Meeropol v. Nizer Court Opinion

    JiAACP lego ! Defense Fund
10 Col.imbus Circle 

New York, ok ■ - ro013 
I, I 3 R A 3 Y

AUG 5  19TT
UNITED; STATES COURT OF APPEALS 

F ob the Second Cibcuit

/ -------------------------------*4-#■■■>— ----------------------------

No. 886— September Term, 1976.

(Argued May 19, 1977 Decided July 28, 1977.)

Docket No. 76-7434

Michael Meebopol and R obert Meeropol,

Plaintiffs-Appellants, 
v.

Louis Nizer, D oubleday & Co., I nc. and 
F awcett P ublications, I nc.,

Defendants-Appellees.

B e f o r e  :
Moore, Smith and Mulligan,

Circuit Judges.

Appeal from dismissal on summary judgment in the 
United States District Court for the Southern District of 
New York, Harold R. Tyler, Jr. and Lee P. Gagliardi, 
Judges, of a complaint alleging infringement of statutory 
copyright, invasion of privacy and defamation, and in­
fringement of common law copyright.

Affirmed in part, reversed in part, and remanded.

Marshall P erlin, New York, N.Y. (Kristin 
Booth Glen, New York, N.Y., Samuel Gru­
ber, Stamford, Conn., and Max R. Millman,

5001



Philadelphia, Pa., of counsel), for Appel­
lants.

R obert M. Callagy, New York, N.Y. (Satterlee 
& Stephens, New York, N.Y., James Rit- 
tinger, of counsel), for Appellees Doubleday 
& Go., Inc. and Fawcett Publications, Inc.

George B erger, New York, N.Y. (Phillips, Nizer, 
Benjamin, Krim & Ballon, New York, N.Y., 
Martin Stein, of counsel), for Appellee 
Louis Nizer.

Smith , Circuit Judge:

Michael and Robert Meeropol appeal from dismissal on 
summary judgment in the United States District Court for 
the Southern District of New York, Harold R. Tyler, Jr. 
and Lee P. Gagliardi, Judges, of a three-count complaint 
alleging infringement of statutory copyright (Count I), 
invasion of privacy and defamation (Count II), and in­
fringement of common law copyright (Count III). Juris­
diction is based on 28 U.S.C. §§ 1338, 1331 and 1332.

Appellants are the natural children of Julius and Ethel 
Rosenberg. Their parents were executed in June 1953 after 
conviction for conspiring to transmit information relating 
to the national defense to the Soviet Union. Appellees 
Louis Nizer ( “Nizer” ), Doubieday & Co., Inc. (“Double­
day” ) and Fawcett Publications, Inc. (“Fawcett” ) are the 
author and publishers respectively of an account of the 
events surrounding the Rosenberg trial entitled The Implo­
sion Conspiracy, published in 1973. Plaintiffs-appellants 
alleged that Nizer incorporated in his book substantial 
portions of copyrighted letters written by Ethel and Julius 
Rosenberg without authorization and that this use con­
stituted infringement of their statutory and common-law

5002



copyright. Nizer’s allegedly inaccurate, misleading and 
fictionalized account of the events surrounding the trial, 
it is claimed, constitutes defamation and invasion of 
privacy as to appellants.

In June 1973 appellants filed a complaint in the Southern 
District of New York seeking injunctive relief and damages 
for copyright infringement, defamation, and invasion of 
privacy from defendants Nizer and Doubleday. Judge 
Tyler held that the Meeropols had not established sufficient 
likelihood of success on the merits and denied the request 
for injunctive relief. At the same time he denied defen­
dants’ cross-motion to dismiss the complaint. Meeropol v. 
Nizer, 361 F. Supp. 1063 (S.D.N.Y. 1973). Judge Tyler’s 
decision rested in part on the possible availability to defen­
dants of the “ fair use” defense which might require the 
subordination of copyright claims to the greater public 
interest in the dissemination of knowledge. He refused 
to dismiss the complaint in order to give plaintiffs an 
opportunity to establish the facts, especially since it is not 
altogether clear whether letters stand on the same footing 
as “historical facts” in relation to the “ fair use” doctrine. 
361 F. Supp. 1067, 1070.

Following discovery proceedings and pretrial motions, 
the appellees, defendants below in the Southern District 
action, moved in January 1974 for partial summary judg­
ment on the defamation and privacy claims of Count II. 
This motion was granted July 31, 1974 by Judge Tyler. 
381 F. Supp. 29 (S.D.N.Y. 1974). In the meantime the 
Meeropols had commenced a similar action against Fawcett, 
publishers of a paperback edition of the Nizer boob, in the 
District Court for the District of Connecticut. Fawcett 
moved to stay the Connecticut action and sought leave to 
intervene in the New York action. These motions were 
granted in an unreported opinion by Judge Tyler, affirmed

5003



by this court October 12, 1974. Meeropol v. Niger, 505 F.2d 
232 (2d Cir. 1974).1

On January 30, 1975 defendants moved to dismiss the 
remaining copyright counts, I and III, of the complaint. 
This motion was granted by Judge Gagliardi to whom the 
case had been reassigned following Judge Tyler’s resigna­
tion from the bench. The present appeal is from the final 
judgment entered July 23, 1976 dismissing all counts of the 
complaint against all of the defendants, based on Judge 
Tyler’s grant of partial summary judgment dismissing 
Count II dated July 31, 1974 and on an opinion and order 
of Judge Gagliardi dated July 20, 1976 dismissing Counts 
I and III of the original complaint and all three counts of 
the supplemental complaint. Meeropol v. Niger, 417 F. 
Supp. 1201 (2d Cir. 1977). We affirm the dismissal of 
Counts II and III, and reverse and remand for further 
proceedings on Count I.

The Defamation Claim

Plaintiffs sought one million dollars in damages for 
defamation and invasion of privacy in Count II of their 
complaint. They alleged that the juxtaposition in Nizer’s 
book of excerpts of the private letters of their parents with 
“ false, fictitious and distorted” statements was designed to 
deceive the reader and impress the public with the au­
thenticity of Nizer’s account in order to embarrass, humil­
iate, and ridicule plaintiffs and their parents.

In dismissing the defamation count the court below ap­
plied the standards set forth in Gertz v. Welch, 418 U.S. 
323 (1974), Rosenbloom v. Metromedia, 403 U.S. 29 (1971), 
and Netv York Times v. Sullivan, 376 U.S. 254 (1964). It

1 In affirming the district court order granting a stay and Fawcett’s 
motion for leave to intervene, we conditioned affirmance on the preser­
vation of plaintiffs-appellants’ right to jury trial as to defendant Faw­
cett. 505 F.2d 238.

5004



held that because they were the sons of the Rosenbergs, 
Michael and Robert were “public figures” and that in order 
to recover plaintiffs would have to establish that defen­
dants’ book was published with reckless disregard for the 
truth. The court analyzed the passages in the book alleged 
to be libelous. It found that

The record as a whole, thus, establishes that there 
was no knowledge of falsity (if indeed, there is a 
falsity), no serious doubt concerning the truth of any 
statement in the article [sic] and certainly no reckless 
disregard of whether statements in the book were false.

To the extent that The Implosion Conspiracy con­
tains minor fictionalization or approximations of con­
versations that may have taken place between plaintiffs 
and their parents, these cannot be considered defam­
atory. Such techniques do not rise to the constitutional 
level of a clear and convincing showing of reckless 
disregard. As in Miller v. News Syndicate [445 F.2d 
356 (2d Cir. 1971)], any “deviations from or embel­
lishments upon” the information obtained from the 
primary sources relied upon were minuscule and can 
be attributed to the leeway afforded an author who 
attempts to recount and popularize an historic event.

381 F. Supp. 35.

We have carefully reviewed the portions of The Implo­
sion Conspiracy which appellants have cited as defamatory. 
We agree with the district court that no passages are 
defamatory on their face. Of 77 pages cited, only 29 pas­
sages refer to appellants. Most of these passages contain 
innocuous references to the Rosenberg children and their 
interaction with their parents. While some of the accounts 
are undoubtedly somewhat fictionalized and inaccurate, al­
most none would be viewed as defamatory by any reason-

5005



able reader. Appellants were asked to specify in what 
respect the passages were false in answer to interrogatories 
from appellees. Their answers consisted in general allega­
tions that the account misrepresented historical facts and 
cast their parents and their supporters in an unfavorable 
light. Three charges of falsity relating specifically to ap­
pellants are however included in the answers to the in­
terrogatories.

On page 400 of his book Nizer writes, “ Bloch [the Rosen­
berg’s attorney] had placed Michael, nine years old, and 
Robert, five years old, in a Bronx shelter home.” Appel­
lants counter that they were never placed in a shelter by 
their parents’ attorney. In fact the children were, at one 
point, transferred to a foster home because their paternal 
grandparents were ill and unable to care for them.2

Nizer’s account of the evening of the Rosenberg’s execu­
tion contains the following account on page 483:

On the evening of the execution, the kind woman with 
whom the children were staying sought to shield Mi­
chael from the shock. There was a baseball game be­
tween the New York Yankees and Detroit Tigers on 
television. She lured him into watching it. She had 
underestimated the overriding interest in the case. Sud­
denly, there was a fearful scream like those that ejected 
him from his nightmares. A bulletin had flashed across 
the screen: “President Eisenhower has turned down 
Ethel and Julius’ final appeal. They must die tonight.” 

She rushed into the room and found Michael curled 
up in a corner of the big leather chair in a fetal posi­
tion, whimpering. With difficulty, she lifted him in her 
arms and carried him to bed, where she held him ten­
derly during the sleepless night.

2 We Are Tour Sons, Robert and Michael Meeropol, (1975), p. 126.

5006



This constitutes an untrue description according to appel­
lants because “ Plaintiff sat quietly with his hands folded 
looking down. Plaintiff did not cry.” 3

Passages at pages 23, 242 and 366-67 of Nizer’s book re­
fer to the neurotic behavior of Michael and Robert as chil­
dren. The accuracy of these descriptions has been doc­
umented in appellants’ own book and in other sources.4 
The allegations that Nizer distorted the trial record, deleted 
relevant parts of letters by their parents which were quoted 
in the book, or cast their parents’ actions in a false light 
are irrelevant to an action for defamation brought by 
Michael and Robert Meeropol.5 The literary and historical 
worth and accuracy of Nizer’s account are not in issue 
before us, however important they may be to appellants. 
We may consider only the claims of appellants themselves 
and the rules of law applicable to them.

We agree with the court below that the Rosenberg sons 
are public figures. “ [A]n individual may achieve such per­
vasive fame or notoriety that he becomes a public figure 
for all purposes and in all contexts” and “ such persons 
assume special prominence in the resolution of public ques­
tions.” Gerts v. Welch, supra, 418 U.S. 351. In the course 
of extensive public debate revolving about the Rosenberg 
trial appellants were cast into the limelight and became 
“public figures”  under the Gerts standards.6 Even if some

3 Plaintiffs’ answer to interrogatory #38, p. 9.

4 We Are Tour Sons, supra, pp. 118, ISO; The Betrayers, Jonathan 
Root, pp. 78, 80, 108, 229; The Judgment of Julius and Ethel Rosen­
berg, John Wexley, pp. 124, 130, 142 and 198; Appendix at 126-129.

5 Prosser, Law of Torts § 111, at 745 (4th ed.).

6 The decision whether or not a plaintiff in a defamation suit is a 
public figure is one properly made by the court in the first instance. 
Rosenblatt v. Baer, 383 TJ.S. 75, 88 (1965); Tloichner v. Castillo-Puche, 
404 F. Supp. 1041, 1045 (S.D.N.Y. 1975), rev’d on other grounds, 551 
F.2d 910 (2d Cir. 1977), petition for cert, filed, 45 TT.S.L.W. 3841 
(June 20, 1977).

5007



of the statements quoted above from The Implosion Con­
spiracy were found to be defamatory, appellants, as public 
figures, could not prevail absent a showing of reckless dis­
regard of the truth or malice. New York Times v. Sullivan, 
supra. The record here is devoid of either recklessness or 
malice and in the course of extensive discovery proceedings 
appellants failed to cite a single specific incidence in which 
Nizer had recklessly or maliciously disregarded the truth 
in statements pertaining directly to them. We find no er­
ror in the trial court’s denial of motions for further dis­
covery on the issue of malice. The Implosion Conspiracy 
is lacking in material obviously false as to appellants. In 
the absence of such material their defamation claim must 
fall.

The Privacy Claim

Judge Tyler held that the activities of the Rosenberg 
children portrayed in The Implosion Conspiracy were mat­
ters properly within the “ orbit of public interest and 
scrutiny.” For this reason he held that statements in the 
book, even if they constituted an invasion of privacy, were 
constitutionally protected. 381 F. Supp. 37. The same stan­
dards of constitutional protection apply to an invasion 
of privacy as to libel actions. It is immaterial to appel­
lants’ privacy claim whether Fizer’s book is viewed as an 
historical or a fictional work. In either case the New York 
Times v. Sullivan test on reckless disregard of the truth 
is applicable since we are dealing with public figures. Time, 
Inc. v. Mill, 385 U.S. 374, 390 (1967); Spahn v. Messner, 
286 N.Y.S.2d 832, 834 (1967).

The guarantees for speech and press are not the 
preserve of political expression or comment upon pub­
lic affairs, essential as those are to healthy govern­
ment. One need only pick up any newspaper or maga­
zine to comprehend the vast range of published matter

5008



which exposes persons to public view, both private 
citizens and public officials. Exposure of the self to 
others in varying degrees is a concomitant of life in a 
civilized community. The risk of this exposure is an 
essential incident of life in a society which places a 
primary value on freedom of speech and of the press. 
“ Freedom of discussion, if it would fulfill its historic 
function in this nation, must embrace all issues about 
which information is needed or appropriate to enable 
the members of society to cope with the exigencies of 
their period.” Thornhill v. Alabama, 310 TT.S. 88, 102. 
“No suggestion can be found in the Constitution that 
the freedom there guaranteed for speech and the press 
bears an inverse ratio to the timeliness and impor­
tance of the ideas seeking expression.” Bridges v. 
California, 314 U.S. 252, 269. . . . “ The line between 
the informing and the entertaining is too elusive for 
the protection of . . . [freedom of the press].” Winters 
v. New York, 333 U.S. 507, 510. Erroneous statement 
is no less inevitable in such a case than in the case 
of comment upon public affairs, and in both, if in­
nocent or merely negligent, “ . . . it must be protected 
if the freedoms of expression are to have the ‘breath­
ing space’ that they ‘need . . .  to survive’ . . .” New 
York Times Co. v. Sullivan, supra, at 271-272. As 
James Madison said, “ Some degree of abuse is in­
separable from the proper use of every thing; and 
in no instance is this more true than in that of the 
press.” 4 Elliot’s Debates on the Federal Constitution 
571 (1876 ed.).

Time, Inc. v. Hill, 385 U.S. 388-89.
Invasion of privacy, absent extreme, physical invasion 

of privacy, relates to a purely statutory right in New York 
and is governed by §§ 50-51 of the New York Civil Rights

5009



law,7 the same statute which was before the Court in Time, 
Inc. v. Hill, supra. Koussevitzky v. Allen, Towne & Heath, 
Inc., 68 N.Y.S.2d 779, 781, aff’d 272 App. Div. 759, 69 
N.Y.S.2d 432 (1974). A  prerequisite for recovery un­
der § 51 is that plaintiff’s “name, portrait, or picture”  
is used by defendant. Notre Dame v. Twentieth Century 
Fox, 22 App. Div. 2d 452, 256 N.Y.S.2d 301, 304, aff’d 
15 N.Y.2d 940, 259 N.Y.S.2d 832 (1965). Unauthorized 
biographical works are not subject to suits under § 51 since 
they are viewed as legitimate dissemination of information 
on subjects of general interest. Koussevitzky, supra, 68 
N.Y.S.2d 783-84; Sidis v. F-R Pub. Corp., 113 F.2d 806, 809 
(2d Cir.), cert, denied, 311 U.S. 711 (1940). Sidis involved 
a claim for invasion of privacy by a former child prodigy 
who had subesquently cloaked himself in obscurity. Al­
though this court found that an account in the New Yorker 
about plaintiff was “merciless in its dissection of intimate 
details” of plaintiff’s personal life, id. at 807, it rejected 
his claim under §§ 50 and 51 of the New York Civil Rights 
law. Judge Clark, writing for the court, said that “Re­
grettably or not the misfortunes and frailties of neighbors 
and ‘public figures’ are subjects of considerable interest 
and discussion to the rest of the population. And when

7 Sections 50 and 51 of the New York Civil Eights Law, 8 McKinney's 
Consol. Laws of N.Y. (1976) provide in relevant part 

§ 50. Eight of privacy
A person, firm or corporation that uses for advertising purposes, 

or for the purposes of trade, the name, portrait or picture of any 
living person without having first obtained the written consent of 
such person . . .  is guilty of a misdemeanor.
5 51. Action for injunction and for damages

Any person whose name, portrait or picture is used within this 
state for advertising purposes or for the purposes of trade without 
the written consent first obtained as above provided may maintain 
an equitable action in the supreme court of this state against the 
person, firm or corporation so using his name, portrait or picture, 
to prevent and restrain the use thereof. . . .

5010



such are the mores of the community, it would be unwise 
for a court to bar their expression in the newspapers, 
books, and magazines of the day.” Id. at 809.

All reference to appellants in The Implosion Conspiracy 
are to Michael and Robert Rosenberg, not to Michael and 
Robert Meeropol. After their parents’ death, Robert and 
Michael were adopted by the Meeropol family and except 
among a few intimate friends, were known exclusively 
under the name of their adoptive parents. Their true 
identity was concealed even from most of their closest 
friends and associates until sometime after the Nizer book 
was published. Nothing contained in the Nizer book linked 
the Rosenbergs to the Meeropols. Thus, even if we as­
sumed arguendo that Robert and Michael Meeropol were 
not “public figures” at the time this book was published, 
the book could not have defamed them or invaded their 
privacy since the book never referred to them by the 
Meeropol name or in any way linked the Rosenbergs to 
the Meeropols. It was appellants’ disclosure of their true 
identity following publication of The Implosion Conspiracy 
which made the accounts in the book referable to Robert 
and Michael Meeropol. This disclosure cannot be at­
tributed to appellees-defendants.

The material published in The Implosion Conspiracy is 
beyond the reach of §§ 50-51 of the New York Civil Rights 
law and appellants’ privacy claim was properly dismissed.

Fair Use Defense

The court below held that “ as a matter of law the use 
of [the] copyrighted material under the circumstances 
here is covered by the fair use doctrine, and thus summary 
judgment is appropriate as to all defendants.” Further­
more, as to defendants Nizer and Doubleday the court 
found on the basis of the record and its examination of the

5011



Death House Letters and The Implosion Conspiracy that 
the use of the copyrighted Rosenberg letters in The Im­
plosion Conspiracy constituted fair use as a matter of fact.

Fair use has been defined as:

a privilege in others than the owner of the copyright 
to use the copyrighted material in a reasonable man­
ner without his consent, notwithstanding the monop­
oly granted to the owner by the copyright.8

The doctrine offers a means of balancing the exclusive 
right of a copyright holder with the public’s interest in 
dissemination of information affecting areas of universal 
concern, such as art, science, history, or industry. Wain- 
wright Securities Inc. v. Wall Street Transcript Corp.,
— — F.2d  ------, slip op. 4191 (2d Cir., June 15, 1977). Its
application has been termed among “ the most troublesome 
in the whole law of copyright.”  2 M. Nimmer Copyright, 
§ 145 (1976), quoting Dellar v. Samuel Goldwyn, Inc., 104 
F.2d 661 (2d Cir. 1939). Justice Story in an early case 
addressing the fair use defense which involved alleged in­
fringement of copyrighted letters of George Washington 
remarked that “Patents and copyrights approach nearer 
than any other class of cases belonging to forensic dis­
cussions, to what may be called the metaphysics of the law, 
where the distinctions are, or at least may be very subtle 
and refined, and sometimes, almost evanescent.” Folsom 
v. Marsh, 9 F.Cas. 342, 344 (C.C.D. Mass. 1841) (No. 4901). 
It is thus not surprising that the application of the fair 
use doctrine to the facts of this case confronts us with 
difficult and complex issues.

8 Bosemont Enterprises, Inc. v. Random Souse, Inc., 366 F.2d 303, 306 
(2d Cir. 1966), cert, denied, 385 TT.S. 1009 (1967), quoting Ball, The 
Law of Copyright and Literary Property, 260 (1944).

5012



The line which must he drawn between fair use and copy­
right infringement depends on an examination of the facts 
in each case. It cannot be determined by resort to any 
arbitrary rules or fixed criteria. Tennessee Fabricating 
Co. v. Moultrie Mfg. Co., 421 F.2d 279 (5th Cir.), cert, 
denied, 398 U.S. 928 (1970), citing John Sclmlman, 53 
Iowa L.Rev. 832 (1968) (other cites omitted). The Copy­
right Revision Act of October 19,1976, P.L. 94-553, 90 Stat. 
2451 (1976), which will take effect January 1, 1978, codifies 
the fair use doctrine in § 107. Section 107 is intended to 
restate the existing judicial doctrine of fair use, not to 
change, narrow or enlarge it, Copyrights Act, H.R.Rep. 
No. 94-1476, reprinted in 1976 U.S. Code Cong. & Ad. News 
5659, 5680. The text of 17 U.S.C. § 107 is as follows:

Notwithstanding the provisions of section 106, the 
fair use of a copyrighted work, including such use by 
reproduction in copies or phonorecords or by any 
other means specified by that section, for purposes 
such as criticism, comment, news reporting, teaching 
(including multiple copies for classroom use), scholar­
ship, 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 con­
sidered shall include—

(1) the purpose and character of the use, including 
whether such use is of a commercial nature or is for 
nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion 
used in relation to the copyrighted work as a whole; 
and

(4) the effect of the use upon the potential market 
for or value of the copyrighted work.

5013



The court below applied these criteria in order to deter­
mine whether the fair use defense was available to defen­
dants. It held that to succeed on a summary judgment 
motion defendants had to show that no genuine issues of 
fact “had to be tried.” 417 F. Supp. 1206, 1208. It found 
that factual issues raised by plaintiffs were either not in 
dispute or were such that even if resolved in plaintiffs’ 
favor they would not affect the fair use question. 417 F. 
Supp. 1208, 1210. We must disagree. We think fair use 
not established as a matter of law and that genuine issues 
of fact exist precluding the grant of summary judgment 
for defendants.

Relying on Rosemont Enterprises, Inc. v. Random House, 
Inc., 366 F.2d 303 (2d Cir. 1966), the court held that the 
definition of an historical work for the purpose of the fair 
use doctrine is a very broad one, and that The Implosion 
Conspiracy fell within this definition. 417 F. Supp. 1209. 
Rosemont involved the use of copyrighted material about 
Howard Hughes published in Look Magazine in a sub­
sequent biography of Hughes. The court there found that 
this use fell within the fair use doctrine. Biographers, it 
held, customarily refer to and utilize earlier works deal­
ing with the subject of the biography and occasionally 
quote directly from their works. The fact that the Hughes 
biography was perhaps not a profound work did not de­
prive it of the fair use privilege as a book of historical 
interest. Whether or not an author also has a commercial 
motive in publishing the work was held irrelevant to the 
availability of the fair use defense. In Rosemont, however, 
only two direct quotations had been copied. The Implosion 
Conspiracy includes verbatim portions of 28 copyrighted 
letters. Rosemont involved the use of copyrighted state­
ments concerning the actions of a biographical subject, 
not as here the use of verbatim letters written by the sub-

5014



jeot. In addition, it appears that the fair use defense was 
upheld in Rosemont at least in part because the court 
found that the plaintiff there was acting in bad faith seek­
ing to prevent the publication of a legitimate biography of 
Howard Hughes.9

"We agree that the mere fact that Nizer’s book might be 
termed a popularized account of the Rosenberg trial lack­
ing substantial scholarship and published for commercial 
gain, does not, standing alone, deprive Nizer or his pub­
lishers of the fair use defense. For a determination 
whether the fair use defense is applicable on the facts of 
this case, however, it is relevant whether or not the Rosen­
berg letters were used primarily for scholarly, historical 
reasons, or predominantly for commercial exploitation. The 
purpose and character of the use of the copyrighted mate­
rial, the nature of the copyrighted work, and amount and 
substantiality of the work used, and its effect upon the 
potential market for the copyrighted material are factors 
which must be evaluated in concert. Williams $  Wilkins 
Co. v. United States, 487 F.2d 1345, 1353 (Ct. Cl. 1973), 
aff’d by an equally divided, court, 420 H.S. 376 (1975) (per 
curiam). I f  the effect on the market by an infringing work 
is minimal, for example, far greater use may be privileged 
than where the market value of the copyrighted material is 
substantially decreased. Similarly, where use is made of 
underlying historical facts such use will be entitled to com­
plete freedom but it is otherwise if there is verbatim copy­
ing of original, copyrighted material. “The fair use priv­
ilege is based on the concept of reasonableness and exten­
sive verbatim copying or paraphrasing of material set 
down by another cannot satisfy that standard.” Rosemont 
Enterprises, Inc. v. Random. Rouse. Inc., supra, 366 F.2d 
310.

9 Concurring opinion of Judges Lumbard and Hays, 366 F.2d at 311.

5015



A  key issue in fair use cases is whether the defendant’s 
work tends to diminish or prejudice the potential sale of 
plaintiff’s work. Marvin Wortk Productions v. Superior 
Films Corp., 319 F. Supp. 1269, 1274 (S.D.N.Y. 1970); 2 
M. Nimmer Copyright, § 145. The fact that the Rosenberg 
letters have been out of print for 20 years does not neces­
sarily mean that they have no future market which can he 
injured. 2 M. Nimmer, supra at 649. The market for re­
publication or for sale of motion picture rights might be 
affected by the infringing work. Here the court concluded 
that plaintiffs might be able to prove damages at trial but 
held this fact irrelevant. 417 F. Supp. 1210, 1215. The 
court also conceded that the qualitative impact of the copied 
material presented an issue as to which reasonable men 
might disagree even though the basic quantity of the in­
fringement and the surrounding circumstances were un­
disputed. The court admitted that the ultimate resolution 
of these issues turned on the subjective judgment of the 
trier of fact. Id. at 1211. The court then proceeded to hold 
that the use of the letters in The Implosion Conspiracy 
was entitled to the fair use defense because it found the 
use of copyrighted letters by Nizer to be insubstantial. 
“ The letters . . .” it held, “do not in any sense form a major 
part of defendants’ work.” Id. at 1213. We disagree.

It was error to hold that as a matter of law the fair use 
defense was available to defendants when the purpose for 
which the letters were included in the book and the effect 
of the use of the copyrighted letters on their future market 
were in dispute. The determination whether the use under 
these circumstances was substantial should have been made 
by the trier of fact in the light of all relevant facts. In 
holding that the use here was insubstantial, the court dis­
tinguished Folsom v. Marsh, supra, 9 F.Oas. 342, the only 
American case which has addressed the verbatim copying 
of copyrighted historical letters. Justice Story denied the

5016



fair use defense in Folsom because be found that George 
Washington’s letters formed a substantial part of the al­
legedly infringing biography. He held that there could be 
no fair use of letters in an historical work “ if the value of 
the original is sensibly diminished or the labors of the 
original author are substantially appropriated. “ [Letters] 
may be inserted as a sort of distinct and mosaic work, into 
the general texture of the second work, and constitute the 
peculiar excellence therof, and then it may he a clear 
piracy.” Id. at 348. Justice Story is quite explicit about the 
policy underlying copyright protection for personal letters.

What descendant or representative of the deceased 
author would undertake to publish at his own risk and 
expense, any such papers; and what editor would be 
willing to employ his own learning and judgment, and 
researches, in illustrating such work, if the moment 
they were successful, and possessed the substantial 
patronage of the public, a rival bookmaker might re­
publish them, either in the same, or in a cheaper form, 
and thus either share with him, or take from, him the 
whole profits.

Id. at 347.10

Defendants-appellees reprinted verbatim portions of 28 
copyrighted letters, a total of 1957 words.11 Although these 
letters represent less than one percent of The Implosion 
Conspiracy, the letters were prominently featured in pro­
motional material for the book.12 The fact that the letters

10 See also, Zacchini v. Scripps Howard Broadcasting Co., — — TJ.S.----- ,
45 U.S.L.W. 4954, 4957 (June 28, 1977).

11 In addition, defendants copied two letters, containing 1058 words, 
copyrighted in the British edition of the Death House Letters. 417 F. 
Supp. 1206, n. 3.

12 See Appendix at 255.

5017



were quoted out of chronological order, many undated, 
without indication of elisions or other editorial modifica­
tions is relevant to a determination of the purpose for their 
use and the necessity for verbatim quotations for the sake 
of historical accuracy.

The availability of the fair use defense depends on all 
the circumstances surrounding the use of copyrighted 
material. This court has repeatedly stressed

that “ on a motion for summary judgment the court 
cannot try issues of fact; . . .  it must resolve all 
ambiguities and draw all reasonable inferences in 
favor of the party against whom summary judgment is 
sought, . . . with the burden on the moving party to 
demonstrate the absence of any material factual issue 
genuinely in dispute. . . .”

Frey Ready-Mixed Concrete v. Pine Hill Concrete Mix
Cory.,------ F .2 d ------- , slip op. 3369, 3375 (2d Cir. May 6,
1977), citing Heyman v. Commerce Industry Insurance 
Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975).13 See also Time, 
Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 
1968); Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d 
Cir.), cert, denied, 379 U.S. 822 (1964). Summary judg­
ment on the issue of fair use was granted in Time, Inc. v. 
Bernard Geis and in the Berlin case, but there were no 
relevant facts in dispute in either case. In Berlin it was 
clear that the infringing parody had neither the effect nor 
the intent of fulfilling the demand for the original work,

13 See Gladstone v. Fireman’s Fund Insurance Co., 536 F.2d 1403, 1406 
(2d Cir. 1976); United States v. Bosurgi, 530 F.2d 1105, 1130 (2d Cir. 
1976); National Life Insurance Co. v. Solomon, 529 S\2d 59, 60-61 
(2d Cir. 1975) (per curiam); Home Insurance Co. v. Aetna Casualty 
4- Surety Co., 528 F.2d 1388, 1390 (2d Cir. 1976) (per curiam); 
Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975); Judge v. 
City of Buffalo, 524 F.2d 1321, 1322-23 (2d Cir. 1975).

5018



and that no greater amount had been appropriated than 
necessary. In Time, Inc. v. Bernard Geis it was likewise 
undisputed that there was little or no injury to the copy­
right owner, and the court found that the infringing book 
was not bought because it contained a copyrighted photo­
graph of the Kennedy assassination at issue in that case. 
293 F.2d 146. In the case before us it has been conceded 
that plaintiffs might have incurred damages, and there is a 
dispute between the parties as to the purpose of and 
necessity for including verbatim letters in the book. For 
the sole purpose of the summary judgment motion all 
parties conceded that appellants held a valid copyright for 
the Death House Letters. This issue, as well as the fair 
use question, remains in dispute however.

Appellants are entitled to an opportunity to introduce 
evidence on the issues of the purpose of the use and of 
damages. Whether or not there has been substantial use 
which would deprive appellees of the fair use defense is a 
decision which must be made by the trier of fact that all 
the evidence has been introduced. We hold that it was error 
to uphold the fair use defense as a matter of law as to all 
defendants. As to Nizer and Doubleday it also was error to 
uphold the defense in the alternative on factual findings, in 
the absence of evidence on the question of damages. We 
therefore reverse the grant of summary judgment as to 
all defendants and remand so that appellants can be given 
the opportunity to introduce evidence on all aspects of the 
fair use defense.14

The purpose for which the letters were included in the book, whether 
the book is bought because it contains the Bosenberg letters, the neces­
sity for verbatim copying of the letters, and the effect of the use of 
the copyrighted letters on their future market are among the relevant 
factors which may be considered before there can be a decision as to 
the availability of the fair use defense to appellees.

5019



The court did not address itself to the common law copy­
right count which was dismissed together with the stat­
utory claim. Since it has been conceded that all material 
copied by appellees had been previously published, we 
affirm the dismissal of Count III.

Affirmed in part, reversed in part, and remanded for 
further proceedings in the light of this opinion.

5020
480-7-29-77 . TJSCA—4221

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