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Rosemont Enterprises, Inc. v. Random House, Inc. and John Keats

Rosemont Enterprises, Inc. v. Random House, Inc. and John Keats, 366 F.2d 303 (2nd Cir., 1966).

Issue: Can use of copyrighted material in popular media, without permission of the copyright owner, be protected by the defense known as fair use?

Facts: The powerful Random House book publishing firm was publishing an unauthorized biography of the famous oilfield tycoon, aviator and airplane designer, airline owner, and movie producer Howard Hughes. [Some of you may remember Leonard DiCaprio’s portrayal of the legendary Howard Hughes in the movie “Aviator.”] Somehow, aides to Hughes, by the 1960s an aged eccentric living with uncut hair, fingernails and toenails on the top floor of a high-rise building he owned in Las Vegas, got a copy of the printed “galley proofs” of the biography. The aides and lawyers serving Hughes in 1965 incorporated a firm, Rosemont Enterprises, which had the stated goal of producing an authorized biography of the legendary multi-millionaire. Hughes was willing to go to great lengths to try to guard his privacy, and his associates threatened to “make trouble” if Random House continued with the book project.

Studying the pre-publication galley proofs in 1966, Hughes’s employees found that the manuscript quoted extensively from a series of three articles by Stanley White in January and February editions of Look magazine. Look had gone out of business, but copyright in that defunct magazine was owned by its publisher, Cowles Communications.

On May 20, 1966, Rosemont Enterprises bought the rights to the Look articles, informed Random House of this, and on May 25, brought a copyright infringement lawsuit against Random House.

Under federal copyright law, if a copyright owner learns that unauthorized use of that property (“copyright infringement”) is about to occur, the copyright owner can seek an injunction to halt publication. Random House claimed in vain that this was a fair use in the public interest, but the trial court granted the injunction. Fair use, the trial court said, was limited to “materials used for purposes of criticism or comment or in scholarly works of scientific or educational value.” Because the trial court found that the Random House biography was for a popular (not scholarly) market, Random House no fair use privilege to make use of copyrighted material. Random House appealed to the U.S. Court of Appeals, 2d Circuit.

Legal Question: Was extensive use of excerpts from the Look article by Random House a fair use?

Decision: Yes. Public interest considerations--the public’s interest in knowing about a rich and powerful entrepreneur—“should prevail over possible damage to the copyright holder.”

Reasons: Despite extensive copying and paraphrasing from the Look articles (which taken together totaled 13,500 words, or between 35 and 39 pages if published in book form, while the book amounted to 166,000 words or 304 pages. Judge Moore wrote, “there is considerable doubt whether the copied and paraphrased materials constitutes a material and substantial portion of those [Look magazine] articles.

After Judge Moore’s dissent in the Rosemont Enterprises case, courts (and the Copyright Act of 1976 have emphasized the importance of a national interest in an informed public. For example, look at the famous “Zapruder case,” Time, Inc. v. Bernard Geis 63, Associates decision in 1968.23 On November 22, 1963, Abraham Zapruder and his family were standing on a grassy knoll near a tall warehouse building, the Texas School Book Depository in Dallas. Zapruder had found this spot to use a cheap 8 millimeter home-movie camera to record the passage of a motorcade carrying President John F. Kennedy. As the motorcade came into view. Zapruder started his camera, an assassin’s shots rang out, fatally wounding the President and recording the actions of others in that Lincoln convertible, Mrs. John F. Kennedy and Governor Tom Connally of Texas. Connally also was wounded, but survived.

Zapruder’s low quality images were important, and he knew it. He turned over two copies to the United States Secret Service. Life magazine paid Zapruder $150,00 for the original film and all three copies, including two in the possession of the Secret Service. Life had exclusive photos of the death of the President. After registering the films with the U.S. Copyright Office, on November 29, 1963, Life published a major photo spread, with 30 pictures, and Zapruder photos appeared in two other issues of the magazine. All three issues were registered with the Copyright Office.

In 1967, the Bernard Geis publishing company asked Life magazine for permission to publish selected frames in Josiah Thompson’s book, Six Seconds in Dallas. Life refused, so the publisher offered to pay the magazine a royalty equal to the profits from publication of the Thompson book. Frustrated, Thompson and his publisher decided to copy certain frames anyway, and a charcoal sketch artist was hired to make copies of 22 copyrighted frames. After Six Seconds in Dallas was published, Time, Inc.—parent company of Life magazine—sued for copyright infringement.

The court held that the book publisher had acted in good faith trying to secure rights from Life magazine, even offering to pay the magazine its proceeds from the book. Furthermore, following the reasoning of Judge Moore in Rosemont Enterprises, Federal district judge Inzer B. Wyatt wrote,24

There is public interest in having the fullest information available on the theory entitled to public consideration. While doubtless the theory could be explained with sketches * * * [not copied from copyrighted pictures] the explanation actually made in the Book with copies [of the Zapruder pictures] is easier to understand.

 

23 Time, Inc., v. Bernard Geis Associates, 293 F.Supp. 130 (S.D.N.Y. 1968)

24 Time, Inc. v. Bernard Geis Associates, 293 F.Supp. 130, 131-134 (1968).