-
mains an open question whether there is a need for first amendment protection beyond
that afforded by the Copyright Act itself.").
rather, it was arguing foremost that the memoirs fell outside the scope
of copyright protection. Furthermore, public interest in this case was
legitimate and demanded a more rigorous separation of fact from ex-
pression. First, the memoirs concerned Ford's actions and decisions
while in public office." Second, both Ford and Alexander Haig, who
also figured prominently in the book, were thought to be presidential
candidates at the time the book appeared."
The Supreme Court also apparently agreed with the district
court's contention that "[T]he Nation took what was essentially the
heart of the book" 1-that is, Ford's description of the events and ne-
gotiations leading up to the pardon. The majority rejected the Second
Circuit's conclusion that the heart of the book actually consisted of the
facts of President Ford's pardon of Nixon-facts that are not copy-
rightable.92 The Supreme Court concluded that "the Court of Appeals
accorded too little weight to the qualitative importance of the quoted
''
passages of original expression. 93
The Supreme Court's implicit adoption of the district court's to-
tality approach colored the fair use analysis it invoked throughout the
opinion.9 4 By employing this analysis, the majority necessarily failed to
separate copyrightable from uncopyrightable material before applying
the fair use test. Thus, when it turned to the four fair use factors, the
Court's assessment of both the quality and quantity of the material
used by The Nation was skewed.
For example, in analyzing the amount and substantiality of the
portion used, the majority conceded that "[i]n absolute terms, the
words actually quoted were an insubstantial portion of 'A Time to
Heal.' 95 In qualitative terms, however, the majority agreed with the
district court.9 " The portions quoted were "among the most powerful
passages" in the chapters on the pardon, in the judgment of Navasky
97
himself.
In his dissent,99 Justice Brennan took the majority to task for
"failing to distinguish between information and literary form." 9 9 Ac-
cording to Justice Brennan, the majority's reliance on the district
court's finding that The Nation had taken the heart of the book was
89. 471 U.S. at 583 (Brennan, J., dissenting).

91. 471 U.S. at 564-65 (quoting 557 F. Supp. 1067, 1072 (S.D.N.Y. 1985)).
92. Id. at 569.
93. Id.
94. Id. at 590 (Brennan, J., dissenting).
95. Id. at 564.
96. Id. at 565.
97. Id.
98. Justice Brennan was joined by Justices Marshall and White. Id. at 579.
99. Id. at 600.
1989] NOTES
misplaced. 0 0 He wrote further:

When the District Court made this finding, it was evaluating
not the quoted words at issue here but the "totality" of the
information and reflective commentary in the Ford work. The
vast majprity of what the District Court considered the heart
of the Ford work, therefore, consisted of ideas and information
The Nation was free to use. It may well be that, as a qualita-
tive matter, most of the value of the manuscript did lie in in-
formation and ideas The Nation used. But appropriation of
the "heart" of the manuscript in this sense is irrelevant to
copyright analysis because copyright does not preclude a sec-
ond author's use of information and ideas.'
With all due respect for Ford's literary talents, the most important
aspects of his book were the facts concerning the Nixon pardon and his
opinions about it, and the public figures about whom he wrote, not the
way in which he expressed himself.
The danger of employing a totality analysis was also evident in the
majority's assessment of the market impact of The Nation's article.
For example, Justice O'Connor noted the trial court's finding that
Time's cancellation of its serialization and refusal to pay were the "di-
rect effect of the infringement," and concluded that "[r]arely will a
case of copyright infringement present such clear-cut evidence of ac-
tual damage."'' 2 Justice Brennan correctly pointed out that "[if] The
Nation competed with Time, the competition was not for a share of
the market in excerpts of literary form1 0 3°
but for a share of the market in
new information in the Ford work.'
The Court's use of the totality approach in The Nation flew in the
face of first amendment principles by wrapping fact and opinion in the
protective cloth of copyright. In concluding his dissent, Justice Bren-
nan wrote that "[t]he Court's exceedingly narrow approach to fair use
permits Harper & Row to monopolize information."'0 4
At least one commentator has agreed that the "totality approach"
undermines the goal of copyright law and exacerbates the tension be-
tween the copyright clause and the first amendment. 0 5 "The totality
approach.., allows material that is noncopyrightable to achieve pro-
tected status through combination with admittedly protected
100. Id.
101. Id. (citation omitted).
102. Id. at 567.
103. Id. at 603 (Brennan, J., dissenting).
104. Id. at 605.
105. Francione, Facingthe Nation: The StandardsFor Copyright Infringement, and
Fair Use of Factual Works, 134 U. PA. L. RE V.519 (1986).
expression." 10
In sum, the Supreme Court misapplied the fair use doctrine by not
first weeding out unprotected material in The Nation's article from
copyrightable material. By employing a totality approach, the Court
glossed over the idea/expression dichotomy of copyright law. Further-
more, the Court did not accord proper weight to the news value and
public interest involved in The Nation's article. The Nation's use of
some of Ford's expression was justified by a countervailing first amend-
ment interest which was too strong to permit the finding of an
10 7
infringement.
The legacy of Harper& Row, however, is Justice O'Connor's dis-
cussion of fair use of unpublished works. In the next two major fair use
cases,108 the Second Circuit interpreted Justice O'Connor's opinion as
virtually precluding any use of unpublished works, even for scholarly
and research purposes.
B. Salinger v. Random House

Salinger v. Random House'0 9 involved a biographer's unauthorized
use of quotations from the unpublished letters of J.D. Salinger."10 Sa-
linger sued the author, Ian Hamilton,"" and the publisher, and moved
for a preliminary injunction to restrain distribution of Hamilton's
book, J.D. Salinger: A Writing Life." 2 To Salinger's charge that Ham-
106. Id. at 552.

107. See generally Goldstein, supra note 2. Goldstein provides a thorough analysis of
the interplay between the first amendment and public interest, on the one hand, and a
copyright holder's monopoly interest, on the other.
108. See Salinger v. Random House, 650 F. Supp. 413 (S.D.N.Y. 1986), rev'd, 811
F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987); New Era Publications Int'l v. Henry
Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988), aff'd on other grounds, 873 F.2d 576 (2d
Cir.), reh'g denied, 884 F.2d 659 (2d Cir. 1989); see also infra notes 109-202 and accom-
panying text.
109. 650 F. Supp. 413 (S.D.N.Y. 1986), rev'd, 811 F.2d 90 (2d Cir.), cert. denied, 484
U.S. 890 (1987).
110. J.D. Salinger, author of the classic adolescent novel, The Catcher in the Rye,
four novellas, and nine short stories, has not published since 1965. He lives in virtual
seclusion in Cornish, New Hampshire, does not give interviews, and always has zealously
guarded his privacy. The Phantom of Cornish: A Biographer'sFutile Hunt for J.D. Sa-
linger, Newsweek, May 23, 1988, at 73.
111. Ian Hamilton is a British literary critic whose previous work includes a well-
respected biography of the poet Robert Lowell. 650 F. Supp. at 416. For the author's
view of the writing of the Salinger book and the subsequent litigation, see I. HAMILTON,
IN SEARCH OF J.D. SALINGER (1988), the version of the biography that ultimately was
distributed.
112. 650 F. Supp. at 416. In September 1985, Hamilton submitted to Random House
his original manuscript, which contained substantial quotations from Salinger letters
that had been given to libraries at Princeton, Harvard, and the University of Texas. The
following May, galleys were released to book reviewers. Salinger somehow obtained a
1989] NOTES
ilton had appropriated the "heart" of his letters,1 s the defendants

claimed fair use.
In the trial court decision, Judge Leval correctly began his analysis
of the alleged infringement by meticulously separating unprotected in-
formation and ideas from copyrightable material. He did so by apply-
ing standards of copyright and the first amendment:
The importance of free public dissemination of ideas and mat-
ters of historical fact dictates that they should not be subject
to private ownership or control. It is therefore axiomatic that
copyright does not encompass facts or ideas. What is protected
is the art, or craftsmanship-the author's particular manner of
expression. To make a determination of the extent of taking of
copyrighted material, it is therefore necessary to examine
closely the comparison of copyrighted and the accused
passages, not only to determine the extent and nature of simi-
larity but also to ascertain whether what was taken is in the
14
protected category or the unprotected realm of fact and idea.
The judge compared fifty-nine alleged infringing passages to the
corresponding passages in Salinger's letters and determined that the
"vast majority" of the Salinger passages were not copyrightable." 5 Ac-
knowledging that a "[p]araphrase that reproduces the original author's
protected expression" is infringement,"" Judge Leval set out categories
that were not protected, namely quotations of a third party," 7 cliche,
or ordinary word combinations,"" and information as to the subject's
thoughts and feelings." 9 Most of Salinger's passages fit into one of
these categories.
After weeding out the unprotected material, the district judge
found that there were approximately thirty letters from which Hamil-
ton had appropriated copyrighted passages. 2 0 These uses, the judge
stated, would constitute infringement unless excused by fair use.' 2 '
The first question addressed by the court in the fair use analysis was
copy of the galleys and immediately registered his letters for copyright. His attorneys
then wrote to Hamilton and Random House, demanding that the book not be published
until the quotations were removed. Hamilton revised the book, paraphrasing much of the
direct quotation. Salinger was still not satisfied and brought suit to enjoin publication.
On October 3, 1986, Judge Leval issued a temporary restraining order. Id. at 417.
113. Id.
114. Id. at 418 (citations omitted).
115. Id.
116. Id.
117. Id. at 419.
118. Id.
119. Id. at 418.
120. Id. at 420.
121. Id.
whether fair use applied to unpublished works in light of Harper &

Row. Judge Leval concluded that fair use could apply to even1 22
unpub-
lished works, although the "scope of fair use is narrower.'
The third step in the analysis was to apply the fair use criteria to
the thirty passages from Salinger's letters that were copyrightable. The
judge determined that while Hamilton had drawn a relatively large
amount of material from Salinger's letters, most of it was factual. The
appropriate qualitative and quantitative analysis was to be directed at
these thirty instances of infringement, which Judge Leval regarded as
an "insignificant taking."'12 While "[tihere can be no doubt these
passages improve Hamilton's book," 2 4 Judge Leval wrote, "[t]hey ' 'do
12
not give the reader the sense that she has read Salinger's letters. 1
Furthermore, Hamilton's appropriations were too minimal to subject
26
Salinger to any serious harm.
In examining the purpose of the work and the effect on the mar-
ket, Judge Leval noted that Hamilton's work was biographical and
thus was not a source of Salinger's writings. 1 The judge carefully
noted the difference between market impact caused by negative criti-
cism or the revelation of historical facts," 8 on the one hand, and the
market effect caused by one work supplanting another. He concluded
that Hamilton's work would have no impact on the marketability of
1 29
Salinger's letters.
Judge Leval also discussed the commercial nature of Hamilton's
work and concluded that the book
122. Id. at 421 (quoting Harper & Row, 471 U.S. 539, 564 (1985)). Judge Leval em-
phasized that the Supreme Court had stated only that the unpublished nature of a work
is "[a] key, though not necessarily determinative, factor tending to negate a defense of
fair use." Id. (emphasis supplied by Judge Leval).
123. Id. at 423.
124. Id.
125. Id. at 424.
126. Id. at 426.
127. Id. at 424. Judge Leval commented that:
[T]he use of letters as a source poses a dilemma for the biographer. To the ex-
tent he quotes (or closely paraphrases), he risks a"finding of infringement and an
injunction effectively destroying his biographical work. To the extent he departs
from the words of the letters, he distorts, sacrificing both accuracy and vividness
of description.
Id.; accord Rosemont Enters. v. Random House, 366 F.2d 303 (2d Cir. 1966) (biographies
occupy a special position "because their subject matter is human nature and they reflect
the social, economic and political forces of the particular era involved."), cert. denied,
388 U.S. 1009 (1967). See generally Peppe, Fair Use of Unpublished Materials in the
Second Circuit:The Letters of the Law, Salinger v. Random House, Inc., 54 BROOKLYN
L. REv. 417 (1988).
128. 650 F. Supp. at 425; see also Harper& Row, 471 U.S. 539, 602 (1985) (Brennan,
J., dissenting); Fisher, supra note 3, at 1669.
129. 650 F. Supp. at 425.
1989] NOTES
cannot be dismissed as an act of commercial voyeurism or

snooping into a private being's private life for commercial gain.
It is a serious, well-researched history of a man who through
his own literary accomplishments has become a figure of enor-
mous public interest. This favors a finding of fair use. 30
This quotation, like most of Judge Leval's opinion, reflects a concern
for and accommodation of first amendment values."' By properly ap-
plying the fair use doctrine, Judge Leval thoughtfully kept the door
open for some use of unpublished works.
The Second Circuit, however, did not agree with the district
3
court's rulings. 32 Judge Newman, writing for a two-judge panel, '
stated that the central issue was the application of fair use to unpub-
lished works." 4 He found an ambiguity in the Supreme Court's refer-
ence to the narrow scope of fair use for unpublished works in Harper&
Row. ' Noting the Supreme Court's observation that "the scope of fair
use is narrower with respect to unpublished works,"" 6 the Second Cir-
cuit asked whether the statement referred to the amount that could be
copied from an unpublished work, or the likelihood that fair use could
be found at all in takings from unpublished works. The court resolved
the ambiguity against the defendant,"17 stating that the "[n]arrower
'scope' seems to refer to the diminished likelihood that copying will be
fair use when the copyrighted material is unpublished." Thus, Judge
Newman construed Harper& Row as standing for the proposition that
unpublished works were insulated from fair use under "ordinary
circumstances.""38
With this precept underlying his analysis, Judge Newman then
turned to the four fair use factors. He agreed with the district court
that the biographical purpose of the use weighed in Hamilton's favor,
but that such a purpose did not entitle him to any special considera-
tion, and that if a biographer copied more than minimal amounts of
130. Id. at 426.

131. Judge Leval did not explicitly mention the first amendment in Salinger, as he
did in his opinion in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493
(S.D.N.Y. 1988). The case is discussed infra notes 151-202 and accompanying text.
132. 811 F.2d 90 (2d Cir.), reh'g denied, 818 F.2d 252 (2d Cir.), cert. denied, 484 U.S.
890 (1987).
133. Judge Newman was joined by Judge Miner. Judge Mansfield, originally a panel
member, died after oral argument. 811 F.2d at 92.
134. Id. at 95.
135. 811 F.2d at 97.
136. Id. at 97 (emphasis added) (quoting Harper & Row, 471 U.S. 539, 564 (1985)).
137. Id. The court brushed over the fact that the letters were available for public
inspection in libraries at Harvard, Princeton, and the University of Texas, which made
them unpublished only in a technical sense.
138. Id. at 100 (quoting Harper & Row, 471 U.S. 539, 555 (1985)).
unpublished expressive material he deserved to be enjoined.

Unlike the district court, the Second Circuit applied a totality ap-
proach in figuring how much material Hamilton had taken and con-
cluded that Judge Leval had
misapplied the governing standard ....Though a cliche or an
"ordinary" word-combination by itself will frequently fail to
demonstrate even the minimum level of creativity necessary for
copyright protection, such protection is available for the "asso-
ciation, presentation, and combination of the ideas and
thought which go to make up the [author's] literary
composition.13 9
The Second Circuit concluded that Judge Leval had failed to in-
clude close paraphrasing when calculating how much material Hamil-
ton had taken. 140 This close tracking of Salinger's original language, in
which the passages as a whole displayed a "sufficient degree of creativ-
ity as to sequence of thoughts, choice of words, emphasis, and arrange-
ment to satisfy the minimum thresholds of required creativity," consti-
14
tuted infringement. 1
139. Id. at 98 (citations omitted),

140. Id. at 97-98. Ironically, the Second Circuit later referred to the inadequacy of
Hamilton's paraphrasing: "Perhaps few readers of the biography would refrain from
purchasing a published collection of the letters if they appreciated how inadequately
Hamilton's paraphrasing has rendered Salinger's chosen form of expression." Id. at 99
(emphasis added). This sentence came within a discussion of the effect of Hamilton's
book on the potential market for Salinger's letters. Hamilton was thus caught in a
double bind: to the extent he closely paraphrased Salinger's work, he inflated the
amount of material taken; to the extent Hamilton used his own language, in the Second
Circuit's opinion, he gave a false impression about his subject's skill that could impair
the market for Salinger's work.
141. Id. at 98. The Second Circuit cited as an example a passage from a letter Salin-
ger wrote to Whit Burnett in 1943. Salinger was writing about the marriage of 0ona
O'Neill, whom he had dated, to Charlie Chaplin:
I can see them at home evenings. Chaplin squatting grey and nude, atop his
chiffonnier, swinging his thyroid around his head by his bamboo cane, like a
dead rat. Oona in an aquamarine gown, applauding madly from the bathroom.
Agnes (her mother) in a Jantzen bathing suit, passing between them with cock-
tails. I'm facetious, but I'm sorry. Sorry for anyone with a profile as young and
lively as Oona's.
Hamilton had written:
At one point in a letter to Whit Burnett, he provides a pen portrait of the
Happy Hour Chez Chaplin: the comedian, ancient and unclothed, is brandishing
his walking stick-attached to the stick, and horribly resembling a lifeless ro-
dent, is one of Chaplin's vital organs. Oona claps her hands in appreciation and
Agnes, togged out in a bathing suit, pours drinks. Salinger goes on to say he's
sorry-sorry not for what he has just written, but for Oona: far too youthful and
exquisite for such a dreadful fate.
Id. at 93 n.2.
1989] NOTES
Given that the Second Circuit already had determined that the
scope of fair use was narrower in respect to unpublished works, it was
not inclined to give Hamilton the benefit of the doubt on a close ques-
tion regarding a paraphrased passage.
The Second Circuit also held that the taking was significant from
a qualitative as well as quantitative standpoint. 4 2 The copied passages,
if not the "heart" of the book, were at least an important ingredient
that to a large extent made the book worth reading."" As for the
fourth factor, Judge Newman concluded that "some impairment of the
market seems likely" given the amount of the taking."
The Salinger court's narrow reading of Harper & Row's language
about unpublished work virtually precludes scholars from using many
primary source materials such as letters and diaries. By giving over-
whelming weight to this factor, the other criteria-including the one
deemed most important, the effect on the market4 5-are rendered vir-
tually meaningless. Hamilton's work was not an example of chiseling
for profit, but a serious, scholarly piece of research. Salinger's letters
were available in libraries, and thus were unpublished only in the tech-
nical sense. Yet these letters were accorded the same protection an un-
published novel would have received from a blatant copier.
The Supreme Court held in Harper & Row that, under ordinary
circumstances, the right to control first publication will outweigh a
claim of fair use."4 The Court did not define "ordinary circumstances,"
but by denying Hamilton's fair use claim, the Second Circuit estab-
lished an extremely high standard.
The Second Circuit was not sympathetic to the public interest ar-
gunments. Salinger, whose books are beloved by readers," 7 is one of the
The Second Circuit scolded Hamilton for not being content to report merely the fact
that Salinger was "distressed." Id. at 93. But Hamilton's attempt does not begin to cap-
ture the vividness of Salinger's imagery. Even Salinger's most sympathetic supporters
would have to agree that the Second Circuit's suggestion is inadequate.
In the book that was released to the public, Hamilton simply wrote: "Salinger's let-
ter on the subject of Charles Chaplin makes nasty reading.. . ." I HAMILTON, supra
note 111, at 74.
It is interesting, and perhaps ironic, to note that the Second Circuit's opinion con-
tains several verbatim quotations from both authors' works to illustrate its points, even
though most of the record was sealed. Judges, of course, are not constrained by the fair
use doctrine in drafting their opinions. But as writers, they sense the importance of
presenting the reader with the exact language that is the subject of debate.
142. 811 F.2d at 98.
143. Id. at 98-99 (quotation omitted).
144. Id. at 99.
145. Harper& Row, 471 U.S. 539, 566 (1985); 3 K NniMER, NIMMER ON COPYRIGHT §
13-05[A], at 13-76 (1984).
146. Harper & Row, 471 U.S. at 555.
147. The Phantom of Cornish, supra note 110.
world's most famous recluses and a plaintiff who cried out for sympa-
thy.1 48 His desire for privacy is legendary. But that craving for privacy
very well could have been the motivation for his lawsuit. 14 9 In the in-
terest of the first amendment, that possible motive should have been
taken into consideration. The copyright law should not be used as a
means of suppressing information, no matter how sympathetic the
plaintiff's cause. 150
C. New Era PublicationsInternational v. Henry Holt and Co.

Plaintiff in this case 51 was New Era Publications, a Danish corpo-
ration that was connected to the Church of Scientology and created to
hold the copyrights of the church's deceased founder, L. Ron Hub-
bard. 5 2 New Era sought to enjoin publication of a critical biography of
Hubbard, entitled Bare-Faced Messiah: The True Story of L. Ron
Hubbard.253 The corporation contended that the book infringed New
148. See Abrams, supra note 12, at 3.

149. Random House had argued that "this case is an ill-conceived privacy action
masquerading as a claim for copyright infringement." Streitfeld, Salinger's Privacy
Claim, Washington Post, Dec. 4, 1986, at C8, col. 1. A similar case, Rosemont Enters. v.
Random House, 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967), involved
another famous recluse, Howard Hughes. When Hughes learned that Random House was
planning to publish his biography, he reportedly incorporated Rosemont to buy up the
copyrights to several articles about him published in Look magazine. Rosemont then
sought to enjoin publication of the biography. Judge Lumbard, in his concurrence wrote,
"Hughes wanted nothing written about himself, the publication of which he could not
control ....The Look copyright was acquired "not with a desire to protect the value of
the original writing but to suppress the Random House biography because Hughes
wished to prevent its publication." Id. at 313.
150. Many scholars and writers are concerned about the impact of the case on schol-
arly research. See supra note 22.
151. New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y.
1988), afld on other grounds, 873 F.2d 576 (2d Cir.), reh'g denied, 884 F.2d 659 (2d Cir.
1989).
152. L. Ron Hubbard, the founder of the Church of Scientology, died in 1986. Hub-
bard, a science fiction writer and multimillionaire, was a controversial figure. After publi-
cation in 1950 of his book Dianetics:The Modern Science of Mental Health, Hubbard
began to attract a following, although many called the book "quackery" and "pseudosci-
ence." According to testimony in one of the many lawsuits involving the organization,
the church was collecting more than $2 million a week by the 1970s. Clients paid up to
$300 an hour for counseling sessions, which included the use of an electrical instrument
on the clients' skin for monitoring purposes. The goal of these sessions was to increase
control over thought processes in a portion of the mind that Scientologists believe gives
rise to emotional problems. In 1978, Federal agents seized thousands of documents in a
raid at a Scientology office in California that indicated that the church had conducted a
far-reaching intelligence operation against more than 100 government agencies. See
Lindsey, L. Ron Hubbard Dies of Stroke; Founder of Church of Scientology, N.Y.
Times, Jan. 29, 1986, at A21, col. 1.
153. The parties already had been to court in England and Canada. The first publica-
1989] NOTES
Era's copyrights of Hubbard's writings. 154 Publisher Henry Holt, the

sole defendant (author Russell Miller was not named), invoked the fair
use doctrine and argued that even if fair use was not found for all the
takings, the remedy should be limited to damages rather than an in-
junction suppressing distribution of the book. 155
Judge Leval, basically refining his decision in Salinger, concluded
56 injunction should be denied,
that a permanent despite finding that to57
"some degree"' the biography infringed the plaintiff's copyrights.2
In both the application of the fair use doctrine and the decision to
deny an injunction, the district court properly took account of first
amendment principles while not encroaching upon copyright law. The
opinion is perhaps the most lucid and detailed exposition of fair use
written thus far. The judge examined each of the four statutory factors
in depth. He construed the first one, the nature of the copyrighted
work, as "an open-ended generality, inviting the court to consider any
aspect of the nature of the copyrighted work that has rational bearing
on whether its secondary use should be considered fair."'5 8 He consid-
ered the unpublished nature of some of Hubbard's writings under this
factor.
New Era, citing both Harper & Row and Random House, argued
that the copyright holder enjoys "virtually complete protection against
tion was in England in October 1987. New Era sued, charging that the book employed
confidential church documents that had been embezzled by a disaffected church em-
ployee who had been appointed Hubbard's official biographer. The British courts con-
cluded that the litigation was instituted to "stifle criticism." Church of Scientology v.
Russell Miller, High Ct. of Justice, Ch., Oct. 9, 1987, at 16. New Era instituted a copy-
right infringement suit in the Federal Court of Canada on November 19, 1987. The court
denied the application for a preliminary injunction on the ground of laches. New Era
Publications Int'l v. Key-Porter Books Ltd., No. T-2433-87, Fed. Ct. Can. Trial. Div.
(Dec. 2, 1987).
The Southern District of New York recently blocked publication of another unau-
thorized biography of Hubbard, A Piece of Blue Sky, which was written by Jonathon
Caven-Atack, a disaffected Church of Scientology member. Judge Stanton ruled that
Caven-Atack merely reproduced portions of Hubbard's previously published works with-
out injecting critical commentary sufficient to overcome infringement claims. New Era
Publications Int'l v. Carol Publishing Group, No. 89-3845 (S.D.N.Y. Jan. 31, 1990)
(WESTLAW, Allfeds).
154. New Era, 695 F. Supp. at 1497.
155. The book already had been published in England, Canada, and Australia, and
12,000 copies had been printed in the United States. New Era sought an injunction to
prevent further distribution in this country. Id. at 1497-99. In this respect, the injunction
would have been far more damaging than in Salinger,in which the biography was still in
the galley stage. See supra note 112.
156. The judge said that there were "approximately 44 passages as to which a fair use
purpose [was] not convincingly shown." 695 F. Supp. at 1524.
157. Id. at 1528.
158. Id. at 1500.
claims of fair use. '15 Holt argued that "where the fair use justification
is sufficiently powerful to pass an exacting scrutiny," a user is permit-
ted to use quotation to make an "instructive point."16 0
Judge Leval agreed with the defendant that fair use is sometimes
applicable to unpublished works:
The protection of an author's commercial interest in control-
ling the circumstances of first publication is certainly a sub-
stantial interest; it is entitled to the vigorous protection of the
copyright law. But to make this right inevitably prevail over all
competing considerations would lead to absurd results that are
almost incompatible with First Amendment interests. By regis-
tering a copyright, public figures who are the expected focus of
public interest could use this supposed commercial protection
as an aggressive weapon to prevent the publication of embar-
rassing revelations and to obstruct criticism.
It is not a satisfactory answer that the world remains free
to use the facts and ideas contained in their writings. Often it
is the words used by the public figure (or the particular man-
ner of expression) that are the facts calling for comment.'
The district court concluded that the unpublished nature of Hub-
bard's letters and diaries should not prevent the defendant from claim-
ing fair use. 162 But an author who claimed fair use of unpublished
copyrighted matter "must make a particularly compelling demonstra-
tion of justification, upon full consideration of the relevant fair use fac-
tors." 63 Judge Leval also rejected New Era's argument that the private
nature of some of the Hubbard documents (letters and diaries) should
favor a finding of infringement.' The judge stated that "Hubbard is a
figure of great public importance for the great wealth he accumulated
and the influence he wielded through his writings and religion. During
his life he actively sought publicity. Any privacy interest in the con-
tents of these documents is overwhelmingly outweighed by legitimate
public concern.'1 6 5 In sum, the unpublished, private nature of Hub-
bard's writings, while tending to negate a claim of fair use, was not
dispositive. The defendant could prevail by showing a compelling justi-
159. Id. at 1498.

160. Id.
161. Id. at 1502.
162. Id. at 1503. Judge Leval wrote that "[t]he [Salinger] opinion clarifies that the
'narrower' scope of fair use for unpublished material refers to the diminished likelihood
that fair use will be found in a copying of unpublished material, not impossibility." Id.
(emphasis in original).
163. Id. at 1504.
164. Id.
165. Id. at 1505.
1989] NOTES
fication for the use. 16 6

The next statutory factor considered by Judge Leval was the pur-
pose and character of the use. The judge stated that this factor "invites
examination of both the particular quoted passages and the overall
character of the secondary-user work.' 1 67 As to the overall character of
the work, he concluded that "[t]here can be little doubt that this as-
pect of the fair use analysis generally favors an overall finding in favor
of the biography."16 8 Judge Leval noted that Hubbard "is unquestion-
ably a figure of legitimate public concern.... If it is arguable... that
his career and the Scientology religion have been advanced through de-
ception, this is certainly a subject appropriate for critical
''
exploration. 1169
Judge Leval, noting that the statute also invited examination of
whether the use is of a commercial nature or is for nonprofit education
purpose, concluded that this was really a non-issue. He wrote, "Even
the most valuable educational books are generally published by com-
mercial establishments for profit." 170
In keeping with the first amendment and copyright criteria he laid
out earlier in his opinion, Judge Leval proceeded to meticulously ex-
amine each of the 200 putatively infringing passages to determine
whether the words taken from Hubbard's writings were in and of
themselves "the facts calling for comment."' 7 ' The judge examined
each of the taken passages to see whether they were copied in support
of Miller's thesis that Hubbard was, among 7other 2
things, dishonest,
boastful, paranoid, bigoted, cruel, and insane.
Judge Leval then turned to the third statutory factor, the amount
and substantiality of the portion used in relation to the copyrighted
work as a whole, and held that the significance of this factor is "largely
subsumed in the fourth factor-effect on the market."'' 3 As to the
fourth factor, Judge Leval cautioned that:
166. Id. at 1523.

167. Id. at 1506.
168. Id.
169. Id.
170. Id.
171. Id. at 1502. This analysis is the crux of Judge Leval's opinion. His thesis is that
"in cases where the biographer's point of significance about the subject's character can-
not be made effectively without quotation of the subject's particular words, justification
will be far greater." Id. at 1507. See also Consumers Union of United States v. General
Signal Corp., 724 F.2d 1044, 1049-50 (2d Cir. 1983).
172. 695 F. Supp. at 1508. For example, to show that Hubbard was dishonest, Miller
quoted from a series of letters to the Veterans Administration in which Hubbard made
what Miller described as false claims for a pension based on nonexistent war injuries. Id.
at 1510.
173. Id. at 1520.
we must distinguish between different causes of effect on the

market for the copyrighted work. The statute seeks to protect
only against causes that are within the protection of the copy-
right law. One significant distinction is between adverse mar-
ket effect that is caused by adverse criticism and the effect
caused by providing the copyrighted author's work to readers
within the covers of the secondary user's book. The cause with
which the statute concerns itself is the latter-a taking which
sufficiently offers the author's work in a secondary packaging
that potential customers, having read the secondary work, will
no longer be inclined to purchase again something they have
already read....
Nor does the statute concern itself with the effect on the
market caused by secondary communication to the public of
facts which are not within the copyright protection. 17 4
The judge concluded that Miller's use of Hubbard's expressions would
not have any effect on the market for Hubbard's writings.1 5
After this thorough analysis,1 6 Judge Leval concluded that most
of Miller's takings fell within the scope of fair use. 177 He did find ap-
proximately forty-four instances of copying that were not fair uses. 17 8
Once again, the judge took the first amendment into account and re-
fused to issue an injunction, limiting the remedy for these infringe-
9
ments to damages."
The Second Circuit affirmed Judge Leval's denial of the injunc-
tion, but did so on a theory of laches.5 0 Judge Miner, writing for the
majority,"' disputed the district court's fair use analysis. The Second
Circuit agreed that the first factor, the purpose of the use, weighed in
Holt's favor, while the remaining three factors all weighed heavily in
favor of New Era.' 82 The court was unpersuaded "that any first
174. Id. at 1522 (citations omitted).

175. Id. at 1523.
176. The analysis of Hubbard's writings and the comparison with Miller's corre-
sponding passages covered 13 pages (1508-20) in the Federal Supplement version of
Judge Leval's opinion. Judge Leval also compiled an appendix analyzing the contested
passages that was not reproduced in the Federal Supplement.
177. Id. at 1524.
178. Id.
179. Id. at 1528. Forty-one of the infringing passages were taken from Hubbard's
unpublished work. See 873 F.2d 576, 587 (2d Cir. 1989).
- 180. 873 F.2d at 576. The majority noted that New Era had been arguing with Holt
for two years prior to publication over the use of Hubbard's writings, and that New Era's
delay in bringing the action was "unreasonable and inexcusable." Id. at 584.
181. Id. at 576. Judge Altimari joined Judge Miner's opinion. Judge Oakes filed a
strong concurring opinion that basically agreed with Judge Leval's analysis. Id. at 585.
182. Id. at 583.
1989] NOTES
amendment concerns not 1 3

accommodated by the Copyright Act are im-
plicated in this action."
Judge Miner, relying heavily on Salinger, stated that he found
"unnecessary and unwarranted" the district court's finding of a "signif-
icant distinction in purpose between the use of an author's words to
display the distinctiveness of his writing style and the use of an au-
thor's words to make a point about his character .... As in Salin-
ger, the critical or scholarly aspects of Bare-Faced Messiah entitled
the biography to no special consideration, and the use of another's
words to make "significant points" about the subject as opposed to en-
livening the text was a distinction without a difference as far as the
unpublished nature of the work was concerned.18 5 "Where use is made
of materials of an 'unpublished nature', the second fair use factor has
yet to be applied in favor of an infringer, and we do not do so here."'8 6
In conclusory terms, the Second Circuit also disputed Judge
Leval's determination that publication of Bare-Faced Messiah would
have no discernible impact on the market for New Era's authorized
biography. Given that all of Hubbard's writings would be made availa-
ble to the church's official biographer, the court found it "difficult to
conclude.., that the book published by Holt would have no effect on
the market for New Era's forthcoming book."'""
The widest, and most crucial, disagreement between the two
courts came on the issue of remedy. As far as the Second Circuit panel
was concerned, "the copying of 'more than minimal amounts' of un-
published expressive material calls for an injunction barring the unau-
thorized use."1 8 The majority rejected the district court's finding of
special circumstances in which free speech interests outweighed the in-
terests of the copyright owner, stating that "the fair use doctrine en-
compasses all claims of first amendment in the copyright field."'8 9
Absent the laches theory, the district court's finding of forty-four
instances of infringement should have triggered an injunction, accord-
ing to the Second Circuit. Tossing off Judge Leval's first amendment
analyses, Judge Miner wrote that the public would not be deprived of
an "interesting and valuable historical study, but only of an infringing
0
one."19
Judge Oakes, in a concurring opinion, sharply disagreed with the
183. Id. at 584.

184. Id. at 583.
185. Id.
186. Id.
187. Id.
188. Id. at 584 (quoting Salinger, 811 F.2d 90, 96 (2d Cir.), cert. denied, 484 U.S. 890
(1987)).
189. Id.
190. Id. (citations omitted).
majority's analysis. Salinger, he wrote,
is a decision which, even if rightly decided on its facts, involved

underlying, if latent, privacy implications not present here by
virtue of Hubbard's death. Salinger's language, as here ap-
plied, confines the concept of fair use and prevents necessary
flexibility in fashioning equitable remedies in copyright cases. I
thought that Salinger might by being taken literally in another
factual context come back to haunt us. This case realizes that
191
concern.
The Second Circuit made its procrustean bed in Salinger and now
it must lie in it. Its rigid approach to fair use and injunctions will en-
courage public figures to do with copyright law what they could not do
192
with libel or privacy law.
The dangerous implications of the Second Circuit's fair use analy-
sis in New Era, although technically dicta, were underscored by a rift
among the judges themselves.
The case took a highly unusual turn when Holt, the technical win-
ner, and New Era petitioned for rehearing en banc.1 9 3 As of this writ-
ing, there was no decision on New Era's motion. Holt's unprecedented
motion was denied by a 7-5 vote, but eight judges joined in two sharply
worded, divergent opinions by Judge Miner and Judge Newman over
the meaning of Salinger and its ramifications for publishers and biog-
raphers, researchers, and scholars.19'
191. Id. at 585.

192. The ramifications of the decision already are being felt. See, e.g., New Era Pub-
lications Int'l v. Carol Publishing Group, no. 89-3845 (S.D.N.Y. Jan. 30, 1990), discussed
supra note 153. Another biography of a famous author already is under attack. On May
5, 1989, author Richard Wright's widow filed suit in the Southern District of New York
against Warner Books, publisher of Richard Wright-Daemonic Genius. Ellen Wright,
who holds the copyrights to her husband's work, claims that author Margaret Walker
excerpted Richard Wright's published and unpublished work without permission. Walker
was the recipient of the letters, some of which were written more than 50 years ago.
Attorneys for the publisher said they plan to use a fair use defense. See Manhattan
Lawyer, May 16, 1989, at 23, col. 1.
193. New Era Publications Int'l v. Henry Holt & Co., 884 F.2d 659 (2d Cir. 1989).
194. One point of contention between Judges Miner and Newman was the conse-
quence of infringement, and both judges offered to amend their earlier opinions to clarify
that issue. Judge Newman clarified his statement in Salinger v. Random House, 811 F.2d
90, 96 (2d Cir. 1985), that a biographer who copied "more than minimal amounts of
(unpublished) expressive" material deserves to be enjoined to read "deserves to be found
liable for infringement." 884 F.2d at 663 n.1. Judge Miner maintained his view that an
injunction would have been appropriate absent the issue of laches, but proposed to
amend his opinion in New Era Publications Int'l v. Henry Holt & Co., 873 F.2d 576, 584
(2d Cir. 1989) at column 1, line 4, to read as follows: "Since [under ordinary circum-
stances] the copying of more than 'minimal amounts' of unpublished expressive material
calls for an injunction barring the unauthorized use, the consequence of the district
1989] NOTES
Judge Miner concurred in the denial of rehearing en banc "sug-

gested by a prevailing party dissatisfied with certain nondispositive
language in the panel majority opinion."195
' Commenting on Judge
Newman's dissenting opinion, Judge Miner caustically wrote:
First, the panel majority opinion is consistent with settled law
and leaves no room for misunderstanding. Second, a dissent
from a denial of rehearing en banc lacks the authority to dispel
misunderstanding in any event. Third, whether or not "this
Circuit is committed to the language of the panel opinion," it
sure is not committed to the language of the appended dissent-
ing opinion. 98
Judge Newman, who had authored the Second Circuit's Salinger
opinion (and was joined by Judge Miner), wrote "to avoid misunder-
standing on the part of authors and publishers as to the copyright law
of the Circuit, [a] misunderstanding that risks deterring them from en-
tirely lawful writings in the fields of scholarly research, biography, and
journalism."''9 7 The denial of rehearing en banc, Judge Newman wrote,
"does not mean that this Circuit is committed to the language of the
panel opinion that has created the risk of misunderstanding."'"
Judge Leval-also leaped into the fray, criticizing the Second Cir-
cuit for suggesting "a far-reaching rule-that unpublished matter is
off-limits to the fair user, regardless of justification."' 99 The district
court judge said:
When we place all published private papers under lock and
key, immune from any fair use, for periods of 50 to 100 years,
we have turned our backs on the copyright clause. We are at
cross-purposes with it. We are using the copyright to achieve
200
secrecy and concealment instead of public illumination.
The district court's New Era decision had been hailed by a promi-
nent first amendment lawyer as "one of the most important copyright
decisions to be rendered in years." '0 As a well-reasoned, flexible appli-
cation of the fair use doctrine that acknowledged the possibility of le-
gitimate uses of copyrighted material not accommodated by the idea/
court's findings seem obvious." 884 F.2d at 662 (citation omitted) (bracketed material
added to original).
195. Id. at 660.
196. Id.
197. Id. at 662.
198. Id.
199. Kaplan, supra note 22.
200. Id.
201. Floyd Abrams made the remark, quoted in Parloff, Leval Denies InjunctionDe-
spite Copyright Breach, Manhattan Lawyer, Aug. 23-29, 1988, at 5, col. 1.
expression dichotomy, it could have set the stage for a new era for
copyright law. The Second Circuit's refusal to acknowledge first
amendment concerns that are not protected by copyright law is a blow
to researchers, biographers, and the public. 2
IV. A CONSTITUTIONAL APPROACH TO THE FAIR USE DOCTRINE
Copyright was intended by the framers to be "the engine of free

expression. ' 20 3 When it is stoked properly, it runs smoothly and poses
no danger to that "other" engine of free expression, the first amend-
ment. The fair use doctrine is the switching device that makes sure
each is running on its proper track.
Sometimes, however, the court falls asleep at the switch, and copy-
right runs headlong into the first amendment. The solution to the
problem is not an overhaul of the system; the protective devices are
built into it. The answer is to make the court more vigilant.
Copyright law and the fair use doctrine contain many of the safe-
guards needed to ensure the robust public debate that is essential to
self-government. Courts, however, must be more vigilant in interpret-
ing these safeguards. The Constitution demands that free speech and
access to information not be impaired. Therefore, a claim of copyright
infringement must be examined with careful scrutiny to make certain
that the first amendment is given the breathing room it needs.
The constitutional standards can be satisfied by meeting a four-
part test that includes an invigorated fair use doctrine:
First, the court must rigorously apply the idea/expression distinc-
tion 20 4 to the putatively infringed material. Copyright law protects only
expression. The first amendment protects ideas and information. This
is the most crucial distinction in copyright.
Second, the court should resolve any serious doubts about whether
material is idea or expression in favor of the defendant when a matter
of important public interest is involved, especially if the plaintiff au-
thor is a public official or public figure. This suggestion avoids the to-
tality trap created by wrapping unprotectable fact in the cloth of ex-
pression.105 Furthermore, the narrower scope of protection for works of
public officials is not unprecedented. In New York Times v. Sullivan
and its progeny, the Supreme Court ruled that the constitutional inter-
ests in free speech limit a state's ability to award damages for libel
208
when the individual is a public official or public figure.
Narrowing the scope of protected expressive content when works
202. See McFadden, supra note 22, at Al, col. 5.

203. Harper & Row, 471 U.S. 539, 558 (1985).
206. See supra note 87.
1989] NOTES
of public interest are involved will accomplish two crucial objectives.

First, it will ensure that the public has the broadest possible access to
critical ideas and information. Second, it will discourage authors from
creating a monopoly on public information by clothing it in expression.
It will also discourage copyright lawsuits stemming from a plaintiff's
attempt to make an end-run around libel 0 7 or privacy law.20s
To be truly fair, of course, this narrow standard factor should be
used only in close cases and certainly only for factual works. A public
official or figure is entitled to the same protection from blatant infring-
ers and chiselers as any other author.20 9 Rather than marking out
bright-line distinctions between public and non-public authors, this
suggestion seeks to balance the rights of the creator against the user
within the framework of first amendment principles.
The third step in meeting the constitutional test is applying a
"constitutionalized" fair use doctrine. At this point in its analysis, the
only putatively infringing material left before the court should be ex-
pression, or copyrightable matter.
Each of the fair use factors listed in section 107 of the Copyright
Act must be injected with a dose of constitutional law, whether the
source is the first amendment or the copyright clause.
The purpose and character of the use: Uses such as criticism,
news reporting, comment, scholarship, and research are given favorable
treatment by section 107. These limitations on copyright stem not
from the benevolence of Congress, but from the Constitution itself.
The first amendment governs not only the right to speak and publish,
but also the right to receive information.2 10 Similarly, the copyright
clause is directed to the furtherance of learning and education. 211 Thus,
the copyright holder's monopoly interest should end where the right to
know begins.
The nature of the copyrighted work: Because the first amendment
and section 102 of the 1976 Act limit copyright to expression, factual
works have a more limited scope of protection.2 12 The fair use analysis
applied to factual works, therefore, should differ greatly from that ap-
plied to works of fiction. Furthermore, the unpublished nature of a
207. In New Era Publications,695 F. Supp. 1493, 1498 (S.D.N.Y. 1988), the plaintiff
had sent letters threatening a defamation suit to the author before commencing the
copyright action.
209. See Harper & Row, 471 U.S. 539, 557 (1985) ("The promise of copyright [for a
public figure] would be an empty one if it could be avoided merely by dubbing the in-
fringement a fair use 'news report' of the book.").
210. See, e.g., Board of Educ. v. Pico, 457 U.S. 853 (1982).
212. See Harper& Row, 471 U.S. at 563 ("the law generally recognizes a greater need
to disseminate factual works than works of fiction or fantasy.").
work should not be decisive. To give that factor the weight it has car-
ried in the Second Circuit, contravenes first amendment values, espe-
cially given the long term of copyright.21
The amount and substantiality of the taking: Courts misapply
this standard by collapsing the idea/expression dichotomy. The totality
approach 14 bloats the amount of material actually taken by including
unprotectable material wrapped in expression. It also skews the court's
qualitative analysis, as in Harper & Row, where the district court held
that the "heart of the book" was taken when in fact the heart of the
book was uncopyrightable.215 A sliding scale which permits greater use
for more important works would comport with both first amendment
and copyright principles.
The effect on the market: There are two constitutional considera-
tions in this factor. One is the idea/expression dichotomy. Courts
should not consider the harm caused by dissemination of unprotected
facts and information when analyzing market impact caused by true
infringement.2 16
Another aspect that must be considered is the underlying premise
of the copyright clause: economic incentive to the author. Certain types
of works are created without the need for economic incentive-letters
are one example 217 and diaries are another. Even political memoirs
often are written for reasons other than profit,
218
such as prestige, vindi-
cation, or revenge against a political enemy.
When applying the fair use standards, the court should not restrict
itself to the four factors set out in section 107.219 One commentator has
concluded that courts generally look at six different factors: (1) the im-
pact on the potential market; (2) whether the use is commercial or
noncommercial; (3) whether the work is published; (4) the amount of
material taken; (5) propriety and custom; and (6) vestigial considera-
tions, which include whether the work is fact or fiction, whether the
copier used the work out of necessity, and22whether
0
the putatively in-
fringing work advanced the common good.

216. See Harper & Row, 471 U.S. at 602 (Brennan, J., dissenting).
217. See, e.g., Zissu, Salinger and Random House: Good News and Bad News, 35 J.
COPR. Soc'y 13, 15 (1987) (policy of promoting public access to knowledge by encouraging
authorship through copyright protection plays far less significant role with respect to
letters).
218. See Note, Harper& Row v. The Nation: A FirstAmendment Privilege for News
Reporting of Copyrightable Material?, 19 COLUM. J.L. & Soc. PROBs. 253, 299 (1985).
219. The applicable language of section 107 reads: "the factors to be considered shall
include [the four listed criteria]." 17 U.S.C. § 107 (1982) (emphasis added). The factors
are set out in full in the text accompanying note 39.
220. Fisher, supra note 3, at 1669-86.
1989] NOTES
Underlying fair use analysis at all times should be first amend-

ment considerations. A matter of negligible or questionable public con-
cern should not outweigh a copyright holder's property interest when
the economic factors overwhelmingly point toward infringement. But
all things being equal, the first amendment values should prevail.
Finally, in meeting the constitutional test, a court should deny an
injunction except in the most egregious cases of infringement. The first
amendment abhors prior restraints. 2 ' In many cases where infringe-
ment is found, an award of damages will adequately compensate the
copyright holder while not unduly punishing a user whose work may
contain much valuable information other than what was taken.22
V. CONCLUSION
The fair use doctrine is intended to be the buffer between copy-
right law and the first amendment that prevents one interest from in-
fringing upon the other. As applied, however, the doctrine often fails to
take proper account of the interests of free speech and public dissemi-
nation of ideas, goals embodied in the copyright clause itself.
Since the codification of the fair use doctrine in the Copyright Act
of 1976, courts have tended to mechanically apply the four listed fac-
tors, scudding over the idea/expression dichotomy that is the bedrock
of copyright law, and treating factual and fictional works alike. The
free trade of ideas and information is afforded protection by the first
amendment, and courts are constitutionally compelled to weed out un-
copyrightable expression before applying the equitable rule of reason
called the fair use doctrine.
Furthermore, courts are compelled to analyze fair use within the
framework of the first amendment. The four factors listed in section
107 of the Copyright Act each have a free speech/free press compo-
nent. First, uses such as news reporting, biography, and criticism
should be permitted greater latitude, 2 3 assuming these uses are legiti-
mate and not chiseling.224 Second, factual and informative works have
a narrower scope of copyright protection than expressive works.22 5
Books, articles, and other materials authored by public officials-and
221. New Era Publications,695 F. Supp. 1493, 1525 (S.D.N.Y. 1988).

222. Compulsory licenses are another possible remedy. See Goldstein, supra note 2,
at 1032-34.
223. For discussions of a news reporting privilege in copyright, see Note, Harper &
Row, supra note 218; Note, Fair Use Protectionsfor News Reporting: Where Does the
First Amendment Stand?, 13 N.Y.U. REv. L. & Soc. CHANGE 647 (1984).
224. See Wainwright Secs. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2d Cir.
1977) (fair use "distinguishes between 'a true scholar and a chiseler who infringes a work
for personal profit.' ") (quoting Hearing on Bills for the General Revision of the Copy-
right Law Before House Committee on the Judiciary,89th Cong., 1st Sess. 1706 (1966)).
sometimes public figures-demand greater public access than other

works, even if unpublished. Third, when considering the amount and
substantiality of the taking courts must avoid falling into the totality
trap of counting fact disguised as expression against the user.2 2 Fi-
nally, market impact must be analyzed to determine whether any harm
truly derived from the taking of copyrightable expression, or whether
the harm flowed inevitably from the use of unprotected fact or idea. 2 '
Furthermore, injunctions should be treated as an extraordinary rem-
edy, not issued as a matter of course.
When Congress gave fair use statutory status, it did not intend to
"change, narrow or enlarge" the doctrine in any way.225 Essentially, the
legislature adopted the judicial construction of the doctrine-which
had its roots in the same constitutional principles previously
enunciated.
In reconstituting the fair use doctrine, it is not necessary to draw
bright-line distinctions between matters of public concern and nonpub-
lic matters, or to carve out per se exceptions for public officials, as was
done in libel law.22 But the fact that an author is a public figure, or
that the work is of universal concern, should be given great weight in
the court's fair use analysis, especially in the grey areas of idea and
expression. First amendment considerations should pervade the entire
infringement analysis. A fair use is not merely an insubstantial use. It
is a use that promotes learning, and serves the common good.
Deborah Hartnett

228. HOUSE REPORT, supra note 4, at 66, reprinted in 1976 U.S. CODE CONG. & ADMIN.
NEWS at 5680.

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A NEW ERA FOR COPYRIGHT LAW: RECONSTITUTING THE

1976, 4 attempts to harmonize two potentially conflicting clauses of the

IN COPYRIGHT LAW 6-17 (1985).

value of these works may have come about by design, diligence, or

8. Abraham Zapruder's "home movie" of President Kennedy's assassination now sits

may require that the putative infringement be viewed within the

est when an issue of public interest is at stake. 4

H. THE EVOLUTION AND APPLICATION OF THE FAIR USE DOCTRINE

A. The Copyright Clause

the public; 25 the author's gain is almost

ment, it supersedes anything in the original Constitution with which it

B. The Idea/Expression Dichotomy

user does not adopt the author's expression, no infringement will be

C. The Fair Use Doctrine

(2) the nature of the copyrighted work;

The second view of fair use is unduly restrictive, because it does

39. 17 U.S.C. § 107 (1982).

through the idea/expression dichotomy. The residue must then be sub-

III. A THREE-CASE STUDY OF THE FAIR USE DOCTRINE

The first amendment question raised by the copyright clause was

47. See supra notes 2-3 and accompanying text.

the alleged infringement involved matters of public interest or histori-

A. Harper& Row v. Nation Enterprises

the subject of detailed testimony before a Congressional committee five

62. Id. at 1071.

provide such a private monopoly of fact at the expense of the

The United States Supreme Court reversed and remanded the

89. 471 U.S. at 583 (Brennan, J., dissenting).

misplaced. 0 0 He wrote further:

B. Salinger v. Random House

106. Id. at 552.

ilton had appropriated the "heart" of his letters,1 s the defendants

whether fair use applied to unpublished works in light of Harper &

cannot be dismissed as an act of commercial voyeurism or

130. Id. at 426.

unpublished expressive material he deserved to be enjoined.

139. Id. at 98 (citations omitted),

C. New Era PublicationsInternational v. Henry Holt and Co.

148. See Abrams, supra note 12, at 3.

Era's copyrights of Hubbard's writings. 154 Publisher Henry Holt, the

159. Id. at 1498.

fication for the use. 16 6

166. Id. at 1523.

we must distinguish between different causes of effect on the

174. Id. at 1522 (citations omitted).

amendment concerns not 1 3

183. Id. at 584.

majority's analysis. Salinger, he wrote,

is a decision which, even if rightly decided on its facts, involved

191. Id. at 585.

Judge Miner concurred in the denial of rehearing en banc "sug-

IV. A CONSTITUTIONAL APPROACH TO THE FAIR USE DOCTRINE

Copyright was intended by the framers to be "the engine of free