Important Court Cases

The following is a list of certain important court decisions involving publishing issues. Its purpose is to provide lawyers with “jumping off” points for their research and to enable laypersons to obtain a general understanding of certain issues so they can have more productive conversations with their lawyers.

CAVEAT: No one should rely on these cases (or any description) without consulting an experienced lawyer. It is possible that decisions listed here have been overruled, modified or limited in their application by other cases. Even if your situation seems the same as that described in one of these cases, the case still may not apply to your situation for many, many reasons. Consult a lawyer.

If you have suggestions for cases to be added here or any corrections to case names, citations or the descriptions, please email us at cases@bookcontracts.com. If you notice any broken links, please let us know at badlinks@bookcontracts.com.

ADVANCE, RETURN OF

Harcourt Brace Jovanovich v. Goldwater, 532 F. Supp. 619 (SDNY 1982) (author not required to return advance)

Dell Publishing Company v. Whedon, 577 F.Supp. 1459 (SDNY 1984) (author not required to return advance)

Doubleday & Company Inc. v. Tony Curtis,, 763 F.2d 495 (2d Cir. 1985) (author required to return advance).

ANTHOLOGIES

See Course Packs

BANKRUPTCY OF PUBLISHER

Septembertide Publishing B.V. v. Stein & Day Inc., 884 F.2d 675 (2d Cir. 1989) (author’s right to subsidiary rights payment has priority over rights of a creditor of publisher).

CONTRACTS – GENERAL

Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publishing Company, 30 N.Y.2d 34 (1972), cert. denied 409 U.S. 875 (1972) (an implied covenant of good faith and fair dealing is implicit in all contracts, including publishing contracts; a publisher does not have obligations to its authors as a fiduciary)

COLLECTIVE WORKS/COMPILATIONS

Feist Publications Inc. v. Rural Telephone Service Company, 499 U.S. 340 (1991) (whether compilations of facts can be copyrighted; criteria for copyright of factual compilations; originality vs. “sweat of brow”).

Matthew Bender & Co. v. West Publishing Company 158 F.3d 693 (2d Cir. 1998), cert. denied 526 U.S. 1154 (1999) (compilations of judicial opinions) [a similar case with the same parties is discussed under Copyright (Originality Required) below.]

New York Times Company v. Tasini, 533 U.S. 483 (2001), affirming 206 F.3d 161 (2d Cir. 2000) (the right to republish a freelance magazine article in a collective work does not extend to database of magazine articles separate from the magazine; publishers’ inclusion of freelance magazine articles in a Nexis database violated copyright of freelancers who wrote the articles for publishers’ magazines)

COPYRIGHT (ORIGINALITY REQUIRED)

L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir. 1976) (en banc) (To support a copyright of something in the public domain, there must be at least some substantial variation, not merely a trivial variation such as might occur in the translation to a different medium.) [case involved two mechanical banks, one in the public domain and one for which copyright was sought; for photos of the two banks, click here]

Feist Publications Inc. v. Rural Telephone Service Company, 499 U.S. 340 (1991) (“sweat of brow” by itself insufficient to confer copyright on compilers of directory; creativity required; facts not copyrightable)

Matthew Bender & Co. v. West Publishing Company, ___ F.Supp. ___ (SDNY 1997), affirmed 158 F.3d 674 (2nd Cir. 1998) , cert. denied, 526 U.S. 1154 (1999) (whether specified changes made by publisher to a court’s opinions before it publishes them were sufficient for the published decisions to be considered “original works of authorship” and hence “independently copyrightable.” Court: “It is true that neither novelty nor invention is required for copyright protection, but minimal creativity is required.”)

[Note: There is a similar case with the same parties, 158 F.3d 693 (2d Cir. 1998), cert. denied 526 U.S. 1154 (1999), that was decided on the same day. In that case, the court considered whether plaintiffs’ CD-ROM disks, which used a “star pagination” system to refer to pages in West’s books containing court opinions, were unlawful copies of West’s arrangement of those court decisions; the court rejected West’s argument.]

COPYRIGHT EXTENSION ACT

Eldred v. Ashcroft , 537 U.S. 186 (2003) (reviewed validity of Congress’s extension, in 1998, of the copyright period by another 20 years)

COPYRIGHT INFRINGEMENT

National Comics Publications, Inc. v. Fawcett Publications, Inc. , 191 F.2d 594 (2d Cir. 1951) (Judge Learned Hand) (whether failure by a licensee to comply with statute’s requirements for copyright result in work falling into public domain) [case involved Superman and Captain Marvel characters]

Salinger v. Colting ___ F.Supp. __ (SDNY 2009), appeal filed 2d Cir. (Index No. 09-2878) (novel about Holden Caulfeld as a 76-year-old held to infringe Salinger’s copyright in Catcher in the Rye)

Also see Fair Use and Substantial Similarity

COURSE PACKS

Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (SDNY 1991) (photocopying excerpts from copyrighted works for inclusion in course packs violated authors’ copyrights)

DATABASES

New York Times Company v. Tasini, 533 U.S. 483 (2001) (electronic databases not a collective work of the magazines whose articles are in the database; publishers’ inclusion of freelancers’ articles in databases violated freelance authors’ copyright)

DERIVATIVE WORKS

L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.) (en banc), cert. denied, 429 U.S. 857 (1976) (discusses standard of originality required in a derivative work: “there must be at least some substantial variation [from the underlying work], not merely a trivial variation.” ) [case involved two mechanical banks, one in the public domain and one for which copyright was sought; for photos of the two banks, click here ]

Mills Music Inc. v. Snyder , 469 U.S. 153 (1985) (whether a publisher’s contractual right to royalties on derivative works terminates when author terminates the publisher’s copyright interest pursuant to Section 304(c) of U.S. Copyright Law)

Woods v. Bourne Company , 60 F.3d 978, 990 (2d Cir. 1995) (discusses standards to be applied to determine whether a derivative work is entitled to copyright protection; “…for a work to qualify as a derivative work it must be independently copyrightable.”)

Salinger v. Colting __ F.Supp. __ (SDNY 2009), appeal filed 2d Cir. (Index No. 09-2878) (Colting’s novel about Holden Caulfeld, the principal character in J.D. Salinger’s Catcher in the Rye, a book still in copyright, is a derivative work that infringed Salinger’s copyright in that book)

E-BOOKS

Random House, Inc. v. Rosetta Books LLC, 150 F.Supp. 2d 613 (SDNY 2001), affirmed 283 F.3d 490 (2d Cir. 2002) (publisher that was granted the right, in the contracts being considered by the court, to publish books “in book form” was not entitled to publish e-book editions; case decided in context of a motion for preliminary judgment)

Also see Databases and New Technology/New Uses

FACTS (NON-COPYRIGHTABILITY)

Feist Publications Inc. v. Rural Telephone Service Company, 499 U.S. 340 (1991) (facts cannot be copyrighted)

Matthew Bender & Co. v. West Publishing Company, ___ F.Supp. ___ (SDNY 1997), affirmed 158 F.3d 674 (2nd Cir. 1998), cert. denied, 526 U.S. 1154 (1999) ( “While in many cases it takes some effort for West to gather the [information], these are facts which West cannot copyright…. While West clearly makes an editorial judgment as to which attorneys’ names to publish and whether to add the city of practice, there are only a limited number of choices to be made.”)

FAIR USE

Folsom v. Marsh, 9 F. Cas 342 (C.C.D. Mass. 1841) (1841 case that established the 4-factor fair use test later codified in Copyright Act of 1976; involved excerpts from George Washington’s letters in a biography of him)

Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (scope of fair use as applied to unpublished works; discusses importance of first fair use factor, viz. character and purpose of the use)

Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987) (use of close paraphrases and excerpts from unpublished letters in a biography was not fair use; good discussion of third fair use factor (amount and substantiality of portion used))

Stewart v. Abend, 495 U.S. 207, 238 (1990) (Fourth fair use factor – viz., effect of the use on market value of the original — is most important one; case involved right to re-release Alfred Hitchcock’s “Rear Window,” a film based on a Cornell Woolrich short story, during the renewal term of the copyright on the story)

New Era Publications Intl v. Carol Publishing Group, 904 F.2d 152 (2d Cir. 1990) (a biography’s quotations from published writings by the subject of the biography constituted fair use)

Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992) (whether a sculpture by Jeff Koons violated a photographer’s copyright in a photo which Koons acknowledged as the source for his sculpture; the photo depicted “a typical American scene;” both fair use and parody defenses were raised by Koons)

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (First Supreme Court case to discuss “transformative use”: In analyzing the first fair use factor [ viz., "the purpose and character of the use, including whether such use is of a commercial nature"], the question is “whether the new work merely ‘supersede[s] the objects’ of the original creation…, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” 510 U.S. at 579)

(Also: Although “transformative use is not absolutely necessary for a finding a fair use , . . . the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. … [T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” 510 U.S. at 579)
[Case involved parody by 2 Live Crew of the song "Oh, Pretty Woman" by Roy Orbison and William Dees]

American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994), cert. dism. 516 U.S. 1005 (1995) (legality of corporate employees photocopying articles from circulated magazines on corporate “routing list.” The court found that the researchers at for-profit laboratory gained indirect economic advantage by photocopying copyrighted scholarly articles and that it was copyright infringement. Case has detailed analysis of the four fair use factors, esp. the fourth one. The court refused to consider whether selective copying of articles by an individual for personal use in research or otherwise (not for resale) would constitute infringement, but said it “might well not.”)

[Note: There is an earlier, similar decision at 37 F.3d 881 (2d Cir. 1994) that seems to have been twice amended (on December 23, 1994 and July 17, 1995) to produce the decision at 60 F.3d 913. It’s possible that some copies of the 60 F.3d opinion reflect only the first amendment.]

Suntrust Bank v. Houghton Mifflin Company, 268 F.3d 1257 (11th Cir. 2001) (novel which appropriated the characters, plot and major scenes from Gone With the Wind held not to infringe that book’s copyright) [case involved sequel to Gone With The Wind; SunTrust Bank was the trustee for the Mitchell Trust, which held the copyright in Margaret Mitchell's novel]

Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (SDNY 1991) (that there was an educational purpose for the copying did not transform the materials or give it fair use protection; case also discusses the copying in context of the “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions”)

Bill Graham Archives v. Dorling Kindersley Limited, 448 F.3d 605 (2nd Cir. 2006) (reproduction of a limited number of concert posters in reduced size, in a book about the Grateful Dead, considered fair use)

Salinger v. Colting __ F.Supp. __ (SDNY 2009), appeal filed 2d Cir. (Index No. 09-2878) (novel about a 76-year-old Holden Caulfield ruled a prohibited sequel to J.D. Salinger’s Catcher in the Rye and not a permitted parody)

Also see Sequels, Prequels and Characters

FICTIONALIZED CHARACTERS

See Libel-in-Fiction

FREELANCERS’ RIGHTS

New York Times Company v. Tasini, 533 U.S. 483 (2001), affirming 206 F.3d 161 (2d Cir. 2000) (right of publisher, in absence of contract saying otherwise, limited to one-time publication of freelancers’ article (and their inclusion, unchanged, in collective works)

INJUNCTIVE RELIEF

New York Times Company v. United States, 403 U.S. 713 (1971) (Government’s request for prior restraint on publication of the Pentagon Papers by the New York Times and the Washington Post denied)

Suntrust Bank v. Houghton Mifflin Company, 268 F.3d 1257 (11th Cir. 2001) (rejected motion to enjoin publication of an unauthorized sequel to Margaret Mitchell’s Gone With The Wind; reversed trial court, which had granted the injunction) [As do many other cases, the opinion lists the four elements required to be proven for issuance of a preliminary injunction, viz., (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction were not granted, (3) that the threatened injury to the plaintiff outweighs the harm an injunction may cause the defendant, and (4) that granting the injunction would not disserve the public interest.]

Also see Fair Use, Substantial Similarity and other headings.

JOINT AUTHORSHIP

Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991) (requirements for a work to be considered jointly authored under copyright law)

LIBEL

New York Times v. Sullivan, 376 U.S. 254 (1964) (proof of “actual malice” – that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false – required before a public official can collect damages for defamatory falsehood related to his official conduct)

Masson v. The New Yorker Magazine, Inc., 501 U.S. 496 (1991) (concerning the accuracy of quotations vis-à-vis determination of libel: “[A] deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Company v. Sullivan … unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.”

LIBEL (SINGLE-PUBLICATION RULE)

Gregoire v. G.P. Putnam’s Sons, 298 NY 119 (1948) (adoption by New York of the “single publication” rule, viz., that “the publication of a defamatory statement in a single issue of a newspaper, or a single issue of a magazine, although such publication consists of thousands of copies widely distributed, is, in legal effect, one publication which gives rise to one cause of action and that the applicable statute of limitations runs from the date of that publication”)

Rinaldi v. Viking Penguin Inc., 52 N.Y.2d 422 (1981) (absent republication, cause of action for libel accrues when book or magazine is first released for sale; relevant to determining if statute of limitations bars claim)

Firth v. State of New York, 98 N.Y.2d 365 ( 2002) (re “single publication” rule in online age: whether, for statute of limitations purposes, the single publication rule is applicable to allegedly defamatory statements that are posted on an Internet site and, if so, whether an unrelated modification to a different portion of the Web site constitutes a republication.)

LIBEL-IN-FICTION

Cases Permitting Libel-in-Fiction Claims

Fetler v. Houghton Mifflin Company, 364 F.2d 650, 651 (2d Cir. 1966). (Whether the person depicted in the novel is the plaintiff is a question of fact for the jury or other fact finder and summary judgment therefore inappropriate. ) (“The question is whether ‘the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It is not necessary that all the world should understand the libel; it is sufficient if those who knew the plaintiff can make out that he is the person meant.’”)

Bindrim v. Mitchell, 92 Cal. App. 3d 61, cert. denied, 444 U.S. 984 (1979) (court upheld claim by a therapist (Bindrim) who alleged that he was the therapist depicted in Mitchell’s novel and was libeled by the novel’s depiction of a nude encounter session; merely labeling book a novel does not prevent a finding that the book is libelous; therapist had conducted a nude marathon session which novelist attended) [note: author had signed an agreement not to write about the session before being permitted to attend]

Geisler v. Petrocelli , 616 F.2d 636 (2d Cir. 1980) (same name and physical characteristics held sufficient to withstand motion to dismiss where reasonable reader would understand that character portrayed was the person bringing the lawsuit).

Batra v. Wolf (Sup. Ct. N.Y. Cty 2008) (motion to dismiss a libel-in-fiction claim arising out of TV episode; according to court, this 2008 case was the first libel-in-fiction claim to survive a summary motion in New York in 25 years).

Cases Rejecting Libel-in-Fiction Claims

Springer v. Viking Press, 90 A.D.2d 315, 319 (1st Dept. 1982), affirmed 60 N.Y.2d 916 (1983) (Appellate Division: “Where, as here, the work claimed to be defamatory is fictional, the court’s task necessarily entails a search for similarities and dissimilarities so as to determine whether a person who knew plaintiff and who has read the book could reasonably conclude that plaintiff was [the fictional character].” Court of Appeals: “the similarity of given name, physical height, weight and build, incidental grooming habits and recreational activities of plaintiff and [the fictional character] … are insufficient to establish that the publication was ‘of and concerning’ plaintiff.”)

Welch v. Penguin Books USA, Inc. (Sup.Ct. Kings Cty. 1991) 1991 NY Misc LEXIS 225 (dismissed case by a person who claimed that a character in one of Terry McMillan’s novels was actually him and that he was libeled: “In order to overcome the ironies inherent in a libel -in-fiction claim, the identity of the real and fictional personae must be so complete that the defamatory material becomes a plausible aspect of the real life plaintiff or suggestive of the plaintiff in significant ways. Identification alone is insufficient.”

NEW TECHNOLOGY/NEW USES

Manners v. Morosco, 252 U.S. 317 (1920) (right to produce theatrical productions of a play did not permit its production as a movie)

Field v. True Comics, 89 F. Supp. 611 (SDNY 1950) (contract giving publisher the right to publish a work “in book form” and specifically reserving all other rights to the author did not grant publisher the right to publish the work as a 32-page comic book; right to publish a work “in book form” is more limited than right to publish “the book”)
Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (3d Cir. 1956) (whether right to film a boxing match as a motion picture in pre-television era included the right to show the motion picture on television)

Bartsch v. Metro-Goldwyn-Mayer, 391 F.2d 150 (2d Cir. 1968) (1930 contract allowing a motion picture version of a play permits that movie to be shown on television; mentions importance of new use being foreseeable)

Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988) (right to exhibit a movie by “means of television” does not include right to distribute videocassettes of the film)

Philadelphia Orchestra Assn v. Walt Disney Company, 821 F.Supp. 341 (E.D.Pa. 1993) (the Orchestra’s grant of the right in a 1939 contract to use its performance in a “feature picture” deemed broad enough to include the right to use the performance in a home video) [case concerned the music to Walt Disney’s "Fantasia"]

Rey v. Lafferty, 990 F.2d 1379 (1st Cir. 1993), cert. denied 510 U.S. 828 (1993) (television rights do not include home videocassette rights) [case concerned "Curious George" books]

Bloom v. Hearst Entertainment Inc., 33 F.3d 518 (5th Cir. 1994) (general grant of motion picture rights was potentially broad enough to contemplate videocassettes as a means of distribution)

Bourne v. Walt Disney Company , 68 F.3d 621 (2d Cir. 1995) (broad definition of “motion picture” in case challenging use of underlying music in movies distributed as videocassettes)

Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Company, 145 F.3d 481 (2d Cir. 1998) (new use – VCRs – was considered included in the contract’s grant of rights)

Random House, Inc. v. Rosetta Books LLC, 150 F.Supp. 2d 613 (SDNY 2001), affirmed 283 F.3d 490 (2d Cir. 2002) (publisher that was granted the right, in the contracts being considered by the court, to publish books “in book form” was not entitled to publish e-book editions; case decided in context of a motion for preliminary judgment)

PARODY

Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (parody suggesting that a prominent evangelical minister indulged in incest could not be understood as describing real facts)

Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992) (discusses certain criteria involved in determining whether one artistic work is a parody of another)

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (Parody, although not specifically listed in section 107 of the Copyight Act (list of fair use criteria), is a form of comment and criticism that may constitute a fair use of the copyrighted work being parodied; the commercial character of a parody is only one element to be weighed in a fair use inquiry and does not, in and of itself, prevent the parody from being a fair use) [case involved a parody by 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman”. To listen to both songs to compare them, click here

Suntrust Bank v. Houghton Mifflin Company, 268 F.3d 1257 (11th Cir. 2001) (Extensive discussion of when parody may constitute fair use; evaluates a defense of parody in light of the four fair use factors contained in Section 107 of the Copyright Act and the constitutional purposes of copyright law. The Wind Done Gone, a fictional work by Alice Randall that was an unauthorized sequel to Margaret Mitchell’s Gone With the Wind, determined to be fair use and not copyright infringement.)]

Salinger v. Colting __ F.Supp. __ (SDNY 2009), appeal filed 2d Cir. (Index No. 09-2878) (novel about a 76-year-old Holden Caulfield ruled a prohibited sequel to J.D. Salinger’s Catcher in the Rye and not a permitted parody)

PHOTOCOPYING

Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (SDNY 1991) (photocopying excerpts from copyrighted works for inclusion in course packs violated authors’ copyrights)

American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994), cert. dism. 516 U.S. 1005 (1995) (legality of corporate employees photocopying articles from circulated magazines on corporate “routing list.” The court found that the researchers at for-profit laboratory gained indirect economic advantage by photocopying copyrighted scholarly articles and that it was copyright infringement. Case has detailed analysis of the four fair use factors, esp. the fourth one. The court refused to consider whether selective copying of articles by an individual for personal use in research or otherwise (not for resale) would constitute infringement, but said it “might well not.”)

PREEMPTION

Editorial Photocolor Archives, Inc. v. Granger Collection, 61 N.Y.2d 517 (1984) (Federal copyright laws preempt state statutes and common law which address legal and equitable rights equivalent to copyrights)

PRIOR RESTRAINT

See Injunctive Relief

PRODUCT LIABILITY

Winter v. G.P. Putnam’s Sons, 938 F.2d 1033 (9th Cir. 1991) (suit by individuals who became ill after eating a type of wild mushroom that book said was safe. Applying California law, court ruled that publishers do not have a duty to investigate whether the content of books they publish is accurate.)

PUBLICATION

American Tobacco Company v. Wreckmeister, 207 U.S. 284 (1907) (whether there was “general dissemination” of a painting)

White v. Kimmel, 193 F.2d 744 (9th Cir. 1952) (discussing “limited publication”)

American Vitagraph, Inc. v. Levy, 629 F.2d 1023 (9th Cir. 1981) (distinction between general and limited publication in context of motion picture)

US Naval Institute v. Charter Communications Inc., 875 F.2d 1044 (2d Cir. 1989) (whether publication of paperback edition of hardcover novel occurred when the paperback was shipped to stores or on the date announced by publisher as the book’s “publication date” )

Kramer v. Newman, Trustee, 749 F. Supp 542 (SDNY 1990) (general discussion of subject) [concerning works of James Agee]

PUBLISHER’S DUTY OF PUBLICATION AND PROMOTION

Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publishing Company, 30 N.Y.2d 34 (1972), cert. denied 409 U.S. 875 (1972) (A publisher’s contractual obligation to use “best efforts” to promote non-fiction book series was violated by publisher inducing another author to write a competitive series and marketing those competitive books to people who had bought the first author’s books instead of marketing to those previous buyers the first author’s revised editions)

Zilg v. Prentice-Hall Inc. , 717 F.2d 671 (2d Cir. 1983) (publisher has enormous discretion regarding publicity and promotion efforts as long as it makes a “good faith effort to promote the book initially” and thereafter acts with its “good faith business judgment”)

RENEWAL TERM

Stewart v. Abend, 495 U.S. 207, 238 (1990) (“whether owner of the derivative work infringed the rights of the successor owner of the preexisting work by continued distribution and publication of the derivative work during the renewal term of the preexisting work.” Court: yes.) [case involved right to re-release Alfred Hitchcock’s “Rear Window,” a film based on a Cornell Woolrich short story, during the renewal term of the copyright on the story after renewal rights were assigned to a third party by the executor of the copyright holder’s estate)

RESCISSION FOR NON-PAYMENT

Nolan v. Sam Fox Publishing Company, 499 F.2d 1394 (2d Cir. 1974) (although 74% of royalties was not paid to composer, court found that money damages were sufficient and rescission was denied; failure to pay was the result of “oversight, negligence and less than meticulous bookkeeping” and was not “material and willful” or “so substantial and fundamental as to strongly tend to defeat” the purposes of the contract.)

Frankel v. Stein & Day, 470 F.Supp. 209 (SDNY 1979), affirmed 646 F.2d 560 (2d Cir. 1980) (rescission justified where non-payment was willful and contract provided that all rights reverted automatically if publisher failed to pay any portion of amount owed)

Septembertide Publishing B.V. v. Stein & Day Inc., 884 F.2d 675 (2d Cir. 1989) (rescission of contract not allowed; non-payment not willful and 2/3 of money paid to author)

PUBLICITY, RIGHT OF

Stephano v. News Group Publications, 64 N.Y.2d 174 (1984) (discussion of New York’s “right to privacy” statute, Sections 50 and 51 of NY Civil Rights Law, and “newsworthiness exception” to the use of a model’s photograph in context other than that for which he gave permission)

SATISFACTORY MANUSCRIPT

Random House v. Gold, 464 F.Supp. 1306 (SDNY 1979), affirmed 607 F.2d 998 (In determining whether a manuscript is satisfactory “in content and form,” a publisher may consider whether the book is likely to be a commercial success provided it acts in good faith .)

Harcourt Brace Jovanovich v. Goldwater, 532 F. Supp. 619 (SDNY 1982) (publisher has obligation to provide comments on manuscript to an author in good faith)

Doubleday & Company Inc. v. Tony Curtis,, 763 F.2d 495 (2d Cir. 1985) (author required to return advance when delivered manuscript is not “satisfactory in form and content” to publisher, notwithstanding praise by editor of draft submitted by author, if the termination is made in good faith and author’s failure to submit a satisfactory manuscript was not caused by publisher’s bad faith)

SEQUELS, PREQUELS AND CHARACTERS
Suntrust Bank v. Houghton Mifflin Company, 268 F.3d 1257 (11th Cir. 2001) (sequel to a novel that was written by another author and still in copyright nonetheless not considered to violate the first author’s copyright) [case involved sequel to Gone With The Wind]

Salinger v. Colting __ F.Supp. __ (SDNY 2009), appeal filed 2d Cir. (Index No. 09-2878) (novel about Holden Caulfield ruled a derivative work and hence an infringement of J.D. Salinger’s copyright in Catcher in the Rye)

SUBSTANTIAL SIMILARITY
Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992) (discusses “substantial similarity” in context of sculpture created from an idea expressed in a photograph)

Castle Rock Entertainment, Inc. v. Carol Pub. Group, Inc. , 150 F.3d 132 (2d Cir. 1998) (“Under the ‘ordinary observer’ test . . . two works are substantially similar where the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal of the two works as the same.”)

Suntrust Bank v. Houghton Mifflin Company, 268 F.3d 1257 (11th Cir. 2001) (“’substantial similarity’ exists where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work”) [case involved sequel to Gone With The Wind]

Also see Copyright Infringement

TECHNOLOGICAL ADVANCES

See New Technologies/New Uses

TERMINATION OF COPYRIGHT GRANT

Mills Music Inc. v. Snyder , 469 U.S. 153 (1985) (applicability of Section 304(c) of U.S. Copyright Law to derivative works)

UNPUBLISHED WORKS

Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987) (use of excerpts from unpublished letters in an unauthorized biography of J.D. Salinger)

Kramer v. Newman, Trustee, 749 F. Supp 542 (SDNY 1990) (works of James Agee)

WORK FOR HIRE

Community for Creative Non-Violence v. Reid , 490 U.S. 730 (1989) (specific criteria for determining whether a work has been “prepared by an employee within the scope of his or her employment,” as that phrase is used in the Copyright Law’s definition of “work for hire”)

Philadelphia Orchestra Assn v. Walt Disney Company, 821 F.Supp. 341 (E.D.Pa. 1993) (discusses “work for hire” under the 1909 Copyright Act) [case involves the music to Walt Disney’s "Fantasia"]

Also see <a href=”#Sequels, Prequels and Characters>Sequels, Prequels and Characters</a>