(concurring):
While I agree that the denial of an injunction should be affirmed and hence concur, it seems to me unnecessary for the majority opinion to do anything other than affirm the denial of an injunction for laches (even though I would only remand were that the only issue). While I do not completely agree with Judge Leval’s fair use analysis, it seems to me the majority unnecessarily goes out of its way to take issue with Judge Leval’s opinion, New Era Publications Int’l, ApS v. Henry Holt and Co., 695 F.Supp. 1493 (S.D.N.Y.1988). Doing so, even by way of dictum, tends to cast in concrete Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, — U.S. —, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987). Salinger is a decision which, even if rightly decided on its facts, involved underlying, if latent, privacy implications not present here by virtue of Hubbard’s death. Salinger’s language, as here applied, confines the concept of fair use and prevents necessary flexibility in fashioning equitable remedies in copyright cases. I thought that Salinger might by being taken literally in another factual context come back to haunt us. This case realizes that concern. ’Tis the more the pity, since the majority’s “disagree[ment] with a great deal of [Judge Leval’s] opinion,” majority op. at 583, can in a real sense be considered dictum.
Ordinarily, in the interests of brevity I would confine this concurrence to my points of disagreement with the majority, relegating to an appendix my very limited disagreement with Judge Leval on his fair use analysis. But because “[f]air use is a mixed question of law and fact,” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985), I must restate a certain amount of background information.
I. Background
The book, Bare-Faced Messiah, is a biography of sorts, largely based upon Freedom of Information Act materials from U.S. Navy, Federal Bureau of Investigation, Central Intelligence Agency and other United States agency records; numerous interviews with Scientologists, friends, enemies, and relatives of Hubbard; newspaper stories and published materials about the man; Hubbard’s own extensive writings, involving literally millions of words, published and unpublished; and court records and testimony in various tax, bankruptcy, divorce, and other proceedings. Like Judge Leval, I believe it unnecessary to assess the accuracy of Miller’s reports or the justification for his conclusions. Nonetheless, there is no reason, and I do not see the majority doing otherwise, to quarrel with the judge’s finding that the book “appears to make responsible use of its material” and hence is “a serious work of criticism and comment on a highly newsworthy subject.” 695 F.Supp. at 1506. As such, it is properly qualified for fair use consideration as a work of “criticism, comment, news reporting, teaching ..., scholarship, or research,” under 17 U.S.C. § 107.
It bears mention that Messiah gives due credit in the preface to a dedicated member of the Church of Scientology for more than a decade, one Gerry Armstrong, who, when given permission to research an official biography of Hubbard, is said to have gone through six filing cabinets of material, only to become totally disillusioned with contradictory material on Hubbard’s family background, naval and academic careers, fraudulent business background, tax evasion and *586evasion of the law. Armstrong, who was unsuccessfully sued by the Church, Church of Scientology of California v. Armstrong, No. C. 420153 (Super.Ct.Cal. June 20,1984), is quoted as concluding that Hubbard was “a con man.” Messiah at 6.
II. Judge Leval’s Opinion
For examples of Messiah’s use of copyrighted material, I would refer the reader to Judge Leval’s comprehensive analysis of New Era’s claims. See 695 F.Supp. at 1507-22. A long appendix to the judge’s opinion provides all of the passages in Messiah which New Era claims infringed its copyright, the sources of those passages, and the judge’s rulings on each passage. The appendix itself was not published in the Federal Supplement, and although I will refer to the appendix occasionally, I do not consider it necessary to publish it here.
The first twenty-two pages of the Leval appendix catalog sixty-nine quotations or references to published materials. Of these, with only three exceptions,1 the judge found either that there was no infringement because the quotations merely reported facts or ideas and the paraphrases did not use Hubbard’s manner of expression, or that there was a strong fair use justification. Fair use was justified, Judge Leval said, because some of these passages embodied false mythology about Hubbard; Hubbard’s dishonesty; his boastfulness, pomposity, or pretension; his paranoia; his snobbery, bigotry, disdain for Asians, or dislike of the Orient; his cruelty or disloyalty; his aggressiveness, viciousness, or scheming tactics; his cynicism; or his derangement, insanity, or bizarre pseudo-science. Judge Leval found that other passages were necessary to render Hubbard’s ideas accurately or to display his early writing style or presentation of himself. Judge Leval considered all of these reasons for quoting Hubbard directly because they have bearing on “the purpose and character of the use.” 17 U.S.C. § 107(1). In setting forth these different categories of fair use, Judge Leval referred to the statute, which permits use “for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research.” Id. § 107 (emphasis added to show statutory terms not all inclusive); see 695 F.Supp. at 1505. The opinion also notes that “[although plaintiff does not concede justification for the quotations from the previously published works, it no doubt recognizes that defendant’s claims of fair use as to those materials are extremely powerful.” 695 F.Supp. at 1498. New Era’s fire on appeal is not directed at Judge Leval’s findings on the published material, but its brief does mention that fair use does not extend to multiple, excessive, or less important illustrations of Hubbard’s characteristics, as Judge Leval’s opinion itself recognized. See id. at 1524. New Era does not, however, support this suggestion with specific examples.
This appeal instead concerns quotations from the unpublished Hubbard writings. Judge Leval’s appendix lists 132 passages from unpublished works which New Era claims infringed its copyright. Seventy-three of these came from Hubbard’s Asia Diaries written in 1927-29, when Hubbard was a young man. Most of the Asia Dia*587ries passages quoted appear in chapters 2 and 3 of Messiah. Most of the remaining fifty-nine passages from unpublished works came from letters: Six were in one letter (to his first wife) dated July 21,1939; twelve were in four letters to a follower, Helen O’Brien; one was in an internal memo to a press officer; two were in a letter (apparently dated 1971) to his daughter Alexis disavowing that he was her father; and the rest were in letters sent to the Secretary of War offering Hubbard’s services in World War II, to the FBI (mainly deprecating his second wife), to the YA seeking to upgrade his World War II pension, to an Alaskan bank cashier explaining why Hubbard had not paid a note, and to the FBI or the President of the United States seeking to ingratiate himself or Scientology. There is also a quotation from Hubbard’s proposed Constitution for the Nation of Rhodesia and a paraphrase of a dispatch to Hubbard’s Scientology followers at Saint Hill, England.
Judge Leval found that 91 of the 132 passages from unpublished works were fairly used or did not infringe upon the unpublished Hubbard writings and that the remaining 41 were unfairly used. The Asia Diaries were the source of all but four of those unfairly used passages. Set out in the margin is a table which summarizes Messiah’s, use of Hubbard’s writing and Judge Leval’s findings.2
Judge Leval’s principal conclusions on the unpublished works may be summarized as follows:
1. The first conclusion. Harper & Row, supra, and Salinger, supra, do not preclude a finding of fair use as to unpublished materials, but they do argue strongly against it and place a burden on the user to “establish a highly convincing case in favor of fair use.” 695 F.Supp. at 1523. With this the majority cannot and does not disagree.
2. The second conclusion. Holt met its burden in this case as to the great majority of unpublished materials. Salinger and Judge Leval’s own Craft v. Kobler, 667 F.Supp. 120 (S.D.N.Y.1987), cases in which the biographer “has used the lively expression of his subject to enliven the biography,” 695 F.Supp. at 1523, can be distinguished from this case, where the personal traits of Hubbard could not be shown without using the subject’s own words, because the value of the passages quoted in Messiah “lies precisely in the subject’s choice of words — not as a matter of literary expression — but for what the choice of words reveals about the subject.” Id. at 1524. A prime example is the quotation from Hubbard’s Asia Diaries: “The trouble with China is, there are too many chinks here.”3 The majority apparently rejects this approach of Judge Leval; if the work is unpublished the majority considers under the second fair use test — the nature of the unpublished work — that protection follows as of course. Majority op. at 583. I disagree.
3. The third conclusion. As to the book overall, Judge Leval found that fair use was adequately demonstrated, far *588more compelling than in Salinger (which reversed Judge Leval’s district court opinion, Salinger v. Random House, Inc., 650 F.Supp. 413 (S.D.N.Y.1986)). But, given Salinger, and its strong presumption against finding fair use for unpublished materials, Judge Leval went on to concede, perhaps Messiah uses too many examples or in some cases insufficiently effective or important ones to demonstrate Hubbard’s characteristics. This required a finding of “some degree” of infringement. 695 F.Supp. at 1524-25. The majority agrees though saying that the use here was “more than ‘small.’ ” Majority op. at 583. I totally disagree. Out of the millions of Hubbard’s words the use was infinitesimal. In comparison to Messiah as a whole, the unfair use was tiny, indeed insignificant.
4. The fourth conclusion. While an injunction ordinarily issues to prevent copyright infringement, Judge Leval found this case “drastically different,” since (1) Messiah was not an example of “profiteering by appropriating the creative effort and genius of another” or other “opportunistic free riding”; (2) the infringing portions are “insignificant”; and (3) an injunction would “diminish public knowledge,” so First Amendment concerns are implicated. Id. at 1525. Therefore, Judge Leval concluded, all of the circumstances of this case required the denial of a permanent injunction. The majority disagrees. Majority op. at 584-585.4 I totally disagree with the majority.
III. Discussion
A. Fair Use Doctrine
I need not here review the background of the defense of fair use. There is a very good book on the subject, one that has been cited by the United States Supreme Court and is referred to by the majority. See W. Patry, The Fair Use Privilege in Copyright Law (1985) (hereinafter Patry); Harper & Row, 471 U.S. at 554, 105 S.Ct. at 2227. The leading treatise covers the fair use defense in depth. See 3 Nimmer on Copyright § 13.05, at 13-62.4 to -129 (1988) (hereinafter Nimmer). The Copyright Act itself lists four non-exclusive factors — I emphasize non-exclusive — to consider in this inquiry. These include, of course, the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted *589work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107 (1982). Section 107 requires a case-by-case determination whether a particular use is fair. Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2224-25. Fair use is an “equitable rule of reason.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 448 & n. 31, 104 S.Ct. 774, 792 & n. 31, 78 L.Ed.2d 574 (1984) (quoting from H.R.Rep. No. 94-1476, at 65 (1976)); see also Harper & Row, 471 U.S. at 551, 105 S.Ct. at 2226 (emphasizing the “equitable nature” of the fair use doctrine). The doctrine “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” 471 U.S. at 550 n. 3, 105 S.Ct. at 2225 n. 3 (quoting Iowa State Univ. Research Found., Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir.1980)).
Because Salinger is not the beginning and the end of fair use law, previous Second Circuit cases involving biographies, public figures and public information do, I think, need reference. Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir.1966), rev’g 256 F.Supp. 55 (S.D.N.Y.), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967), involved a biography of Howard Hughes and allegations that Hughes was attempting to suppress unfavorable publicity. After learning that Random House was considering publication of a biography, Hughes granted a friendly Nevada corporation, Rosemont Enterprises, Inc., an exclusive contract to publish and sell his authorized biography, Rosemont then purchased the copyrights to articles about Hughes that had appeared in Look magazine in 1954. After Random House published its biography, Rosemont brought suit for the infringement of the Look articles, claiming that the Look articles were copied at least forty-one times. 256 F.Supp. at 61. The district court found that the taking was substantial in quantity and quality and granted a preliminary injunction. Id. at 64, 68. This court reversed in an opinion by Judge Moore:
Whether the privilege may justifiably be applied to particular materials turns initially on the nature of the materials, e.g., whether their distribution would serve the public interest in the free dissemination of information and whether their preparation requires some use of prior materials dealing with the same subject matter.
366 F.2d at 307. That is to say, the second use must serve the public interest and must require use of the original work. Cf. Marvin Worth Prods. v. Superior Films Corp., 319 F.Supp. 1269, 1275 (S.D.N.Y.1970) (film did not need to use books on life of Lenny Bruce, and use did not serve public interest; Rosemont distinguished).5
Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130 (S.D.N.Y.1968), involved the famous Zapruder film of the assassination of President Kennedy. A book published by Bernard Geis Associates, Six Seconds in Dallas, used charcoal sketches of the Zapruder frames, then owned by Life magazine, which had improperly been photographed by a Life employee who wrote the book. The district court emphasized the strong public interest in making avail*590able the fullest information about the murder of President Kennedy, 293 F.Supp. at 146, but may not have properly evaluated the potential economic harm to the owner of the copyright in granting summary judgment to the defendants, see Patry at 98-100.
Meeropol v. Nizer was a series of cases brought by the sons of Ethel and Julius Rosenberg to restrain Louis Nizer’s book, The Implosion Conspiracy. In the first Meeropol v. Nizer, 361 F.Supp. 1063 (S.D.N.Y.1973), Judge Tyler denied a motion to restrain Nizer pendente lite from infringing upon a claimed copyright in the Rosenbergs' letters which had been published in a 1953 book, but which had been out of print for nearly twenty years. The court cited Rosemont's public interest and necessity tests. Id. at 1067-68. It found a continuing public interest in the Rosenberg case, that the letters were important to any serious book on the subject, and that the selections from the letters were used “with discretion and with demonstrable purpose to illustrate, from an historical and legal point of view, the post-conviction appeals and petitions for clemency which were filed by and for Mr. and Mrs. Rosenberg.” Id. at 1068. An appeal was taken, but apparently dropped, see Meeropol v. Nizer, 417 F.Supp. 1201, 1203 n. 1 (S.D.N.Y.1976), aff'd in part, rev’d in part, 560 F.2d 1061 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978).
On an expanded record in 1976, the Meer-opols’ supplemental complaint was heard on a motion by defendants for summary judgment. Id. at 1203. Judge Gagliardi held, not altogether persuasively to some, see Patry at 79-80:
[Cjourts in recent years have come to recognize that there are occasionally situations in which the copyright holder’s interest in a maximum financial return must occasionally be subordinated to the greater public interest in the development of arts, science, and industry.
417 F.Supp. at 1206. Our court reversed, finding that fair use was not established as a matter of law and that genuine issues of fact existed which precluded summary judgment. These issues were the purposes for which Nizer used quotations from the Rosenberg letters and the effect of that use upon the future market for the letters. 560 F.2d 1061, 1070 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed. 2d 756 (1978). Judge Smith’s opinion for this court stated that the inquiry on remand should determine “whether or not the Rosenberg letters were used primarily for scholarly, historical reasons or predominantly for commercial exploitation.” Id. at 1069. The key issue was “whether the defendant’s work tends to diminish or prejudice the potential sale of plaintiff’s work.” Id. at 1070 (fact that letters quoted were out of print “does not necessarily mean that they have no future market which can be injured”). Thus, Meeropol qualified Rosemont to a certain extent, and it cannot be overlooked in the analysis that follows.
Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57 (2d Cir.1980), involved ABC’s use in its coverage of the 1972 Olympics of two-and-one-half minutes of film from a twenty-eight-minute biographical film about a wrestler at Iowa State who ultimately won a gold medal. In affirming the opinion of Judge Lumbard, sitting as a district judge, 463 F.Supp. 902 (S.D.N.Y.1978), the Court of Appeals said that “[t]he fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.” In this regard, it was relevant that the copyrighted material was used for commercial purposes. 621 F.2d at 61. The Iowa State court also rejected a purely quantitative approach for determining whether the copying is insignificant, id. at 61-62, a factor which I also consider important.
Finally, in Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 672 F.2d 1095 (2d Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982), this court rejected a news broadcaster’s claim that it had a First Amendment right to use portions of Charlie Chaplin’s films in the broadcast coverage of Chaplin’s death. Judge Newman’s opinion *591for the court quoted Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2d Cir.1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978), as stating the general rule that “ '[conflicts between interests protected by the first amendment and the copyright laws thus far have been resolved by application of the fair use doctrine.’ ” 672 F.2d at 1100.
In sum, before Salinger the Second Circuit recognized that public interest in the subject matter and the necessity for the use are important components of fair use, and that the fair use doctrine is an áppro-priate way to resolve conflicts between copyright law and the First Amendment. At the same time, the commercial motives of a user will count against fair use, and so will the likelihood of undermining the market for the protected work. A court should consider the use in both quantitative and qualitative terms. Following the Supreme Court’s decision in Harper & Row, more attention has been given to the additional issue of how significant it is that the material copied was unpublished.
B. Fair Use in Messiah
Neither appellant nor the majority opinion disputes Judge Leval’s conclusion about Hubbard’s published works: that all the quotations or paraphrases from these works were either non-infringing or fairly used (or implicitly de minimis, see note 1 supra).6 Rather, New Era’s principal argument and the majority opinion concern Hubbard’s unpublished writings. The claim is that Judge Leval’s conclusion that the fair use doctrine justifies Holt’s use of portions of these writings is contrary to Harper & Row and “eviscerates” Salinger. The majority agrees with New Era (majority op. at 583) that the district court’s consideration of the first section 107 factor— the purpose and character of the use — is premised on an illusory distinction between quotations used merely to “enliven” a biographer’s work and quotations that are essential to communicate significant points about the character of the subject. Judge Leval, the argument runs, improperly thought that it was necessary to quote Hubbard to communicate character traits such as dishonesty, boastfulness, pretention, and the like.
It is true that Salinger said that a “biographer has no inherent right to copy the ‘accuracy’ or the ‘vividness’ of the letter writer’s expression. Indeed, ‘vividness of expression’ is precisely an attribute of the author’s expression that he is entitled to protect.” 811 F.2d at 96. Salinger goes on to quote the defendant in that case as stating, when asked why he copied a stylistic device of Salinger’s, that he wanted to convey the fact that Salinger was adopting an ironic tone. The biographer was then asked whether he could have stated that Salinger had an ironic tone; he responded that “ ‘[t]hat would make a pedestrian sentence I didn’t wish to put my name to.’ ” Id. Judge Newman, writing for the Salinger panel, concluded: “[W]hen dealing with copyrighted expression, a biographer (or any other copier) may frequently have to content himself with reporting only the fact of what his subject did, even if he *592thereby pens a ‘pedestrian’ sentence. The copier is not at liberty to avoid ‘pedestrian’ reportage by appropriating his subject’s literary devices.” Id. at 96-97. While this passage could be read broadly, as apparently the majority does, I do not think that it reaches the case where the biographer or critic is using the protected expression as a fact to prove a character trait that is at odds with the public image that the subject or the subject’s supporters have attempted to project. As Judge Leval said, it may be “the words used by [a] public figure (or the particular manner of expression) that are the facts calling for comment.” 695 F.Supp. at 1502. This is entirely consistent with the Supreme Court’s comment in Harper & Row that quotations may be “necessary adequately to convey the facts.” In that case, for example, President Ford’s characterization of certain White House tapes as the “smoking gun” was “perhaps so integral to the idea expressed as to be inseparable from it.” 471 U.S. at 563, 105 S.Ct. at 2232.
I agree with Judge Leval: words that are facts calling for comment are distinguishable from words that simply enliven text. The law recognizes that words themselves may be facts to be proven. For example, in evidence law, words of independent legal significance, such as a contract or slander, are verbal acts and not hearsay. See McCormick on Evidence § 249, at 732-33 (3d ed. 1984). According to Messiah, Hubbard lied, boasted, etc. These are actions. In order to prove his point, Messiah 's author must recount those actions— i.e., he must quote Hubbard’s lies, boasts, etc. Thus, in Salinger’s words, see 811 F.2d at 97, Messiah seeks, in quoting Hubbard’s writings, to “reportf ] only the fact of what [Hubbard] did.”
Judge Leval offers a colorful hypothetical to support this argument: a popular, benign mayor who has sent memoranda to opponents in various conflicts threatening to “cut your heart out,” “castrate you,” and “bust your kneecaps.” 695 F.Supp. at 1502. A journalist questioning the accuracy of the mayor’s public image might well quote from these memoranda since it would be very difficult, if not impossible, to convey the fact that the mayor was not the benign character he was thought to be without these particular words or expressions. Another of Judge Leval’s examples fits the Messiah quotations quite closely: A religious leader renowned for his selfless kindness, liberality of spirit and sympathy for the sufferings of others might well be exposed by extracts from his letters and journals which displayed greed or callous indifference and employed the language of racial and religious bigotry. Id. Thus, in considering the first of the factors identified by Congress and the courts — the purpose and character of the use — unlike the majority, I think the district court made an appropriate distinction between this case and Salinger.
There are a few quotations which I nevertheless concede are indistinguishable from those held to be improper in Salinger, and here I part company — but only a little — from Judge Leval. There are, for example, quotations from eight passages in short-story outlines and drafts to show Hubbard’s teenage style of writing. The district court thought that these quotations could properly be used. Salinger makes it very clear, however, that quotations used merely to demonstrate writing style may not qualify for the fair use defense. 811 F.2d at 96-97. Quotations from those eight passages, then, are not fairly used. Nevertheless, they do not — unlike the quotations from Salinger's letters — “make the book worth reading.” Id. at 99. Rather, they serve only in a very limited way as background information. The majority opinion disregards this distinction.
As to the second factor, the nature of the copyrighted work, Harper & Row says that “the scope of fair use is narrower with respect to unpublished works” because “the author's right to control the first public appearance of his expression weighs against such use of the work before its release.” Thus, the fact that a work is unpublished is a “critical element of its ‘nature.’” 471 U.S. at 564, 105 S.Ct. at 2232.
Salinger interpreted narrower “scope” to refer to the “diminished likelihood that *593copying will be fair use when the copyrighted material is unpublished,” on the theory that these passages in Harper & Row convey the idea that unpublished works normally enjoy complete protection against copying. 811 F.2d at 97. I accept this as the holding of Salinger, which we are bound to follow absent en banc review, even though Salinger itself recognized that at least one other interpretation might be given to the Supreme Court’s statements in Harper & Row: the Court might have meant that lesser amounts of copyrighted material can be copied from unpublished works than from published works. Nevertheless, I do not think that Harper & Row, as glossed by Salinger, leads to the inevitable conclusion that all copying from unpublished work is per se infringement. By referring to a diminished “likelihood,” Salinger suggests that there may be some instances — even though less likely—where copying will be fair use. For the Supreme Court in Harper & Row to say that “the scope of fair use is narrower” was quite different from saying that there is no scope at all. Furthermore, when Harper & Row said that the unpublished nature of a work should be a “key, though not necessarily determinative, factor” in fair use analysis, 471 U.S. at 554, 105 S.Ct. at 2227 (quoting S.Rep. No. 94-473, at 64 (1975)), it implicitly renounced a per se rule. Indeed, the statute itself does not distinguish between published and unpublished works.
The second factor, as I see it, helps to define the burden that is placed upon a defendant to justify its use of copyrighted material. Holt must justify its use more convincingly under section 107’s other factors when quoting from Hubbard’s unpublished writings than when quoting from his published works. See 695 F.Supp. at 1504.
The third factor is the amount and sub-stantiality of the portion of the copyrighted work used. Paraphrase as well as actual quotation must be considered. Salinger, 811 F.2d at 97-98. We must also examine the amount and substantiality of the passages at issue both in relation to the protected work and in relation to the work accused of infringement. Salinger found that the Hamilton biography there involved copied a considerable amount from forty-four letters by J.D. Salinger: protected sequences constituted at least one-third of seventeen letters, and at least ten percent of forty-two letters. Id. 811 F.2d at 98-99. And I agree that the amount copied may be small, but still substantial. The Supreme Court in Harper & Row pointed out that, while in absolute terms the words quoted were an insubstantial portion of the protected work, what was taken was nevertheless “essentially the heart of the book,” 471 U.S. at 564-65, 105 S.Ct. at 2232-33 (quoting the district court opinion, 557 F.Supp. at 1072). Also important is the contribution of the quoted material to the work accused of infringement. Salinger found that the taking there was significant qualitatively as well as quantitatively: Salinger’s letters were quoted or paraphrased on approximately 40 percent of the biography’s 192 pages, and they, “[t]o a large extent ... make the book worth reading.” Id. at 99. See also Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233-34 (referring to the “key role in the infringing work” of excerpts taken from the protected work).
The amount and substantiality of the quotations used in this case are easily distinguishable from Harper & Row and Salinger, a matter which the majority opinion unfortunately glosses over. I have said that the quotations from the Asia Diaries are mostly found in Chapters 2 and 3, which deal in part with Hubbard’s travels. Qualitatively, they are quite insignificant: as I mentioned above, the quotations are necessary to substantiate the author’s factual assertions. However, they are not nearly so important as, in Salinger’s words, to “make the book worth reading.” 811 F.2d at 99. Quantitatively, the quotations are but a fraction of the Asia Diaries: they are hardly “the heart” of the work, as was the case in Harper & Row. The diaries are not in our record, but there is an affidavit that states that they contain some 46,299 words, of which only a very small portion is quoted in Messiah. The quotations are also a small fraction of two chap*594ters in Messiah which, in turn, constitute 32 pages out of a 375-page book. Thus, the Asia Diaries quotations, in my view, satisfy the third factor of the fair use test. The same perhaps does not hold true of the letters to Helen O’Brien or to Hubbard’s former spouse. The quotations used in Messiah are the heart of those letters, which weighs against a finding of fair use for those quotations — even though their publication does help Miller in his attempt to expose Hubbard as a hypocritical, cynical, and scheming personality. But none of these section 107 factors is exclusive, as we are all aware.
I now turn to the fourth factor set out in section 107, “the effect of the use upon the potential market for or value of the copyrighted work.” Harper & Row tells us that this “is undoubtedly the single most important element of fair use.” 471 U.S. at 566, 105 S.Ct. at 2233-34. Thus, we must assess the potential market for Hubbard’s letters and the utilized portions of his Asia Diaries. Here the majority and I completely part company. As I see it, the district court correctly found that one who has an interest in reading Hubbard’s writings — whether one is “for” or “against” Hubbard — would not satisfy that interest by reading Bare-Faced Messiah or the quotations in it. In my view it would be clear to any reader of Messiah “that she had not literally read Hubbard’s writings,” but, rather, that she had read a “hostile, critical biography using fragmentary extracts to demonstrate critical conclusions about him.” 695 F.Supp. at 1523. The district court found, and I agree, that “readers would not be dissuaded from purchasing Hubbard’s work by Miller’s extracts,” and that “Miller’s use of Hubbard’s writings will not affect the market for Hubbard’s copyrights.” Id. I see no reason, nor does the majority give us any indication (op. at 583), why this finding of fact is clearly erroneous, especially since the executor of Hubbard’s estate testified that no appraisal had been done of Hubbard’s unpublished works. The executor also acknowledged that “any biography that is not objectively favorable to Mr. Hubbard” would not be approved for publication, while claiming that Messiah was a “scumbag book” and “full of bullshit.” Gready Aff. Ex A. at 84, 94, 105. Letters such as those to O’Brien or to Hubbard’s ex-wife stand so little chance of publication by Hubbard’s legatees that their quotation in Messiah will not impair the market for any publication that might later be approved by the legatees. The majority does not and cannot suggest otherwise. The Asia Diaries, on the other hand, would undoubtedly have a market with Hubbard aficionados despite the publication of excerpts from them in Messiah. It is therefore not at all difficult to distinguish this case from Salinger, where the copying of Salinger’s letters made likely “some impairment of the market.” 811 F.2d at 99. To the extent that Messiah’s criticism of L. Ron Hubbard diminishes the popularity of Scientology or impedes the sale of Hubbard’s books pertaining to Dianetics or the Church of Scientology or its teachings, Messiah may be said to affect their marketability adversely. This sort of effect, of course, is not a factor either in a fair use assessment or in a determination of an appropriate remedy, since the Copyright Act does not protect any such interest. The majority errs when it says that “it is difficult to conclude, as does the district court, that the book published by Holt would have no effect on the market for New Era’s forthcoming book.” (Op. at 19 (emphasis added).) In fact, it is the effect of Messiah's use of copyrighted material, not the effect of the book as a whole, that must be assessed here. Judge Leval carefully adhered to this distinction when considering section 107’s fourth factor. See 695 F.Supp. at 1522-23.
Thus, I agree with the district court’s ultimate conclusion that most of the material, including all of the published and much of the unpublished writings, is entitled to the fair use defense. I also agree with Judge Leval that the unpublished material that is not entitled to this defense is both quite small in quantity and most limited in quality, and that its marketability would in no way be affected by the publication of Messiah. To hold otherwise is in *595my view also to engage in the appellate factfinding prohibited by Fed.R.Civ.P. 52.
C. The Remedy
I come then to the truly critical question which the majority opinion, starting with different premises, deals with by reference solely to the Act and its constitutional underpinning: does the publication of even a small, but more than negligible, body of infringing material entitle the copyright holder to an injunction? The district court refused to enjoin further distribution of Bare-Faced Messiah. 695 F.Supp. at 1525-28. The court fully recognized that, while an injunction is a drastic remedy, Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12, 102 S.Ct. 1798, 1802-03, 72 L.Ed.2d 91 (1982), courts will readily find the requisite threat of irreparable injury in copyright cases, see, e.g., 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). However, Judge Leval found that this was not a typical case of “opportunistic free riding.” The copyright infringement here did not involve “profiteering by appropriating the creative effort and genius of another.” 695 F.Supp. at 1525. In other words, the injury here was not irreparable. It is not a simple case of stealing another’s expressions for personal advantage.
Rather, the suppression of Messiah would, as Judge Leval said, operate as a prior restraint and “implicate[ ] concerns of the First Amendment.” Id. Judge Leval observed that earlier cases (e.g., Rosemont, Meeropol) avoided suppressing critical biographies by finding fair use. “Since Salinger,” however, the conflict between freedom of speech and the injunctive remedy is “inescapable.” Id. at 1526. The judge concluded, and I agree, that “[tjhere may ... be instances where solicitude for the author’s commercial entitlements, especially in first publication, will motivate a court to protect his compensation right by denying a finding of fair use, while solicitude for a free press and free public discussion will require denial of an injunction.” Id. He supported this view by citing the permissive language of the Copyright Act, 17 U.S.C. § 502 (the court “may ... grant ... final injunctions”); past cases, e.g., Dun v. Lumbermen’s Credit Ass’n, 209 U.S. 20, 23-24, 28 S.Ct. 335, 337, 52 L.Ed. 663 (1908) (discretion “wisely exercised” in copyright infringement case in refusing injunction against publisher of reference book with “insignificant” improper uses); and the vote of four justices in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 499, 104 S.Ct. 774, 818, 78 L.Ed.2d 574 (1984) (Blackmun, J., dissenting) (award of damages, or continuing royalties or even some form of limited injunction “may well be an appropriate means of balancing the equities in this case”). Judge Leval also distinguished Harper & Row and Salinger. The former did not involve the issuance of an injunction; and while the latter did grant a preliminary injunction, the question whether a permanent injunction should issue was not raised. 695 F.Supp. at 1526. Finally, Judge Leval cited Professor Nimmer for the proposition that “where great public injury would be worked by an injunction, the courts might follow cases in other areas of property law[,] and award damages [or] a continuing royalty instead of an injunction under such special circumstances.” Id. at 1528; see 3 Nimmer § 14.06[B], at 14-56.2. In short, the judge decided that this was “one of those special circumstances in which the interests of free speech overwhelmingly exceed the plaintiff’s interest in an injunction.” 695 F.Supp. at 1528.
I recognize the counter from Salinger that “[i]f [an author] copies more than minimal amounts of (unpublished) expressive content, he deserves to be enjoined,” 811 F.2d at 96, and that “[misapplication of the appropriate legal principles constitutes grounds for overturning the denial or issuance of a preliminary injunction.” Id. at 94. I am also aware that Judge Leval’s mention of First Amendment concerns may not be easy to reconcile with the Supreme Court’s statements in Harper & Row that “[i]t is fundamentally at odds with the scheme of copyright to accord lesser rights in those works that are of greatest impor*596tance to the public. Such a notion ignores the major premise of copyright and injures author and public alike,” 471 U.S. at 559, 105 S.Ct. at 2230, and that The Nation’s First Amendment defense “would expand fair use to effectively destroy any expectation of copyright protection in the work of a public figure,” id. at 557, 105 S.Ct. at 2229. Finally, I am aware of this court’s observation in Roy Export, 672 F.2d at 1099, that “[n]o Circuit that has considered the question ... has ever held that the First Amendment provides a privilege in the copyright field distinct from the accommodation embodied in the ‘fair use’ doctrine.” See also Patry, ch. 18: because copyright protects the expression of an idea but not the idea itself, “the only possible conflict between the First Amendment and the Copyright Act lies in the author’s expression, viz., his individual characterization, phrasing, or styling of ideas. No court has ever held that the public has a right to know expression.” Id. at 466.
I believe, however, that Judge Leval’s denial of the injunction — a remedy for infringement — can be supported on grounds that do recognize these arguments and the cited authorities. Enjoining publication of a book is not to be done lightly. The power to enjoin, in this as in any case, must be exercised with a delicate consideration of all the consequences. See Rosemont, 366 F.2d at 310-11 (discussing whether preliminary injunction should be granted). Responsible biographers and historians constantly use primary sources, letters, diaries, and memoranda. Indeed, it would be irresponsible to ignore such sources of information. See supra note 3. Where, as here, the very limited use of those materials has been — I think properly — found not to affect their marketability, the grant or denial of an injunction remains an open question, to be determined by carefully balancing the appropriate factors. I say that it is an open question because the statute makes the injunction remedy discretionary, 17 U.S.C. § 502; the cases do the same, e.g., Rosemont; and the leading commentators concur, B. Kaplan, An Unhurried View of Copyright 73 (1967) (“courts have sometimes forgotten that an injunction does not go of course; the interest in dissemination of a work may justify a confinement of the remedy to a money recovery”); 3 Nimmer § 14.06[B], at 14-56.2 & n. 28 (where injunction would work great injury, courts might grant other relief). Moreover, other areas of property law — if one takes a purely property-oriented view of copyright — offer a wealth of analogous cases in which injunctive relief is a matter of discretion. See, e.g., Harrisonville v. W.S. Dickey Clay Mfg., 289 U.S. 334, 338, 53 S.Ct. 602, 603, 77 L.Ed. 1208 (1933) (nuisance; equitable relief denied where injunction would cause grossly disproportionate hardship and payment of money will afford substantial redress); Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970) (same); Monroe Carp Pond Co. v. River Raisin Paper Co., 240 Mich. 279, 215 N.W. 325, 328 (1927) (riparian rights; same); Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 S.W.2d 728, 734 (1944) (trespass; same); Restatement (Second) of Torts § 951 comment a (1979) (damages may be awarded in lieu of an injunction because of relative hardship or a countervailing public interest).
I think that the denial of an injunction was appropriate here for four reasons. First, the “economic incentive” for the creation and dissemination of ideas that is provided by the Copyright Act, Harper & Row, 471 U.S. at 546, 558, 105 S.Ct. at 2223, 2229, is not served by an injunction where there is no demonstrable impairment of the quoted materials’ future market value. Yet an injunction against Messiah would certainly prevent the biography’s further distribution in the United States— just as the Hubbard legatees sought, unsuccessfully, to prevent publication in England, Australia, and Canada.7 An injunc*597tion in this case would therefore discourage writers and publishers who might otherwise undertake critical biographies of powerful people, without serving as an incentive for copyright holders. We might say, then, that denying an injunction here allows us “to avoid rigid application of the copyright statute when ... it would stifle the very creativity which that law is designed to foster.” Harper & Row, 471 U.S. at 550 n. 3, 105 S.Ct. at 2225 n. 3 (describing fair use doctrine in general) (quoting Iowa State, 621 F.2d at 60).
Second, the public interest militates against granting an injunction in this case. “Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 670, 64 S.Ct. 268, 273, 88 L.Ed. 376 (1944) (quoting Virginia Ry. Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937)). The premise of the First Amendment is that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424-25, 89 L.Ed. 2013 (1945). This certainly applies in the case of a biography of a public figure.
Biographies, of course, are fundamentally personal histories and it is both reasonable and customary for biographers to refer to and utilize earlier works dealing with the subject of the work and occasionally to quote directly from such works. This practice is permitted because of the public benefit in encouraging the development of historical and biographical works and their public distribution, e.g., so “that the world may not be deprived of improvements, or the progress of the arts be retarded.”
Rosemont, 366 F.2d at 307 (citation omitted) (quoting Sayre v. Moore, 1 East. 361, 102 Eng.Rep. 138, 139 (K.B.1801)). Recognition of this point in determining whether to grant an injunctive remedy will not swallow the fair use rule, which after all is “equitable” in nature per Harper & Row.
Third, a non-injunctive remedy provides the best balance between the copyright interests and the First Amendment interests at stake in this case. In the words of Professor Goldstein, Copyright and the First Amendment, 70 Colum.L.Rev. 983, 1030 (1970):
To be actionable, invasions of the copyright must effect economic harm and ... an award of damages should be preferred to the injunctive remedy. Since copyright property has economic value only, the principle would permit any public participation in the property which does not tend to impair its value. The preference for damages over injunctive relief is a corollary of the requirement of demonstrable injury. From a first amendment viewpoint, the effect of an injunction is to restrain the infringing expression altogether — an effect which goes beyond what is necessary to secure the copyright property. An award of monetary damages, which permits the infringing expression at a reasonable cost, is more tolerable from a first amendment point of view.
Finally, even without reference to the doctrine of unclean hands, see supra note 5, the fact that a good argument can be made, as the majority holds and as English and Canadian courts held, that the delay in New Era’s proceeding with this case amounted to laches, see Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 804 (8th Cir.1979) (elements of laches are unreasonable and inexcusable delay that prejudices defendant), cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980), is a factor to be weighed in the underlying determination whether to grant injunctive relief.
Applying traditional equitable principles, then, I would hold that Judge Leval did not abuse his discretion in declining to issue an injunction against publication of Messiah, leaving New Era a damages claim as to the *598very little, insignificant material unfairly used.
. The three exceptions, where quotations of Hubbard’s published writings were found to be not fairly used, are de minimis or insignificant under the other fair use factors such as marketability. Warner Bros., Inc. v. American Broadcasting Cos., 720 F.2d 231, 242 (2d Cir.1983); Time Inc. v. Bernard Geis Assocs., 293 F.Supp. 130, 146 (S.D.N.Y.1968); Meredith Corp. v. Harper & Row, Publishers, Inc., 378 F.Supp. 686, 689 (S.D.N.Y.), aff’d, 500 F.2d 1221 (2d Cir.1974). (Judge Leval did not refer directly to these three passages, but presumably he too thought that they were de minimis.) The first two passages are from a 1960 Hubbard Communications Office Bulletin, the first quoting the clause "a person named Richard M. Nixon" and the second reading as follows: “We want clean hands in public office in the United States. Let’s begin doggedly denying Nixon the presidency no matter what his Secret Service tries to do to us now.... He hates us and has used what police force was available to him to say so. So please get busy on it.” The third consists of two sentences quoted from Hubbard’s book, Mission Into Time: "Hearing of L. Ron Hubbard’s plans for further exploration and research into, among other things, past civilizations, many Scientologists wanted to join him and help. They adopted the name ‘Sea Organization.’” With respect to Judge Leval, much of this last quotation could well have been treated as non-infringing because it involves fact.
. Summary of Bare-Faced Messiah's use of published and unpublished materials and of Judge Leval’s findings
Noninfringement or fair use found by Judge Leval Unfair use found by Judge Leval Totals
Use of published materials 66 3 69
Use of unpublished materials 91 41 132
(of which: from Asia Diaries) (36) (37) (73)
Totals 157 44 201
. [A]s to Hubbard’s sentence, “The trouble with China is, there are too many Chinks here,” there is no fact reported in it which the biographer has an interest in narrating. What is interesting is that Hubbard said it.
Nor should a biographer/critic be limited to stating her conclusions about the subject’s choice of words. It would be preposterous to restrict Miller to writing something like, “Hubbard used a vulgar derogatory epithet exhibiting snobbish bigoted disdain for the Chinese.” That would be at once unfair to the biographer, the subject, and the readership, which can reasonably demand to know “What did he say? Let us be the judge of whether it was vulgar, snobbish or bigoted.”
695 F.Supp. at 1524 (citation omitted).
. I note that Judge Leval, in so holding, declined to rely on two factors alluded to in the briefs on appeal. First, Judge Leval did not rely on the fact that most of the unpublished materials here at issue — including the Asia Diaries— became part of a court record and in that sense were published in the California Superior Court litigation in which the Church sought to recover them from its member Armstrong who it claimed had taken them without permission. Judge Leval decided that any display of those materials in the California litigation was over the Church’s objection and that, as a matter of principle, being forced to sacrifice a right in order to bring a lawsuit to enforce it would make the right chimerical. 695 F.Supp. at 1500 n. 3. An uncontroverted affidavit in the record provides further support for Judge Leval’s position: for all practical purposes the documents in the California case were at almost all times under seal, subject to court order, not copied and ultimately returned to the Church after the settlement of Armstrong’s cross-claim against the Church.
Second, Judge Leval did not rely on the fact that, as New Era argued in the district court, the private nature of the Hubbard documents should favor a finding of infringement. He pointed out that “the protection of privacy is not the function of our copyright law." Id. at 1504. While an action under state law for a violation of the right of privacy is not preempted by the Copyright Act, such a right is not available once the subject of the publication is deceased, particularly where the writer was a public figure like Hubbard. Id. Case law supports Judge Leval's view that a person's privacy right terminates at death. Cordell v. Detective Publication, Inc., 419 F.2d 989, 990-91 (6th Cir.1969); Maritote v. Desilu Productions, Inc., 345 F.2d 418, 419 (7th Cir.), cert. denied, 382 U.S. 883, 86 S.Ct. 176, 15 L.Ed.2d 124 (1965); United States v. Amalgamated Life Ins. Co., 534 F.Supp. 676, 679 (S.D.N.Y.1982); Meeropol v. Nizer, 381 F.Supp. 29, 37 (S.D.N.Y.1974); aff'd in relevant part, 560 F.2d 1061 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978).
If, as some commentators have suggested, e.g., Note, Fair Use of Unpublished Materials in the Second Circuit: The Letters of the Law, 54 Brooklyn L.Rev. 417, 457-60 (1988), tacit concerns for Salinger's privacy in some way informed the Salinger opinion, those concerns are not present here. On privacy and the law of copyright, see Judge Newman’s informative Manges lecture, in 12 Colum.-VLA J.L. & Arts 459, 460 n. 2 (1988), refuting the commentators’ suggestion.
. Mention should also be made of the "concurring” opinion in Rosemont of Chief Judge Lum-bard — an opinion joined by Judge Hays — which looked to the equitable doctrine of clean hands in light of Hughes’ alleged attempt to suppress unfavorable biographies, 366 F.2d at 311-13.
Judge Leval did not consider the doctrine of unclean hands, though the English trial court which denied an interim injunction sought by the Church of Scientology against Messiah's author and Penguin Books said that the Church’s litigation was "oppressive" and "not bona fide launched to protect any legitimate interest of the church in preserving confidentiality in information contained in Mr. Miller’s biography." Church of Scientology of California v. Miller, slip op. at 16 (Ch. Oct. 9, 1987), aff’d, Ch. 1986 C. No. 6140 (C.A. Oct. 22, 1987). Were appellants to have prevailed on this appeal, the allegations presented in the affidavit of W. Mallory Rintoul, Esq., the Secretary and General Counsel of Henry Holt and Company, Inc., in the joint appendix at 883 with attached materials, would in my opinion have called for an examination of the "clean hands” of appellants. This, like the majority's consideration of laches, necessarily follows from the fact that New Era sought injunc-tive relief; these are equitable defenses to an equitable remedy, sought in connection with an equitable doctrine.
. New Era does question — the majority does not —whether letters filed with various government agencies or applications thereto should be considered published, since Hubbard sent them to the agencies before the Freedom of Information Act was adopted. Holt argues, on the other hand, that Hubbard’s letter or applications to government agencies were published.
I think that Holt has the better of the argument. While before the FOIA the letters may have been sent with an expectation of privacy, that expectation no longer existed after Hubbard’s death. Moreover, publication occurred in a very real sense when Hubbard wrote the government agency or official in question. Cf. Restatement (Second) of Torts § 577 (1977) (publication of defamatory material). Finally, the FOIA does not apply only to materials that arrived in government files after its enactment.
To be sure, the act of placing a "work” in a public file where it is available for inspection is not a publication under 17 U.S.C. § 101, at least after January 1, 1978, 1 Nimmer%% 4.07, at 4-39 to -40, 4.10 at 4-49 and cases cited, because the work has not been distributed. Nonetheless, although case law on this is nonexistent, I think that letters or applications to government agencies seeking or promoting action by the agencies are not "works of authorship” in the copyright sense of 17 U.S.C. § 102. Cf. id. § 2.03[A], at 2-24 (Congress did not use its full constitutional powers over "writings” in the Act).
. Appellants suggest that all that would be required would be revision of the book so as to delete the infringing portions and to report facts and ideas. The district court found, however, that "the expense and waste involved in republishing after deleting infringing material would be prohibitive." 695 F.Supp. at 1528. Nothing *597to which we are referred in the record would make this finding clearly erroneous.