New Era Publications International v.
Carol Publishing Group
Argued April 2, 1990; decided May 24, 1990 

(2d Cir., 1990) (904 F.2d 152) 
Footnotes follow opinion. 

COURT OPINION: JUDGE FEINBERG 

Defendant Carol Publishing Group appeals from a February 13, 1990
judgment of the United States District Court for the Southern District
of New York, Louis L. Stanton, J., permanently enjoining it from
publishing a biography in its present form, on grounds of copyright
infringement. In an opinion reported at 729 F. Supp. 992, the district
court held that the biography's quotations from its subject's writings -
all of which had been published - did not constitute "fair use" under 17
U.S.C. @ 107, and that the copyright on one of the works quoted from had
expired. We disagree with the former conclusion but agree with the
latter, and thus reverse in part and affirm in part. 

Background

The biography at issue in this appeal is entitled A Piece of Blue Sky:
Scientology, Dianetics and L. Ron Hubbard Exposed, and was written by
Jonathan Caven-Atack. (We will refer to A Piece of Blue Sky as "the
book" and to Caven-Atack as "the author.") The subject of the book is L.
Ron Hubbard, the controversial founder of the Church of Scientology (the
Church), who died in 1986. 

The author joined the Church when he was 19 and was a member for almost
nine years. In 1983, however, according to the author, his faith in the
Church was shaken by what he saw as the Church's repressive practices
toward dissident members. The author subsequently resigned from the
Church, but undertook a thorough investigation into the Church and
Hubbard. During the course of this inquiry, the author became convinced
that the Church was a dangerous cult, and that Hubbard was a vindictive
and profoundly disturbed man. 

The author's investigation culminated in the book, which, in its present
manuscript form, is 527 double-spaced pages in length. As its title
makes plain, the book is an unfavorable biography of Hubbard and a
strong attack on Scientology; the author's purpose is to expose what he
believes is the pernicious nature of the Church and the deceit that is
the foundation of its teachings. The book paints a highly unflattering
portrait of Hubbard as a thoroughgoing charlatan who lied relentlessly
about his accomplishments. The author's attitude toward his subject can
be gauged by his descriptions of Hubbard as "an arrogant, amoral
egomaniac," "a paranoid, power hungry, petty sadist," and - perhaps
ironically in light of the claims in this case - "an outright
plagiarist." n1 The book quotes widely from Hubbard's works, using
passages from Hubbard's writings both in the body of the text and at the
beginning of many chapters. The author had a rich vein of material to
mine, because Hubbard wrote prolifically on a wide variety of subjects,
including science fiction, philosophy and religion. We are informed that
Hubbard published nearly 600 fiction and non-fiction works during his
lifetime, 111 of which are in print. 

Plaintiff-appellee/cross-appellant New Era Publications International,
ApS is the exclusive licensee of Hubbard's works. After learning that
appellant Carol Publishing Group intended to publish the book, appellee
sued appellant in the district court. (Although appellee named the
author as a defendant, it did not serve him with a summons and
complaint, and he has never entered an appearance.) Appellee claimed
that the book copied "substantial portions" of certain of Hubbard's
works in violation of its exclusive copyright rights under 17 U.S.C. @
106, and accused appellant of willful copyright infringement under 17
U.S.C. @@ 106 and 501. In particular, appellee argued that 121 passages
of the book were drawn from 48 of Hubbard's works. The complaint sought,
among other things, an injunction to stop publication of the book.
Appellee subsequently moved for a temporary restraining order and a
preliminary injunction; by stipulation, the proceedings for a permanent
and for a preliminary injunction were later merged. 

The district court granted a permanent injunction. It held, first, that
the copyright had expired on one of the works quoted in the book, the
HCO Manual of Justice. 729 F. Supp. at 995. The court then went on to
determine whether the book's use of passages from Hubbard's other works
was protected "fair use" under 17 U.S.C. @ 107, which is reproduced in
the margin. n2 Id. at 995-1001. The district court analyzed the four
factors spelled out in @ 107, and found that factor one (purpose and
character of the use) "strongly" favored appellee, because "many of the
passages lack any allowable fair use purpose," id. at 998; factor two
(nature of the copyrighted work) favored appellee since "so many" of the
quoted passages "are expressive rather than factual," id. at 999; factor
three (amount used in relation to copyrighted work as a whole) also
favored appellee, because the quoted passages amount to a "small, but
significant element of" the book, id. at 1000; and that factor four
(effect of use on the market for the copyrighted work) did not favor
either party. Id. at 1001. The district court thus concluded that
appellee was entitled to a permanent injunction against publication of
the book in its present form, noting that "the book is still in
manuscript form, so deletion of the infringing passages will be
relatively simple and inexpensive." Id. at 1001. The district court
thereafter entered judgment, listing 103 infringing passages taken from
43 works, all published. 

Appellant now appeals from the judgment granting an injunction, and
appellee cross-appeals from the district court's determination that the
copyright on the HCO Manual had expired. 

Discussion

1. Fair Use

Appellant asserts that, contrary to the district court's view, all four
fair use factors referred to in @ 107 weigh in its favor, while appellee
argues to the contrary. At the outset, we note that @ 107 "requires a
case-by-case determination whether a particular use is fair." Harper &
Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549, 85 L.
Ed. 2d 588, 105 S. Ct. 2218 (1985). Furthermore, fair use is a mixed
question of law and fact, id. at 560, and thus the district court's
conclusion on this point is open to full review on appeal. See Puma
Indus. Consulting, Inc. v. Daal Assocs., Inc., 808 F.2d 982, 986 (2d
Cir. 1987). And, "where the district court has found facts sufficient to
evaluate each of the statutory factors, an appellate court 'need not
remand for further factfinding,'" but may resolve the issue of fair use
as a matter of law. Harper & Row, 471 U.S. at 560 (quoting Pacific &
Southern Co. v. Duncan, 744 F.2d 1490, 1495 n. 8 (11th Cir. 1984), cert.
denied, 471 U.S. 1004, 85 L. Ed. 2d 161, 105 S. Ct. 1867 (1985)). 

In addition, the structure of @ 107 is significant. The section is
entitled "Limitations on exclusive rights: Fair use," and the opening
sentence makes clear that a "fair use . . . is not an infringement of
copyright." The same sentence furnishes examples of broad categories of
fair use: "criticism, comment, news reporting, teaching. . .,
scholarship or research." The section then defines four non-exclusive
factors to be considered in determining whether a particular use is
fair. 

We have quite recently applied the doctrine of fair use in two opinions
of this court. See Salinger v. Random House, Inc., 811 F.2d 90 (2d
Cir.), cert. denied, 484 U.S. 890, 98 L. Ed. 2d 177, 108 S. Ct. 213
(1987); New Era Publications Int'l, ApS v. Henry Holt & Co., 873 F.2d
576 (2d Cir.), petition for reh'g denied, 884 F.2d 659 (2d Cir. 1989),
cert. denied, 493 U.S. 1094, 110 S. Ct. 1168, 107 L. Ed. 2d 1071 (1990).
Since the decisions in Salinger and New Era, there have been a number of
articles on the subject of fair use. See, e.g., Weinreb, Fair's Fair: A
Comment on the Fair Use Doctrine, 103 Harv.L.Rev. 1137 (1990). Indeed,
several of the articles have been written by some of the judges involved
in those decisions. See Oakes, Copyrights and Copyremedies: Unfair Use
and Injunctions, to be published in a forthcoming edition of the Hofstra
L. Rev.; Leval, Commentary: Toward a Fair Use Standard, 103 Harv.L.Rev.
1105 (1990); Miner, Exploiting Stolen Text: Fair Use or Foul Play?, 37
J. Copyright Soc'y 1 (1989); Newman, Not the End of History: The Second
Circuit Struggles with Fair Use, 37 J. Copyright Soc'y 12 (1989). Some
of these articles are highly critical of the state of the law with
respect to the fair use doctrine and offer suggestions for improvement.
But, our task is to apply as best we can the teachings of the governing
precedents as we understand them. In doing so, on the facts before us
and under the appropriate wide-ranging standard of review, we conclude
that all four factors listed in @ 107 favor appellant, and that
appellant's use was fair. 

A. Factor One: Purpose and Character of the Use 

As noted above, the book is an unfavorable biography. Section 107
provides that use of copyrighted materials for "purposes such as
criticism, . . . scholarship, or research, is not an infringement of
copyright." Our cases establish that biographies in general, and
critical biographies in particular, fit "comfortably within" these
statutory categories "of uses illustrative of uses that can be fair."
Salinger, 811 F.2d at 96; see also New Era, 873 F.2d at 583. 

Citing Harper & Row, 471 U.S. at 561, appellee argues that there is no
rule that if an allegedly infringing work is a biography, factor one
necessarily operates in the biographer's favor in evaluating whether
there has been a "fair use." Nevertheless, "if a book falls into one of
these categories [i.e., criticism, scholarship or research], assessment
of the first fair use factor should be at an end." New Era, 884 F.2d at
661 (Miner, J., concurring in the denial of rehearing in banc). True,
the Supreme Court in Harper & Row did not end its analysis of factor one
once it had determined that the allegedly infringing use (news
reporting) was listed in @ 107 as an example of fair use. See 471 U.S.
at 561-63. However, what the Court went on to consider was the
infringer's knowing exploitation of the copyrighted material-- obtained
in an underhanded manner - for an undeserved economic profit. See id. at
562-63. The present case, by contrast, does not involve "an attempt to
rush to the market just ahead of the copyright holder's imminent
publication, as occurred in Harper & Row." Salinger, 811 F.2d at 96.
Instead, as the author explained in detail in an affidavit submitted
below, discussing the reason why he included each quote, the author uses
Hubbard's works for the entirely legitimate purpose of making his point
that Hubbard was a charlatan and the Church a dangerous cult. To be
sure, the author and appellant want to make a profit in publishing the
book. But the author's use of material "to enrich" his biography is
protected fair use, "notwithstanding that he and his publisher
anticipate profits." Id. 

Appellee also contends that the book's use of Hubbard's works does not
serve any fair use purpose, but was rather unnecessary appropriation of
Hubbard's literary expression. We do not agree with this
characterization. The author uses the quotations in part to convey the
facts contained therein, and not for their expression. More importantly,
even passages used for their expression are intended to convey the
author's perception of Hubbard's hypocrisy and pomposity, qualities that
may best (or only) be revealed through direct quotation. The book "is
not merely the product of 'the facile use of the scissors.'" Maxtone-
Graham v. Burtchaell, 803 F.2d 1253, 1260 (2d Cir. 1986) (quoting Folsom
v. Marsh, 9 F.Cas. 342, 345 (C.C.D.Mass. 1841) (No. 4901) (Story, J.)),
cert. denied, 481 U.S. 1059, 107 S. Ct. 2201, 95 L. Ed. 2d 856 (1987).
Appellee points particularly to the 17 topic quotations that begin many
of the chapters; while a few of these may arguably come close to the
line separating critical study from appropriation, most do not. Indeed,
even this borderline use appears to serve the author's purpose by
juxtaposing the grandiose expression of the quotations with the banal
(to the author) material contained in the body of the chapter. Moreover,
the topic quotations sometimes serve to explain or to summarize matters
discussed in the chapter. 

Appellee further argues that New Era explicitly held that copying for
purposes of demonstrating character defects cannot amount to fair use.
This is simply a misreading of New Era. The passage that appellee cites
in support of its interpretation, 873 F.2d at 583, does not reject the
idea that quotation in a biography to demonstrate character flaws may be
fair use. Rather, the passage rejects the claim that the purpose of the
use entitles it to "special consideration." Id.; see also New Era, 884
F.2d at 660-61 (Miner, J., concurring in the denial of rehearing in
banc). The panel in New Era, however, observed that "as long as a book
can be classified as a work of criticism, scholarship or research, as
can the book here, the factor cuts in favor of the book's publisher,
whether the copyrighted matter is taken from a literary lion like J. D.
Salinger or a purported prophet like L. Ron Hubbard." New Era, 873 F.2d
at 583. 

We hold that factor one favors appellant. 

B. Factor Two: Nature of the Copyrighted Work

The district court found that all of the works from which the author
quoted had been published. 729 F. Supp. at 998. Whether or not a work is
published is critical to its nature under factor two, because "the scope
of fair use is narrower with respect to unpublished works." Harper &
Row, 471 U.S. at 564; see also New Era, 873 F.2d at 583; Salinger, 811
F.2d at 96. Thus, "even substantial quotations might qualify as fair use
in a review of a published work." Harper & Row, 471 U.S. at 564. 

Furthermore, the scope of fair use is greater with respect to factual
than non-factual works. See id. at 563. While there is no bright-line
test for distinguishing between these two categories, we have referred
to the former as works that are "essentially factual in nature,"
Maxtone-Graham, 803 F.2d at 1263, or "primarily informational rather
than creative." Consumers Union of United States, Inc. v. General Signal
Corp., 724 F.2d 1044, 1049 (2d Cir. 1983), cert. denied, 469 U.S. 823,
83 L. Ed. 2d 45, 105 S. Ct. 100 (1984). We have some hesitation in
trying to characterize Hubbard's diverse body of writings as solely
"factual" or "non-factual," but on balance, we believe that the quoted
works - which deal with Hubbard's life, his views on religion, human
relations, the Church, etc. - are more properly viewed as factual or
informational. 

Appellee emphasizes, however, that there is no per se rule under Harper
& Row, New Era and Salinger that factor two favors an alleged infringer
whenever the works quoted from are published, as appellant appears to
suggest. Appellee is, of course, correct that there is no rule that one
may copy with absolute impunity from a published work, regardless of the
amount taken. Otherwise, the copyright law would be a nullity.
Nevertheless, Hubbard's works have been published, and "biographies, of
course, are fundamentally personal histories and it is both reasonable
and customary for biographers to refer to and utilize earlier works
dealing with the subject of the work and occasionally to quote directly
from such works." Maxtone-Graham, 803 F.2d at 1263 (quoting Rosemont
Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir.
1966), cert. denied, 385 U.S. 1009, 17 L. Ed. 2d 546, 87 S. Ct. 714
(1967)). 

Appellee also contends that Harper & Row did not endorse greater copying
from published works, arguing that in Salinger, we interpreted Harper &
Row to mean only that the likelihood "that copying will be found to be a
fair use is diminished when the copyrighted material is unpublished, not
that a greater quantity of copying of published works is permitted."
Appellee fails to persuade us, however, that the plain language of the
Supreme Court in Harper & Row - i.e., "even substantial quotations might
qualify as fair use in a review of a published work," 471 U.S. at 564 -
should be disregarded. Furthermore, even assuming that appellee's
characterization of Salinger's gloss on this passage is correct,
appellee advances no persuasive reason why a court should be less,
rather than more, likely to find fair use when, as here, the copyrighted
material has been published.

In addition, appellee argues that Harper & Row intended to allow liberal
quotation only for the purpose of literary criticism or review of
published works, and that the book does not purport to analyze the
literary worth of Hubbard's works. But, we regard appellee's attempt to
limit Harper & Row to literary criticism as entirely too literal-minded,
particularly in the face of our cases holding that biographies are
considered works of criticism, scholarship or research within the
meaning of @ 107. See, e.g., Salinger, 811 F.2d at 96. 

Appellee further asserts that many of the quoted passages are more
creative or expressive than factual, and that Maxtone-Graham is not
relevant here because that case involved "standard social science source
materials"-- i.e., quotations drawn from published interviews. We agree,
as already indicated, that there is no easy distinction between works
that are "factual" on the one hand, and "creative" or "expressive" on
the other, because "'creation of a nonfiction work, even a compilation
of pure fact, entails originality.'" Maxtone-Graham, 803 F.2d at 1262-63
(quoting Harper & Row, 471 U.S. at 547). Thus, reasonable people can
disagree over how to classify Hubbard's works. Nevertheless, although
some of the quoted passages can accurately be described as expressive -
e.g., Hubbard's poetry - our review of the record persuades us that most
simply cannot be so characterized. 

Finally, appellee distinguishes Maxtone-Graham, rightly noting that the
case involved quotations from "a collection of verbatim interviews,"
which the district court there described as "'essentially reportorial in
nature.'" Maxtone-Graham, 803 F.2d 1253, 1262. Nevertheless, we see
nothing in that case indicating that the panel intended its discussion
of factor two to be limited to situations involving such interviews.
Indeed, the panel drew its discussion of factor two from an earlier case
dealing with biographies, Rosemont Enterprises, Inc. v. Random House,
Inc., 366 F.2d 303, 307 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 17
L. Ed. 2d 546, 87 S. Ct. 714 (1967). 

We conclude that factor two favors appellant. 

C. Factor Three: Volume of Quotation

Factor three addresses the amount and substantiality of the portion used
in relation to the copyrighted work, not to the allegedly infringing
work. Harper & Row, 471 U.S. at 564-65. "There are no absolute rules as
to how much of a copyrighted work may be copied and still be considered
a fair use." Maxtone-Graham, 803 F.2d at 1263. This factor has both a
quantitative and a qualitative component, so that courts have found that
use was not fair where the quoted material formed a substantial
percentage of the copyrighted work, see, e.g., Salinger, 811 F.2d at 98
(factor three favors copyright holder where one-third of 17 letters and
10% of 42 letters used) or where the quoted material was "'essentially
the heart of'" the copyrighted work. Harper & Row, 471 U.S. at 565
(quoting the district court opinion in that case, 557 F. Supp. 1067,
1072 (S.D.N.Y. 1983)). 

Here, the book uses overall a small percentage of Hubbard's works.
Appellant calculates that the book quotes only a minuscule amount of 25
of the 48 works that appellee claimed were infringed, 5-6% of 12 other
works and 8% or more of 11 works, each of the 11 being only a few pages
in length. (Appellee has accepted these figures "for purposes of
discussion," although it adds that they may understate the true amount
taken.) In the context of quotation from published works, where a
greater amount of copying is allowed, see Harper & Row, 471 U.S. at 564,
this is not so much as to be unfair. Cf. Maxtone-Graham, 803 F.2d at
1263 (inclusion of 4.3% of published copyrighted work "is not
incompatible with a finding of fair use"); Iowa State Univ. Research
Found., Inc. v. American Broadcasting Co., 621 F.2d 57, 61-62 (2d Cir.
1980) (fair use defense not available where broadcast was made
containing 8% of a videotape that apparently had never been broadcast
before). 

Nor is the use qualitatively unfair. Appellee asserts that "key
portions" of Hubbard's works are taken "in many cases." But the district
court found that the quotations in the book's text - which amount to the
bulk of the allegedly infringing passages - do not take essentially the
heart of Hubbard's works. 729 F. Supp. at 1000. And our review of the
remaining 17 passages, which are "set off by themselves at the beginning
of a part or chapter" and "set the tone for the sections they precede,"
id. at 996, persuades us that they too do not take essentially the heart
of Hubbard's works. 

Appellee also argues that factor three weighs in its favor because the
quotations are an important ingredient of the book, pointing out that
2.7% of the book is made up of quotations from Hubbard's works. n3
Appellee asserts that, because of the length of Hubbard's works and
because so many of his writings were quoted from, it would be of little
value to focus on the amount of infringing material in relation to the
copyrighted works, and cites various cases - e.g., Harper & Row, 471
U.S. at 566; Salinger, 811 F.2d at 98-99; Meeropol v. Nizer, 560 F.2d
1061, 1070-71 (2d Cir. 1977), cert. denied, 434 U.S. 1013, 54 L. Ed. 2d
756, 98 S. Ct. 727 (1978) - in which courts discussed the amount used in
relation to the infringing work, not the infringed work. 

We do not agree with appellee's argument. Section 107 plainly commands
us to consider "the amount and substantiality of the portion used in
relation to the copyrighted work as a whole" (emphasis added), and
contains no exception for lengthy works or quotations from multiple
works. Furthermore, to the extent that courts have looked to the
infringing work, the use here is not as significant as the use alleged
in those cases. In Salinger, for example, the quoted materials "to a
large extent . . . [made] the book worth reading." 811 F.2d at 99; see
also Harper & Row, 471 U.S. at 565-66 (quotes constituted 13% of the
infringing work and played a "key role" in it); Meeropol, 560 F.2d at
1070-71 (quoted material figured prominently in the promotional work for
the book). By contrast, the use of the quotes here is primarily a means
for illustrating the alleged gap between the official version of
Hubbard's life and accomplishments, and what the author contends are the
true facts. For that purpose, some conjuring up of the copyrighted work
is necessary. Cf. Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing
Group, Inc., 886 F.2d 490, 497 (2d Cir. 1989) (trademark case; parody
"must to some extent resemble the original"). 

We find that factor three favors appellant. 

D. Factor Four: Effect on the Market

Factor four of @ 107 concerns the "effect of the use upon the potential
market for or value of the copyrighted work." According to the Supreme
Court, this "is undoubtedly the single most important element of fair
use." Harper & Row, 471 U.S. at 566 (footnote omitted). In evaluating
this factor, courts do not focus solely on the market for the work
itself, but also on the "harm to the market for derivative works." Id.
at 568. 

Appellee argues strenuously that factor four favors it, asserting that
it intends to publish an authorized biography of Hubbard that will
include excerpts from all of his works, including material as yet
unpublished, and that the book will discourage potential readers of the
authorized biography by conveying the flavor of Hubbard's writings.
Appellee also contends that New Era leaves us no choice but to rule in
its favor on factor four; according to appellee, that case held that
publication of a similar unfavorable biography would impair the market
for, and compete with, its planned biography of Hubbard. 

We do not find either argument persuasive. As to the first, we found it
"unthinkable" in Maxtone-Graham that potential customers for plaintiff's
copyrighted book containing a "series of sympathetic interviews on
abortion and adoption" would fail to purchase plaintiff's book because a
small portion of it was used in an essay sharply critical of abortion.
803 F.2d at 1264. Similarly, we are skeptical here that potential
customers for the authorized favorable biography of Hubbard in the
future will be deterred from buying because the author's unfavorable
biography quotes from Hubbard's works. Indeed, it is not "beyond the
realm of possibility that" the book "might stimulate further interest"
in the authorized biography. Id. 

Furthermore, even assuming that the book discourages potential
purchasers of the authorized biography, this is not necessarily
actionable under the copyright laws. Such potential buyers might be put
off because the book persuaded them (as it clearly hopes to) that
Hubbard was a charlatan, but the copyright laws do not protect against
that sort of injury. Harm to the market for a copyrighted work or its
derivatives caused by a "devastating critique" that "diminished sales by
convincing the public that the original work was of poor quality" is not
"within the scope of copyright protection." Consumers Union, 724 F.2d at
1051 (footnote omitted). This is so because the critique and the
copyrighted work serve "fundamentally different functions, by virtue"
of, among other things, "their opposing viewpoints." Maxtone-Graham, 803
F.2d at 1264. "Where the copy does not compete in any way with the
original," copyright's central concern - "that creation will be
discouraged if demand can be undercut by copiers" - is absent. Consumers
Union, 724 F.2d at 1051; see also 3 Nimmer on Copyright, @ 13.05[B], at
13-90.1 to -90.3 (1989). Here, the purpose of the book is diametrically
opposed to that of the authorized biography; the former seeks to unmask
Hubbard and the Church, while the latter presumably will be designed to
promote public interest in Hubbard and the Church. Thus, even if the
book ultimately harms sales of the authorized biography, this would not
result from unfair infringement forbidden by the copyright laws, but
rather from a convincing work that effectively criticizes Hubbard, the
very type of work that the Copyright Act was designed to protect and
encourage. 

Nor do we believe that New Era compels a contrary result. At the outset,
we note that the panel in New Era did not address in this context the
point we have just made, that is, a critical biography serves a
different function than does an authorized, favorable biography, and
thus injury to the potential market for the favorable biography by the
publication of the unfavorable biography does not affect application of
factor four. See 873 F.2d at 583. Beyond that, however, New Era involved
the publication of previously unpublished material, "particularly from
[Hubbard's] early diaries and journals." Id. at 578-79. Arguably, then,
the unfavorable biography in New Era threatened economic harm to the
authorized biography, even though it fulfilled a different function,
because it contained material whose market value (1) had not yet been
realized by the copyright holder, and (2) might be entirely
misappropriated by the infringing publication. Here, by contrast, the
works quoted from are all published, and the book will not tap any
sources of economic profit that would otherwise go to the authorized
biography. Cf. Harper & Row, 471 U.S. at 562, 567-68 (unpublished work;
actual damage of $ 12,500 shown, and infringing work intended to scoop
publication of copyrighted work); Salinger, 811 F.2d at 99 (unpublished
letters; infringing work "copies virtually all of the most interesting
passages of the letters"). 

We conclude that factor four favors appellant. 

E. Other Factors

The factors enumerated in @ 107 "are not meant to be exclusive," Harper
& Row, 471 U.S. at 560, and we have looked to such additional
considerations as "bad faith by the user of copyrighted material [that]
suggests unfairness," Maxtone-Graham, 803 F.2d at 1264, or "prejudice
suffered by [the alleged infringer] as the result of [the copyright
holder's] unreasonable and inexcusable delay in bringing the action."
New Era, 873 F.2d at 584. Although appellee argues that the book's use
of passages from Hubbard's works was "predatory" rather than fair, we
simply do not agree with this characterization, and find that there are
no additional factors suggesting unfairness. 

In sum, balancing all of the relevant factors, we believe that the
present case presents a strong set of facts for invoking the fair use
defense: The book is a critical biography, designed to educate the
public about Hubbard, a public figure who sought public attention,
albeit on his own terms; the book quotes from merely a small portion of
Hubbard's works and from only those that have been published; and, it
will cause no adverse impact protected by the copyright law on the
market for Hubbard's writings. In these circumstances, we conclude that
the book's use of passages from Hubbard's work is protected fair use.

2. HCO Manual of Justice

On its cross-appeal, appellee argues that the district court erred in
ruling that the HCO Manual of Justice - 18 passages from which are
quoted in the book - had been published in 1959 and that its copyright
had expired. Appellee asserts that the HCO Manual was subject only to
"limited" publication in 1959; that the copyright notice appearing in
the work - "COPYRIGHT (C) 1959 by L. Ron Hubbard All Rights Reserved" -
was incorrect and superfluous because the book was not published; and
that the book did not come under federal copyright protection until
January 1, 1978, the effective date of the 1976 Copyright Act. 

We are not persuaded by these arguments, which, according to appellant,
were not raised below. The district court's finding that the HCO Manual
was published in 1959 is supported by evidence placed in the record by
appellee itself, in particular, an affidavit stating, among other
things, that the HCO Manual was published. Although appellant argues
that this was a simple error caused by the speedy nature of the
proceedings below, this assertion cannot properly be raised for the
first time in this court. 

Since the HCO Manual was published in 1959, there is no question that
its copyright expired in 1987. Under 17 U.S.C. @ 304(a), any copyright
that was in its first term on January 1, 1978 "shall endure for twenty-
eight years from the date it was originally secured." The date that the
copyright of the HCO Manual was "originally secured" is governed by the
provisions of the 1909 Copyright Act. See 2 Nimmer on Copyright, @
7.02[C][1], at 7-13 to -14 (1989). Under @ 10 of the 1909 Act, an author
"[secured] copyright for his work by publication thereof with the notice
of copyright," 1909 Act @ 10, reprinted in 1990 supp. to 17 U.S.C.A., at
333, and @ 19 of that Act specified that the notice of copyright "shall
include also the year in which the copyright was secured by
publication." Id. @ 19, reprinted in 1990 supp. to 17 U.S.C.A., at 335.
Here, the HCO Manual's copyright notice states 1959 as the copyright
date; thus, the HCO Manual's copyright lasted for 28 years from 1959, 17
U.S.C. @ 304(a), and expired in 1987. 

Conclusion 

We hold that each of the four factors of @ 107 favors appellant, and
that the book's use of quotations from Hubbard's published works was
protected fair use. We also hold that the district court did not err in
finding that the copyright on the HCO Manual expired in 1987. We thus
reverse the judgment of the district court, except to the extent it
concludes that the copyright on the HCO Manual expired in 1987, as to
which we affirm. 

Footnotes 

n1 We note here what should be obvious but nevertheless bears stating.
We express no view of our own as to Hubbard, his teachings or the
Church. The unflattering characterizations are those of the author of
the book. 

n2 Section 107 provides that: 

Notwithstanding the provisions of section 106, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work
in any particular case is a fair use the factors to be considered shall
include - 

(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes; 

(2) the nature of the copyrighted work; 

(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and 

(4) the effect of the use upon the potential market for or value of the
copyrighted work. 

n3 Appellant puts the sum at 2.4% or 2.9%. The difference, however, is
not significant to our reasoning, and we will use appellee's figure for
the purpose of our discussion.