Page:Craft v. Kobler.pdf/5

 C. These do not infringe Craft’s copyrights.

Direct quotation or copying of a copyrighted work is, of course, an infringement unless justification is shown. 17 U.S.C. § 106 (1982). Direct quotes and copying are designated in the table by D.

Protected writing is also infringed by paraphrase which remains sufficiently close that, in spite of changes, it appropriates the craft of authorship of the original. See Salinger v. Random House, Inc., 811 F.2d 90, 97 (2d Cir.1987); 818 F.2d 252, 254 (2d Cir.1987); Donald v. Zack Meyer’s T.V. Sales and Service, 426 F.2d 1027, 1030 (5th Cir.1970), ''cert. denied'', 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 411 (1971); Werlin v. Reader’s Digest Assoc., Inc., 528 F.Supp. 451, 463 (S.D.N.Y.1981). Kobler paraphrases that I have found sufficiently close to the Craft-Stravinsky source to constitute infringement are designated E.

Where no sufficient similarity of expression is shown between Kobler’s passage and a Craft-Stravinsky source to justify a finding of infringement, I have used the letter I.

As to many passages, Kobler asserts the defense of fair use. See 17 U.S.C. § 107 (1982). The circumstances justifying a conclusion of fair use are discussed below. Passages used in a manner that supports a conclusion of fair use are marked J in the table.

The letters F, G and H are used with respect to claims of copyright in a translation, designating respectively infringing quotation, paraphrase which is so close as to infringe and more remote paraphrases or takings of substance that do not trespass on the copyright.

Appropriations of Copyrighted Material

The plaintiff has shown 72 instances in Kobler’s book of infringement by copying or direct quotation of copyrighted material owned by Craft; there are another 17 instances of direct quotation for which the defendants initially questioned whether Craft owns an enforceable copyright in the original. By stipulation, however, defendants eventually conceded Craft’s copyright ownership in several works which removes the doubt for 7 of these passages, giving a total of 79 infringements by quotation of passages concededly under plaintiffs copyright (or 80 including a contested passage from a Vera Stravinsky letter for which Craft has demonstrated his ownership). (Many of Kobler’s 79 passages include portions that infringe by close paraphrase in addition to the portions that infringe by quotation.)

I have found 10 additional passages where Kobler employed a paraphrase that sufficiently tracks or emulates the manner of expression of material concededly under Craft’s copyright as to justify a conclusion