by Madalynne Reuter
In a ruling haunted by the Salinger decision on the fair use of unpublished material, an appeals court removed the injunction that halted the distribution last May of Henry Holt's Bare Faced Messiah: The True Story of L. Ron Hubbard by Russell Miller.
The case now returns to Judge Pierre N. Leval at U.S. District Court in Manhattan, who had refused to grant a permanent injunction, but had immediately stayed his order so that New Era Publications could appeal. New Era charges the book with infringing its copyright not only in published works but also in unpublished letters and early diaries of the late controversial founder of Scientology.
Holt's plans for the undistributed 12,000 copies of Bare-Faced Messiah await the outcome of the proceedings in district court, where Holt will seek damages for losses incurred during the year-long delay in distribution, according to Mallory Rintoul, Holt's general counsel. On its part, New Era can seek damages for alleged copyright infringement.
Last May, Judge Leval found "some small degree of infringement," but he wrote, "The public would be deprived of an interesting and valuable historical study. No significant copyright interests would be served by an injunction."
While all three judges on the U.S. Court of Appeals for the Second Circuit agree in their April 19 ruling that a permanent injunction should be denied, Chief Judge James L. Oakes, in a 31-page separate opinion, upheld Leval's conclusion that most of the material in the book, including all of the published and much of the unpublished writings, is entitled to the fair use defense and that "this is one of those special circumstances in which the interests of free speech overwhelmingly exceed the plaintiff's interest in an injunction."
Oakes also writes that he believes it was unneceesary for his colleagues to do anything other than affirm the denial of an injunction for "laches," an unreasonable and inexcusable delay that prejudices the defendant.
Despite knowledge that the book would be published in the U.S. and that lawsuits were filed in 1987 to enjoin publication in England, Canada and Australia, the Second Circuit majority contends that New Era failed to compare Holt's book with the books published abroad, failed to ask for Holt's publication date and failed to take any steps to stop publication until most of the first printing of 12,000 copies had been shipped.
Noting that the Second Circuit made it clear in Salinger "that unpublished works normally enjoy complete protection," the majority in its 23-page opinion takes issue particularly with a distinction argued by Leval: "Many of the takings of Salinger's expression were for the purpose of enlivening that text with Salinger's expressive genius.... Hubbard's expression is taken primarily to show character flaws in a manner that cannot be accomplished without use of his words."
Among character flaws that the author attempts to establish in Hubbard's words, as the opinion cites, are dishonesty, boastfulness, pomposity, grandiosity, bigotry, cruelty and paranoia.
In his separate opinion, Oakes believes the majority "unnecessarily goes out of its way to take issue with Judge Leval's opinion. Doing so, even by way of dictum, tends to cast [Salinger] in concrete." Applying Salinger's language confines the concept of fair use and prevents necessary flexibility in fashioning equitable remedies in copyright cases, Oakes writes. "I thought that Salinger might, by being taken literally in another factual context, come back to haunt us. This case realizes that concern."
Salinger concluded that a biographer, when dealing with copyrighted expression, "may frequently have to content himself with reporting only the fact of what his subject did...." Oakes comments: "I do not think that it reaches the case where the biographer or critic is using the protected expression as a fact to prove a character trait that is at odds with tho public image that the subject or the subject's supporters have attempted to project. As Judge Leval said, it may be 'the words used by a public figure ... that are the facts calling for comment.'"
Oakes concludes that an injunction against Bare-Faced Messiah would "discourage writers and publishers who might otherwise undertake critical biographies of powerful people, without serving as an incentive for copyright holders." Nor, Oakes says, would an injunction serve the public interest, which under the First Amendment, requires the widest possible dissemination of information from diverse and antagonistic sources.