## Facts

- Ernest Hemingway and A. E. Hotchner were close friends during the last 13 years of Hemingway’s life, with Hotchner often present at Hemingway’s home and travels and involved in adapting some works for film and television.
- Hemingway frequently spoke with Hotchner (sometimes with others present) in conversations containing anecdotes, reminiscences, opinions, and comments about real persons connected to Hemingway’s fiction.
- Hotchner took notes soon after conversations and occasionally recorded them.
- During Hemingway’s lifetime, Hotchner published articles containing lengthy quotations of Hemingway’s spoken remarks; Hemingway approved, and other writers also quoted Hemingway’s conversation without objection from him.
- After Hemingway’s death, Hotchner wrote *Papa Hemingway* (1966), a personal memoir and biographical portrait incorporating lengthy quotations of Hemingway’s talk as Hotchner noted or remembered it.
- The memoir included material about Hemingway’s final illness and suicide, including medical-related information learned through Hotchner’s closeness to the family; Mary Hemingway was mentioned and sometimes quoted.
- Hemingway’s estate and Mary Hemingway sought damages and to enjoin publication, asserting common-law copyright in Hemingway’s spoken words, unfair competition/unauthorized appropriation, breach of a confidential or fiduciary relationship, and Mary’s individual claims based on disclosure of private matters.
- The trial court granted summary judgment to defendants; the Appellate Division affirmed.

## Issues

1. Whether Hemingway’s orally delivered conversations, never reduced to writing by Hemingway, were protected by New York common-law copyright so as to bar publication of those statements in a memoir.
2. Whether publication of the memoir constituted unfair competition or unauthorized appropriation of Hemingway’s literary work.
3. Whether Hotchner’s relationship with Hemingway created a legally cognizable confidential or fiduciary duty barring disclosure of the conversational material.
4. Whether Mary Hemingway stated an individual claim based on disclosure of sensitive personal or medical information concerning Hemingway and the family.

## Decision

- The Court of Appeals of New York affirmed summary judgment for defendants and dismissed the complaint.
- The court held that New York common-law copyright did not protect Hemingway’s unfixed oral conversations under these circumstances, where Hemingway did not himself reduce them to writing and had permitted extensive quotation during his lifetime.
- The court rejected the unfair competition claim because the memoir was Hotchner’s biographical narrative and was not a market substitute for Hemingway’s works or a cognizable misappropriation under the doctrine.
- The court found no basis to treat the friendship and professional association as a fiduciary or legally confidential relationship imposing a duty of nondisclosure.
- The court rejected Mary Hemingway’s individual claims as not providing a cognizable basis for relief under New York law on this record.

## Legal Principles

- New York common-law copyright protects unpublished literary property primarily where the author’s expression is fixed in a tangible form attributable to the author; informal conversation not reduced to writing by the speaker is generally not protected as literary property.
- A speaker’s conduct permitting substantial quotation and publication of his remarks may negate an asserted intent to control conversational speech as protected literary property.
- Unfair competition requires a recognized form of misappropriation or competitive wrong; use of quoted remarks within an author’s memoir about a public figure is not, without more, actionable as competition with the figure’s published works.
- A close personal relationship, even with professional collaboration, does not itself create a fiduciary or legally confidential relationship imposing broad nondisclosure duties.
- Absent a recognized cause of action under state law, disclosure of sensitive family or medical details in a biographical memoir does not automatically yield civil liability.

## Conclusion

The court held that Hemingway’s estate could not use common-law copyright, unfair competition, or fiduciary-duty theories to block publication of a memoir quoting Hemingway’s unfixed oral conversations, and it also rejected Mary Hemingway’s separate claims arising from the memoir’s discussion of private and medical matters.


Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341 (N.Y. 1968)