Gregoire v. G. P. Putnam's Sons ( 1948 )

There can be no doubt that at common law the rule was as it is stated in comment c of section 578 of volume 3 of the Restatement of the Law of Torts: "each time a libelous book or paper or magazine is sold, a new publication has taken place". (See Odgers on Libel and Slander [6th ed.], p. 132 et seq., and p. 483; Seelman on Law of Libel and Slander [1945 Supp.], pp. 13-15.) There is certainly no case in this court, up to now, qualifying or limiting that rule so far as books are concerned. The rule itself had existed from time immemorial, and was well known to all those interested in the subject, so when the Legislature in 1936, shortened the period of limitations (Civ. Prac. Act, § 51, subd. 3) in libel actions from two years to one year, the Legislature necessarily meant one year from the time of any sale of a book or periodical. Now that old rule is being changed so that a libel suit must be brought within one year, not from a sale, but one year from the original publication of the libelous book — a most drastic and wholly unnecessary alteration in the settled law of libel.

In Wolfson v. Syracuse Newspapers, Inc. (254 App. Div. 211, affd. 279 N.Y. 716), under most exceptional circumstances, the rule (as to each sale or exhibition being a new publication) was given something less than total effect as to a daily newspaper where the publisher kept old copies of his paper in its office and, long after the date of issue, allowed a person to inspect the copy containing the defamatory matter, it being held that such an accidental or incidental showing of a long obsolete periodical was not such a new publication as started the Statute of Limitations running anew. That decision clearly applied to its special facts only. However, in the course of time the Wolfson ruling has been used as the supposed basis of a new, so-called "single publication rule" to the effect that, as to newspapers and other dated and ephemeral periodicals, the only "publication" of which the law takes account is that which occurs when the particular issue leaves the periodical's office. There may be reason and logic in such a holding as to periodicals, since any sale or distribution thereof at a date long after the date of issue is incidental and inconsequential. But to apply this so-called "single publication rule" to books will be to let the exception as to periodicals swallow the whole rule and become itself the rule.

By reversing here, we are saying no less than this: that, once a book has been put on sale, no matter how few or many copies are sold the first year, the right of a defamed person to sue therefor expires absolutely and forever one year after the sale of the first copy. The book (same edition and same printing) may be on the market for years; it may descend the scale into the "remainder" or "bargain" class. It may sell only a few copies at first, then, more than a year later, leap into the best-seller class. Unlike a newspaper, the book may grow in popularity and effectiveness with the passage of time, with each new sale a fresh and damaging assault on the reputation of the victim. Yet under this new rule, the one defamed by these repeated deliberate and intentional wrongs has no remedy, solely because he did not sue within a year from the time the first copy left the press and the publisher's office.

The date on a daily newspaper or weekly or monthly magazine marks the time of its use and importance. Since nothing is so dead as last week's newspapers, it is not unreasonable to hold that nothing that afterwards is done with them can be deemed a "publication" in law. But a book's existence is not intended to be, and is not, for any such brief time. The book publisher keeps his stock on his shelves and sends out books as called for. When, a year or two or ten years after first printing, he deliberately puts out new copies of the defamatory writing, how can it be said that he is not, in fact and in law, republishing the libel? And, since the common law is plain and just, and the statute certainly has not changed it, why should we extend to the whole field of books an exception appropriate to periodicals only?

In Mack, Miller Candle Co. v. Macmillan (266 N.Y. 489), there had been a new printing (not a revised edition but a printing of more copies of the same book) within the statutory period. But that decision does not say that, had there been no such second printing, the action would have been barred. A rule that publication is once and for all complete as soon as the first book is sold is bad enough, but to go further and say that there is a new publication whenever a new batch of the same unchanged book is printed, is to state a distinction without a difference and to leave a plaintiff's rights dependent on the size of the printings. Much simpler and more reasonable is the good old common-law rule that every sale of a book is a new publication. As to books, no reason has been suggested for changing that rule, and in any case, such a suggestion should be directed to the Legislature instead of the courts. There can not be the slightest basis for suggesting that the Legislature, when it fixed a one-year period within which libel suits must be brought, had any possible idea that this would be interpreted as meaning one year from the date when the first copy of the book was sent out into the world by the publisher. If the Legislature wants that to be the law in New York, the Legislature should be permitted to say so.

Of course, under the common-law rule, the period for bringing suit may run for a long time, but only if and because the tort-feasor insists on repeating his wrong. The producer of libelous matter can start the statute running in his favor at any time by refraining from sending out any more libeling books. The Statute of Limitations is intended as a statute of repose but it is not intended to furnish a license for continued wrongdoing.

The order appealed from should be affirmed, with costs, and the certified question answered in the affirmative.

CONWAY, THACHER and FULD, JJ., concur with LEWIS, J.; DESMOND, J., dissents in opinion in which LOUGHRAN, Ch. J., and DYE, J., concur.

Ordered accordingly. [See 298 N.Y. 753.]