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found ambiguous the Supreme Court’s statement in Harper & Row that the scope of fair use is narrower with respect to unpublished works. According to the Second Circuit, the passage could mean either that the circumstances in which fair use can be found are fewer in number, or, that the amount of unpublished material that can be copied is less. The court of appeals opted for the first interpretation, concluding that unpublished works "normally enjoy complete protection against copying any protected expression."[1]
The combination of the court of appeals’ comment that biographers who take too much “deserve to be enjoined” and its statement that unpublished works “normally enjoy complete protection” caused great concern in the publishing community. That concern was heightened by the Second Circuit's next fair use decision, New Era Publications International ApS v. Henry Holt & Company.
New Era Publications International ApS v. Henry Holt & Company
Judge Leval was also the trial judge in this next Second Circuit dispute over fair use of unpublished works. The plaintiff was the copyright owner by assignment of unpublished letters and diaries of L. Ron Hubbard, founder of the Church of Scientology. Again Judge Leval refused to issue an injunction on fair use grounds.
The Second Circuit upheld Judge Leval’s decision not to issue an injunction, but on the different ground of laches. The majority’s remarks on the narrow scope of fair use for unpublished works and on injunctive relief echoed the Salinger opinion and increased publishers’ and authors’ concerns that substantial risks are involved in any history or biography using appreciable amounts of copyrighted expression. The court of appeals majority engaged in extended dicta disagreeing with much of Judge Leval’s discussion of fair use, and indicated that but for the laches problem an injunction should have issued. Chief Judge Oakes concurred in the result, but issued an opinion strongly endorsing Judge Leval’s fair use ruling and criticizing elements of the Salinger opinion.
A petition for rehearing en banc was filed and denied. The denial was accompanied, however, by two opinions, one by Judge Newman (the author of the Salinger opinion) joined by Judges Oakes, Kearse, and Winter, the other by Judge Miner (the author of the New Era panel decision) joined by Judges Meskill, Pierce, and Altimari. These two opinions are noteworthy for both the sharp division that they reveal within the Second Circuit, and for their authors’ softening of statements made in the earlier opinions. Judge Miner proposed to change a passage in the New Era panel opinion to state that an injunction would follow a finding of infringement only under “ordinary circumstances.” He also noted that no decision of the Second Circuit had barred the copying of small amounts of expression, even when done to “enliven the text.” Judge Newman took the opportunity to state that one of the most contro-
- ↑ 811 F.2d at 97. In a concluding remark that is frequently overlooked, the court of appeals added: “We seriously doubt whether a critic reviewing a published collection of the letters could justify as fair use the extensive amount of expressive material [the biographer] has copied.” 811 F.2d at 100. Thus, despite the emphasis on the unpublished nature of the Salinger letters, it is obvious that the extent of the copying—the third fair use factor—also played a critical role in the court of appeals’ decision.
