Full opinion text
OPINION AND ORDER LEYAL, District Judge. This is an action to enjoin the publication of a critical biography on grounds that the biographer has infringed the copyrights of the subject. The subject of the biography is the deceased L. Ron Hubbard, founder of the Church of Scientology. Plaintiff, New Era Publications International, ApS, a Danish corporation, is related to the Church of Scientology and was founded to hold and exploit Hubbard’s copyrights. The author of the biography is Russell Miller. His book is entitled Bare-Faced, Messiah: The True Story of L. Ron Hubbard, published by Henry Holt & Co., Incorporated, which is the sole defendant in the suit. The author was not named. The book includes numerous quotations from Hubbard’s writings. The defense relies on the doctrine of fair use, which permits limited use of copyrighted material for purposes of “criticism, commentary, news reporting, teaching, scholarship or research.” 17 U.S.C. § 107. The defendant contends also that even if fair use is not found for all takings of Hubbard’s words, the remedy should be limited to damages, rather than an injunction suppressing the distribution of a critical historical study. The action raises issues of significant importance for the writing of history, journalism and criticism, and for the public’s opportunity to be informed in matters of public interest. Facts The history of the action is set forth in part in the opinion on the application for a temporary restraining order. New Era Publications International, ApS v. Henry Holt & Co., Inc., 684 F.Supp. 808 (S.D.N.Y. 1988). Bare-Faced Messiah has been published in England, Australia, and Canada in substantially similar form to the United States edition. The Church of Scientology sued to enjoin publication in those countries without success. The first publication was in England in October 1987 after the British courts denied an application for a preliminary injunction. That suit alleged that the book employed confidential church documents, embezzled by a Church employee who had been appointed official biographer of Hubbard and became disaffected. The British courts concluded that the litigation was instituted to “stifle criticism” and not “to protect any legitimate interest of the church in preserving confidentiality.” Church of Scientology v. Russell Miller, High Ct. of Justice, Ch. Div., Oct. 9, 1987, at 16. The court also found laches, based on the tardy institution of the suit, when the book was already in print. See Church of Scientology v. Miller & Anor, Ch. 1986 C. No. 6140, Sup.Ct. of Judie., Oct. 22, 1987, at 10. On November 19, 1987, New Era commenced action in the Federal Court of Canada alleging that the book infringed the Hubbard copyrights. That court also denied the application for a preliminary injunction on the grounds of laches. New Era Publications, International ApS v. Key-Porter Books Limited, No. T-2433-87, Fed.Ct.Can.Trial Div. (Dec. 2, 1987). On December 14, an action to enjoin publication of the book in Australia was withdrawn. By January 1988, Bare-Faced Messiah was publicly distributed in England, Canada and Australia. This action was commenced on May 4, 1988 by application for a temporary restraining order. Two years earlier, the Church had sent Holt letters threatening an action for defamation. During February and March 1988, the Church made overtures to dissuade Holt from publishing the book. When the application for a TRO was heard on May 5, 1988, it came out that a first printing of 12,000 copies had already been substantially distributed and that the second printing was scheduled for the following morning. By reason of laches and consequent financial injury to the defendant, I declined to enjoin the second printing. See Order of May 13, 1988. On May 20, 1988, however, after plaintiff agreed to indemnify the defendant in the event of production losses, I granted a TRO restraining distribution of the second printing pending complete submission of proofs. The parties then agreed to bypass the preliminary injunction stage and proceed directly to the submission of an expedited trial seeking a permanent injunction. There is no dispute that the biography quotes extensively from Hubbard’s writings. Plaintiff has submitted a two-column table setting forth (on the left) each passage of Bare-Faced Messiah which it contends is an infringement of its copyrights, together with the passage from the copyrighted texts which it contends is infringed. The table consumes 65 pages; the first 22 pages involve quotes from published books; the remaining 43 are quotes and paraphrases of unpublished matter consisting primarily of Hubbard letters and diary entries. Although plaintiff does not concede justification for the quotations from the previously published works, it no doubt recognizes that defendant’s claims of fair use as to those materials are extremely powerful. The dispute focuses rather on Miller’s use of extracts from letters and journals that have not been previously published. Plaintiff contends that the holder of a copyright in unpublished matter enjoys virtually complete protection against claims of fair use. This is to protect the value of the copyright by preserving the copyright holder’s control over the first publication of the work. Plaintiff cites recent opinions of the Supreme Court and the Court of Appeals in this Circuit. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, — U.S.-, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987). Holt acknowledges that the doctrine of fair use has far less application to unpublished material than to previously published work. It argues, however, that plaintiff overstates the rule — that there is a difference between very limited application and none at all. Where the fair use justification is sufficiently powerful to pass an exacting scrutiny, defendant contends that it will permit appropriate quotation from unpublished matter to make an instructive point. Holt contends there is powerful justification for Miller’s quotations from Hubbard’s letters and journals. It argues that these are not appropriations of Hubbard’s efforts and talents in literary expression, but demonstrations through Hubbard’s words of his flaws of character. The thesis of Bare-Faced Messiah is that Hubbard was dishonest, pretentious, boastful, paranoid, cowardly, cruel, disloyal, aggressive, bizarre and finally even insane in his pseudoscientific fantasies and his obsessions. Defendant argues that a portrait of these qualities is almost impossible to convey without reliance on the subject’s own words, and that the use made of Hubbard’s words must be considered fair use even under the restrictive standards of Nation and Salinger. Finally Holt argues that, even if it fails to establish fair use as to each of the quotations from Hubbard writings, injunction is not the appropriate remedy. It argues that plaintiff is invoking copyright protection, not in good faith for its intended purpose of protecting the value of publication rights, but rather to suppress a derogatory study of the founder of the Church of Scientology. Defendant contends that First Amendment values are at stake and that, if any remedy is called for, it should be an award of money rather than a prior restraint quashing a critical study of a prominent public figure. Discussion 1. Fair Use The doctrine of fair use must be understood in the context of the purposes of copyright protection. Article 1, Section 8, clause 8 of the Constitution authorizes the Congress, “To promote the progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The copyright thus is designed to encourage artistic endeavor by securing for the artist or author the commercial benefits of exploitation of his creations. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984); Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954); Berlin v. E. C. Publications Inc., 329 F.2d 541, 543 (2d Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964). Recognizing that damages can be difficult to prove, the law generally presumes harm and makes injunctions easily available. See Hasbro Bradley Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir.1985). The Copyright Act also provides heavy damage remedies. 17 U.S.C. § 504. Although the law zealously protects the commercial interests of the artist from unscrupulous opportunistic interlopers, it recognizes that not all copying of artistic invention is necessarily undesirable piracy. Certain forms of copying of artistic creation are indispensable to education, journalism, history, criticism, humor and other informative endeavors; the statute therefore allows latitude in appropriate circumstances for copying of protected artistic expression and exempts such copying from a finding of infringement. The doctrine of fair use identifies this category of permissible copying. See Diamond v. Am-Law Publishing Corp., 745 F.2d 142 (2d Cir. 1984); Consumers Union of United States v. General Signal Corp., 724 F.2d 1044, 1048 (2d Cir.1983), cert. denied, 469 U.S. 823, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984). It offers a means of balancing the interests of a copyright holder against the public’s interest in dissemination of information. See Meeropol v. Nizer, 560 F.2d 1061, 1068 (2d Cir.1977) (citing Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2d Cir.1977)), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978). The law has never precisely defined fair use, but it has identified factors that are helpful in determining when it is present. These are set forth in Section 107 of the Copyright Act of 1976. 17 U.S.C. § 107. The statute opens with the proposition that, notwithstanding the exclusive rights of the copyright owner, “fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching, ... scholarship or research, is not an infringement.” 17 U.S.C. § 107. The statute then sets forth a short nonexclusive list of factors to be considered “in determining whether the use made ... is a fair use____” The factors are: “(1) the purpose and character of the use [including consideration of commercial or nonprofit purpose]; (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 price or value of the copyrighted work.” 17 U.S.C. § 107; see Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 2225, 85 L.Ed.2d 588 (1985). The statute provides no real instruction as to how the conclusion is to be drawn upon consideration of these factors. It recognizes that the substance of the issue is the conflict between the justification for copying in serving the objective of public education (in the broadest sense) and the copyright owner’s entitlement to reap the profits of labor and talent invested in creative works. A. The Nature of the Copyrighted Work Plaintiff contends that the second statutory factor — “the nature of the copyrighted work” — is virtually determinative of this controversy. The statute states this factor as an open-ended generality, inviting the court to consider any aspect of the nature of the copyrighted work that has rational bearing on whether its secondary use should be considered fair. In Nation and Salinger, the courts found particular importance in the fact that the plaintiff’s copyrighted work was previously unpublished. A substantial portion of Hubbard’s writings quoted in Bare-Faced Messiah have not been published. In plaintiff’s list, every citation bearing a number of 70 to 201 is from an unpublished document. The Applicability of Fair Use to Unpublished Work The principal reason for the difference between published and unpublished work is that for works that have not yet been published, the copyright owner’s interests may be affected by choices as to the manner and context of the first public revelation of the work, including the choice whether it should be published at all. The authorities do not make absolutely clear how to assess a claim of fair use with respect to unpublished copyrighted work. The issue was discussed at length by the Supreme Court in Nation, 105 S.Ct. at 2226-29. There, The Nation had obtained the “purloined” manuscript of President Gerald R. Ford’s memoirs and published significant excerpts, which the Court found to be the “heart” of the book, id. at 2233 (quoting District Judge Owen’s opinion, 557 F.Supp. 1067, 1072 (S.D.N.Y.1983)), shortly before Time Magazine was scheduled to publish the first serialization. Upon the pirated publication, Time cancelled its option and withheld the unpaid portion of its license fee. The copyright assignee — the hardback publisher — brought suit for damages against The Nation. The Nation defended on the grounds that President Ford’s memoirs, and in particular the portion in which he discussed his grant of a pardon to former President Richard Nixon, was of such public interest that a news report containing excerpts of his discussion must be considered fair use under § 107. The Supreme Court first rejected this contention, commenting that if this correctly stated the law, important public figures would effectively be stripped of copyright protection and would lose incentive to create valuable memoirs. Id. 105 S.Ct. at 2224. The Court began its discussion of the absence of prior publication by noting that at common law, because fair use was understood as predicated on the author’s implied consent expressed through publication of his work, there had been no right of fair use where there was no prior publication. Nation, 105 S.Ct. at 2226 (citing American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299, 28 S.Ct. 72, 77, 52 L.Ed. 208 (1907)). It noted that under the 1976 Copyright Act, this understanding of fair use had changed and that fair use now applied to unpublished as well as published works. The Court recognized the continuing interest of the copyright owner in exercising control over the first publication and observed that “the scope of fair use is narrower with respect to unpublished works.” Id. 105 S.Ct. at 2232. “Under ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.” Id. at 2228. It concluded, “that the unpublished nature of a work is ‘[a] key, though not necessarily determinative, factor’ tending to negate a defense of fair use.” Id. at 2227 (quoting S.Rep. No. 94-473, p. 64 (1975)). Finally, “fair use analysis must always be tailored to the individual case. The nature of the interest at stake is highly relevant to whether a given use is fair.” Id. at 2227 (citations omitted). Given the dishonest acquisition of the manuscript, the revelation of the “heart” of the work, the inequitable gun jumping by which The Nation preempted the licensed publication, and the disastrous effect on the market, the Supreme Court had no trouble concluding that The Nation’s unauthorized publication was not a fair use. In Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, — U.S. -, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987), Ian Hamilton, a biographer of J.D. Salinger, had paraphrased substantial portions of many of Salinger’s unpublished letters in a manner which the Court of Appeals found close enough to the original to constitute infringement. The Court reviewed the Supreme Court’s discussion of the problem in Nation. It found ambiguity in the Supreme Court’s observation that “ ‘the scope of fair use is narrower with respect to unpublished works,’ ” id. at 97 (quoting Nation, 105 S.Ct. at 2232), which could mean either that fewer circumstances will justify a finding of fair use of the unpublished material or that a lesser amount of unpublished material may be copied under the mantle of fair use. The Court concluded that the first was the Supreme Court’s intended meaning — that “[njarrower ‘scope’ seems to refer to the diminished likelihood that copying will be fair use when the copyrighted material is unpublished.” Id. at 97. Otherwise stated, a more potent justification of fair use is required where the copyrighted work has not been published. The Court of Appeals interpreted the Supreme Court’s discussion as “conveying] the idea that [unpublished] works normally enjoy complete protection against copying any protected expression.” Id. Unmistakably these authorities establish that the unpublished nature of the copyrighted work is a substantial factor arguing against a finding of fair use. From the last quoted proposition in Salinger using the words “complete protection” plaintiff argues that unpublished copyrighted expression is virtually never amenable to fair use. That is certainly not a fair inference of the Supreme Court’s discussion. To say that “the scope of fair use is narrower with respect to unpublished work” necessarily implies that some such scope exists. To say that the absence of prior publication “is ‘[a] key, though not necessarily determinative, factor’ tending to negate the defense of fair use,” Nation, 105 S.Ct. at 2227 (quoting S.Rep. No. 94-473, p. 64 (1975)), necessarily means that other factors are capable of supporting the defense. Both the Supreme Court and the Court of Appeals concluded that the Copyright Act expressly made the doctrine of fair use applicable to unpublished work, in departure from the common law rule, see Nation, 105 S.Ct. at 2227; Salinger, 811 F.2d at 95; it is most unlikely that those courts meant to assert that the statute extended the doctrine in name alone, and that in no circumstances would a copying from unpublished expression qualify for the statutory right. Such a view, furthermore, would be incompatible with the educational informative objectives of fair use. The protection of an author’s commercial interest in controlling the circumstances of first publication is certainly a substantial interest; it is entitled to the vigorous protection of the copyright law. But to make this right inevitably prevail over all competing considerations would lead to absurd results that are almost incompatible with First Amendment interests. By registering a copyright, public figures who are the expected focus of public interest could use this supposed commercial protection as an aggressive weapon to prevent the publication of embarrassing revelations and to obstruct criticism. It is not a satisfactory answer that the world remains free to use the facts and ideas contained in their writings. Often it is the words used by the public figure (or the particular manner of expression) that are the facts calling for comment. Consider a variety of hypothetical examples: (i)an art critic argues that recently deceased artist X was taught to render the human figure in perspective during his year of study with teacher Y. To illustrate the point in her book about Y, she reproduces X's unpublished sketch predating his association with Y. She compares the awkwardness of the figure drawing with the refinement of a similar sketch he made a year later; Voracious heirs of X sue to enjoin distribution of the book (absent payment of a prohibitive ransom) and contend, citing Salinger, that the fair use doctrine cannot apply to the unpublished sketch. (ii) author X’s best selling first book has received critical acclaim for its elegance of diction. A critic asserts that the diction came not from X but from a talented editor employed by the publisher. Her review quotes excerpts from the author’s manuscript revealing a grammatical chaos and stylistic awkwardness which she contends are incompatible with the elegance of the final product. She declares X to be a literary fraud. X sues to enjoin publication of the review, contending that the critic is appropriating the first publication right of the extracts from his unpublished manuscript; (iii) politician X campaigns on his decorations for wartime bravery and his strong law and order position. A journalist seeks to publish some of X’s old letters which, if read carefully between the lines, seem to acknowledge that he did not participate in combat, was mistakenly decorated and spent his military career as a black marketeer in association with hoodlums; (iv) a religious leader is renowned for his selfless kindness, liberality of spirit and sympathy for the sufferings of others. A biographer seeks to publish extracts from his early letters and journals which display greed, callous indifference, and employ the language of racial and religious bigotry; (v) the popular benign mayor of a city sent numerous memos to opponents in various conflicts threatening to “cut your heart out,” “castrate you,” “bust your kneecaps,” etc. A journalist questions the accuracy of the mayor’s public image and quotes from these memos. In each case, the biographer, critic, commentator or journalist — the asserted fair user — has used the copyright owner’s expression. Her point cannot be effectively made by merely reciting the facts. In each case, the plaintiff copyright owner protests the defendant’s claim of fair use and claims the rights to control first publication of his copyrighted expression. In my view, each illustration should be considered a fair use. I doubt that the Supreme Court or Second Circuit would disagree. While I can imagine weak arguments that might be offered on the other side of examples (i) and (ii) (because they relate to artistic style), I can conceive of no reasonable contention against a finding of fair use for numbers (iii)-(v). To enjoin their publication would merely be allowing a doctrine designed to protect an artist’s commercial rights to be perverted into the service of suppression of important critical or historical inquiry. A portion of the Salinger decision may be misunderstood to imply that the biographer or critic, being limited to reporting the facts, may never quote unpublished protected expression contained in the unpublished copyrighted work. The defendant biographer, when asked why he had copied a stylistic device of Salinger’s, responded that he wanted to convey that Salinger had adopted an ironic tone. When then asked why he would not have simply stated that Salinger used an ironic tone, he replied “That would make a pedestrian sentence ... ,” to which the Court commented, “But when dealing with copyrighted expression, a biographer ... may frequently have to content himself with reporting only the fact of what his subject did, even if he thereby pens a ‘pedestrian’ sentence. The copier is not at liberty to avoid ‘pedestrian’ reportage by appropriating his subject’s literary devices.” Salinger, 811 F.2d at 96-97. It does not follow that the critic may never take copyrighted expression from unpublished documents. Salinger’s biographer had no need to prove that in a particular letter Salinger employed an ironic tone. The original writing was quoted to make the biography more vivid — to avoid a “pedestrian” sentence. The hypothetical examples above differ. In these examples, the fact on which the biographer/critic comments is the protected expression. The critic in examples (i) and (ii) cannot prove her point about the artist’s style, development and talent (or lack) without a quotation as illustration. The journalist/biographer in examples (iii), (iv) or (v) cannot prove to her readers the corruption, bigotry or viciousness of her subject without quoting his words. The words are the “facts” that support the conclusion. Simply to assert the conclusion without the underlying evidence would deprive readers of the opportunity to assess the fairness of the critic’s conclusions. The objective of fair use demands that examples like these come within its scope, notwithstanding quotation from unpublished copyrighted sources. I conclude, as the Supreme Court stated, that the unpublished nature of the copyrighted work tends “to negate a defense of fair use” but is “not necessarily determinative.” Nation, 105 S.Ct. at 2227-28. This is not the end of the inquiry. I do not think the Salinger opinion is to the contrary. The “complete” protection of which it speaks obtains “normally,” 811 F.2d at 97, not inevitably. The opinion clarifies that the “narrower” scope of fair use for unpublished material refers to the diminished likelihood that fair use will be found in a copying of unpublished material, not impossibility. This means that a biographer/critic who purports to make fair use of unpublished copyrighted matter must make a particularly compelling demonstration of justification, upon full consideration of the relevant fair use factors. She must show that her use of the protected expression is not done simply to enliven her text by appropriating her subject’s lively expression. The use of the protected expression must be reasonably necessary to the communication and demonstration of significant points being made about the subject and must have no significant adverse effect on the market for the copyrighted work. Privacy Interest Plaintiff further argues that the private nature of some of the Hubbard documents, particularly diaries and personal letters, should favor a finding of infringement. It is universally recognized, however, that the protection of privacy is not the function of our copyright law. The copyright does not protect facts revealed in the work. Factual information derived from a copyrighted work may be freely republished without infringement. See Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 978 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980). It is true that in England in the 19th century there developed a different doctrine known as the “common law copyright” whose purposes included the protection of privacy. See Brandéis & Warren, The Right of Privacy, 4 Harv.L.Rev. 193, 198-99 (1890); M. Ernst & A. Schwartz, Privacy (1962). That doctrine was developed by the British courts, in part, in response to a perceived need for legal protection of privacy in letters and other private papers. The “common law copyright” shared little other than name with the true law of copyright. While true copyright protection was established by publication, common law copyright was established by nonpublication; true copyright protected only expression and not the facts revealed, while common law copyright protected the confidentiality of private facts as well as expression, see Prince Albert v. Strange, 2 De G & Sm. 652, 64 Eng. Rep. 293 (1849); and, because its purpose was to protect privacy, fair use was not applicable to the common law copyright. It is questionable whether the constitutional grant of power to Congress “To promote the Progress of Science and useful Arts____” U.S. Const., Art. 1, § 8, cl. 8, would sustain an exercise of Congressional power to override the state law function of determining privacy rights. There is little or no relationship between the objective of the enabling clause and such a statute that would justify the national government in usurping a state prerogative. But even if Congress has that power, whether under the Copyright Clause, the Commerce Clause, the First Amendment or the Fourteenth, it is clear that Congress has not exercised it in the 1976 enactment. Our copyright law protects only the artistic expression and not the factual content, regardless whether considered private or secret. Fair use is expressly made applicable by our statute to unpublished works, (notwithstanding the “narrower scope” explained in Nation and Salinger). In addition, our statute requires the copyright owner to make public disclosure of his work as a precondition to protecting his copyright interest. Suit may not be brought to enforce a copyright unless the document sought to be protected has first been publicly • filed in the Library of Congress. 17 U.S.C. § 407. When this has been done, it is available to the public as a source for the publication of facts contained in it, free of any restraint contained in the copyright law. Unlike the British courts, furthermore, we have no need to create a protection of privacy under the label of copyright. For in this country under state laws, an explicitly named right of privacy has developed through court decision and statute. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 488-89, 95 S.Ct. 1029, 1042-43, 43 L.Ed.2d 328 (1975); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on The Law of Torts § 117, at 856-62 (5th ed. 1984). An individual who seeks to protect the privacy of the content of private letters may do so by bringing suit under the right of privacy. That right has developed with remedies and limitations tailored to the policies applicable to privacy. Commentators and courts have agreed that these rights are not preempted by the exclusive jurisdiction asserted by the Copyright Act. See Factors Etc., Inc. v. Pro Arts, Inc., 496 F.Supp. 1090, 1097 (S.D.N. Y.1980) (citing H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. at 132 (1976), U.S.Code Cong. & Admin.News 1976 pp. 5659, 5747), rev’d on other grounds, 652 F.2d 278 (2d Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d 442 (1982); Allied Artists Pictures Corp. v. Rhodes, 496 F.Supp. 408 (S.D.Ohio 1980), aff'd, 679 F.2d 656 (6th Cir.1982); 1 M. Nimmer, Nimmer on Copyright § 1.01[B] at 1-14.3 (1987); Dana, Copyright and Privacy Protection of Unpublished Works — The Author’s Dilemma, 13 ColumJ.L. & Soc.Probs. 351, 391 (1977); Goldstein, Preempted State Doctrines, Involuntary Transfers and Compulsory Licenses: Testing the Limits of Copyright, 24 U.C.L.A.L.Rev. 1107, 1117-18 (1977). In his recent Horace Manges lecture delivered at the Columbia Law School (soon to be published in the Columbia Law Review), Judge Jon Newman of the Second Circuit argued in favor of absorbing privacy interests into our copyright law. I agree with Judge Newman that our preoccupation with a free press may at times obscure legitimate concerns for privacy. I would agree also that in making a fair use analysis balancing the nature of the protected work with the fair use purpose sought to be served, privacy interests may be an appropriate consideration. If the protected document is highly personal, private and intimate, if the author has a strong personal interest in deferring publication, if the public interest in the contents is minimal and voyeuristic at best (as for example with confidential sorrowful letters of a private individual who is a subject of public concern only because of having been victimized by some terrible crime or misfortune), those might well be factors disfavoring a finding of fair use. These considerations do not favor this plaintiff, notwithstanding that some of the letters are of a personal nature and that other documents are diaries. In the first place, the author is now dead. The death of the subject is generally understood to terminate a privacy interest. See Cordell v. Detective Publications, Inc., 419 F.2d 989, 990 (6th Cir.1969); Maritote v. Desilu Productions, Inc., 345 F.2d 418 (7th Cir.), cert. denied, 382 U.S. 883, 86 S.Ct. 176, 15 L.Ed.2d 124 (1965); Gruschus v. Curtis Publishing Co., 342 F.2d 775, 776-77 (10th Cir.1965); Restatement (Second) of Torts § 652 I (1977). The diaries, furthermore, are not repositories of highly private personal sentiments; they are more in the nature of a travelogue. They were written some sixty years ago which also diminishes the interest in privacy. Most important, this is not a case where the public interest in access to the contents of the documents is slight or unworthy of respect. Hubbard is a figure of great public importance for the great wealth he accumulated and the influence he wielded through his writings and religion. During his life he actively sought publicity. Any privacy interest in the contents of these documents is overwhelmingly outweighed by legitimate public concern. If this suit were brought as an action to enforce the right of privacy, it would fail on many grounds. B. Purpose and Character of the Use The first statutory factor is addressed to the “purpose and character” of the secondary use. This refers back to the general proposition in § 107 that fair use of copyrighted material will be permitted for educational purposes “such as criticism, comment, news reporting, teaching, ...” Overall Purpose and Character of the Work The reference to “purpose and character of the use” invites examination of both the particular quoted passages and the overall character of the secondary-user work. Is it published to serve purposes of the type cited by the statute as legitimate goals of fair use? There can be little doubt that this aspect of the fair use analysis generally favors an overall finding in favor of the biography. Hubbard is unquestionably a figure of legitimate public concern. As the founder of a religion drawing vast numbers of adherents, as the author of instructive books which have sold millions of copies, and as a figure who at times in his life sought a high degree of publicity and at other times sought seclusion and secrecy, he is a subject of great public interest. If it is arguable (which I do not judge) that his career and the Scientology religion have been advanced through deception, this is certainly a subject appropriate for critical exploration. It is an uncomfortable role for courts to serve as literary critics, passing on whether a purported work of history, teaching or criticism is entitled to respect as such. We judges generally lack both competence and the necessary information to form such opinions. In this case, because BareFaced Messiah (in substantially similar form) has been previously published in England, Canada and Australia, reviews have appeared there to which the court may refer for guidance. These credit the book as a serious work of investigation and criticism. A reviewer for the London Sunday Times wrote: “Russell Miller has done a service to his readers by surmounting the legal obstacles placed in his way by the Scientologists who attempted to discredit him and to prevent the publication of his book. It is admirably written, well documented and it must have entailed a great deal of painstaking research. The evidence ... in his book has been gathered carefully from witnesses who were once bemused by the cult and who were fearful of giving him the information he required.” (Gready Aff.Exh. D.) A reviewer for Maclean’s Magazine wrote, “while scathingly critical of Hubbard and his church, Bare-Faced Messiah is, in fact, scrupulously fair.” (Id. Exh. E.) The Spectator, in its review, recommended the book for its “admirably detailed documentation.” (Id. Exh. C.) The work appears to make responsible use of its material. Although plaintiff disagrees with many of Miller’s conclusions and argues that different interpretations can be drawn from the sources, plaintiff does not contend that the biography has dealt dishonestly with its sources or is for any other reason to be denied credit as a serious work of criticism and comment on a highly newsworthy subject. I do not purport to pass in any way on the accuracy of Miller’s reports or on the justification for his conclusions. I do conclude, however, that right or wrong this book is properly considered a work of “criticism, comment, news reporting, teaching,” 17 U.S.C. § 107, which is eligible for fair use consideration. This factor favors the defendant. This statutory factor also invites examination “whether such use is of a commercial nature or is for nonprofit education purpose.” See Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985). This issue is often of limited value to the fair use analysis. Even the most valuable educational books are generally published by commercial establishments for profit. Thus, the Court of Appeals stated, “We do not read Section 107(1) as requiring ... a clear-cut choice between ... ‘commercial’ and ‘nonprofit’. Were that the case, fair use would be virtually obliterated, for ‘all publications presumably are for profit. ... ’ ” Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1262 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987); see also Consumers Union of the United States v. General Signal Corp., 724 F.2d 1044, 1049 (2d Cir. 1983) (“[cjommercial uses also serve the important function of educating the public” ). Scholars and critics do not lose their license to make fair use by earning their bread from their writing. Occasionally, at extremes, the factor can be significant. Appropriation of copyrighted material for use in a television commercial has been found to carry a low degree of claim to fair use protection. See Warner Bros. Inc. v. American Broadcasting Companies Inc., 720 F.2d 231, 242 (2d Cir.1983); D.C. Comics v. Crazy Eddie Inc., 205 U.S.P.Q. 1177 (S.D.N.Y.1979). In Salinger, 811 F.2d at 96, the court found that “Hamilton’s purpose in using the Salinger letters to enrich his scholarly biography weighs the first fair use factor in Hamilton’s favor, notwithstanding that he and his publishers anticipate profits.” I conclude that defendant’s profit-making objective does not deprive defendant of its fair use credit for a serious book of responsible historical criticism. The Fair TJse Purpose of Individual Quoted Passages As to each instance of use of a copyrighted passage, the statute invites examination as to why the secondary work has used protected material — what purpose is sought to be accomplished by such use— and then to consider whether the use is “fair.” Part of this inquiry will be whether there is convincing justification for use of the protected expression, or whether the purposes of the secondary work would have been equally well served by extracting unprotected content, such as facts and ideas contained in the passage, without using protected expression. Notwithstanding the general critical or historical purpose of the work, if a particular passage is cited only for the factual information contained in it, the copyright • owner’s particular expression may be of small importance to the biographer’s purpose. In such a case the fair use justification would be slight. See Salinger, 811 F.2d at 96-97. Justification also would be questioned if the use of the protected expression in the biography had no real purpose other than to display the distinctiveness of the subject’s writing because this would be taking precisely what the copyright is designed to protect. See Salinger, 811 F.2d at 96; Craft v. Kobler, 667 F.Supp. 120, 127 (S.D.N.Y.1987). On the other hand, in cases where the biographer’s point of significance about the subject’s character cannot be made effectively without quotation of the subject’s particular words, justification will be far greater. See Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1261 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987); Consumers Union of the United States v. General Signal Corp., 724 F.2d 1044, 1049-50 (2d Cir.1983), cert. denied, 469 U.S. 823, 105 S.Ct. 100, 83 L.Ed. 2d 45 (1984). I have begun by comparing each cited passage with the source material. For each passage that involves the taking of protected expression, I have made an analysis of fair use purpose. A table, giving the court’s observations on each challenged passage, is filed as an appendix to this opinion. Miller’s fair use purposes are discussed below. I stress that in passing on the disputed contention of fair use, I draw no conclusion as to the ultimate merits of the underlying disagreement between the adherents of Hubbard and the biographer as to the merits of criticisms contained in the biography. There is, of course, great antagonism and factual dispute between them. There is no evidence before the court as to where the truth lies. It is not part of my task to make such conclusions. See Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1261 (2d Cir.1986). I limit myself to analysis of the fair use purposes and the justification asserted. I conclude, for reasons explained below, that the very large majority of Miller’s takings of Hubbard material display a powerful and compelling fair use purpose. These are not, as the Court of Appeals found in Salinger and this court found in Craft, appropriations of the literary talent of the subject to enliven and improve the secondary work. They are, rather, instances akin to hypothetical examples (iii)-(v) above where the critic exhibits chosen words of the subject to prove a critical point or to demonstrate a flaw in the subject’s character. It is a principal objective of Miller’s biography to argue and prove that Hubbard’s dominating traits of character included dishonesty, boastfulness and pretension, paranoia, bigotry and snobbery, cruelty and disloyalty, aggressiveness, cynicism and derangement at times approaching insanity. The vast majority of Miller’s takings of Hubbard’s words are to demonstrate these observations. 1. The Church’s False Mythology of the Founder The Introduction to Miller’s book asserts: For more than thirty years, the Church of Scientology has vigorously promoted an image of its founder, L. Ron Hubbard, as a romantic adventurer and philosopher whose early life fortuitously prepared him, in the manner of Jesus Christ, for his declared mission to save the world. The glorification of ‘Ron’, superman and saviour, required a cavalier disregard for facts: thus it is that almost every biography of Hubbard published by the church is interwoven with lies, half-truths and ludicrous embellishments. The wondrous irony of this deception is that the true story of L. Ron Hubbard is much more bizarre, much more improbable, than any of the lies. (BFM 1.) Thereafter a central theme of the biography is to set forth the image of the mythological super hero promulgated by Hubbard’s own writings and by the publications of the Church of Scientology and to show that their claims concerning Hubbard and his ministry are false. The first 15 chapters begin with characterizations and brief excerpts from Church and autobiographical publications which establish the Hubbard mythologies. The chapters then undertake to demonstrate the falsity of such claims. The takings consist of a few sentences or phrases from book-length works. Some examples follow: Chapter 1 According to the colorful yarn spun for the benefit of his followers, L. Ron Hubbard was descended ... from a French ... Count ... who took part in the Norman invasion of England in 1066 ... English settlers who had arrived in America in the Nineteenth Century ... [and] a distinguished naval family____ [T]he story goes, little Ron grew up on his wealthy grandfather’s enormous cattle ranch in Montana, said to cover a quarter of the state [approximately 35,-000 square miles!]____ 'L. Ron Hubbard found the life of a young rancher very enjoyable. Long days were spent riding, breaking broncos, hunting coyote and take his first steps as an explorer. For it was in Montana that he had his first encounter with another culture — the Blackfoot [Pikuni] Indians. He became a blood brother of the Pikuni and was later to write about them in his first published novel, Buckskin Brigades.’ ... (No. 1, BFM 7.) The biographer asserts, “Virtually none of this is true.” (BFM 7.) Chapter 2 Fundamental to the image of L. Ron Hubbard as prophet are the tales of his teenage travels____ In the high hills of Tibet he lived with bandits who accepted him because of his ‘honest interest in them and their way of life’____ On an unnamed island in the South Pacific, the fearless boy calmed the natives by exploring a cave that was supposed to be haunted and showing them that the rumbling sound from within was nothing more sinister than an underground river. ‘Deep in the jungles’ of Polynesia he discovered an ancient burial ground ‘steeped in the tradition of heroic warriors and kings ... Though his native friends were fearful for him, he explored the sacred area — his initiative based on doing all he could to know more.’ (Nos. 4, 5, 6, BFM 26.) Chapter 3 Hubbard’s amazing adventures as an explorer are graphically described in Mission Into Time, a book published by the Church of Scientology. It seems that Hubbard spent more than four years, from 1925 to 1929, journeying throughout Asia, financed on his travels by his ‘wealthy grandfather’____ In 1931 ... he [became] director, at the age of twenty, of the Caribbean Motion Picture Expedition, which apparently provided invaluable research of the University of Michigan____ Yet this was nothing compared to what was to come in 1932, when L. Ron Hubbard demonstrated his true worth as ‘an exceptional explorer’ by carrying out, as leader of the West Indies Mineral Survey, the first complete mineralogical survey of Puerto Rico. ‘This was pioneer exploration in the great tradition, opening up a predictable, accurate body of data for the benefit of others____’ (No. 8, BFM 40.) The purpose of Miller’s quotations is to show first the mythological presentation of Hubbard by the Church and second to show their falsity. The biography undertakes to show that contrary to the Church mythology cited above, Hubbard led a relatively humdrum, banal and impecunious life in a small town. There was no wealthy grandfather and no gigantic ranch. Although it is true he traveled to the Orient to visit his father who was stationed with the Navy in Guam, the romantic claims of adventure are fabricated. For example, [N]o trace may be found of the many contributions to science which Ron claimed on behalf of the Caribbean Motion Picture Expedition. The Hydro-graphic Office has no record of receiving the expedition’s underwater films, the University of Michigan can find none of the specimens brought by the ‘gentleman rovers’____ Mystery similarly surrounds the West Indies Minerals Survey, that ‘pioneer exploration in the great tradition’ during which Ron is said to have completed the first mineralogical survey of Puerto Rico. This would certainly have been an impressive achievement for a twenty-one-year-old civil engineering student, but the US Geological Survey knows nothing about it, neither does the Puerto Rican Department of Natural Resources____ (BFM 56-57.) I conclude that these brief quotations present a strong fair purpose. The biographer’s purposes could not be wholly accomplished by merely citing the facts alleged to be false, without the manner of expression. The copying is justified first to convey the grandiose presentation of Hubbard. Some of the passages are quoted not to show falsity but to show the aggrandized, boastful, pretentious mythic idiom employed by the Church in its descriptions. (See, e.g., Nos. 30, 67.) Second, when the objective of a critic is to show falsity of the original, she should be allowed to quote so that she can state with precision the exact contours of the assertion she undertakes to disprove. Truthfulness and falsity often lie in characterization and emphasis, rather than in simple factual assertion. If the critic must characterize rather than quote the challenged assertion, the reader will have no ability to judge independently whether the subject in fact said what he is charged with, or whether his statements were false as claimed. Such quotation serves importantly the fair use purposes of research, history, criticism, comment and news reporting. 2. Hubbard Dishonesty Over thirty of the passages cited by plaintiff involve copyrighted material that is quoted to show personal dishonesty on Hubbard’s part, including what Miller characterizes as lies with respect to Hubbard’s experiences (Nos. 1, 2, 3, 17, 51, 52, 106-114,193 and 199), his qualifications (Nos. 7, 22, 49, 50, 53, 54, 194), and his monetary entitlements (Nos. 151-160). For example, in the chapter entitled “The Hero Who Never Was,” Miller describes Hubbard’s wartime Navy career as incompetence, misadventure, cowardice and vainglorious dreams of heroism without ever seeing combat, all of which were soon transformed into a fabricated, baseless history of heroism. Miller writes that three days after the Japanese surrender, Hubbard was admitted to a Naval hospital in Oakland, California “not as a result of heroic war wounds, but to be treated for ‘epigastric distress’ ... a suspected duodenal ulcer____ He, of course, saw it somewhat differently: ‘Blinded with injured optic nerves, and lame with injuries to hip and back, at the end of World War Two I faced an almost non-existent future ... I was abandoned by family and friends as a supposedly hopeless cripple and a probable burden upon them for the rest of my days ... I became used to being told it was all impossible, that there was no way, no hope. Yet I came to see and walk again ...’” (No. 17, BFM 110.) Miller goes on quoting Hubbard’s later reminiscences in a copyrighted lecture in which he describes that hospitalization as recuperation “from an accumulation of too much wartime Scotch and overdoses of lead.” (No. 52, BFM 231.) The biography also quotes (Nos. 151-160) passages from a series of letters to the Veterans Administration in which Hubbard made what Miller describes as false claims for a pension based on nonexistent wartime injuries. According to the biography, after the award of a disappointingly small military pension, Hubbard lodged an appeal, “producing a dramatic new disability which he had somehow neglected to mention in his original claim form. T have lost between sixty and eighty percent of my vision,’ he claimed____ ‘My income at the present time, due entirely to service connected injuries, is zero....’” (No. 151, BFM 125.) Thereafter on July 4 he had spent part of the holiday composing “yet another stirring appeal ... and introducing a further hitherto unmentioned disability, this time a ‘chronic and incapacitating bone infection’.” (No. 153, BFM 128.) The contention of the biography is that in wartime service Hubbard saw no combat, acquired neither “overdoses of lead,” nor other incapacitating injuries, that his claims were false, self-dramatizing and fraudulent. Another series of passages, quoted by Miller from Hubbard’s unpublished Asia Diaries 1927-1929 (Nos. 106-114), are used to show Hubbard’s proclivity to exaggeration, self-aggrandizement and falsity. These passages taken from two separate accounts in his diaries describe Hubbard’s sudden departure from Helena, Montana, and his voyage aboard a naval vessel to visit his father in Guam. Miller states, “Although they were represented by a few pages in his journal, many of the details do not match; indeed some passages read suspiciously like the adventure stories he was constantly scribbling.” (BFM 37.) These episodes, full of drama, near disaster, and last-second intervention of good fortune are argued by Miller to be false. Hubbard describes, for example, how thanks to a series of last-minute breaks in his favor, he was able to board the U.S.S. Henderson only an hour before she was due to sail. The ship’s log in contrast shows that he boarded nearly 24 hours before her departure. As to permission of the Navy to board, which Hubbard’s diary claimed he did not know he needed until approximately two days before the ship’s departure, military records obtained by Miller show that Hubbard had submitted a formal application for a passage on the Henderson more than a month before his departure. (Nos. 106-113, BFM 38.) At the conclusion of the diary account, Hubbard wrote, and Miller quotes (No. 114, BFM 39), “I will tell you the secret of this strange life I led. Sssh! I was born on Friday the Thirteenth.” This also, Miller observes, was not true. Hubbard was born on a Monday. As noted in the preceding section discussing the Church-sponsored mythology, when the purpose of a reference is to show that the copyrighted matter was dishonest, the fair use doctrine must accord substantial latitude to quote copyrighted expression, so that the claim of falsity can be leveled with precision at the exact utterance. It is incompatible with the ends of fair research and criticism to accuse of dishonesty without being permitted to specify what were the dishonest words. Such a purpose argues strongly in favor of a finding of fair use. 3. Boastfulness, Pomposity, Grandiosity, Pretension, Self-Importance In many cited passages, Hubbard’s copyrighted material is used by the biographer to illustrate his boastful and pompous mannerisms, or his grandiosity, pretension or self-importance. Of his book entitled Dianetics, Hubbard wrote, and Miller quotes, that it is “a milestone for Man comparable to his discovery of fire and superior to his inventions of the wheel and the arch____ The hidden source of all psychosomatic ills and human aberration has been discovered and skills have been developed for their invariable cure.” (Nos. 18-19, BFM 155.) Another Hubbard book, The History of Man, he introduced as “a cold-blooded and factual account of the last sixty trillion years.” With the insights gained from this book and Scientology, “the blind again see, the lame walk, the ill recover, the insane become sane and the sane become saner.” (Nos. 38-39, BFM 204.) His discoveries make it “possible at last to vindicate the theory of evolution proposed by Darwin.” (No. 36, BFM 204.) Of his manuscript Excalibur, Hubbard wrote in a letter which Miller quotes, “I have high hopes ... of smashing my name into history so violently that it will take a legendary form.” (No. 145, BFM 81.) Upon his short-lived move to Rhodesia at the time of its independence in 1966, he unsolicitedly drafted and sent to the Government a “Tentative Constitution of the Nation of Rhodesia.” “Before God and man we pledge ourselves, the Government of Rhodesia and each of our officers and men of authority____” (Nos. 197-98, BFM 258). As examples of the early development of Hubbard’s pretentiousness, Miller quotes a melodramatic entry from his youthful diaries written at age 18, “Another boat caught. Is ever thus?” (No. 117, BFM 41.) Miller notes that “At the age of eighteen ... writing as if he was a well travelled man of the world, a carefree, two-fist-ed, knockabout adventurer” {BFM 44), Hubbard wrote of the untrustworthy, lying, cruel, changeable satirical Lady Luck____ This humorist of humorists, this demon of demons has dragged men from their places in the sun into the slime of oblivion; has made beggars kings; has, with a whisper, made and crushed thousands; has laughed at the beings who supposed they ruled our destinies; and has killed enough men to patch hell’s highway its blistering length. (No. 140, BFM 44.) Other passages which I find to fall into this category of strong fair use purpose involve Hubbard’s boasts of his talents and qualifications. In one, quoted above, he claimed to have learned an Asian primitive language, “Igoroti,” “in a single night.” (No. 7.) I remember one time learning Igoroti, an Eastern primitive language, in a single night. I sat up by kerosene lantern and took a list of words that had been made by an old missionary in the hills of Luzon [Philippines]. The Igorot had a very simple language. This missionary phoneticized their language and made a list of their main and their usage and grammar. And I remember sitting up under a mosquito net with mosquitoes hungrily chomping their beaks just outside the net, and learning this language — three hundred words — just memorizing these words and what they meant. And the next day I started to get them in line and align them with people, and was speaking Igoroti in a very short time. (No. 7, BFM 26.) In passages Nos. 49-50, he purports to possess qualification to assess the medical dangers of radiation, “more of a mental than a physical problem.” {BFM 227.) He wrote to the FBI: I am trying to turn out some monographs on matters in my field of nuclear physics and psychology for the government on the subject of alleviating some of the distress of radiation burns, a project I came east to complete. (No. 192, BFM 222.) In instructions to his press officer, he stressed the importance of emphasizing that he worked in the field of “nuclear physics on life sources and life energy” so as to avoid the pejorative label of “psychiatrist or spiritualist.” (No. 194, BFM 238.) Qualities such as boastfulness, pomposity, pretension and self-importance cannot be effectively conveyed by a biographer/critic without quotation. It is the subject’s conception of himself that the biographer seeks to convey through the subject’s own words. Indeed, this argument is supported by the plaintiff’s contention that this quoted material and others cited elsewhere appears unflattering to Hubbard only because of Miller’s “bias and slant,” Long Aff. If 28, and that “there are two sides to every coin.” Id. If 29. All the more reason to let the readers make their own judgment based on the original material rather than to force them to accept or reject blindly the biographer’s characterization. These are compelling examples of a strong fair use purpose. 4. Paranoia At least five of the biography’s well-justified uses of copyrighted passages are to show Hubbard’s paranoia (Nos. 29, 58-59, 65, 191). A passage from a Church publication asserted that the U.S. Government, resentful of Hubbard’s resignation from the Navy, and wishing “to monopolize all his researches ... tried to blackmail him [and] soon began vicious, covert international attacks upon his work____” (No. 29, BFM 163). A Church bulletin described two armed secret service agents, after an innocent reference to President Nixon in a Scientology magazine, “[h]ulking over desks, shouting violently, ... stated that they daily had to make such calls on ‘lots of people’ to prevent Nixon’s name from being used in ways Nixon disliked____” (No. 58, BFM 240.) In a letter to the FBI Hubbard complained of persecution of Scientologists, “some of whom were being mysteriously driven insane, possibly by the use of LSD, ‘the insanity producing drug so favoured by the APA [American Psychological Association]’.” (No. 191, BFM 222.) In another letter to the FBI he wrote that: [H]is ‘alleged wife’ had caused him to make out a will leaving her shares in the copyrights and Foundations. Later when he was asleep ... he was ‘slugged’____ his health had been poor thereafter. Arriving in Los Angeles, his wife left their baby unattended in a car and he was arrested for it — T could never understand why.’ ... ‘On December 5, while asleep in my apartment ... in Los Angeles, I was again attacked and knocked out. When I woke I debated considerably about going to the police but was again afraid of publicity for again I did not know who might have done this.’ ... T was in my apartment on February 23rd, about two .or three o’clock in the morning when the apartment was entered, I was knocked out, had a needle thrust into my heart to give it a jet of air to produce “coronary thrombosis” and was given an electric shock with a 110 volt current. This is all very blurred to me. I had no witnesses. But only one person had another key to that apartment and that was Sara.’ (Nos. 164-68; BFM 190.) 5. Snobbery, Bigotry, Disdain for Asians A number of passages from Hubbard’s unpublished Asia Diaries 1927-1929 are quoted for the purpose of showing his bigotry, his outspoken disdain for Asians, and dislike for the Orient. A few examples follow. “ ‘When it comes to the Yellow Races overruning the world, you may laugh,’ he noted____ ‘[The Chinese] have neither the foresight or endurance to overrun any white country in any