author: TODD, District Judge.

text:
    Randy PARKER, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 83-1300.
    United States District Court, W.D. Tennessee, E.D.
    Dec. 31, 1985.
    Jane Jarvis, West Tennessee Legal Services, Jackson, Tenn., for plaintiff.
    W. Hickman Ewing, Jr., U.S. Atty. and Alice A. Howze, Asst. U.S. Atty., Memphis, Tenn., for defendant.
   ORDER REMANDING CAUSE TO SECRETARY

TODD, District Judge.

Plaintiff, Randy Parker, filed this action to obtain judicial review of defendant Secretary’s final decision denying his applications for disability insurance benefits and supplemental security income benefits under Sections 223 and 1611 of the Social Security Act (hereinafter “Act”), as amended (42 U.S.C. §§ 423, 1382). Plaintiff’s applications were denied initially and upon reconsideration by the Social Security Administration. The determination that plaintiff did not meet the disability requirements under the Act was affirmed by an administrative law judge (AU) on de novo review. The Appeals Council’s approval on October 21, 1983, of the AU’s determination that plaintiff was not entitled to benefits became the Secretary’s final decision.

Plaintiff then filed this action, requesting that this Court reverse the Secretary’s decision on the grounds that no substantial evidence exists in the record to support the decision of the defendant. Plaintiff also contends that the Secretary erred in refusing to reopen or revise prior applications by plaintiff for benefits and in failing to evaluate his applications under SSR 83-15, 83-16, and 83-17. Defendant asserts that her decision is supported by substantial evidence and that her refusal to reopen or revise the prior decisions may not be reviewed by this Court.

Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review in this court is limited to determining whether or not there is substantial evidence to support the Secretary’s decision. Allen v. Califano, 613 F.2d 139 (6th Cir.1980). When the findings of the Secretary are supported by substantial evidence, they are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

HISTORY OF THE CASE

At the time of the administrative hearing, plaintiff was a twenty-seven year old male with past work experience as a barber and as an unskilled laborer for a farm, a restaurant and a grocery store. Plaintiff finished the twelfth grade, but attended special education classes for grades nine through twelve. Although plaintiff alleged that he had been disabled since birth, it appears from the record that plaintiff has worked in the past and has been unable to work since October 1981.

The administrative hearing in this case was held on January 28, 1983, at Jackson, Tennessee. Plaintiff was represented by counsel at the hearing and both he and his father testified. He alleged that he was under a disability due to cerebral palsy, a hearing impairment, a nervous condition, and spasticity of his motor functions due to his cerebral palsy.

The ALJ concluded that plaintiff had met the special disability earnings requirements of the Act since December 1978, but that he was not disabled within the meaning of the Act and regulations promulgated thereunder. This latter conclusion was based upon the finding that although plaintiff has severe back and leg problems, he retained the residual functional capacity to do sedentary work except for work involving excessive walking, bending, stooping, reaching, and heavy lifting. These findings were based upon consideration of the record and observation of the plaintiff at the hearing.

ANALYSIS

The Social Security Act defines disability as the inability to engage in substantial gainful activity for claims under both the disability insurance and Supplemental Security Income provisions of the Act. 42 U.S.C. §§ 423, 1382(c). Similarly, the standard for judicial review of the Secretary’s decisions under the Act is the same for both types of claims. 42 U.S.C. §§ 405(g), 1383(c)(3). Accordingly, the two claims in this case will be considered together and social security disability insurance cases will be cited for both as appropriate.

Under §§ 405 and 1383, the initial burden in an administrative hearing is on the claimant to show that he is disabled from engaging in his former employment. Once this is done, the burden shifts to the Secretary to demonstrate the existence of available employment compatible with the claimant’s disability and background. Gray v. Finch, 427 F.2d 336 (6th Cir.1970). The burden of proving disability rests on the claimant. Ragan v. Finch, 435 F.2d 239 (6th Cir.1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1685, 29 L.Ed.2d 153 (1971).

A. Administrative Res Judicata

As noted above, plaintiff alleged not only that the Secretary’s decision on his present application should be reversed, but also that her decision not to reopen or revise prior decisions denying plaintiff benefits was erroneous. Before considering the present application, the issue raised by defendant’s refusal to reopen or revise the prior applications will be addressed.

After attempting to work following graduation from high school and a vocational training class, plaintiff applied for disability benefits. That application was approved, and plaintiff received benefits from June 6, 1978, through December 17, 1979. His benefits were stopped at that time by his request, because he wanted to “make it on his own.” After attempting to work for approximately six months, plaintiff then reapplied for disability benefits on June 11, 1980, alleging that his disability had never ceased. That application was denied and an administrative hearing was scheduled on plaintiffs request. Because he failed to give an adequate mailing address, the defendant’s attempts to notify him of the hearing date were returned and the hearing request dismissed. Plaintiff appealed that dismissal to the Appeals Council, however, the Council determined that the dismissal was proper. Plaintiff did not pursue judicial review of that decision.

As part of his present applications and administrative proceedings, plaintiff requested that the AU reopen or revise his 1979 termination and/or the decision on his 1980 application. That request was denied by the AU on the basis of 20 C.F.R. § 416.1488 as not being within the time period authorized by that section for reopening a decision.’ Plaintiff now alleges on appeal that subpart (c) of § 416.1488 permits reopening at any time if the decision sought to be reopened “was obtained by fraud or similar fault.” According to plaintiff, his mental disabilities and the fact that he was not represented by counsel during the period in which he should have appealed the decision constitute such “similar fault” as to justify reopening the decision.

Of interest is that amid the myriad of definitions contained in the regulations, “similar fault,” as used in § 416.1488(c), is not defined. Of further interest is the fact that the parallel regulation for disability insurance benefits, 20 C.F.R. § 404.988(c), lists not only “fraud or similar fault” as a basis for reopening a decision at any time, but ten other situations that also justify reopening a decision regardless of the time that has elapsed since that decision. A review of the situations presented in § 404.988(c), although not necesarily binding on applicants proceeding under the Supplemental Security Income portion of the Act, serves to shed some light on the Secretary’s intended meaning of “similar fault” in § 416.1488(c). The situations presented by § 404.988(c)(2) — (11) all appear to involve either a mistake or the discovery that some event either occurred or did not occur. None of those parts of § 404.988(c) involve mistakes by the applicant such as the failure to assert a claim or timely appeal an adverse decision. This Court finds the absence of such situations indicative of the Secretary’s intent that such situations are not included in the term “similar fault.” In light of the remainder of § 404.988(c), the reference to “similar fault” in subpart (1) of that regulation appears to refer to fault such as fraud being perpetrated on the Secretary by a party. In that sense, failure to timely appeal a decision, for whatever reason, does not appear to be within the meaning of § 404.-988(c)(1).

Because § 416.1488(c) is, for the most part, a parallel section to § 404.988(c), this Court finds that the term “similar fault” has the same meaning in each section. Accordingly, the AU’s finding that § 416.1488 did not authorize reopening of the prior decision must be upheld. Because the Secretary has declined to reopen prior final determinations to which timely appeal was not taken, this Court has no jurisdiction to review those decisions. 42 U.S.C. § 1383(c)(3); Califano v. Sanders, 430 U.S. 99, 107-08, 97 S.Ct. 980, 985-86, 51 L.Ed.2d 192 (1977); Bagby v. Harris, 650 F.2d 836, 838 (6th Cir.), cert. denied, 454 U.S. 1087,102 S.Ct. 647, 70 L.Ed.2d 623 (1981).

B. The Present Applications

With regard to his present applications, plaintiff asserts that substantial evidence to support the Secretary’s decision does not exist. It is noted at the outset that because of plaintiff’s young age, the medical-vocational guidelines of Appendix 2 to Subpart P of the regulations dictate a finding of not disabled even if plaintiff retains only the residual functional capacity to perform sedentary work. The use of these guidelines in lieu of testimony by a vocational expert was upheld by the Supreme Court in Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Accordingly, plaintiff can only be found to be entitled to disability benefits under the Act if he meets or exceeds a listing of impairments in Appendix 1 to Subpart P of the regulations.

Section 11.07 of Appendix 1 contains the listing for claims involving cerebral palsy. In order to meet that listing, the claimant must have cerebral palsy and

A. I.Q. of 69 or less; or
B. Abnormal behavior patterns, such as destructiveness or emotional instability; or
C. Significant interference in communication due to speech, hearing, or visual defect; or
D. Disorganization of motor functions as described in 11.04B.

In his hearing decision, the AU specifically addressed part D of § 11.07 and found that plaintiff did not have the required disorganization of motor function. This finding was based upon a review of the medical evidence submitted by Drs. Robert J. Barnett and Aldo R. Bevilacqua. A review of that evidence reveals that substantial evidence does exist to support the AU’s finding that plaintiff did not meet part D of § 11.07 and that finding must be upheld.

The AU did not specifically address parts A, B, or C of § 11.07. It is clear from the record that plaintiffs I.Q. is not 69 or less and he thus does not meet part A. See Psychological Evaluation at Administrative Transcript (AT) 134. Plaintiff also alleged in this appeal that he meets part C of § 11.07. That part requires a “significant interference in communication due to speech, hearing, or visual defect.” With regard to that part, evidence that plaintiff has difficulty speaking is contained in the record, as is his allegation .of a hearing defect. Dr. Bevilacqua, a board-certified neurologist and psychologist hired by the state to perform a disability determination examination, noted a subjective decrease in plaintiffs hearing, but stated that it had no clinical significance. AT 123. Dr. Bevilacqua also noted that plaintiffs speech was “mildly spastic,” but stated that he was “fairly well understood.” AT 122. In addition to Dr. Bevilacqua’s observations, a psychological evaluation reported that although the plaintiff alleged that he had a hearing impairment and owned a hearing aid, he did not use it during the evaluation and did not exhibit any hearing difficulties. AT 134. That document also noted some spasticity in plaintiffs speech, but the evaluators, like Dr. Bevilacqua, found plaintiffs speech understandable. Id. This evidence would tend to refute plaintiff’s allegations of a significant hearing or speech impairment, although no specific finding was made by the AU. Accordingly, this Court finds that plaintiff did not meet the requirements of part C to § 11.07.

It is not as clear, however, that plaintiff does not meet part B of § 11.07. Plaintiff testified that at least part of his problems with past work experiences was his inability to cope with the pressures of work. AT 41, 43-46. The psychological evaluation stated that plaintiff had schizoid and depressive tendencies that would be likely to be manifested by social withdrawal. AT 135. This evidence is in contrast to the findings of Dr. Bevilacqua who found no evidence of depression or psychosis, although he did note that plaintiff appeared tense during his examination. AT 122. The conflict between plaintiff’s testimony, the psychological evaluation, and Dr. Bevilacqua’s examination was not reconciled by the AU in his decision other than the mere conclusory statement that “It is further the decision of this Administrative Law Judge that the claimant’s non-exertional impairments do not significantly interfere with the claimant’s ability to engage in sedentary work activities.” AT 23. Because it is unclear to this Court that plaintiff does not meet the requirements of § 11.07B of the listing of impairments, this cause must be remanded to the Secretary for further consideration.

SUMMARY

In light of the foregoing discussion, plaintiffs allegation of error in the Secretary’s refusal to reopen or revise her prior decisions is found to be without merit. Furthermore, this Court finds that substantial evidence does exist in the record to support the AU’s determination that plaintiff was physically capable of sedentary work and that he did not meet or exceed § 11.07D of the listings of impairments. A de novo review of the medical evidence contained in the record reveals that plaintiff does not meet or exceed parts A or C of § 11.07, however, it is not clear that plaintiff does not meet part B of that listing. Accordingly, this cause is remanded to the Secretary for further consideration of plaintiff’s claim, with instructions to evaluate plaintiff’s claim that he meets § 11.07B of the listing of impairments, including the taking of additional evidence, if necessary.

IT IS SO ORDERED.


source: Caselaw Access Project

author: DAVID S. NELSON, District Judge.

license: Public Domain

text:
    Robert E. STEWART, Petitioner, v. Ronald W. AMARAL, Superintendent, Respondent.
    Civ. A. No. 79-1407-N.
    United States District Court, D. Massachusetts.
    Dec. 31, 1985.

      Ira D. Feinberg, Boston, Mass., for petitioner.
    William D. Luzier, Jr., Asst. Atty. Gen., Boston, Mass., for respondent.
   MEMORANDUM AND ORDER

DAVID S. NELSON, District Judge.

Robert E. Stewart petitioned this court for federal habeas corpus relief, pursuant to 28 U.S.C. § 2254. On November 12, 1985, the Court entered an order denying relief and now offers this memorandum in support of that denial.

Petitioner was found guilty of second-degree murder and armed assault by a jury on November 18, 1974 in the Superior Court of Middlesex County and was sentenced to two consecutive life sentences. The Massachusetts Supreme Judicial Court vacated the sentence on the armed assault charge and affirmed the conviction and sentence for second-degree murder. Commonwealth v. Stewart, 375 Mass. 380, 393, 377 N.E.2d 693 (1978).

Petitioner presented the following grounds in support of his habeas challenge. He alleges that the state deprived him of his right to a fair trial by knowingly allowing its key witness, Lawrence Goldman, to commit perjury and by concealing highly exculpatory evidence. After conducting an evidentiary hearing on May 3, 1984, May 29, 1984 and September 6, 1984, and receiving subsequently filed briefs on the merits of this petition, the Court, finding no violation of the petitioner’s right to a fair trial on the grounds asserted, denied the petition.

FACTS

Robert Stewart was jointly tried with James Doherty for murder in the first degree of Leon Sherter and armed assault with intent to rob the Sherters in their Newton home. The prosecution’s key witness was one Lawrence Goldman who testified that he, the petitioner, and two accomplices, Doherty and Ralph Anzalone, robbed the Sherter house on June 18, 1972. Goldman testified that, after breaking into the house through a window, Stewart and Doherty, both armed, proceeded upstairs to where the Sherters were sleeping while Goldman and Anzalone remained downstairs. Goldman said he heard noises and a gunshot. Stewart and Doherty then ran down the stairs and all four men fled out the back door. According to Goldman, Doherty later explained that he had been beating a person with his .38 caliber revolver when the gun discharged, taking his finger with it. Commonwealth v. Stewart, 375 Mass. 380, 382-83, 377 N.E.2d 693 (1978).

Other testimony corroborated Goldman's description of the events of that evening. Goldman had testified that, prior to breaking into the Sherter home, the group drove around the neighborhood, delaying the break-in because lights were on in the house. During this drive, Doherty, who was driving, failed to stop for a red light and was pulled over by a Metropolitan District Commission police cruiser. Doherty left the car, walked over to the cruiser, and was issued a warning slip. The identification of Doherty at the trial by the police officers who had stopped him that night helped support Goldman’s description of the group’s activities prior to the crime.

Goldman’s testimony about the method of entry into the Sherter home was corroborated by evidence found at the location. According to Goldman, Stewart gave Anzalone, Doherty and Goldman each a pair of gloves and a nylon stocking. Stewart then ordered Goldman to cut the telephone wires and to pick the lock on the front door. The attempt to pick the lock was unsuccessful and therefore, using one of two “wonder bars” brought by Doherty, Goldman opened the porch door. The window leading to the kitchen, which was stuck due to a recent coat of paint, was also forced open with a bar, which was then placed on a piece of porch furniture. Evidence concerning the matching of the paint on the wonder bars with that on the porch door and the kitchen window and the finding of the wonder bars, the cut wires, and the stockings confirmed Goldman’s account of the details of the commission of the crime. Also, a forensic pathologist testified that Sherter had been killed by a gunshot wound and the bullet was identified as a .38 caliber one. This evidence corroborated Goldman’s testimony that he heard a shot and that a .38 caliber gun was present. Commonwealth v. Stewart, 375 Mass, at 382-83, 377 N.E.2d 693 (1978).

To rebut Goldman’s testimony about the petitioner’s participation in the crime, Stewart offered ten witnesses who testified that he could not have been involved in the Sherter murder because he was elsewhere that night. In addition, two witnesses testified that the petitioner met Goldman for the first time some two and a half months after the Sherter murder occurred. The jury nonetheless found Stewart guilty of second-degree murder and armed assault.

After Stewart’s convictions were affirmed by the Supreme Judicial Court, petitioner then challenged Goldman’s testimony in a motion for a new trial before the Superior Court of Middlesex County. The petition was denied and that order was later affirmed by the Massachusetts Supreme Judicial Court. Commonwealth v. Stewart, 383 Mass. 253, 418 N.E.2d 1219 (1981). At issue on appeal before the Supreme Judicial Court was the question of whether petitioner’s motion raised a substantial issue requiring an evidentiary hearing.

Petitioner claimed that the motion judge’s failure to grant him an evidentiary hearing on his motion was a denial of his due process rights and an abuse of the judge’s discretion. He requested the hearing to examine what was purported to be newly discovered evidence supporting petitioner’s claim that the prosecution had made promises to Goldman, directly contrary to that witness’ trial testimony and to the representations by the prosecution when asked to disclose any promises, rewards or inducements made to Goldman. The evidence consisted of the following: a hearsay affidavit from Paul Hurley, an alleged friend of Goldman, to the effect that Goldman had lied; circumstantial evidence concerning Goldman's alleged favorable treatment by the state subsequent to his testimony against Stewart; and other memoranda and statements submitted for in camera inspection. The Supreme Judicial Court ruled that the alleged newly discovered evidence consisted of hearsay and circumstantial factors insufficient to trigger the need for an evidentiary hearing.

Stewart also requested that the court release the results of a pretrial polygraph examination administered to Goldman by the prosecution and that a new examination be given to Goldman. The Supreme Judicial Court denied both motions. The court ruled that the results of the polygraph examination could not be considered newly discovered evidence in that petitioner had been informed of the existence of this information at a pretrial hearing and had made no attempt before or during his trial to discover it. In addition, the court ruled that petitioner had failed to follow the appropriate procedure for requesting the administration of a polygraph examination to Goldman by awaiting the outcome of his trial and then moving for a polygraph examination.

Petitioner supports the instant petition and his theory that a bargain was made by the prosecution with Goldman with factual allegations similar to those reviewed by the state court with one notable exception. .Stewart did not specifically argue before the trial court or on appeal before the Supreme Judicial Court that Goldman’s pretrial statements were materially at variance with his trial testimony.

OPINION

The Court finds that Stewart has failed to prove that an agreement or bargain existed between Goldman and the state. As detailed below, petitioner has merely drawn speculative inference from hearsay and circumstantial evidence that fails to support a finding of any such arrangement. As a second ground for denial, Stewart has failed to exhaust state court remedies with respect to the new allegation of Goldman’s contradictory statements.

The Bargain

Petitioner specifically relies upon the following facts to support his argument that a bargain was made by the state with Goldman: (1) Goldman was granted furloughs from the Barnstable House of Correction while serving his federal sentence; (2) Goldman did not have to post bail on pending indictments either when on furlough or upon his parole in February, 1975; (3) he was not prosecuted on the pending indictments against him or for his part in the Sherter murder; (4) five weeks after the trial, police lieutenant Flynn wrote a letter in support of Goldman’s parole application, then appeared before the parole commission on Goldman’s behalf; (5) offers by lieutenants Enos and Agnes to help Goldman by entering him in a Witness Protection Program and testifying at the time of sentencing; (6) and affidavits of Paul Hurley, an alleged friend of Goldman, of Ronald Goldman, the brother of the witness, and of David Plarwood, counsel for Stewart’s codefendant claiming that a bargain existed between Goldman and the state.

Petitioner may have his suspicions based upon this evidence, but they do not represent proof. For example, the state’s decisions not to indict Goldman for the Sherter murder and not to prosecute him for other murders do not prove the existence of a bargain. Nor do the furloughs Goldman received while serving his federal sentence, his transfer to the Barnstable House of Correction prior to trial, his parole three months after trial, or the details of his bail conditions demonstrate that the prosecution made any promises to Goldman. This purely circumstantial evidence is insufficient for this Court to disturb the lower court’s findings.

As for the letter written by Flynn and his later appearance in front of the parole commission, Flynn testified that his actions were entirely unrelated to the Sherter case. Similarly, additional police assistance by lieutenants Enos and Agnes does not imply a plea bargain: Goldman had furnished the police with information on other crimes. He sought protection in the Witness Protection Program out of fear of his life. And the affidavits of Paul Hurley, an alleged friend of Goldman, and of Ronald Goldman, the brother of the witness, are hearsay and not probative. Nor does the affidavit testimony of Donald Harwood, counsel for Stewart’s codefendant, shed any light on the question of perjury.

Admittedly, Goldman likely hoped for favorable treatment; as the trial judge instructed the jury “it would be naive for any of us to assume that Goldman did not hope to help himself in the giving of this testimony.” Commonwealth v. Stewart, 375 Mass. 380, 388, 377 N.E.2d 693 (1978). But it does not therefore follow that an agreement existed, especially in view of the fact that there was testimony that the general policy at that time of the Middlesex County district attorney’s office was not to offer promises, rewards or inducements in exchange for a witness’ testimony. The affidavits and testimony of the police officers and district attorneys involved in the Sherter case confirm that no such agreement was made with Goldman. Moreover, transcripts of Goldman’s statements to the police indicate that despite having been advised more than once that no leniency was being promised, Goldman maintained that he wanted to provide this information. Respondent’s in camera submissions of internal memoranda from the district attorney’s office and the state police additionally support the conclusion that Goldman was not given any promises.

Judicial Immunity

At the evidentiary hearing, petitioner asked the Court to grant the witness judicial immunity in the hope of eliciting a recantation. The Court, however, declined to do so. Petitioner correctly argues that federal courts have inherent judicial power to grant witness immunity in order to vindicate constitutional rights. See, e.g., Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The First Circuit Court of Appeals has stated that although a defendant has no absolute right to obtain immunity for prospective witnesses, such immunity could be appropriate if the right of the defendant to a fair trial would otherwise be denied. United States v. Drape, 668 F.2d 22, 27 (1st Cir.1982). But judicial immunity is an extraordinary remedy; stringent conditions apply which petitioner failed to satisfy in the present instance. Before a court can grant immunity to a defense witness, “the defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the .defendant's case.” Virgin Islands v. Smith, 615 F.2d 964, 972 (3rd Cir.1980). Specifically, immunity should be denied “if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or if it is found to relate only to the credibility of the government’s witnesses.” Id.

There is no indication that Goldman’s immunized testimony would have been of value at the evidentiary hearing. Indeed, the Court drew strong inference from his statements at the hearing that Goldman would have refused to testify. He persisted in exercising his fifth amendment right not to testify. He insisted that he would continue to do so regardless of the Court’s grant of immunity. Assuming petitioner’s allegations about a bargain were even true, Goldman had no incentive to testify against interest and admit to perjury. However, given the compelling evidence against the existence of a bargain, if the Court forced Goldman to testify under sanction of contempt, the immunized testimony would have been of little probative or exculpatory value.

Goldman’s possible bias and motives in giving evidence were made clear to the jury by petitioner’s trial counsel and the judge in the jury instructions. Stewart’s trial counsel in his cross-examination of Goldman established that Goldman had not been indicted for his part in the Sherter incident and had received several furloughs from the Barnstable House of Correction where he was serving a federal prison term. Records of Goldman’s prior criminal convictions were also introduced. The trial judge in his instructions to the jury made several specific references to Goldman. He reminded the jury with respect to the issue of the credibility of witnesses that the record of Goldman’s prior convictions had been introduced into evidence. The trial judge put the issue before the jury in clear terms: “Now [Goldman] is an accomplice here. His testimony is to be scrutinized carefully ...” Commonwealth v. Stewart, 375 Mass. 380, 388, 377 N.E.2d 693 (1978).

The appropriate stage at which to have sought a recantation from Goldman by grant of immunity was in the state court where the other evidence about his credibility as a witness was heard. It would be unseemly for a federal district court to upset a state court conviction without having given the state court an opportunity to review all the relevant evidence and then correct or adjust its error. See, e.g., Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

The Contradictory Statements

Petitioner also finds prejudicial the prosecution’s nondisclosure of Goldman’s statements to the police that petitioner asserts were materially at variance with the trial testimony. Stewart has identified several discrepancies between Goldman’s statements to investigating officers on November 8, 1973 as recorded in a sixty-seven page document and the witness’ later testimony at trial. Taking the fact of these inconsistencies as a given, the Court does not find that they comport with the standard for evaluating the materiality of suppressed evidence in creating “a reasonable doubt that did not otherwise exist.” See U.S. v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976). The discrepancies and ambiguities between Goldman’s prior statements and his trial testimony only rise to the level of “merely cumulative impeachment evidence” and do not affect any of the material aspects of his testimony. Agurs at 114, 96 S.Ct. at 2402. The Court would find it unusual to find no variance in details reported in a sixty-seven page account as compared with those revealed at trial one year later.

Although the above grounds are sufficient to dismiss this petition, the Court notes as an additional basis for denying habeas relief that petitioner has failed to exhaust state court remedies with respect to Goldman’s allegedly conflicting statements. The First Circuit Court of Appeals has held that a habeas corpus petitioner cannot present new factual allegations that have not been presented in state court which cast his claim in a new light. See e.g., Williams v. Holbrook, 691 F.2d 3, 6 (1st Cir.1982). Petitioner did not specifically argue on state appellate review that Goldman’s pretrial statements were materially at variance with his trial testimony. Stewart claims that he did not know of these inconsistencies until the state produced Goldman’s pretrial statements during discovery in this case. Indeed, the trial court had denied such discovery and Stewart did challenge their refusal on appeal. Nonetheless, the petitioner has the option, if newly discovered evidence is available which was not available at the time of trial, to present such evidence to the state court pursuant to Mass.R.Crim.P. Rule 30(b). It is well settled that any federal habeas petition containing a mixture of exhausted and unexhausted claims must be dismissed. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

It was for the foregoing reasons that this Court denied the petition for habeas corpus relief.

SO ORDERED.

      . Anzalone had died by the time of trial.

      . Doherty was convicted of murder in the first degree and armed assault. These convictions were affirmed. See Commonwealth v. Doherty, 371 Mass. 413, 357 N.E.2d 767 (1976).


author: McMANUS, District Judge.

text:
    Thomas A. MUNZ, Plaintiff, v. John FAYRAM, et al., Defendants.
    No. C 83-149.
    United States District Court, N.D. Iowa, Cedar Rapids Division.
    Dec. 31, 1985.

      Richard Mundy, Cedar Rapids, Iowa, for plaintiff.
    Hector Rodriques and Sarah Coats, Des Moines, Iowa, for defendants.
   ORDER

McMANUS, District Judge.

This matter is before the court upon the United States Magistrate’s report and recommendation, filed December 4, 1985, and upon plaintiff’s unresisted pro se motion for an order compelling attorney representation, filed November 19,1985. Plaintiff’s request for a hearing is denied and the matter is decided on the existing record. The report and recommendation is adopted and the motion is denied.

Plaintiff, who is currently incarcerated under the authority of the State of Iowa, filed this civil rights action pro se on July 25, 1983. Subsequently, plaintiff filed a motion for appointment of counsel and on August 31, 1984, counsel was appointed to represent him. Then on February 26,1985, appointed counsel moved for leave to withdraw. That motion was granted after plaintiff indicated that he also desired to have counsel withdraw. Thereafter, plaintiff again requested appointed counsel and on June 19, 1985, Richard Mundy was appointed to represent plaintiff. Since his appointment, Mr. Mundy has continued to represent plaintiff.

Despite representation by counsel, plaintiff has continued to file motions pro se and has asserted that he has a right to dual representation. Defendant, however, objects. After requesting both parties to brief the issue of dual representation, the Magistrate recommended that the Clerk of Court be directed to return to plaintiff any pleadings, motions, or papers filed without the signature of court-appointed counsel unless they relate to the services of appointed counsel.

Pursuant to 28 U.S.C. § 636(b)(1) plaintiff has objected to the Magistrate’s report arguing that the Magistrate’s recommendation, if adopted, would deny him his right of meaningful access to the courts and his right to control the lawsuit. Plaintiff also objects on the grounds that the report is an attempt by the Magistrate to prevent disclosure of the judiciary’s alleged involvement in teenage prostitution and to “cover up” for Mr. Mundy’s alleged neglect.

After carefully reviewing the Magistrate’s report, plaintiff’s objections, and the record as a whole, the Magistrate’s findings and recommendations are adopted in their entirety. 28 U.S.C. § 636(b)(1). The Magistrate correctly concluded that, “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel____” See 28 U.S.C. § 1654 (1976) (emphasis added). There is no constitutional or statutory right to dual representation. See Brasier v. Jeary, 256 F.2d 474, 478 (8th Cir.1958). Moreover, contrary to plaintiff’s suggestion, the client does not have the unqualified right to control the actions of counsel in a lawsuit. Disciplinary Rule 7-102 specifically mandates

(A) In his representation of a client, a lawyer shall not:
(1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.
(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.
(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.

Iowa Code of Professional Responsibility for Lawyers, DR7-102(A) (1971).

In the instant case, appointed counsel is representing plaintiff pursuant to plaintiffs request. Although dual representation may be allowed in exceptional cases, plaintiff has failed to demonstrate the existence of exceptional circumstances here. Accordingly, the Magistrate’s report and recommendation will be adopted.

Plaintiff has also requested that the court issue an order pursuant to the All Writs Act that would compel Mr. Mundy to diligently represent him and to “push forward for a trial date.” Plaintiff, however, specifically states that he will not allow Mr. Mundy to withdraw as counsel. Plaintiff contends that he is being prejudiced because Mr. Mundy’s lack of diligence has allegedly caused “in as much as any other reason” two and one-half years to elapse since the filing of this lawsuit. Plaintiff further alleges that Mr. Mundy has failed to respond to his letters.

Plaintiff’s conclusory allegations of deficiencies in Mr. Mundy’s representation do not entitle plaintiff to court-ordered relief. The court notes that Mr. Mundy was appointed June 19, 1985, to represent plaintiff. Consequently, Mr. Mundy’s actions cannot be the reason that this lawsuit has been pending for more than two years. Furthermore, plaintiff has cited no authority to support his request for relief under the All Writs Act, 28 U.S.C. § 1651 (1976). Accordingly, plaintiff’s motion is denied.

It is therefore

ORDERED

1. The findings and recommendation of the Magistrate are accepted and adopted and the Clerk is directed to return to plaintiff any pleadings, motions, or other papers filed without the signature of court-appointed counsel unless they relate to the services being performed by counsel.

2. Motion for order compelling attorney representation denied.

REPORT AND RECOMMENDATION

December 4, 1985

JAMES D. HODGES, Jr., United States Magistrate.

This matter comes before the court pursuant to Local Rule 4.1.6 on the issue of whether plaintiff may personally continue to file motions and requests for court action after counsel has been appointed at plaintiff’s request, rather than being required to proceed through his appointed counsel.

Stated another way, the question presented is whether an inmate who has requested and received court-appointed counsel may continue to represent himself as co-counsel in that lawsuit. A brief recitation of the factual background of this action is necessary to put this issue in perspective.

Plaintiff, who is currently incarcerated under the authority of the State of Iowa, brought this action on July 25,' 1983 pursuant to 42 U.S.C. § 1983 alleging that various actions of the defendants violated his constitutional rights. On October 26, 1983 he filed a motion for appointment of counsel. This motion was denied on November 15, 1983, with the court noting that plaintiff would be required to make a good faith effort to secure counsel before the court would appoint counsel. Plaintiff did so and renewed his motion on June 8, 1984 and counsel was appointed to represent him on August 31, 1984.

That attorney moved for leave to withdraw on February 26, 1985. Since plaintiff indicated he also wished to have counsel relieved of his responsibilities, the motion was granted on March 12,1985. On March 19, 1985 plaintiff renewed his request for counsel and counsel was appointed on June 19, 1985. That attorney has continued to represent plaintiff despite several indications that plaintiff is dissatisfied with counsel’s efforts.

On July 15, 1985 plaintiff filed pro se a motion to file amended and supplemental complaint. This was resisted by defendant on July 26, 1985 on the grounds that since plaintiff was represented by counsel he should be required to proceed through counsel. In a paper filed on August 3, 1985 plaintiff voiced his objections to being required to proceed through counsel and asserted a right to dual representation. In light of the nature of the question raised, on August 16, 1985 the court requested the parties to brief this issue by September 10, 1985. Defendant has done so; plaintiff has not.

28 U.S.C. § 1654 presents the logical starting point to analyze this question. That section provides:

§ 1654. Appearance personally or by counsel. In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein. (Emphasis added).

In Brasier v. Jeary, 256 F.2d 474, 478. (8th Cir.1958) the Eighth Circuit considered an argument similar to plaintiff’s and rejected the claim that a party to a civil action has either a constitutional or statutory right to have counsel and to speak and argue for himself at the same time. Specifically, the trial court’s denial of dual representation was held not to violate the due process clause of the Fifth Amendment, and 28 USC § 1654 was held to be disjunctive. See also O’Reilly v. New York Times Co., 692 F.2d 863, 868 (2nd Cir.1982). While there may be exceptional cases where dual representation may be allowed, plaintiff has failed to establish these circumstances here.

This holding is consistent with those courts of appeals which have considered the issue in the criminal arena and have unanimously concluded that there is no such constitutional or statutory right, but rather that its allowance is a matter left to the judicial discretion of the trial courts. See, e.g., United States v. Zielie, 734 F.2d 1447, 1454 (11th Cir.1984), rehearing denied, 740 F.2d 979 (1984); United States v. Daniels, 572 F.2d 535, 540 (5th Cir.1978); United States v. Williams, 534 F.2d 119, 123 (8th Cir.1976), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976); United States v. Lang, 527 F.2d 1264, 1265 (4th Cir.1975), cert. denied, 424 U.S. 920 (1976); United States v. Hill, 526 F.2d 1019, 1024-25 (10th Cir.1975), cert. denied 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976); United States v. Wolfish, 525 F.2d 457, 462-63 (2nd Cir.1975), cert. denied 425 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976); Duke v. United States, 255 F.2d 721 (9th Cir.1958), cert. denied 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1364 (1958).

Likewise, this reasoning seems to be particularly appropriate in cases filed by inmates who have counsel appointed to represent them.

It is beyond question that prisoners have a right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977); Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974) (“The right of access to the courts ... assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.”); Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748-49, 21 L.Ed.2d 718 (1969) (“It is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed”). However, in Nelson v. Redfield Lithograph Printing, 728 F.2d 1003 (1984), the Eighth Circuit Court of Appeals expressly acknowledged that there is no constitutional or statutory right for an indigent to have counsel appointed in a civil case. Id. at 1004. But, upon motion and conditioned upon the requisite showing, a district court has the authority to appoint counsel and should do so. Hahn v. McLey, 737 F.2d 771, 774 (8th Cir.1984); Nelson v. Redfield Lithograph Printing, supra, 728 F.2d 1003 (8th Cir.1984); White v. Walsh, 649 F.2d 560 (8th Cir.1981); 28 U.S.C. § 1915(d). The appointment of counsel is not solely for plaintiffs benefit, but rather the Eighth Circuit recognized in Nelson “The court should also determine whether the nature of the litigation is such that plaintiff as well as the court will benefit from the assistance of counsel.” Nelson, supra 728 F.2d at 1005.

Allowing unlimited dual representation would not only result in the possibility of confusion for the court and defendants thus diminishing one of the benefits derived from appointing counsel, but also raises serious ethical questions for both plaintiffs and defendants’ counsel. Questions are raised under disciplinary rule 7-104 of the Iowa Code of Professional Responsibility for Lawyers as to with whom defense counsel can properly communicate. Likewise, plaintiff’s counsel may be forced to decide whether to pursue what may appear to be a frivolous claim or to take a position adverse to their client.

Prohibition dual representation does not affect plaintiff’s access to the' court since a plaintiff is free to elect to proceed pro se in any action. Further, he remains free to file other lawsuits and either seek to have counsel appointed or proceed pro se in those actions. It should be noted that this procedure preserves the court’s obligation to screen out frivolous lawsuits before counsel is appointed, thus, lessening the possibility of the ethical problems referred to above. Hahn v. McLey, supra, 737 F.2d at 773.

Finally, the court is not unmindful of the special problems that are brought about by incarceration. Accordingly, a plaintiff is always free to file pro se papers requesting new counsel, to proceed pro se, or questioning the actions of appointed counsel. Further, plaintiff may show exceptional circumstances exist which justify dual representation in a particular case. However, as a general rule where plaintiff requests and is appointed counsel, that will be deemed a waiver of his right to proceed pro se in that action only, and as regards to that action, any pleadings or other papers under the Federal Rules of Civil Procedure other than referred to above may be filed only by counsel.

It is therefore

RECOMMENDED

That unless any party files objections to the Report and Recommendation in accordance with 28 USC § 636(b)(1)(C) and FRCP 72(b) within ten (10) days of the service of a copy of this order that:

The Clerk is directed to return to plaintiff any pleadings, motions or other papers filed without the signature of court-appointed counsel unless they relate to the services being performed by counsel.

      . These complaints are not addressed in this order since the latest request under the all writs section appears to be more properly addressed by the district court.

      . During the period of representation by his first attorney, plaintiff independently filed a motion for default judgment on December 3, 1984. During the period of representation by present counsel, plaintiff has submitted at least six separate filings independent of counsel. (Docket numbers 74, 75, 76, 77, 83 and 86).


author: WOLF, District Judge.

text:
    James D. HABERMAN, Plaintiff, v. HUSTLER MAGAZINE, INC., et al., Defendants.
    Civ. A. No. 84-151-W.
    United States District Court, D. Massachusetts.
    Jan. 2, 1986.

      Herbert L. Gatewood, Marullo & Barnes, Boston, Mass., for plaintiff.
    William H. Lee, Lee & Hollander, Boston, Mass., for defendants.
   MEMORANDUM AND ORDER

WOLF, District Judge.

Plaintiff, James D. Haberman, initiated this action on January 19, 1984, seeking injunctive relief and damages fqr alleged copyright infringement in violation of 17 U.S.C. § 101 et seq. (1982) and for the alleged employment of unfair or deceptive acts or practices in violation of Mass.Gen. Laws ch. 93A (1984). The defendants are Hustler, Magazine, Inc. (“Hustler’), the publisher of Hustler magazine, and Flynt Distributing Co., Inc. (“FDC”). The case was tried to the court on the issue of liability.

For the reasons discussed below, the court has determined that defendants did not infringe plaintiffs copyright under federal law and that no violation of ch. 93A has been established.

I. FINDINGS OF FACT

The court hereby finds the facts of this ease as follows:

Plaintiff James D. Haberman is an artist and photographer who creates and photographs assemblies and sculpted works of art. Haberman also teaches photography at the New England School of Art and Design and has conducted workshops and given lectures on photography in the Boston area. Haberman is a resident of Massachusetts.

Defendants are Hustler Magazine, Inc., a California corporation located in Los Angeles, California which publishes Hustler magazine, and Flynt Distributing Co., a corporation responsible for the distribution of Hustler magazine. Both Hustler and FDC are wholly-owned subsidiaries of Larry Flynt Publications, Inc. (“LFP”).

Haberman markets his photographs as fine art photographs and postcards. He also licenses publication rights in his works. Haberman promotes sales of his fine art photographs through his postcards and through exhibitions at galleries and museums.

The sale of Haberman’s works in postcard form was begun in Fall, 1980. Haber-man distributes postcards himself in the Boston area. Since March, 1981, other distribution has been handled primarily by an international distributor in New York, Fotofolio, Inc. Approximately ninety percent of Haberman’s ' postcard sales are made through Fotofolio. In 1981, Haberman had eight cards for sale. He has introduced approximately five cards a year since then, and now has twenty-seven for sale through Fotofolio.

In Fall, 1981, Haberman created a work entitled “Cracking Eggs” by first making an “assembly” and then photographing it. “Cracking Eggs” was first published on March 8, 1982. Haberman created “The Feast” beginning on January 3, 1982, and completed it on April 28, 1982. He first created a sculpture and then photographed it. “The Feast” was first published on September 16, 1982.

“Cracking Eggs” is a surrealistic fine art photograph, the purpose of which is to surprise or shock the viewer by presenting a new perspective. (A copy of the “Cracking Eggs” postcard is Exhibit A hereto.) “The Feast” is a surrealistic fine art photograph intended as a satiric social commentary on the traditional family holiday gathering. (A copy of “The Feast” postcard is Exhibit B hereto.)

Haberman’s copyright in “Cracking Eggs” is registered with the United States Copyright Office. He is the owner of United States Certificate of Copyright Registration No. VA 123-379 for the photographic work “Cracking Eggs.” The effective date of registration is February 22, 1983.

The copyright in “The Feast” is also registered with the United States Copyright Office. Haberman is the owner of United States Certificate of Copyright Registration No. VA-134-035 for the photographic work “The Feast.” The effective date of registration is February 22, 1983.

Hustler is a commercial magazine directed at what it calls the “men’s sophisticate” market. The issues of Hustler involved in this case contain sexually explicit photographs and text. Hustler is marketed nationwide, including in Massachusetts. It derives more than twenty percent (20%) of its gross revenues from interstate commerce outside of Massachusetts.

In its February, 1983 issue Hustler reproduced “Cracking Eggs” in the “Bits and Pieces” section of the magazine. The copy was approximately one-twentieth of a page in size, or one-fifth the size of the postcard. The reproduction included substantially the entire photograph, slightly cropped. The photograph ' was captioned “ “It’s No Yolk!” and was accompanied by eight lines of text. The text accompanying “Cracking Eggs” in the February, 1983 issue of Hustler reads:

Frankly, we’re confused by this postcard from Jim Haberman Cards (15 Cleveland Street, Arlington, MA 02174). But we’re also intrigued by its visual impact. See if you can unscramble the picture’s message. Our eyes are beat.

In its August, 1983 issue, Hustler reproduced “The Feast” in the “Bits and Pieces” section of the magazine. “The Feast” was reproduced in full, but reduced in size. The reproduction, occupying approximately one-sixth of a page, was accompanied by the caption “Family Portrait” and thirteen lines of text. The text accompanying “The Feast” in the August, 1983 issue of Hustler reads:

We’ve heard of families that have too many mouths to feed ... but just mouths? This bizarre scene is the work of Jim Haberman, who not only photographed and sculptured these toothy creatures, but also sells the postcards (Jim Haberman Cards, 15 Cleveland St., Arlington, MA 02174). Alien beings may have one tradition in common with us here on Earth: brushing after every meal.

Hustler published a copyright notice beside. “Cracking Eggs” in the February, 1983 issue of Hustler, stating “Copyright (c) Jim Haberman 1982.” Hustler published a copyright notice beside the reproduction of “The Feast”, in the August, 1983 issue, stating “Copyright (c) Jim Haber-man.”

Hustler’s publication of “Cracking Eggs” and “The Feast” was without Haberman’s consent. Haberman did not submit his works for publication in Hustler. Hustler has not paid Haberman for the use of his works.

Since February, 1984, Haberman has had a nonexclusive agreement with the Picture Cube, Inc., a stock photo agency in Boston, Mass., for the licensing of reproduction rights in his works. The Picture Cube has several dozen of his photographs in its files, including the “Silver Fantasy” series, which includes “Cracking Eggs” and “The Feast.”

Haberman has sold 7,000 postcards of “Cracking Eggs” and 24,000 postcards of “The Feast”. “The Feast” is Haberman’s best-selling postcard. “Cracking Eggs” ranks sixth or seventh.

From August, 1982, when it was first published, until August 1983, Haberman sold 5,200 cards of “The Feast.” In the six months following its reproduction in Hustler, Haberman sold 5,400 cards. Haber-man sold 1,600 cards of “Cracking Eggs” from March, 1982, until February, 1983. In the five months following its publication in Hustler, he sold 2,250 cards of “Cracking Eggs.”

Haberman sold two copies of the fine art photograph “The Feast” in February and March of 1983 for $160.00 each. He has not sold any copies of the photograph “Cracking Eggs.”

Haberman has also sold reproduction rights in “The Feast” on two occasions. In February, 1983, he sold rights for a onetime use as a bookcover for $150.00. “The Feast” was recently licensed to appear in the November, 1985 issue of Darkroom Photography, which purchased a one-time right for $180.00. Haberman has sold reproduction rights in other works on two occasions, for $225.00 and $160.00, respectively.

Haberman exhibited both “Cracking Eggs” and “The Feast” at the University of Wisconsin in 1982. “Cracking Eggs” was exhibited in the winter of 1983 at Framingham State College. “The Feast” was exhibited at Vision Gallery in the summer of 1984 and at Project Arts Gallery, Cambridge, and at a faculty show at the New England School of Art and Design in the fall of 1984. Haberman has exhibitions, including “Cracking Eggs” and “The Feast,” scheduled for 1986 at the DeCordova Museum in Lincoln, Massachusetts, and in Canton, Massachusetts.

Haberman was awarded an Artist’s Foundation Grant in 1979. He submitted works, including “Cracking Eggs” and “The Feast,” to the Artist’s Foundation contest in 1983 and has submitted works every year since then. In 1983, after publication of “Cracking Eggs” in Hustler, he received honorable mention in the contest.

The Picture Cube has sent out “Cracking Eggs” and “The Feast” on consignment to publishers six times each. Four of the consignments were sent out after the agency learned of the prior publication in Hustler of “Cracking Eggs” and “The Feast.” In addition, clients have examined the photographs at the agency.

The Picture Cube has sold no reproduction rights in “Cracking Eggs” or “The Feast”.

Haberman’s total revenues from “Cracking Eggs” are $793.38. After deducting costs of development, the net loss from “Cracking Eggs” is $744.00. Haberman’s total revenues from “The Feast,” including sales of art photographs, postcards, and reproduction rights, are $2,835.00. After deducting costs of development, the net loss from “The Feast” is $2,282.

Haberman did not suffer any actual damages from lost sales of postcards, photographs or reproduction rights as a result of the reproduction of “Cracking Eggs” and “The Feast” in Hustler. There were no instances in which Haberman’s ability to exploit those works commercially had been damaged as a result of their reproduction in Hustler.

Haberman did not incur any monetary loss or damage to property as a result of the reproduction of “Cracking Eggs” and “The Feast” in Hustler.

There were no instances in which knowledge of the publication in Hustler on the part of customers, galleries or foundations affected the reception or sale of “Cracking Eggs” or “The Feast”. Haberman’s works were accepted for exhibition by the Project Arts Center in September-October, 1984, and by the DeCordova Museum for February-April, 1986, despite knowledge of the publication of “Cracking Eggs” and “The Feast” in Hustler. “The Feast” was accepted for publication in the November, 1985 issue of Darkroom Photography despite information from Haberman as to the prior publication in Hustler.

The Picture Cube has not disclosed to its clients that “Cracking Eggs” and “The Feast” were published in Hustler, although it would do so if someone expressed interest in either of them. There is no evidence to indicate that “Cracking Eggs” and “The Feast” have not been selected by clients of the Picture Cube because of their publication in Hustler.

There were no instances in which the reproduction of “Cracking Eggs” or “The Feast” in Hustler had cast doubt on Haber-man’s ownership of the copyright in those works.

Over 1,725,000 copies of the February, 1983 issue of Hustler were printed, of which approximately 980,000 were sold. Over 1,725,000 copies of the August, 1983 issue of Hustler were printed, of which approximately 977,000 were sold.

The on-sale date for the February, 1983 issue of Hustler was December 21, 1982. The off-sale date for the February, 1983 issue of Hustler was January 24, 1983. The on-sale date for the August, 1983 issue of Hustler was June 28, 1983. The off-sale date for the August, 1983 issue of Hustler was July 27, 1983. The on-sale date, although a target date, is a firm date.

“Bits and Pieces” is a regular feature section of Hustler magazine consisting of brief items concerned with events, personalities, products and services intended to be of interest to Hustler’s readers.

The purpose of the “Bits and Pieces” section of the February and August, 1983 issues of Hustler was to present items which Hustler considered interesting, humorous or outrageous, to entertain its readers, and to comment, often in what Hustler regarded as a humorous fashion, on unique events, products and services.

Hustler’s purpose in reproducing “Cracking Eggs” and “The Feast” was to entertain its readers and to comment on the cards.

The editor of “Bits and Pieces” for the February, 1983 and August, 1983 issues of Hustler purchased the postcards from which reproductions of “Cracking Eggs” and “The Feast” were made.

Some of the items printed in “Bits and Pieces” in the February and August 1983 issues of Hustler were received from contributors.

The February, 1983 issue of Hustler magazine included a “Contributor’s Box” which contained the statement:

HUSTLER pays $150 for Bits & Pieces items. Larry Flynt Publications retains all rights to material accepted for publication, but we’ll return original art on request (enclose SASE). For February, $150 goes to A.J. Grimaldi and Raymond Tillman.

The August, 1983 issue of Hustler magazine included a “Contributor’s Box” which contained the statement:

HUSTLER pays $150 for Bits & Pieces items (or $50 if two or more submissions are used in one B & P item). Larry Flynt Publications retains all rights to .any material submitted, but we’ll return any rejected material and original artwork (not including photos) on request if an SASE is enclosed. For August, $150 goes to L. Ayers, J. Dawson, R. Julien and D. Sandler.

Hustler would not have obtained any advantage from intentionally implying or misleading its readers to believe that Haberman personally contributed the postcards “Cracking Eggs” and “The Feast”. Nor would Hustler have had any other reason to do so.

Haberman informed Hustler through his attorney by letter dated May 20, 1983, of the possibility of legal action for alleged infringement of copyright, invasion of privacy, defamation, and the use of unfair or deceptive acts or practices regarding Hustler’s use of “Cracking Eggs” in its February, 1983 issue. The letter was received by Hustler on May 25, 1983.

The February, 1983 and August, 1983 issues of Hustler were printed by Wisconsin Cuneo Press, Inc. in Milwaukee, Wisconsin. The magazine was printed in forms. The printing of form three of the August, 1983 issue, which contained all but the first two pages of “Bits and Pieces” and included the reproduction of “The Feast,” was completed by 7:00 A.M., Milwaukee time, on May 25, 1983. Shipping of completed copies of the August, 1983 issue was begun on May 26, 1983 and completed on June 10, 1983.

Ón May 25, 1983, it was not feasible, as a practical matter, for Hustler to withdraw the reproduction of “The Feast” and the accompanying text from the August, 1983 issue.

On May 25, 1983, there were several cases, involving alleged violations of the copyright law pending against Hustler. An earlier. case, also involving a claim of copyright infringement, had been completed by dismissal of the copyright claim. One of the cases did not involve the defense of fair use. Of the other pending cases, none had been tried or otherwise resolved at the time Hustler received Haberman’s letter of May 20, 1983.

II. CONCLUSIONS OF LAW

For the reasons set forth below, the court concludes that Hustler’s publication of “Cracking Eggs” and “The Feast” neither violated the federal copyright law nor the Massachusetts statute prohibiting unfair and deceptive trade practices.

1. Hustler’s Use of Haberman’s Copyrighted Materials is Protected under the Doctrine of Fair Use.

Section 106 of the Copyright Act of 1976 confers exclusive rights on the copyright owner, including rights to reproduce and distribute the copyrighted work. 17 U.S.C. § 106. The rights of the copyright owner are, however, subject to specific statutory limitations. One of these is the privilege of others to make “fair use” of the copyrighted work. 17 U.S.C. § 107. In the present case, Hustler reproduced and distributed copies of Haberman’s original photographs “Cracking Eggs” and “The Feast” in the February, 1983 and August, 1983 issues of Hustler magazine, respectively. Hustler contends, however, that its use of these works was a “fair” one within the meaning of 17 U.S.C. § 107. The court agrees.

Fair use has been defined as “ ‘a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.’ ” Harper & Row Publishers, Inc. v. Nation Enterprises, — U.S.-,-, 105 S.Ct. 2218, 2225, 85 L.Ed.2d 588 (1985) (quoting H. Ball, Law of Copyright and Literary Property, 260 (1944)); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). The doctrine affords a means of accommodating the exclusive rights of the copyright owner and “the public’s interest in the dissemination of information' affecting areas of universal concern____” 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 statutory provision for the defense of fair use codifies prior judicial doctrine. Harper & Row, 105 S.Ct. at 2225. Fair use presents a mixed question of fact and law which must be determined by consideration of the facts of each particular case evaluated in terms of the specific, nonexclusive criteria set out by statute. Section 107 provides, in part:

Notwithstanding the provisions of section 106 [17 U.S.C. § 106], the fair use of a copyrighted' work, including such use by reproduction ... for purposes such as criticism [and] comment, ... is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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 of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107. As elaborated below, the court finds that Hustler has established by a preponderance of the evidence that it made fair use of Haberman’s copyrighted work largely because Hustler demonstrated that its publication of “Cracking Eggs” and “The Feast” did not materially impair the marketability or value of either work. This issue, presented by the fourth § 107 factor, is “undoubtedly the single most important element of fair use.” Harper & Row, 105 S.Ct. at 2234.

Before addressing the four factors established by § 107 and the equity of allowing the fair use defense to prevail in this case, it is appropriate to state explicitly what the court has not considered in deciding this matter. The court has not considered the merit of Haberman’s art. Nor has the court considered either the merit of Hustler magazine generally or the merit of the statements it made concerning Haberman’s work particularly.

The court views this case as presenting a clash of First Amendment values. Copyright protection is “the engine of free expression” for it “supplies the economic incentive to create and disseminate ideas.” Harper & Row, 105 S.Ct. at 2230. Thus, the copyright laws promote the individual’s interest in expressing himself fully, freely and creatively, as well as society’s interest in obtaining the benefit of such expression.

It is axiomatic, however, that the First Amendment also protects freedom of the press. The right of the press to publish its views is another means of promoting the individual’s interest in self-expression and society’s interest in benefitting from that expression.

The First Amendment generally applies without regard to “the truth, popularity, or social utility of the ideas and beliefs which are offered.” NAACP v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 344, 9 L.Ed.2d 405 (1963); see also Hannegan v. Esquire, Inc., 327 U.S. 146, 156-158, 66 S.Ct. 456, 461-462, 90 L.Ed. 586 (1946). It is important that this principle be recognized in this case and applied equally to each party.

Thus, the court has deemed irrelevant the degree to which Haberman’s works appeal to it, to art critics, or to the public. “[W]hat is good art ... varies with individuals as it does from one generation to another.” Hannegan, 327 U.S. at 157, 66 S.Ct. at 461. A requirement that in order to be legally protected “art conform to some norm prescribed by an official smacks of an ideology foreign to our system.” Id. at 158, 66 S.Ct. at 462. It would be especially inappropriate if that official were a judge. As Justice Holmes recognized in refusing to deny copyright protection to a circus poster because it purportedly was not a pictorial illustration within the meaning of the Copyright Act,

It would be a dangerous undertaking for persons trained only in the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At one extreme some works of genius would be sure to miss apprecation____ At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.

Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52, 23 S.Ct. 298, 300-01, 47 L.Ed. 460 (1903); see also Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 855 (5th Cir.1979), cert. denied sub nom. Bora v. Mitchell Brothers Film Group, 445 U.S. 917, 100 S.Ct. 1277, 63 L.Ed.2d 601 (1980). Thus, it has been wisely determined by Congress and the courts that the values of the First Amendment are best served by extending copyright protection to all art, without regard to official perceptions of its merit.

The corollary of this is the conclusion that it would also be improper for the court to attempt to evaluate the merit of Hustler magazine generally or the merit of its statements concerning Haberman’s art particularly. Haberman testified that he found Hustler’s statements to be “superficial,” but that he would not have objected if the same use of his pictures and same commentary had been made by a newspaper or fine art magazine. Thus, he in effect contends that the quality of the comment and nature of the publication should be considered by the court in deciding the question of fair use. There are cases which suggest this would be permissible and appropriate. See e.g., Time, Inc. v. Bernard Geis Associates, 293 F.Supp. 130, 146 (S.D.N.Y.1968) (in finding fair use the court stated that defendant “did serious work on the subject [of President Kennedy’s assasination] and has a theory entitled to public consideration”); Meeropol v. Nizer, 361 F.Supp. 1063, 1068 (S.D.N.Y.1973) (in finding a likelihood of establishing fair use the court stated, “defendants are likely to prove that their book is a serious, full and readable account of what was a trial of great historical interest”); Rosemont, 366 F.2d at 304. This court respectfully disagrees.

Courts are neither constituted nor equipped to evaluate the merit of protected speech. As Holmes wrote, “Judges are apt to be naif, simple-minded men ...” Occasional Speeches of Justice Oliver Wendall Holmes 172 (Howe ed. 1962). As he also noted in a different but analogous context, “the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment” on whether they are reasonable. Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 551, 49 L.Ed. 937 (1905) (Holmes, J., dissenting). In the copyright context, there is an obvious danger that any judicial effort to evaluate the merit of a publication or particular commentary will result in equating the agreeable with the valuable and the unpopular with the unimportant. This, however, would tend to deny the protection of the First Amendment to the journals and journalists needing it most. For as a friend of Elijah Lovejoy, the Abolitionist printer killed in the riots his publications provoked, said at the time, “We are more especially called upon to maintain the principles of free discussion in the case of unpopular sentiments or persons, as in no other case will any effort to maintain them be needed.” Beecher, Alton Riots (Alton, Ill., 1838).

Thus, neither the perceived merit of Haberman’s art nor Hustler and its commentary concerning that art has been considered by the court.

With regard to the four statutory factors and other relevant matters, the court finds as follows.

A. Purpose and Character of the Use

The court has, as required by the statute, considered the purpose and character of Hustler’s use of Haberman’s materials. In this regard, it has long been recognized that copyrighted works may be utilized in the course of commentary or criticism, but if a copyrighted work is published “with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.” Folsom v. Marsh, 9 F.Cas. 342, 344-45 (No. 4, 901) (CC Mass.1841) (quoted in Harper & Row, 105 S.Ct. at 2225).

With regard to the purpose of the uses in question, Haberman contends that Hustler intended to expropriate the entertainment value of his copyrighted creations. Hustler claims it wished to comment on them and their reproduction was essential to doing so. The court concludes that Hustler sought both to entertain its readers with Haberman’s works and to comment on them. These facts tend to neutralize each other in the fair use analysis.

In considering the character of the use in question, the court has recognized that Hustler magazine is a publication which seeks to earn a profit. The commercial use of copyrighted material generally weighs against a finding of fair use. “[Ejvery commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright____” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451, 104 S.Ct. 774, 793, 78 L.Ed.2d 574, reh’g denied, 465 U.S. 1112, 104 S.Ct. 1619, 80 L.Ed.2d 148 (1984). The fact that Hustler magazine is offered for sale, however, does not dictate a finding that the reproduction of Haber-man’s works was a commercial use. Commentary “is not put to a commercial use simply because the publication is sold rather than given to the public.” Pillsbury Co. v. Milky Way Productions, Inc., 215 U.S. P.Q. 124, 131 (N.D.Ga.1981). The critical issue “is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 105 S.Ct. at 2231-32.

In this instance, Hustler did not exploit the value of Haberman’s works in order to sell copies of its magazine. The works were reproduced as items inside the magazine in a regular feature section. In contrast to cases in which fair use was not established, their inclusion was not advertised on the cover, nor made evident to prospective purchaser of Hustler. Compare Rubin v. Boston Magazine Co., 645 F.2d 80, 82 (1st Cir.1981). It does not appear that that reproduction of Haber-man’s postcards was intended to increase sales of the magazine and, thus, in this fashion, improperly capitalize on Haber-man’s work. Pillsbury Co., 215 U.S.P.Q. at 131. Therefore, while Hustler is published for profit and use of Haberman’s works contributed to its entertainment value, the manner of use in this case is not a strong factor militating against a finding of fair use.

The court has also considered whether Hustler’s use of “Cracking Eggs” and “The Feast” had the purpose or effect of supplanting Haberman’s use of them and concludes it did not. Misappropriation for a directly competing use would likely be incompatible with fair use. Harper & Row, 105 S.Ct. at 2232 (defendant's conduct was for the intended purpose of supplanting a competitor’s right to be the first to publish President Ford’s memoirs); Marcus v. Rowley, 695 F.2d 1171, 1175 (9th Cir.1983) (“a finding that the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used is strong indica of no fair use”).

This case, however, does not involve directly competing uses. Haberman markets his works as fine arts photographs and postcards. The Hustler reproductions were not of comparable size or quality. They would not serve as suitable substitutes for someone who wished to collect the art, in either photographic or postcard form, or share it with another by sending the postcard.

Also relevant to the “character” of the use is “the propriety of the defendant’s conduct.” Harper & Row, 105 S.Ct. at 2232 (quoting 3 M. Nimmer, Nimmer on Copyright § 13.05[A], at 13-72). This factor tends to support a finding of fair use in this case. Copies of the postcards were placed on sale by Haberman and fairly acquired by Hustler. Compare Harper & Row (knowing exploitation of purloined manuscript). In addition, Hustler credited Haberman with the copyright of the reproduced works and informed readers of how they could buy them from him. Thus, there was no attempt to palm off Haber-man’s work as its own. Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1176 (5th Cir.1980). Except to the degree, previously described, to which Hustler sought to entertain its readers with Haberman’s works as well as with its commentary on them, there is no evidence of bad faith by Hustler.

B. Nature of the Copyrighted Work

With regard to the nature of the works in question, it is not disputed that “Cracking Eggs” and “The Feast” are fine art photographs of a surrealistic character. “The Feast” was intended as social commentary on the traditional family gathering. “Cracking Eggs” was intended to surprise the viewer by presenting a different perspective. The works are creative, imaginative, and original. They represent a substantial investment of time and labor in anticipation of a financial return, among other things. The law generally recognizes a greater need to disseminate factual works than works of fantasy such as those at issue here. Harper & Row, 105 S.Ct. at 2232. The pronounced creativity and investment of time involved in the works in this case weigh against a finding of fair use. MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir.1981).

However, prior to Hustler’s publication, the copyrighted works had been made public by Haberman. ' The scope of fair use is broadest with respect to publicly released works. Harper & Row, 105 S.Ct. at 2232. The artist’s right to control the first public appearance of his work, which is an important one, is not implicated in this case.

Therefore, consideration of the nature of the works involved weighs against a finding of fair use, although not as heavily as it would if they had not been previously made public by Haberman.

C. The Amount and Substantiality of the Use

Hustler reproduced Haberman’s photographs substantially in full, although “Cracking Eggs” was slightly cropped. The copies were reduced in size. In the particular circumstances of this ease, however, this does not itself tend to weigh against a finding of fair use. The works in question are graphic and unusual. For the purpose of criticism and commentary, they could not be adequately described by words. As indicated earlier, it has long been recognized that a commentator may fairly reproduce as much of the original, copyrighted work as is necessary to his proper purpose. Folsom, 9 F.Cas. 344-45. Thus, to the extent that Hustler’s purpose was to comment on Haberman’s works, full reproduction of them was appropriate.

D. Effect of the Use on Potential Market

The court has also considered the effect of Hustler’s publication of “Cracking Eggs” and “The Feast” upon the potential market for or value of each work. As indicated earlier, this is “undoubtedly the single most important element of fair use.” Harper & Row, 105 S.Ct. at 2234 (citing 3 Nimmer § 13-05[A], at 13-76, and cases cited therein.) It is on this point that plaintiff’s case fatally falters, for Hustler has demonstrated, largely through cross-examination of plaintiff’s witnesses, that its publications of “Cracking Eggs” and “The Feast” did not “materially impair the marketability” of either work. Id.

Haberman does not contend that Hustler’s publication of his works caused him actual harm. In determining the effect of publication on the market, however, “[ajctual present harm need not be shown ...” Sony Corp., 464 U.S. at 451, 104 S.Ct. at 793. Thus, the court has focused on whether “some meaningful likelihood of future harm exists” and, treating Hustler’s publications as commercial uses, has presumed that likelihood. Id. Nevertheless, the preponderance of the evidence persuades the court that no meaningful likelihood of future harm to the value or market for “Cracking Eggs” or “The Feast” was caused by Hustler’s publication of them.

The market for the works in question includes sales of postcards, sales of photographs, licensing of reproduction rights, and museum or gallery displays. The experience to date in each of these areas indicates that it is unlikely that any .harm to the market for either work has or will occur as á result of Hustler’s actions. Rather, the evidence demonstrates the following.

Haberman’s sales of postcards of “Cracking Eggs” and “The Feast” each increased after their publication in Hustler.

Haberman did not sell any photographs of “Cracking Eggs” before or after Hustler’s reproduction of it. He did sell two photographs of “The Feast” prior to Hustler’s use of it. However, a reasonable probability of a causal connection between the disputed use and lost revenue is required for the court to presume that damage has been caused by the alleged infringement. Harper & Row, 105 S.Ct. at 2234. Neither Haberman nor his sales representative has disclosed the prior publication of “The Feast” in Hustler to prospective purchasers of the photograph. There is no other evidence from which to infer that possible purchasers knew of the Hustler publications. Thus, the evidence does not indicate a reasonable probability of a causal connection between publication and the lack of subsequent sales of the photographs of either work.

With regard to publication rights, Haber-man recently licensed “The Feast” to Darkroom Photography for use in its November, 1985 issue, notwithstanding disclosure to the magazine of its prior publication in Hustler. This suggests that Hustler’s use of “The Feast” did not destroy the potential market for its publication; nor does the evidence suggest this market was diminished. Once again, with regard to “Cracking Eggs,” there is no evidence from which to infer that any lack of interest in publishing the photograph has been caused by its use by Hustler. There has been no commercial interest in it before or after its use by Hustler.

In addition, defendant demonstrated that museums and galleries have continued to accept the works in question for exhibition despite their knowledge of the Hustler publications. There is no evidence indicating that the market for exhibition of the works, and the opportunity to sell the works which exhibition affords, have been injured by Hustler’s actions.

Haberman contends that the market for “Cracking Eggs” and “The Feast” also includes potential publication in textbooks and that it is here that the most serious harm to their value has been suffered by publication in Hustler Magazine, which he asserts is a journal’ inappropriate for children and undesirable to many adults. This claim is based primarily on the expert opinion testimony of Haberman’s sales representative. It is initially appealing. Examination indicates, however, that while the expert was sincere, she was not convincing because her opinion was based on assumptions the court finds not to be proven.

The evidence does not indicate that there would have been a reasonable probability of sales of “Cracking Eggs” or “The Feast” for use in textbooks if they had not been published in Hustler. Rather, it shows that there are thousands of fine art photographs available for use in textbooks and only a small fraction of them ever achieve such use. Haberman’s surrealistic works are strikingly unusual, further limiting their potential in the textbook market. Haberman’s representative has sent the photographs of “Cracking Eggs” and “The Feasts” to prospective purchasers, including textbook publishers, six times each. She has not disclosed their prior publication in Hustler. Yet there has been no interest expressed in either piece. Thus, the evidence does not establish that there is a reasonable probability of a textbook market for the disputed photographs or that any such market has been materially impaired by the alleged infringement.

Moreover, the court finds that even assuming an injured textbook market for “Cracking Eggs” and “The Feast”, such injury would be de minimis. Haberman’s expert testified that the average sale price for first publication rights for a textbook cover was $450 in 1984; other textbook uses paid less. Losses in this range for each work would not materially injure their total potential commercial value as it was characterized by and on behalf of Haber-man. See Pillsbury Co., 215 U.S.P.Q. at 130-31.

Finally, with regard to the fourth factor, the court has considered whether “if the challenged use ‘should become widespread, it would adversely affect the potential market for the copyrighted work.’ ” Harper & Row, 105 S.Ct. at 2234-35, (quoting Sony Corp., 464 U.S. at 451, 104 S.Ct. at 793). The court concludes it would not. Haberman testified that he would not object if what he regarded as more reputable journals or newspapers engaged in Hustler’s conduct. The court believes that even superficial commentary on the fully reproduced works in most journals would enhance rather than diminish their value. In addition, since publication in Hustler did not materially affect the marketability of “Cracking Eggs” and “The Feast”, the court does not believe that comparable use in other magazines of Hustler’s genre would do so.

For these reasons, the vital fourth factor supports a finding of fair use.

E. Equitable Considerations

The four statutory factors are not the only issues to be considered in determining if a use is fair. Harper & Row, 105 S.Ct. at 2225. Fair use presupposes good faith. Id. at 2220-21. Thus, the court has considered other evidence bearing on whether a finding of fair use would be equitable in this case.

The court again notes that the pieces reproduced were fairly acquired by Hustler and no effort was made to palm them off as anything other than Haber-man’s creations. As a practical matter, it was too late to remove “The Feast” from the August, 1983 issue when Hustler received notice of Haberman’s objection to the earlier use of “Cracking Eggs;” thus, the repeated nature of the now questioned conduct is not an aggravating factor. Similarly, during the relevant period Hustler had not yet lost any case involving comparable issues, including Brewer v. Hustler Magazine, Inc., 749 F.2d 527 (9th Cir.1984) —a case which should now inform Hustler that its use of copyrighted works in its “Bits & Pieces” section involves risky business, despite the ruling favorable to it in this case. Thus, the court concludes that equitable considerations do not overcome the finding of fair use indicated by analysis of the four statutory factors.

For the foregoing reasons, Haberman’s claims of copyright infringement are denied.

2. Plaintiff has not Sustained His Cause of Action Under Mass.Gen.Laws ch. 93A, § 2.

Mass.Gen.Laws ch. 93A makes unlawful any “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Mass.Gen.Laws ch. 93A, § 2(a) (1984). Section 11 creates a private cause of action for any person who suffers a loss as a result of the employment by another person engaged in trade or commerce of an unfair or deceptive act or practice. Mass.Gen.Laws ch. 93A, § 11. As a prerequisite to suit under § 11, a plaintiff must have suffered a “loss of money or property, real or personal.” Id. The Massachusetts Supreme Judicial Court, interpreting identical statutory language in former § 9 of chapter 93A, has held, “that in § 9(1) ‘money’ means money, not time, and that ‘property’ means the kind of property that is purchased or leased, not such intangibles as a right to a sense of security, to peace of mind, or to personal liberty.” Baldassari v. Public Finance Trust, 369 Mass. 33, 45, 337 N.E.2d 701 (1975).

Haberman contends that Hustler’s publication of his works constitutes misrepresentation in violation of the chapter 93A in that it is made to appear from the context of the reproduction that Haberman himself submitted the work to Hustler and thereby authorized its publication in the magazine. Haberman also claims that the publication casts doubt on his ownership of the copyright in his works and is misleading as to the availability of the postcards.

Haberman admitted at trial, however, that he did not incur any loss of money or property, real or personal, as a result of Hustler’s reproduction of “Cracking Eggs” and “The Feast.” Haberman also stated that he had not suffered any actual damages in any form as a result of the publication of “Cracking Eggs,” and “The Feast” in Hustler. The evidence presented in support of Haberman's claim of copyright infringement did not establish that any present loss of value to the works had been sustained. Under these circumstances, the requirement of demonstrating loss to money or property under § 11 has not been met. Accordingly, plaintiff has not proven a violation of chapter 93A.

In addition, prior to July 22, 1983, a limited exemption from chapter 93A was in effect for businesses engaged in interstate commerce. See 1983 Mass.Acts ch. 242. Former § 3(1) of the statute provided: (1) Nothing in this chapter shall apply to

(b) trade or commerce of any person of whose gross revenue at least twenty per cent is derived from transactions in interstate commerce, excepting however transactions and actions which (i) occur primarily and substantially within the Commonwealth, and (ii) as to which the Federal Trade Commission or its designated representative has failed to assert in writing within fourteen days of notice to it ’and to said person by the attorney general its objection to action proposed by him and set forth in said notice____

Mass.Gen.Laws ch. 93A, § 3 (amended by 1983 Mass.Acts ch. 242). The Massachusetts Appeals Court has recently determined that since the repealing statute created and enlarged obligations under chapter 93A it should not be given retroactive effect. Goldstein Oil Co. v. C.K. Smith Co., Inc., 20 Mass.App. 243, 479 N.E.2d 728, further review granted, 395 Mass. 1104, 482 N.E.2d 328 (1985). Conduct occurring prior to July 20, 1983, is, therefore, governed by former § 3 of chapter 93A.

Hustler’s February, 1983 issue was off the newsstands well before July, 1983. The claim under Chapter 93A with respect to the February, 1983 issue of Hustler is, therefore, subject to the provisions of former § 3(l)(b) of chapter 93A.

It is not disputed that Hustler received more than twenty percent of its gross revenues from interstate commerce outside the state of Massachusetts. It is also clear that the acts or transactions connected with Hustler’s reproduction of “Cracking Eggs” did not occur primarily or substantially in Massachusetts. The editorial work associated with “Bits and Pieces” was done in California. The issue was printed in and shipped from Wisconsin. The magazine was distributed and sold nationwide. Accordingly, Hustler’s activities with respect to the February, 1983 issue are exempt from the provisions of chapter 93A.

Whether the former § 3(l)(b) exemption applies to the August, 1983 issue as well involves an additional consideration. The off-sale date for the August, 1983 issue was July 27, 1983. Evidence at trial indicated that the off-sale date is a firm date, within a week of which copies of a particular issue would no longer be available for sale. Thus, some copies of the August issue of the magazine are likely to have been available subsequent to the effective date of the repeal of former § 3(l)(b), July 20, 1983.

In the circumstances of this case, however, the adoption of a single publication rule — using the publication date rather than differing, later sales dates to determine the time at which allegedly illegal conduct occurred — is appropriate. See Khaury v. Playboy Publications, Inc., 430 F.Supp. 1342, 1345 (S.D.N.Y.1977). Massachusetts has adopted a single publication rule in cases of libel. Bigelow v. Sprague, 140 Mass. 425, 5 N.E. 144 (1886); see McGlue v. Weekly Publications, Inc., 63 F.Supp. 744 (D.Mass.1946). The considerations favoring such a rule in cases of libel, including the problems of indefinite liability and difficulties arising in the computation of limitations periods, also favor use of a single publication rule for determining exposure to chapter 93A liability. The question presented by the repeal of § 3(l)(b) is analogous, in this respect, to those presented by statutes of limitation. The court concludes that the Massachusetts court would adopt a single publication rule to determine the availability of the interstate commerce exemption under 93A in the circumstances presented by this case.

All of the acts necessary to plaintiff’s cause of action were completed before repeal of former § 3. The on-sale date for the August, 1983 issue of Hustler magazine was June 28, 1983. Sales would have occurred within a week of that date. Publication, therefore, occurred well before repeal of former § 3 on July 20, 1983. Under these circumstances, Hustler’s publication of “The Feast” in the August,’ 1983, issues of the magazine is exempt from the provisions of chapter 93A.

The court, therefore, concludes that plaintiff has not proven his claims under chapter 93A.

Judgment for the defendants on the claims of copyright infringement and the claims under Mass.Gen.Laws ch. 93A will enter in accordance with this opinion.

      . The court agrees with the commentator who noted, "the fair use privilege to quote portions of copyrighted works for purposes of criticism or review is compatible with the protection of economic incentives, since the resulting work performs a different function than the original and is not a market substitute.” R. Denicola, "Copyright and Free Speech: Constitutional Limitations on the Protection of Expression,” 67' California Law Review 283, 301-02 (1979). See generally 3 M. Nimmer, Nimmer on Copyright § 13.05 (1978).

      . In reaching this conclusion the court has presumed that if interest were expressed by a publisher of a pre-college text, it would be diminished, if not destroyed, by disclosure of Hustler's prior use. This, however, may not be the case concerning a college text.

      . This case and Brewer involve similar issues and similar facts, but reach different results. They are, however, reconcilable. In Brewer, the Ninth Circuit decided that on the evidence presented, the jury could have reasonably concluded that plaintiff’s copyright was infringed. Brewer, 749 F.2d at 529. It did not hold such a finding was required. Of more importance, '“each case raising the question [of fair use] must be decided on its own facts.’" Harper & Row, 105 S.Ct. at 2231 (quoting H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. 66, reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5680). In this case, the evidence concerning the impact of publication on potential markets and values was of decisive importance. Such evidence is unique to every case.

      . This conclusion applies equally to defendant FDC. Plaintiff properly did not contend that FDC’s distributional activities were added evidence of the alleged copyright infringement.

      . After the decision in Baldassari, ch. 93A, § 9, which relates to consumer disputes, was amended to enlarge consumer causes of action by requiring only "injury" rather than a "loss of money or property”. Leardi v. Brown, 394 Mass. 151, 474 N.E.2d 1094 (1985). Chapter 93A, § 11, pertaining to commercial disputes such as that at issue in this case, was not amended. A "loss of money or property" continues to be an element of the offense established by § 11 and, therefore, Baldassari remains controlling concerning this aspect of sustaining a § 11 cause of action.

      . Plaintiff argues that a loss to the value of his copyright would satisfy the requirements of § 11. The evidence established that no such loss occurred. Even if it had, the proposition advanced by plaintiff is doubtful. To the extent that plaintiff’s interest in his copyright is protected by federal copyright law, any cause of action under state law is prempted. 17 U.S.C. § 301. Any damage to the value of the copyright would, on the facts of this case, arise from the infringement rather than from the alleged employment of an unfair or deceptive act or practices. There was no evidence that Hustler's publication had created any confusion as to Haberman’s ownership of the copyright in “Cracking Eggs” and “The Feast.” Plaintiff’s own witness testified to the contrary.

      . The court in Goldstein adopted a place of conduct test rather than employing a transactional analysis. 20 Mass.App. at 249, 479 N.E.2d 728. Defendants’ conduct in this case occurred in the state of California.

      . Such a rule is appropriate on the facts of the case. The activities for which Hustler was directly responsible were completed when copy for the August, 1983 issue was sent to the printer in Wisconsin, well before July 20, 1983. As a practical matter, Hustler could not have withdrawn its item on "The Feast" after May 25, 1983, when printing of it was completed. The entire issue was printed as of May 26, 1983, and shipments by FDC were completed by June 10, 1983.


author: DIMM1CK, District Judge.

text:
    BOARD OF TRUSTEES OF the WESTERN CONFERENCE OF TEAMSTERS PENSION TRUST FUND, Plaintiff, v. LOOMIS ARMORED CAR, INC., Defendant.
    No. C85-2211D.
    United States District Court, W.D. Washington.
    Jan. 6, 1986.
    Bruce D. Corker, Michael F. Mogan, Perkins Coie, Seattle, Wash., for plaintiff.
    Scott B. Henrie, Williams, Lanza, Kastner & Gibb, Bellevue, Wash., for defendant.
   MEMORANDUM AND ORDER

DIMM1CK, District Judge.

The Court is presented with an issue of first impression: whether a party may enforce an arbitration award under 29 U.S.C. § 1401(b)(2) before the issue of attorneys’ fees has been resolved but after all other issues have been settled.

Plaintiff brings this action to enforce an arbitration award in its favor. Defendant asserts that this action is premature because when plaintiff filed its complaint the arbitrator had not yet resolved the issue of the amount of attorneys’ fees to be awarded. Accordingly, defendant moves to dismiss this case pursuant to Fed.R.Civ.P. 12(b)(1) and (6).

The Employee Retirement Income Security Act, 29 U.S.C. § 1401(b)(2) provides:

Upon completion of the arbitration proceeding in favor of one of the parties, any party thereto may bring an action, no later than 30 days after the issuance of an arbitrator’s award, in an appropriate United States district court in accordance with section 1451 of this title to enforce, vacate, or modify the arbitrator’s award.

(Emphasis added.) Defendant contends the arbitration proceedings were not “completed” because of the unresolved issue of the amount of attorneys’ fees. While there are apparently no eases construing section 1401(b)(2) in this regard, the Court holds that an arbitration award is completed for purposes of this section when the arbitration award resolves all issues except for attorneys’ fees and costs. Cf. Ironworkers Local Union 75 v. Madison Industries, Inc., 733 F.2d 656 (9th Cir.1984) (district court judgment on the merits is final and appealable even though a request for attorneys’ fees is unresolved).

THEREFORE, defendant’s motion to dismiss is DENIED.