Hollander v. Donovan

Filing 2

DISTRICT COURT MEMORANDUM AND ORDER, dated 03/11/2010, RECEIVED.[21186] [10-1140]

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ROY DEN HOLLANDER,
Plaintiff,

MEMORANDUM AND ORDER
No. 08-CV -4045 (FB) (LB)

-againstDEBORAH SWINDELLS-DONOVAN,

PAUL W. STEINBERG, and JANE DOE.

Defendants.

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Appearance:
For the Plaintiff
ROY DEN HOLLANDER, ESQ., pro se
545 East 14th St. Apt. IOD
New York, N'{ 10009

For Defendant Deborah Swindells­
Donovan:
JOSHUA S. HURWIT, ESQ.
GORDON & REES LLP
90 Broad Street, 23rd Floor
New York, NY 10004
For Defendant Paul W. Steinberg:
PAUL W. STEINBERG, ESQ., pro se
14 East Fourth Street
New York, NY 10012-1141

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Bl,OCK, Senior District Judge:
Roy Den Hollander ("Hollander"), an attorney appearing pro se, sued Deborah
~indel1s:'Donovan ("Donovan") and Paul W. Steinberg ("Steinberg"), also attorneys, for copyright

infringement under the Copyright Act of 1976 (the "Copyright Act"), 17 U.S.C. §§ 101-803, in
connection with the defendants' submission ofsix ofHollander's essays ("the Essays") as exhibits
in New York state and federal court proceedings. Donovan moved to dismiss for lack of subjectmatter jurisdiction and failure to state a claim, and requested an award of costs and attorney's fees;

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the Court converted the motion to one for summary judgment and afforded the parties an opportunity
to submit papers in support. Hollander then cross-moved for summary judgment. For the following
reasons, the Court grants Donovan's motion, denies Hollander's, and sua sponte grants summary
judgment to Steinberg. In addition, the Court denies Donovan's request for fees and costs.
I

As confinned before the Court at oral argument on February 18, 2010, the relevant
facts are not in dispute:
Hollander authored the six Essays, which convey his aggressively anti-"Feminazi"
world view, and registered each with the United States Copyright Office (the "Office"): He made
the Essays publicly available on his website at some point in 2006 or 2007, at which time Steinberg
made a copy.2 On October 19, 2007, Steinberg sent copies of the Essays to Donovan.

A. Donovan's Use of the Essays
Hollander's claims against Donovan arise from Hollander v. Copacabana Nightclub,
et al. ("Copacabana"),3 in which Hollander alleged that the "Ladies' Night" promotions hosted by

several New York City nightclubs discriminated against men in violation of the Fourteenth
Amendment. Donovan represented defendant Lotus Nightclub.
After a contentious status conference, Hollander moved to disqualify District Judge

IHollander possesses certificates of registration for "A Different Time," "An Invisible
Weapon," "Do Men Cause Wars," and "Some Differences: Men and Girls," "Fear Corrupts," and
"Two Sides;" although the Office has not issued certificates for the remaining two, "Fear
Corrupts" and "Two Sides," both are listed as registered in the Office's records.
2Hollander subsequently removed the Essays from the Internet.
3Case No. 07-CV-5873(MGC) (S.D.N.Y. filed June 21,2007)
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Miriam Cedarbaum, asserting that her conduct had "create[ d] the appearance that [she], whether true
or not, is biased and prejudiced against men and creates a perception that she is not impartial in these
proceedings." Krebs DecL, Ex. 5 (Hollander Aff. in Support). Donovan attached the Essays to her
opposition to Hollander's motion, asserting that they supported her argument that Hollander was
"challenging Judge Cedarbaum's impartiality simply because she is female, not biased." !d., Ex.
6 (Donovan DecL in Opp.). Judge Cedarbaum denied Hollander's recusal motion and ultimately
dismissed the Copacabana case because the defendants' offering of reduced-priced admission to
females did not constitute state action. See Copacabana, 580 F. Supp. 2d 335 (S.D.N.Y. 2008).
B. Steinberg's Use ofthe Essays

Though the Court did not have the benefit of moving papers or affidavits from
Steinberg, the parties' undisputed representations at oral argument and the record before the Court
provide a sufficient account of the facts relevant to Steinberg'S use of the Essays.
Hollander and Steinberg's sordid history centers primarily around Steinberg's
representation of Hollander's upstairs neighbor William Fasano, the object of a number of
Hollander'S lawsuits. Hollander's claims against Steinberg in this particular case, however,
originated out of two particular New York state court actions. In Hollander v. Fasano, et al.
("Fasano r),4 Hollander brought a defamation action against several parties for statements made

in pleadings in a different action;5 Steinberg was a named defendant and also represented Fasano.
When Hollander moved to amend the complaint, seeking to add certain female acquaintances of
Fasano as defendants, Steinberg submitted the Essays as an exhibit to his affirmation in opposition.

4N.Y. Co. Civ. Ct. Index No. 02128312006

5N.Y. Sup. Ct. Index No. 11671112003

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Steinberg asserted that the content of the Essays -- in light of Hollander's alleged "issues with
gender identity," "obsession with Fasano's body," and assault of Steinberg -- "addressed matters
relating to [Hollander's] motivation in bringing suit and also concern for the physical protection of
parties whom [Hollander] was seeking to join in the action." Hollander Decl., Ex. I (Steinberg
Affirmation in Opp.).
In Hollander v. Fasano ("Fasano IF'),6 Steinberg represented Fasano in a nuisance
action brought by Hollander. After Hollander's complaint went unanswered, he moved for a default
judgment; Steinberg opposed that motion, appending a verified answer and counterclaims which
requested, inter alia, "protective orders ... to safeguard Mr. Fasano and others from potential
physical harm by Mr. Den Hollander." Hollander Dec!., Ex. J (Verified Answer and Counterclaim).
In support of this request, Steinberg attached the Essays, asserting that their content, when
considered with Hollander's alleged misdeeds, evidenced the danger that Hollander posed to his
neighbors. fd.
II

Both Donovan and Steinberg admit that they knowingly submitted Hollander's
Essays as exhibits in a judicial proceeding. Accordingly, the issue before the Court is whether their
submissions constitute "fair use" under § 107 of the Copyright Act as a matter of law.
A. Summary Judgment
"Summary judgment should be granted if'there is no genuine issue as to any material
fact and ... the moving party is entitled to a judgment as a matter of law.'" Blanch v. Koons, 467
F.3d244, 250 (2d Cir. 2006) (quoting Fed. R. Civ. P. 56(c)). "Although fair use is a mixed question

6N.Y. Sup. Ct. Index No. 102057/2007
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of law and fact," the Court can "resolve[] fair use detenninations at the summary judgment stage
where there are no genuine issues of material fact." Blanch v. Koons, 467 F.3d 244,250 (2d Cir.
2006) (citations, internal quotation marks and alterations omitted). There is a genuine dispute as to
material fact when "the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc., 477 u.s. 242, 248 (1986). In the face of such
a dispute on a summary judgment motion, the "facts must be viewed in the light most favorable to
the nonmoving party." Ricci v. DeStefano, 129 S. ct. 2658, 2676 (2009) (quoting Scott v. Harris,
550 U.S. 372, 380 (2007)).

B. Subject Matter Jurisdiction

Donovan argues that Hollander's failure to present certificates of registration for
"Fear Corrupts" and "Two Sides" deprives the Court ofsubject-matter jurisdiction over infringement
claims based on those essays. However, the record demonstrates that all six Essays were registered
with the Office; as such, the Court has jurisdiction over all ofHollander' s infringement claims. See
In re Literary Works in Elec. Databases Copyright Litig., 509 F .3d 116, 122 (2d Cir. 2007) (citing
17 U.S.C. § 411(a)).
C. Fair Use Under 17 U.S.c. § 107.

Under the Copyright Act, the fair use of copyrighted works does not constitute "an
infringement of copyright," permitting the reproduction of copyrighted works "for purposes such
as criticism, comment, news reporting, teaching [and] research." 17 U.S.C. § 107. Detennining
whether a particular reproduction is a fair use requires the consideration of a number of statutory

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factors:
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality ofthe portion used in relation to the
copyrighted work as a whole; and
(4) the effect ofthe use upon the potential market for or value of the
copyrighted work.

Id. These factors are not to be treated in isolation; "all are to be explored, and the results weighed
together, in light ofthe purposes ofcopyright." Campbell v. ActifJ-Rose Music, Inc., 510 U.S. 569,
577-78 (1994). Ultimately, the statute "calls for case-by-case analysis," and its lists of acceptable
purposes and relevant factors are "illustrative and not limitative." !d. Thus, "[a]lthough defendants
bear the burden of proving that their use was fair, they need not establish that each ofthe factors set
forth in § 107 weighs in their favor." NXIVM Corp. v. Ross Inst., 364 F.3d 471,476 (2d Cir. 2004).
Although neither the Supreme Court nor the Second Circuit has addressed fair use
in the context ofevidentiary submissions injudicial proceedings, other courts have. Consistent with
the case-by-case nature ofthe doctrine, those courts have not announced a per se rule. Instead, they
have considered each application of the unique fair use question presented, guided by the four
statutory factors where relevant. See, e.g., Bond v. Blum, 317 F.3d 385,395 (4th Cir. 2003)
(affirming finding offair use where alleged infringer introduced plaintiff's copyrighted manuscript
as evidence in child custody proceeding); Jartech, Inc. v. Clancy, 666 F .2d 403,407 (9th Cir. 1982)
(affmningjury's finding offair use where alleged infringer introduced copyrighted films as evidence
in a nuisance abatement proceeding); Shell v. DeVries, No. 07-1086, 2007 WL 4269047 (10th Cir.
2007) (affirming fmding of fair use where alleged infringer copied "ten pages from [plaintiff's]
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website to use as evidence in unrelated litigation"); but see Images Audio Visual Prod., Inc. v. Perini
Bldg. Co., Inc., 91 F. Supp. 2d 1075, 1082 (E.D. Mich. 2000) (holding that the introduction of

copyrighted photographs as evidence in an arbitration proceeding constituted copyright infringement
where photos were copyrighted "specifically for the purpose oflitigation"and defendant used them
for their intended, intrinsic use as demonstrative evidence). The Court adopts the same approach.

D. Claims Against Donovan
Donovan's stated justification for her submission of the Essays to Judge Cederbaum
appears somewhat disingenuous. The relevancy of the Essays to Hollander's recusal motion is
dubious, and she undoubtedly intended simply to prejudice Judge Cederbaum against Hollander.
Nonetheless, the decisive factor bearing upon the issue of "fair use" in the present case is that
Donovan introduced the Essays into the judicial proceeding only as evidence of the workings of
Hollander's mind; she did not attempt to produce a comparable or derivative work, nor did she use
the Essays for their expressive content. Even though the Essays are indisputably creative and
published, and Donovan admits that she reproduced five of the six in their entirety, her submission
"[was] indifferentto [Hollander's] mode ofexpression." See Bond, 317 F.3d at 395 ("The copyright
law was never designed to protect content as distinguished from mode of expression.").
Accordingly, Donovan did not exploit Hollander's copyrighted ideas or expressions,
nor did she put the Essays to "the same intrinsic use" for which Hollander obtained the copyrights
and for which he could "expect[] protection from unauthorized use." Jartech, 666 F .2d at 407. By
contrast, in Perini -- the only case of which the Court is aware that found an infringement where
copyrighted materials were submitted in a judicial proceeding -- the defendant infringed the
plaintiff s copyrights because he used the copyrighted photos "for precisely the same purpose -- or,

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at a minimum, for one of the same purposes -- as the photos themselves were intended to serve,"
namely for evidence in a judicial proceeding. Perini, 91 F. Supp. 2d at 1081.
Moreover, given the nature of the Essays and that they were submitted as evidence
of the workings of Hollander's mind, "it is impossible to imagine" how their use in the judicial
proceeding could affect the market for the Essays, which Hollander describes as "men's rights
groups," Hollander Dec!. ~ 27, or "could in any way impact [their] marketability." See Bond, 317
F .3d at 396-97 ("[I]fanything, [the defendants' use of plaintiff s manuscript as evidence] increases
the value ofthe work in a perverse way, but it certainly doesn't decrease it." (alteration in original»;

cf Perini, 91 F. Supp. 2d at 1086 (Where the submission ofcopyrighted photos as evidence "wholly
superseded one of the principal objects of[the copyrighted works]," it "thereby displaced a key
market for those works.").
Ultimately, Donovan's submission of the Essays "ha[ d] nothing whatsoever to do
with any interest that the copyright law was designed to protect." Bond, 317 F.3d at 397.

E. Claims Against Steinberg
Although Steinberg embraced Donovan's arguments in his pre-motion letter and at
oral argument, he did not formally join her motion, nor did he submit his own. Nevertheless, a
district court has the power to sua sponte grant summary judgment "so long as the losing party was
on notice that [he or] she had to come forward with all of her evidence." Celotex Corp. v. Catrett,
477 U.S. 317, 326 (1986). Thus, "[w]here it appears clearly upon the record that all of the
evidentiary materials that a party might submit in response to a motion for summary judgment are
before the court, a sua sponte grant of summary judgment against that party may be appropriate if
those materials show that no material dispute of fact exists and that the other party is entitled to

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judgment as a matter oflaw." Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir. 1996).

Between Hollander's own motion for summary judgment, his opposition to
Donovan's motion, and the representations ofthe parties at oral argument, the facts underlying the
claims against Steinberg have been fully developed and are not in dispute. As with Donovan,
Steinberg's purpose in introducing the Essays undoubtedly had less to do with their relevancy,
which was questionable, at best, and more to do with poisoning the minds of the judges in Fasano

1 and Fasano 11. Be that as it may, Steinberg also submitted the Essays to evince the workings of
Hollander's mind, and his use cannot realistically be viewed as negatively impacting Hollander's
market for the Essays. Accordingly, the same rationale which supports granting summary judgment
for Donovan compels the Court to grant summary judgment for Steinberg.

In
Donovan requests attorney's fees and costs for her defense ofthis action. The Court
has the "equitable discretion" to make, or refrain from making, such an award to the prevailing party
in a copyright action. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994) (citing 17 U.S.C. §
505). In Fogerty, the Supreme Court:
approved in dicta several nonexclusive factors courts could consider
when awarding fees, namely, "frivolousness, motivation, objective
unreasonableness (both in the factual and in the legal components of
the case) and the need in particular circumstances to advance
considerations of compensation and deterrence." Such factors may
be used "so long as ... [they] are faithful to the purposes of the
Copyright Act."

Crescent Publ'g Group, Inc. v. Playboy Enter., Inc., 246 F.3d 142, 147 (2d Cir. 2001) (quoting
Fogerty, 510 U.S. at 534).
While Hollander filed suit based on facts which clearly could not support copyright

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infringement, Donovan's use of the Essays in the litigation, as noted, was of dubious propriety.
Accordingly, after considering the Fogerty factors, the Court, in its equitable discretion, will not
award costs and fees to Donovan. 7
CONCLUSION

Donovan's motion for summary judgment is granted, and Hollander's cross-motion
is denied. Summary judgment in favor of Steinberg is granted sua sponte. The complaint is
dismissed in its entirety.
Donovan's request for attorney's fees and costs is denied.
SO ORDERED.

FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
March 11,2010

7 In the same vein, the Court would not have granted Steinberg fees and costs ifhe had
retained counsel in this matter and requested them.

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