violation of the First Amendment. The Court rejects this argument.
Penguin's book is undoubtedly noncommercial speech entitled to full First Amendment protection. However, enforcement of the copyright code is a long-sanctioned means of securing the important governmental interests underlying the copyright code. Copyright law accommodates the concerns of the First Amendment through its exclusion of protection for ideas, and through the fair use doctrine. See Sid & Marty Krofft, 562 F.2d at 1170 ("The idea-expression dichotomy already serves to accommodate the competing interests of copyright and the first amendment. The 'marketplace of ideas' is not limited by copyright because copyright is limited to protection of expression."); New Era Pubs. Int'l v. Henry Holt & Co., 873 F.2d 576, 584 (2d Cir. 1989) (rejecting district court's First Amendment rationale for denying preliminary injunction because "the fair use doctrine encompasses all claims of first amendment in the copyright field," and "an author's expression of an idea, as distinguished from the idea itself, is not considered subject to the public's 'right to know"), cert. denied, 483 U.S. 1094 (1990); cf. Harper & Row 471 U.S. at 560 ("In light of the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use . . ."); Zacchini, 433 U.S. at 577 n.13 ("We note that Federal District Courts have rejected First Amendment challenges to the federal copyright law on the ground that 'no restraint [has been] placed on the use of an idea or concept."); New York Times Co. v. United States, 403 U.S. 713, 726, 29 L. Ed. 2d 822, 91 S. Ct. 2140 n.* (1971) (Brennan, J., concurring) (copyright cases inapposite to prior restraint discussion because copyright cases deal with restraint of form of expression, not the ideas expressed). The Supreme Court has shown no receptivity to First Amendment arguments in the copyright context; to the contrary, it has noted that "the Framers intended copyright itself to be the engine of free expression" by supplying "the economic incentive to create and disseminate ideas." Harper & Row, 471 U.S. at 558. Although it is possible that some rare newsworthy photograph or work might require copyright to temporarily step aside in the interest of the First Amendment, this is not that case.
Nor does the argument gain any additional weight when addressed to the Lanham Act. See Dallas Cowboys Cheerleaders, 604 F.2d at 206 ("The prohibition of the Lanham Act is content neutral . . . and therefore does not arouse the fears that trigger the application of constitutional 'prior restraint' principles."); cf. SFAA, 483 U.S. at 536 (trademark protection limits only manner of conveying message, not message itself); Lloyd Corp., 407 U.S. at 566-67.
VII. AMOUNT OF THE BOND
Rule 65(c) requires the applicant to post a security "in such sum as the court deems proper." Fed. R. Civ. P. 65(c). Generally this means an amount sufficient to cover the defendant's incidental and consequential costs arising from the injunction, although the court may specify a lesser amount when the plaintiff is unable to provide sufficient security. 11A Wright, § 2954 at 292-300.
Penguin submits evidence that it has already incurred approximately $ 35,000 in sunk costs toward production. 6,000 of the initial printing of 12,000 units have already been sold evidencing a possible loss of $ 24,000 at $ 4.00 in profits per unit. The Court therefore sets the amount of the bond at $ 70,000.
VIII. CONCLUSION AND ORDER
Dr. Seuss has made a strong showing as to its copyright claims, and has raised serious questions providing a fair basis for litigation as to its trademark claims. The balance of the hardships tips markedly in its favor. A likely copyright infringement appears on the back cover of Penguin's work, and instances of possible trademark infringements of the stove pipe hat appear on the front and back covers and throughout the work.
Defendants are therefore enjoined, pending trial of this action, from directly or indirectly printing, publishing, delivering, distributing, selling, transferring, advertising, or marketing the book The Cat Not in the Hat! A Parody by Dr. Juice.
This order shall bind the parties, their officers, agents, servants, employees, and attorneys, and all those who would act in concert with them after receiving actual notice of this order. Fed. R. Civ. P. 65(d).
IT IS SO ORDERED.
DATED: April 26, 1996
NAPOLEON A. JONES, JR.
United States District Judge
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