## Facts

- Jonathan Caven-Atack, a former member of the Church of Scientology, wrote *A Piece of Blue Sky: Scientology, Dianetics and L. Ron Hubbard Exposed*, an unauthorized, highly negative biography of Scientology founder L. Ron Hubbard.
- The manuscript was lengthy and quoted from many of Hubbard’s published writings, including excerpts placed in the text and as chapter-opening epigraphs, to show Hubbard’s statements in his own words and to support the book’s commentary about Hubbard and Scientology.
- New Era Publications International, ApS, the exclusive licensee of Hubbard’s writings, sued Carol Publishing Group, the planned publisher, in the Southern District of New York for copyright infringement and sought to stop publication.
- New Era argued, among other things, that it intended to publish an authorized biography of Hubbard and that the unauthorized book would impair that market.
- The district court rejected Carol’s fair-use defense under 17 U.S.C. § 107 and entered a permanent injunction barring publication of the book “in its present form.”
- The district court also concluded that one Hubbard work quoted in the manuscript—the *HCO Manual of Justice* (published in 1959 with copyright notice)—was no longer protected because its copyright term had ended, leaving it in the public domain.
- Carol appealed the injunction and the fair-use ruling. New Era cross-appealed the ruling that the *HCO Manual of Justice* was in the public domain.

## Issues

1. Whether the book’s quotations from Hubbard’s published writings, used in an unauthorized, critical biography, were fair use under 17 U.S.C. § 107.
2. Whether the *HCO Manual of Justice* had entered the public domain because its copyright had expired.

## Decision

- The Second Circuit reversed the district court on fair use, holding that the biography’s quotations from Hubbard’s published works were fair use under 17 U.S.C. § 107.
- The court vacated the permanent injunction to the extent it rested on infringement based on quotations from Hubbard’s published works.
- The court affirmed the district court’s ruling that the *HCO Manual of Justice* copyright had expired and the work was in the public domain.
- Disposition: reversed in part and affirmed in part.

## Legal Principles

- Fair use under 17 U.S.C. § 107 is evaluated using four nonexclusive factors: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality used, and (4) effect on the market for the copyrighted work.
- A biography that quotes from a public figure’s published writings to support comment, scholarship, or research generally favors fair use, especially where the quotations are tied to analysis and are not used as a substitute for the originals.
- The scope of fair use is generally broader for published material than for unpublished material, because publication reduces the author’s interest in controlling first disclosure.
- In evaluating the third factor, courts consider whether the defendant took more than reasonably necessary for the stated purpose and whether the defendant took the “heart” of the work; limited excerpts used to document and evaluate the subject’s own statements may weigh toward fair use even when drawn from multiple sources.
- Under the fourth factor, copyright law targets market substitution and impairment of legitimate, protected markets; loss of sales attributable to the strength of an unfavorable biography is not the kind of market injury the Copyright Act prevents.
- A work in the public domain cannot be infringed; if a copyright term ends (including for failure to satisfy renewal requirements under prior law), later copying of that work is not actionable.

## Conclusion

The Second Circuit held that Carol’s planned publication of an unauthorized, unfavorable Hubbard biography that quoted from Hubbard’s published writings was protected by fair use because the quotations served comment and scholarly purposes, were reasonably limited, and did not cause legally recognized market harm; the court also affirmed that the *HCO Manual of Justice* was in the public domain due to copyright expiration, and it vacated the injunction insofar as it depended on infringement of Hubbard’s published works.


New Era Publications v. Carol Publishing Group, 904 F.2d 152 (1990)