Page:Craft v. Kobler.pdf/10

 In my view, Kobler’s takings are far too numerous and with too little instructional justification to support the conclusion of fair use. Kobler uses Stravinsky’s colorful words without restraint throughout the hook to describe and comment on the events and personages of Stravinsky’s life. Most of these passages do not individually present a compelling justification of fair use. By a conservative count (that includes neither the doubtful rulings, cases of disputed ownership, nor claims based on translations), the appropriations constitute approximately 3% of the volume of Kobler’s book. The importance of these passages to the book far exceeds that percentage. Stravinsky’s colorful epigrams animate the narrative. I think Kobler might agree that they are the liveliest and most entertaining part of the biography.

The remaining statutory factors direct attention to “the nature of the copyrighted work” and “the effect of the [alleged infringer’s] use upon the potential market for or value of the copyrighted work.” I find that these factors also favor the plaintiff.

All the books in question, plaintiff’s fifteen and defendants’, are about Stravinsky. Most of them include a great deal of biographical or autobiographical anecdote. I recognize that portions of Craft’s and Stravinsky’s writings are on a different level of sophistication from Kobler’s and are aimed at a different readership. They include sophisticated discussions of musical theory, while Kobler acknowledges in his preface that he is “neither a musician nor a musicologist” and has “not ventured to analyze Stravinsky’s prodigious work.” Kobler has written a popular book, aiming for the book clubs, the general public and the best seller list.

Expressing disdain for Kobler’s musically unsophisticated general-audience biography, Craft has been reluctant to acknowledge competition between his works and Firebird. Plaintiff has therefore argued the “market” factor less forcefully than he might have.

But to a considerable extent, these books are in potential competition. In the first place, a large portion of the material in the Craft-Stravinsky books is anecdotal, well within the reach of the general readership. One book, Stravinsky in Pictures and Documents, by Craft and Vera Stravinsky, is a glossy coffee table volume, full of entertaining photographs, playbills, drawings, memorabilia and anecdotes. The flyleaf on Craft’s Dialogues and a Diary advises that the book is “filled with stories of exotic places and anecdotes about some of this century’s most dedicated artists.” A reader seeking an informative biographic or autobiographic book of Stravinsky anecdotes and memorabilia might well have difficulty choosing between defendant’s and several of plaintiff’s titles. And upon reading the Kirkus Review of Firebird, describing it as a “treasure trove of Stravinsky recollections,” see Kirkus Reviews, April 21, 1987 (Jt. Ex. 16), he might find that choice all the more difficult.

The fact that plaintiff’s books are out of print and that Craft testified he had no interest in writing further on Stravinsky is not determinative. See 17 U.S.C. § 107 (1982) (“effect … upon the potential market….….” [sic]) (emphasis supplied); Salinger, 811 F.2d at 99 (opportunity to market book protected). As public interest in Stravinsky increases, the Craft-Stravinsky books may be reissued. Craft might also license a new book drawing extracts from his various copyrighted titles. Depending on the selection of extracts, such a book might well aim at a general readership and compete directly with defendants’. I conclude defendants’ book is potentially in competition with plaintiff’s copyrighted material and that the second and fourth factors argue at least slightly against a finding of fair use.

In Salinger, I observed that “[e]njoining publication of a book is a serious matter,” 650 F.Supp. 413, 426 (S.D.N.Y.1986), rev’d, 811 F.2d 90 (2d Cir.1987). I continue to hold that view. The Court of Appeals’ ruling in that case, rejecting the biographer’s claim of fair use and directing an injunction, has little bearing on this dispute because it turned on the Court’s