Cite as 667 F.Supp. 120 (S.D.N.Y. 1987)
of infringement. As to 3 further passages that are close enough to infringe by paraphrase, defendants contest plaintiff’s ownership of the copyright.
There are additional passages of paraphrase which may be sufficiently close to infringe, but are subject to reasonable disagreement. For example, where the accused passage draws unprotected history from the protected work, the fact that the narration of events is structured in the same order although by different words and expression has been found to justify a conclusion of “close paraphrase” and infringement in Salinger, 811 F.2d at 98; see also Salinger, 818 F.2d 252, 254 (2d Cir. 1987) (per curiam); whereas Hoehling, 618 F.2d at 978, quoting an early opinion of Judge Learned Hand, Myers v. Mail & Express Co., 36 C.O. Bull. 478, 479 (S.D.N.Y.1919), ruled that “there cannot be any such thing as copyright in the order of presentation of the facts, nor, indeed, in their selection.” See also 1 Nimmer § 2.11[D]. For purposes of this motion, I have given the defendants the benefit of the doubt on those paraphrases.
For this ruling, I rely only on the 89 passages noted above (involving approximately 3,500 words)[1] in which I have found infringement by quotation or paraphrase where plaintiff’s ownership of the copyright is conceded. The doubtful cases and those of questioned ownership have been excluded from the basis of this opinion.
A further issue of infringement arises as to the translations of letters written in Russian by Stravinsky, his first wife Catherine and others. Many such translations appear in the Craft-Stravinsky literature, especially the Selected Correspondence. A number of extracts are quoted verbatim in Firebird; a further number are paraphrased, in some cases very closely.
Craft does not contend he owns a copyright in the original letters. He claims a copyright in the translations, which defendants dispute. Craft does not speak Russian and did not translate the letters himself. According to his testimony, however, he hired students of Russian to make literal translations of the letters, and thereafter he reworked the language, exercising his own authorship to achieve a diction he considered suitable. Especially in the case of letters written by Stravinsky, Craft claims to have recast the translations in such a way as to imitate the unusual manner in which Stravinsky spoke English. His claim of copyright depends on his personal revisions of the translations, or alternatively on the theory that the hired translators were performing “work for hire.” See 17 U.S.C. § 201(b) (1982).
Recognizing the incomplete state of the record on the motion for preliminary injunction, the evidence seems to favor Craft as to his possession of a copyright interest in these translations. If he exercised original authorship reworking the translations, he is eligible for copyright protection in the final rendition, notwithstanding that the earlier translation from Russian was done by others. Furthermore, if he hired students to translate the letters for his book and they were subject to his direction and supervision, he would have a reasonable claim of authorship based on the theory of “work for hire.” See Aldon Accessories, Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 387, 83 L.Ed.2d 371 (1984); 1 Nimmer § 5.03[B][1][a]. Defendants rely on the fact that Craft did not claim “work for hire” on the certificate of registration. Nonetheless, if the facts sustain his position and if it appears that the misstatement was inadvertent, little turns on the error; the copyright is not thereby invalidated, nor is the certificate of registration rendered incapable of supporting the action. See 2 Nimmer § 7.20. In any event, the letters are insignificant on the question of plaintiff’s entitlement to a preliminary injunction. Three are quoted directly. A few leave a question whether their paraphrase remains too close to the original. On the issue of defendants’ claim of fair use, the letters are but a drop in the
- ↑ Unlike the count of infringing passages, the word count includes infringing paraphrases included in a passage containing an infringing quotation.
