copyrighted material in a rival newspaper, there was an unfair use even though the taking was 'such a little one.'

"Certain conclusions can be drawn from these cases. Judge Yankwich stated in a recent article:

"If the amount reproduced is legitimately necessary to review the book, or is a part of a scientific or other exposition of the subject, in which the theories expounded by others must be discussed, the use, regardless of quantity, is fair. If, on the other hand, the appropriation of the copyrighted product of another is motivated by the desire to derive commercial benefit, the use, regardless of quantity, is unfair. ***' [Italics added.]

"We have some question as to the breadth of the conclusions, more particularly to the second sentence, but think the statement generally correct. It was obviously made to point up the impact of commercialism on the doctrine of fair use. We would conclude that the purpose for which the use was made is of major importance, in consideration with various other factors, in arriving at a sound determination of the extent of fair use; that broader scope will be permitted the doctrine where the field of learning is concerned and a much narrower scope where the taking is solely for commercial gain."

On the basis of these two cases, then, it seems reasonably clear that a drug manufacturer who reproduces verbatim, whether briefly or extensively, any copyrighted medical or scientific material, attributing it to the author, probably incurs liability if the reproduction is for advertising or other commercial purpose. This is so even if the reproduction is full and accurate, and would apply even more strongly in the case of a misleadingly selective quotation. If selection is exercised, moreover, and it results in the deletion of qualifying or critical language, thus distorting the author's viewpoint, there is another problem, which I will merely mention here: the law of libel. It is possible that a misleading quotation would hold up a medical or scientific author to ridicule in his profession and that he could recover damages as for a libel.

What of the use of a summary or paraphrase by the manufacturer in his advertising leaflets? Of course, scientific facts and conclusions are not subject to exclusive appropriation under the copyright law. An author has exclusive rights to the arrangement of the words by which he expresses the fact or conclusion, but not to the fact or conclusion itself. A scientific fact may be stated with impunity in advertising material so long as the original author's exact words are not copied. Likewise, a conclusion may be summarized or paraphrased. But prudence should prevent the use of the author's name in connection even with a summary of his conclusion without his permission, especially if there is any risk of discrepancy or misinterpretation in the summary.

Citations to articles appearing in medical journals or textbooks may also be freely used. They merely refer the reader to the original source material and do not in any sense infringe the copyright. Again, however, care should be used not to abuse this privilege by using the citation in such a way as to credit the author of the cited article with the statement made in the text.

I turn now to a second possible basis of liability for unauthorized use of medical or scientific quotations or the use of an author's name in conjunction with a summary of his article, a basis which exists entirely independent of any copyright considerations.

19

THE RIGHT TO PRIVACY

18

In the State of New York the legislature has created by statute what is known as the right of privacy. Similar statutes exist in other States, and in some jurisdictions the right has been created by judicial decision. The right to privacy received its original American impetus from a famous law review article written by Mr. Louis D. Brandeis, later a Justice of the Supreme Court of the United States. Basically, the right of privacy means the right to live one's life in seclusion without being subjected to unwarranted and undesired publicity, the right to be let alone, the right to live without unwarrantable interference by people in matters with which they have no appropriate concern. A "public figure," of course-and "public figure" here has been given a broad definition by the courts-waives this right. But even such a figure is shielded to some extent. He is deemed to have agreed only to any reasonable public use of his name and position, and not to the commercialization of his personality through a form of treatment distinct from dissemination of news or information.

18 Civil Rights Law, secs. 50, 51.

19 Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

The New York statute makes it a misdemeanor to use the name, portrait, or picture of a living person for advertising or other commercial purposes. Likewise, the statute authorizes a suit for an injunction and damages where a person's privacy is so invaded.

In Koussevitzky v. Allen, Town & Heath,20 the decisions were reviewed and the court held :

21

"This statute sought to protect the sentiments, thoughts, and feeling of an individual by embodying 'a legal recognition-limited in scope to be sure, but a clearly expressed recognition nevertheless of the right of a person to be let alone, a right directed "against the commercial exploitation of one's personality."** *

"It is clear, therefore, that the right of privacy statute applies to the unauthorized use of a name or picture to sell a collateral commodity." The protection of the statute has been extended to a radio announcer 22 and to a famous dress designer." Indeed, in the latter case, the court protected against the use of commercial exploitation of a name to sell a product even though the plaintiff had already licensed the use of his name to a competitor of defendant perfumer. The court said:

24

"The circumstance that plaintiff has commercialized his name in connection with dress designs and items of ladies' apparel, does not prevent him from resorting to sections 50 and 51 of the civil rights law to restrain the use of his name for other commercial purposes, especially those in conjunction with which he has not established a trade name. Neither has plaintiff waived the benefit of the civil rights law by consenting for a time to have his name used in the perfumery field by Overhamm. The duration of that consent had expired, as Overhamm signified by canceling the registered trademark following the Californian arbitration. There was no general abandonment of the name by plaintiff when he contracted with Overhamm. * * *

Certainly, in the light of precedent and as a matter of principle, it seems that there is no reason why a doctor or scientist quoted without consent, and for advertising purposes, could not successfully invoke sections 50 and 51 of the civil rights law of New York and the "right to privacy."

CONCLUSION

The use of an unauthorized quotation from a scientific article in advertising material may constitute both an infringement of copyright and a violation of the right to privacy. Therefore, a cautious approach is indicated. Before quoting from a scientific treatise or text, the advertiser should obtain the written permission of the author. As a matter of policy, it might be recommended that the proposed advertising copy be submitted to the author in advance and his written approval secured therein. The author will then see exactly how his material is to be used and claims of unfair surprise will be obviated.

EXHIBIT 4

[Reprinted from the AMA Archives of Neurology & Psychiatry, June 1957, vol. 77, pp. 611-615, copyright 1957, by American Medical Association]

Nathan S. Kline, M. D., Rockland State Hospital, Orangeburg, N. Y.

RELATION OF PSYCHIATRY TO THE PHARMACEUTICAL INDUSTRY

These words are written as an individual, and not as the representative of any department or association.

Although a little learning is reputed to be a dangerous thing, a little too much understanding can be absolutely fatal. As psychiatrists we pride ourselves on this “understanding,” claiming to neither condone nor condemn. The extension

20 188 M. 479, 68 S. 2d 779 (Supreme Court, New York County, 1947, Shientag, J.), affirmed 272 App. Div. 759, 69 S. 2d 432 (1st dept., 1947).

21 188 M. 481.

Uproar Co. v. National Broadcasting Co., 8 F. Supp. 358 (D. Mass., 1934), modified on other grounds, 81 F. (2d) 373 (C. C. A. 1, 1936), certiorari denied, 298 U. S. 670, 56 S. Ct. 835, 80 L. Ed. 1393 (1936).

23 Adrian v. Unterman, 281 App. Div. 81, 118 S. 2d 121 (1st dept., 1952), affirmed, 306 N. Y. 771, 118 N. E. (2d) 477 (1954).

24 281 App. Div. 81, 88-89.

of this way of life outside the patient-doctor relationship can all too easily sap away righteous indignation. Overcontrol of aggressive and hostile forces in order to preserve the ego ideal of the all-tolerant, all-understanding, paternalistic psychiatrist can lead to blunting of social values. Some recent incidents call for strong feeling and immediate action.

Unlike most branches of medicine, the psychiatrist has had relatively little contact with the pharmaceutical industry until the past year or two. The advent of a new series of compounds with a $150 million to $200 million-a-year market has opened a floodgate with which we were not entirely prepared to deal. The initial reaction of some the unrealists was to have nothing to do with the hoard of strangers pounding at the gate. There was considerable resistance to accepting grants-in-aid, fellowships, and the usual type of financial support which the pharmaceutical industry has provided for specialists in other fields. The American Psychiatric Association, despite its lack of tradition in this area, has dealt with this both wisely and well by the judicious acceptance of legitimate support. On the other hand, there have definitely been abuses, and it is these specifically which have occasioned the present editorial.

The contacts of psychiatry with the pharmaceutical industry have been so overwhelmingly beneficial that it would be well-nigh criminal to jeopardize them by not putting an immediate halt to the ill-advised attempts at exploitation and undue influence by a few scattered individuals in a minority of the drug houses. It is almost impossible to itemize in order of importance the salutary effects which can be noted. Certainly one of the most important was recently pointed out at the work conference sponsored by the Psychopharmacology Center of the National Institute of Mental Health by the editor of this journal. Although the remark was made in a somewhat different context, it is equally applicable here. This dealt with the awakened interest in both clinical and research possibilities in even the remotest of State, county, or city mental hospitals, because of the availability of these new methods of treatment.

The pharmaceutical industry has long ago learned the value of basic research and, in an effort to get at the fundamentals of drug action, has literally poured millions of dollars into this enterprise within the framework of their own organization. More important at this time than even the financial support is the availability of trained personnel in physical chemistry, biochemistry, pharmacology, animal psychology, and medicine. The interchange of such trained persons between industry and the mental hospitals has already begun and will undoubtedly greatly increase as time passes. Both sides stand to gain a great deal. The provision of grants-in-aid "with no strings attached" has provided an amazing transfusion of vitality into many a struggling clinical or laboratory research group in some clinic or State hospital. Financial watering of this apparently arid region has resulted in the appearance of oases which help to nourish the whole surrounding psychiatric neighborhood. The university departments of psychiatry and neurology have similarly benefited and, in turn, contributed to the greatly expedited attack on the problem. Nor has the research supported by the pharmaceutical houses been limited to clinical testing in the area of biochemistry. Physiological, psychological, and even psychoanalytic projects have been supported. More than one company has adopted the philosophy "What is good for the field of mental health is ultimately good for us." Without exception the pharmaceutical houses have been most generous in providing free supplies of pharmaceuticals until the value of a particular compound has been well established. In addition, they have provided placebos, prepared medications in the form that the researcher finds most convenient, and provided adjunctive pharmaceuticals and numerous other such "small services." Even with those preparations whose saleability has been well demonstrated, free supplies are usually available for a new or badly needed clinical application. Both direct and indirect support have been given to the major oganizations in the field of mental health. There have been not only contributions to general budgets but the provision of fellowships and the support of meetings which bore no relationship to pharmaceuticals per se. There has been no attempt of which I know to direct the selection of applicants for such fellowships or to determine the subjects or composition of such meeting, with the exceptions indicated below. The pharmaceutical houses have served a potent role as disseminators of information. Their publications have carried articles on progress or opinions in respect to mental illness which by no means deal exclusively with the beneficial effects of the particular preparation which they may happen to market. By underwriting the cost of publication they have made a whole variety of reports on current progress readily available. When these have dealt with pharmaceuticals, the negative opinions and the value of competing products

have been freely presented, since no attempt was made to influence editorial policy. A fair number of the publications so supported in no way dealt with the pharmaceutical area.

The most recent benefit of this general type has been the offer of one of the pharmaceutical houses to underwrite, for 5 years, expenses for bringing a distinguished foreign researcher to the United States for presentation of a lecture at the annual meeting of the American Psychiatric Association. The choice of person would rest with the association. In summary, the pharmaceutical houses have provided an infusion of funds, of personnel, and of general helpfulness, in addition to the specific merits of the products which they are producing. Now, as to the other side of the picture. Most of the difficulties arise from overeagerness on the part of the pharmaceutical houses to push their particular product. In occasional cases a physician has encouraged a pharmaceutical house to pander to his need for recognition and allowed himself to be exploited. One brazen incident of this type resulted in premature, unwarranted claims which served only to bring disrepute to the whole field of pharmaceutical investigation. Acceptance of financial support or assitance, the provision of free medication, or other help should not place the recipient under a feeling of obligation that he must produce a "favorable" report. Short-term gains of this sort are rapidly dissipated, since after 1 or 2 such unsubstantiated testimonials the investigator finds his professional integrity is discredited, the journals find his publications no longer acceptable, and even the pharmaceutical houses allow him to drift into the discard. There exist certain investigators in all the fields of medicine, who are known to turn out laudatory articles about whatever they investigate (whether the deception is conscious or unconscious), and these are generally disdained by the drug industry.

Before I continue, a point of major clarification is needed. One cannot speak of “pharmaceutical houses" as though it were a single, integrated functioning entity. Like Brahma, most of them are 4-handed, 4-headed personalities in which centralization of control is not always perfect, so that not infrequently there is incoordination between 1 arm and another. The two hands with which psychiatrists are most likely to come into contact are research and sales and promotion. These have quite different functions and often quite different ethics. With very few exceptions, the research divisions of the pharmaceutical houses not only are sympathetic and understanding of the problems which the investigator or clinician faces but are interested in a completely impartial report, although naturally they are hopeful that the drug under investigation will prove to be a valuable one. Certainly the legitimate pharmaceutical house prefers honest negative reports, especially early in the investigational stage, since it can then abandon the product rather than invest hundreds of thousands of dollars, only to find its uselessness when it is placed on the competitive market.

In contrast, the function of sales and promotion is exactly what its name implies. Their basic concern is not judgment as to the value of a particular preparation but the task of promoting and selling what is provided them. The limitations and side effects of a particular preparation are provided them by the clinical investigation division of the pharmaceutical house, but by the time the information has passed from the original investigator to the research or clinical investigation division, then on to the top echelon in sales and promotion, and down through the field managers and out to the detail men an inevitable process of oversimplification, with the tendency to "accentuate the positive and eliminate the negative," results. Many of the detail men themselves are extremely conscientious and attempt to keep abreast of the current literature in its original form, but unquestionably certain distortions result. As has been pointed out to me, the pharmaceutical industry is unique in that the advertising and sales promotion are directed at the physician; the actual purchasing is done by the wholesale houses, the ultimate consumer, the patient, not having direct relationship with the manufacturer or producer. This in itself produces a highly complicated situation. Although the sale and promotion divisions of most of the pharmaceutical houses operate at a much higher ethical level than do most businesses, they nevertheless exist in a highly competitive market and cannot help being influenced by the successful practices of other types of merchandising. It is in this area that conflict between commercial techniques and professional standards may arise.

Nowhere have the characteristics of a profession been expressed more succinctly than in a recent article in Science by Vannevar Bush. He says in part: "Members of a profession minister with dignity; they demand the respect due to their skill and devotion; they do not merely advise, they insist upon being heard; they do not submit their opinions for the judgment of the layman

who is their client, no matter how powerful he may be; they insist that they have his confidence and that, in their special field, their opinion shall control, or that the client turn elsewhere. They recognize that he may need to join their findings with factors outside their special field in coming to decisions. But within their proper scope, modest men though they may be, they advise and guide with pride, and with the insistence that the ancient art which they represent be received with the respect which is its due."

It is exactly at this point-the insistence that medicine be received with the respect which is its due-that there is the necessity of speaking out. It is the business of business to make a profit, but unless the profession insists upon its own rights and privileges it will find itself being manipulated and exploited for ends which are not its own. Both business and the profession have their proper area of activity and, like good neighbors, get along best when each has clearly defined what is within its own sphere and, if necessary, demonstrated that it will not be cajoled or maneuvered.

In a number of petty ways there have been attempts at infringement upon professional prerogatives. By bringing these to public protestation, the best interests of both groups will be served, since then the profession can retain its dignity and the commercial interests not be tempted to operate in an area that is beyond their proper scope. The list of attempted abuses is presently rather small but is apt to grow in both length and magnitude unless the line is drawn. Whereas it is perfectly appropriate for a pharmaceutical house to encourage an investigator to report positive favorable results if the investigator is satisfied that he has tested a sufficient number of cases in an adequate manner, it is equally improper that any attempts should be made at suppression of an article containing an unfavorable report. It is consonant with professional dignity for an author to allow himself to be quoted if his words are not torn out of context to say something other than he intended, but it is disturbing to discover one's self-quoted in a manner which implies recommendation of a product when it may have been given only "faint praise" as compared with other drugs. Scientific reports are not to be used like play reviews, where the few kindest words are plastered on a billboard or in a newspaper ad. There is certainly nothing immoral about sending the draft of an article dealing with a drug to the appropriate pharmaceutical house for comment which may provide information unknown to the author (published or unpublished), but it is certainly below professional dignity to have the pharmaceutical house write the article, to which the investigator merely affixes his signature. The practice of collecting such and such a number of cases, paid for at so much a head, is at least questionable. There exist certain rationalizations for doing this, but the value of forms hastily filled in by busy clinicians is not a sensible way of evaluating a drug.

All of the above-mentioned incidents have occurred within the past year, and the ones that I have itemized were deliberately selected because they had occurred to persons other than myself. There have been different, equally undesirable, occurrences, against which I and others have had to take a firm stand and issue a strong protest.

Since it now appears happily inevitable that psychiatry and the pharmaceutical industry will be closely associated, the problem is how best clearly to define the rights and prerogatives of each. To this end we (and I serve merely as the spokesman for most of my colleagues who are doing clinical drug investigations) believe that a conference of a group of such investigators with the top administrators of the pharmaceutical industry would serve the valuable purpose of establishing certain “ground rules" which would make for a happy and compatible relationship in the future. After such a meeting I believe it would be desirable for the American Psychiatric Association to establish an ad hoc committee to deal with infringements against the to-be-established ground rules so that the force and dignity of the entire profession might be brought to bear against those who attempt to violate these ethics.

There should certainly be no attempt to regiment by whom and in what way clinical investigations should be done, but since the number of investigators in this field is relatively limited compared with those in many other fields of medicine, it is believed that agreement could be reached on such subjects as the use of scientific publications for sales and promotion, the leaking of information to the press prior to presentation at a professional meeting or in a professional journal, and other obvious areas of this type which call for discussion.

My personal familiarity with the men who serve in the pharmaceutical industry in both professional and administrative capacities is reasonably extensive, and,