"Let my people know!"

A legal opinion concerning the

Copyright Status of The Urantia Book

Dear Mr. H____________:

You have asked our opinion as to whether the text of The Urantia Book, (hereinafter "the Work") first published by the Urantia Foundation in 1955, is the subject of a valid copyright, or whether the Work has lapsed into the public domain. For the reasons set forth below, we believe that the Work is in the public domain.

FACTS
The facts upon which we base our opinion are as follows:

Between 1926 and 1935, Dr. William S. Sadler ("Sadler") of Chicago acquired 196 handwritten manuscripts produced by one of his patients ("the Patient"). The Patient, whose name has never been disclosed, produced these texts while in an unconscious or

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semi-conscious state, and claimed to have no memory of having written them. The current claimants of copyright in the Work assert that the Patient was not the author of these manuscripts, but was merely "enabled . . . to write the text in longhand" by the non-human entities who were the Work's actual authors. When conscious, the Patient identified the handwriting in the manuscripts as his own handwriting.

The Patient was not paid for producing the manuscripts, nor were the manuscripts sold to Sadler. There is no evidence that the Patient expressly transferred any rights in the text to Sadler, either orally or in writing; any transfer of such rights was "by deeds" and not by words.' The Patient probably died sometime between 1950 and 1975, but the exact date is unknown.2 No known will exists, and the current claimants of copyright in the Work do not contend that their rights derive from intestate inheritance of the Patient's rights.

Beginning in 1926, Sadler had the manuscripts transcribed into typewritten form by one Emma L. Christensen. The typed transcription added no style, expression, arrangement, or subject matter to the text of the Patient's manuscript. After the typed transcription was made, the handwritten manuscript was destroyed. At some time before 1950, Sadler had a set of printing plates prepared from the typed transcription, and some time after these plates were completed the typed transcription was likewise destroyed.

1 Urantia Foundation v. Burton, K-75-255-CA4, Plaintiff's Brief in Reply to the Defendant's Main Brief, at 11.

2 This according to discovery materials produced in the Burton case, 210 U.S.P.Q.2d at 219 (W.D. Mich. 1980): see Plaintiff's Answers to Defendant's Interrogatories Nos. 1-45, Answer No. 18 ("Such personality is deceased," sworn to on July 12th, 1975). The URANTIA Foundation has asserted more recently that it is unable to state whether or when the Patient died. Urantia Foundation v. Maaherra, Civ. 91-325 PHX SMM (D. Ariz. 1991), Plaintiff's Responses to Defendant's Requests for Admissions, at 36.

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During the time that the texts were being produced by the Patient, Sadler frequently met with a group of people whom he invited to read and discuss the texts ("the Forum"). The members of the Forum at times provided "comments and feedback resulting in, inter alia, expansions and clarifications to [Patient's text and the creation of papers contained in" the Work.3 The Forum is purported to have been "involved in the originating process" of the Work by discussing the content of the text among themselves and posing questions for the spiritual creators of the text.4 The members of the Forum did not address their questions and comments directly to the spiritual sources of the text, however, or to the Patient, but instead were invited to relay them through another group of persons who did "work directly with the contact personality" [the Patient].

This other group of approximately six persons (including Sadler), referred to as the "Contact Commission,"5 (the "Commission") is the "predecessor of the URANTIA Foundation." The Commission is alleged to have acted as an intermediary between the Forum and the Patient. The Commission is said to have selected and edited the Forum's questions before presenting them to the Patient and thus to the spiritual authors of the Work.6 By

3 Urantia Foundation v. Maaherra, Civ. 91-325 PHX SMM (D. Ariz. 1991), Plaintiff's Amended Answers to Defendant's Second Set of Non-Uniform Interrogatories, at 3.

4 Urantia Foundation v. Maaherra, Civ. 91-325 PHX SMM (D. Ariz. 1991), Plaintiff's Responses to Defendant's Requests for Admissions, at 13.

5 Id. at 12.

6 Id. at 12. The language used in this response must be read -carefully. The Commission is said to have "work[ed] directly with the contact personality in the production of the text of the Urantia Papers. In this process the Contact Commission engaged in communication with the personalities listed as authors in The Urantia Book, providing feedback and receiving instructions regarding the disposition of the Papers." Id. (emphasis added). A fair reading of this response would appear to be that the Commission members "engaged in communication" with the spiritual authors only by way of the Patient, and were not themselves in direct contact with the spiritual authors named in the Work. Nowhere does the Foundation make any assertion which contradicts this interpretation.

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responding through the Patient, the spiritual authors are said to have "revis[ed] the early drafts" of some of the texts included in the work in response to questions from the Commission and the Forum. It is the position of the present copyright claimants that the spiritual authors named in the text, and not the Commission or the Forum, "determined what would be included in the text" of the Work,7 and that the text of the Work "is in the most recent form that was transmitted by" the named authors.8 By the claimants' own admission, none of the named authors is a "human personality."9 Therefore, the claimants contend that the entirety of the expression contained in the Work is of non-human creation, though some was allegedly created in response to questions posed by the Forum and the Commission, and many passages make use of the Biblical Gospels, human "concepts" and other "information from purely human sources."

In 1950, Sadler and the Commission executed an instrument of trust creating the Urantia Foundation ("the Foundation"), the primary estate of which was a set of printing plates for the Work. The Foundation, with which Sadler was intimately involved, published the Work in 1955 with proper notice of copyright, and obtained a statutory copyright in January 1956, identifying the Foundation as "Author" on the registration certificate. This published edition of the Work contains certain minimal prefatory material authored by Sadler's son, and a detailed table of contents which Sadler's son compiled. Sadler's son was not paid for his services. The copyright in the published edition of the Work was renewed in January 1983, with the Foundation claiming renewal as the "proprietor of copyright in a work made for hire."

7 Id. at 13.

8 Id. at 38.

9 Id. at 75.

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The Foundation has previously litigated the copyright status of the Work. In Urantia Foundation v. Burton, a federal district court in the Western District of Michigan found that the Patient transferred his common-law copyright to Sadler by entrusting him with the handwritten manuscripts of the Work. That court also found that the Foundation was not the author of the Work, as it had claimed in its copyright application, but that it was a transferee of Sadler who was in turn a transferee of the Patient. Thus the Foundation's claim to the initial term of copyright in the Work was upheld; the renewal term was not discussed. The analysis and conclusions contained below are based on the foregoing facts and assumptions.

SUMMARY

There are at least four grounds for asserting that the Work, as described above, is in the public domain. They are treated here not in the order of plausibility or likelihood of success, but in order of logical priority, and consist of challenges to: (a) the Patient's authorship, (b) the Patient's transfer of an copyright interest in the initial term to Sadler, (c) the transfer of a renewal interest to Sadler, and (d) the Foundation's ability to claim a renewal interest after the Patient's death.

First, by the Foundation's own statements concerning the authorship of the Work, the Patient was not the author of the Work. Therefore, he could have no enforceable legal rights in a text he, as a medium, merely transmitted, and consequently could convey no such rights to Sadler or the Foundation. Legally, it is beyond dispute that one who merely transcribes the expression of another has no common-law copyright in the transcription; however, since a court would likely be skeptical of any claims regarding spiritual authorship, notwithstanding both parties' acceptance of the proposition, it is not likely that this would be the ground upon which a court would deny the Foundation's claim to copyright.

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Second, assuming that a court accepts that the Patient authored the Work, as the court found in Burton, the Patient cannot be presumed to have transferred his common-law copyright in the text simply by virtue of having entrusted the physical manuscript to Sadler, the Patient's psychiatrist. The Burton court erroneously came to the opposite conclusion, because the cases on which it relied, unlike the present case, all presented circumstances of a commercial nature in which a work or manuscript was either sold outright, or otherwise conveyed with the clear intention that the work be commercially published. The circumstances of Sadler's acquisition from the Patient are far different, and give rise to no presumption that the Patient intended to transfer his common-law copyright to Sadler: Sadler was not a publisher, the Patient was not paid, and the Patient did not by his own conduct show any intention to part with his rights in the Work.

Third, assuming that the Patient was in fact the author and did indeed transfer his intangible common-law copyright to Sadler along with the physical manuscript, he almost certainly did not transfer his right to take the renewal term of the statutory copyright.'o Unlike the transfer of an author's right to take the initial term of statutory copyright, which may be inferred from conduct, a transfer of the author's right to the renewal term requires explicit and unambiguous language in a written document. Thus, the conduct which was enough to persuade the Burton court that the Patient transferred his rights in the initial term of copyright would not be enough to support a conclusion that rights to the renewal term of statutory copyright had also been transferred. Accordingly, even were the Foundation the proprietor of the initial 28-year term of copyright which commenced upon publication of the work in 1955, the absence of a writing expressing the Patient's clear intention to transfer his interest in the renewal term precludes the Foundation from asserting any right in the renewal term.

Under the Copyright Act of 1909, a "published" work acquires an initial 28-year terra of copyright protection, commonly referred to as the "initial term," followed by a second 28-year term, commonly referred to as the "renewal term".

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Fourth, even assuming that a court could find enough evidence to conclude that the Patient intended to transfer his right in the renewal term of copyright to Sadler, such a transfer does not become effective unless the Patient survives to the commencement of the renewal term. As the Patient died before the renewal term commenced, the condition precedent of survival was not satisfied, and such a purported transfer would be invalid by law. Thus, the only persons entitled to the renewal term would be the statutory heirs of the Patient. Since these heirs have not come forward and timely renewed the Work, the Work is in the public domain regardless of any transfer of renewal rights which might be shown to have occurred.

The Foundation could try to circumvent the third and fourth theories above by showing that it was entitled to claim the renewal as a "proprietor" of a "posthumous work" under Section 24 of the 1909 Copyright Act." However, since this provision of Section 24, as interpreted by the Second Circuit in Bartok v. Boosey & Hawkes, Inc., would likely give the Patient's renewal rights to his statutory heirs rather than to the Foundation,12 the Foundation would probably not rely on this theory. Instead, the Foundation would attempt to establish a Section 24 renewal right independent of any grant from the Patient, such as by claiming to be the proprietor of a "work made for hire. 13

11 The 1909 Copyright Act (the "1909 Act") governs this case in most respects, since the Work was published before 1978, when the new Copyright Act went into effect. All references to the Copyright Act will be to the 1909 Act.

12 Bartok v. Boosey & Hawkes Inc., 523 F.2d 941 (2d Cir. 1975). Under Bartok, a work published after the death of the author is not "posthumous" if the copyright was assigned by the author to a third party during the author's lifetime. In such a case the copyright must be returned to the author's heirs after the initial term of copyright so that the heirs may enjoy the renewal term. A work published after the author's death is "posthumous" only if it has not been assigned to a third party during the author's lifetime, in which case it would be in the author's estate at the time of his death.

13 This was the Foundation's claim when it applied for renewal of the copyright in 1983.

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In order to succeed on such a claim, the Foundation would have to establish that its relationship with the Patient was one of employer/employee, or that the work fell into one of three other narrow categories specified by the Act, discussed infra. The facts as set forth in this case make it appear unlikely that the Foundation could make such a showing. Moreover, under the doctrine of judicial estoppel, even a colorable claim of work-for-hire proprietorship under Section 24 might be precluded since the Foundation successfully argued in Burton that it was an assignee of the Patient under Section 9, not a proprietor under Section 24. In fact, the Foundation persists in claiming that it was a transferee of the common-law copyright in the Work. 14
DISCUSSION

1. The Patient Was Not The Author Of The Work
In the Burton case, the Foundation responded to one of the defendant's requests for admissions as follows:

REQUEST NO. 15: That the person who wrote the original manuscript of "THE URANTIA BOOK" faithfully and without adding any style, arrangement, manner of expression, or any subject matter of his or her own, reduced to written form only that which was transmitted to such person by superhuman beings and such is the copyrighted text of "THE URANTIA BOOK."

ANSWER: It is Plaintiff's belief that the statement made in request No. 15 is true and on this basis [Plaintiff] admits.

The substance of this claim is repeated in the most recent set of Responses to Requests for Admissions, for example, the "Foundation admits that the listed authors of the [Work] determined what would be included in the text of the Urantia Papers," supra at 13, and the Foundation admits that "no human personality is listed . . . as `authors,' sources or originators," supra at 75. The Foundation further admitted that "the human person or persons [utilized by the spiritual sources] did not add any style or manner of expression to the text," supra at 38.
Accepting the Foundation's admissions as true, the Patient would have no copyright interest in the text of the Work. As the court has noted in Hearn v. Mayer, 664 F.Supp. 832

14 Urantia Foundation v. Maaherra, Civ. 91-325 PHX SMM (D. Ariz. 1991), Plaintiff's Responses to Defendant's Requests for Admissions, at 114.

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(S.D.N.Y. 1987), "no copyright can be claimed in verbatim reproduction of statements of quotations of others." If the Patient had written down the spoken dialogue of a stage play, for example, he would not be entitled to claim a copyright in the script. Thus, if the Patient is not the originator of the text, he cannot be an "author" in the legal sense.

The difficulty of making this claim, however, will be to persuade a court to accept, even for purposes of argument, that the "others" whom the Patient quoted verbatim were not human, but spiritual entities. Faced with this claim on cross-motions for summary judgment, a procedural posture in which a court will generally defer to any version of the facts on which the parties agree, the Burton court ignored the contentions of both parties and simply declared the Patient to be the author, see Burton, supra at 219, concluding that the source of the Patient's "inspiration" was legally irrelevant.

Thus, unlike most legal difficulties, the problem with challenging the Patient's authorship is not a matter of overcoming the opponent's contradictory claims, but of overcoming the court's own reluctance to entertain speculation about metaphysical issues beyond its competence. Accordingly, and regardless of the contentions of the parties, a dismissive response such as that given by the Burton court might very well be expected again. For this reason alone, a challenge to the Patient's authorship is probably the weakest of the four grounds on which to assert the public domain status of the Work.

Nonetheless, such an argument might succeed if properly presented. Perhaps the best way to raise the issue would be to emphasize that, as a matter of procedure, the court need not determine who was the author of the Work, and need not accept the parties' assertions on that point in order to find that the Patient was not the author of the Work. Such an approach is evident in Oliver v. St. Germain Foundation, 41 F.Supp. 296 (S.D. Cal., C.D. 1941). In that case, an author (Oliver) who presented his book as the work of an ancient spirit, and who

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claimed copyright in the work only as "proprietor," brought an infringement action against a similar book attributed to a different spirit. Discussing the invalidity of Oliver's copyright, the court wrote:

"In this situation, if we accept Oliver's statement as true and not fiction . . . [w]ho can say that the spirit of the Master or Masters, whether called by one name or another, might not see fit to use both men as instrumentalities or amanuenses for communicating their messages of guidance and direction to humanity? The law deals with realities and does not recognize communication with and the conveyances of legal rights by the spiritual world as the basis for its judgment. Nevertheless, equity and good morals will not permit one who asserts something as a fact which he insists his readers believe as the real foundation of its appeal to those who may buy and read his work, to change that position for profit in a law suit."

Id. at 299.

While the Foundation's claim differs somewhat from the one at issue in St. Germain, the St. Germain case is a useful, albeit non-binding, precedent because it dismisses the plaintiff's copyright as invalid on the basis of the plaintiff's own assertions about the work, even as it rejects the claim of spiritual authorship. Moreover, the issue which distinguishes St. Germain from the Foundation's case, namely the presence of a second (arguably infringing) work, is deemed unnecessary to the determination of the case. Id. The holding of St. Germain is that the copyright is invalid, and this holding is based on facts very similar to those present here.
2. The Patient Did Not Transfer His Copyright To Sadler

The heart of the Burton court's reasoning is that Sadler's unchallenged possession of the manuscript, for a period of many years, was adequate evidence to support an inference that the Patient transferred his common-law copyright to Sadler. Burton at 221. On its face, possession alone is not sufficient to establish Sadler's copyright. O'Neill v. Gen. Film, 157

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N.Y.S.1028, 1036 (1st Dept. 1916) ("No decision is cited, and we have found none, which holds that [copyright] may be acquired by adverse possession and claim of ownership.")15

Possession is, however, some evidence that a person other than the author may have acquired the intangible common-law copyright by having acquired the physical embodiment of the work. Houghton-Mifflin Co. v. Stackpole & Sons, 104 F.2d 306, 311 (2d Cir. 1939). It was on this basis that the Burton court concluded that the Patient's conduct in entrusting the papers to Sadler gave rise to an inference of a transfer of the intangible copyright. What the court however overlooked was that only transfers under circumstances which imply an intention on the part of the author to part with the copyright can support such an inference.

In every case relied upon by the Burton court, the delivery of the manuscript took place in a commercial context, in which the author turned the manuscript over to a publisher for the purpose of public sale and distribution. See, e.g., Callaghan v. Myers, 128 U.S. 617 (1888); Houghton-Mifflin, supra; Freudenthal v. Hebrew Publishing Co., 44 F.Supp. 754 (D.C.N.Y. 1942). Obviously, transfers with a commercial purpose give rise to the inference that the transfer of the copyright, not just the physical property, was intended.

Here, despite the eventual publication of the papers by the Foundation some thirty years after the first "transfer" to Sadler, there has never been any evidence presented to show that the Patient intended or even envisioned commercial publication of the Work by his psychiatrist, Sadler. The "publisher" was not the intended recipient of the papers, and indeed did not even exist at the time the manuscript was given to Sadler.16 In the Burton case, the Foundation produced no witnesses who could attest to the nature of the Patient's understanding

15 Nor does the fact that Sadler's possession and publication of the Work were "unchallenged," Burton at 221, require the court to infer a valid transfer. See Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 744 (2d Cir. 1975) (fact that film producer's work-made-for-hire claim was uncontested by director or director's heirs, is "clearly insufficient" to support inference of proprietorship, and "substitute[s] mere speculation for reason and experience.")

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with Sadler concerning the papers, and the only evidence considered by the court on this point was Sadler's unchallenged possession of the manuscript. Burton at 221.

Here, despite the eventual publication of the papers by the Foundation some thirty years after the first "transfer" to Sadler, there has never been any evidence presented to show that the Patient intended or even envisioned commercial publication of the Work by his psychiatrist, Sadler. The "publisher" was not the intended recipient of the papers, and indeed did not even exist at the time the manuscript was given to Sadler.16 In the Burton case, the Foundation produced no witnesses who could attest to the nature of the Patient's understanding with Sadler concerning the papers, and the only evidence considered by the court on this point was Sadler's unchallenged possession of the manuscript. Burton at 221.

The facts cited by the Burton court are therefore completely irrelevant to the question of the Patient's intent in giving the manuscript to his doctor, and it is this intent which is ultimately at issue, even in the commercial publication context. Atlantic Monthly Co. v. Post Pub. Co., 27 F.2d 556 (D. Mass. 1928) ("It is not necessary that an author, selling a manuscript to a magazine, should do so by a written bill of sale. Delivery of it with the intention of passing title is quite sufficient." (Emphasis added)). The fact that an author submits his manuscript to a publisher, then, is only dispositive insofar as it demonstrates an intent to convey publication rights.
Where, however, as in the Patient's case, there is no commercial relationship or transaction between author and publisher, the inference of intent to pass title does not arise from the voluntary delivery of a work. In Chamberlain v. Feldman, 300 N.Y. 135 (C. App. 1949), for example, Mark Twain had once submitted a manuscript to a magazine which the magazine never published. Years later, the manuscript was bought at auction and published over the objection of Twain's estate, who sued to enjoin further publication. A trial court

16See Epoch Producing, supra note at 745 (fact that publisher did not exist when work created undermines work-for hire claim).

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found for the purchaser of the manuscript, presuming (as in Burton) that possession of the manuscript carried with it an implicit transfer of the common-law copyright. The Appellate Division reversed and issued new findings of fact, stating that "it is impossible to spell out from the known conduct of the author that there was a voluntary transfer of the manuscript to anyone which carried with it the privilege of publication." Id. at 138 (emphasis added).

Under the reasoning of Chamberlain, it would appear that the Burton court erred in looking solely to the conduct of Sadler in determining whether a transfer of rights took place. The conduct of the author, and not of the transferee, should be the proper focus of the court's inquiry, and without direct evidence of the author's intention to transfer his rights, no such transfer should be presumed.17 As the Court of Appeals wrote in affirming the Appellate Division in Chamberlain, where "there was no direct evidence of any unrestricted transfer during the author's lifetime, [there was] no basis for presuming or inferring such a grant." Id. (emphasis added). Therefore, the burden should be on the Foundation to produce direct evidence that the Patient intended to transfer his copyright.18 No such evidence was ever produced.
Kinelow Pub. Co. v Photography in Business, 270 F.Supp. 851 (S.D.N.Y. 1967), reaches a result much like that in Chamberlain. In Kinelow, even where the manuscript was published, the publisher failed to prove "that exclusive title to or copyright privileges in the article were conveyed to it, either by express agreement or by contract implied in the law," id.

17 In Burton, the only aspect of the author's conduct considered by the court was his silence; given that the Patient may not have known of the publication of the Work, indeed may not even -have been alive when the Work was first published in 1955, this silence can hardly qualify as acquiescence. To our knowledge, there has never been any testimony as to the Patient's awareness of the Foundation or its activities.

18 The presumption of validity which attaches to a copyright certificate during the initial term of copyright does not survive into the renewal term. To the extent that the Foundation was relieved of its burden of showing the author's intent in Burton, it can no longer claim this privilege.

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at 853, and, thus, the publisher had no copyright in the article which it published. The court noted that neither the authors of the article nor their employer were paid for publication rights. In the present case, the Foundation has acknowledged that it can show no express agreement between the Patient and Sadler for publication of the Work, and, to summarize all the foregoing, we have seen no reported case in which a court has found a contract "implied in the law" for the transfer of copyright in a manuscript where there is no payment to the author.l9

Following the arguments presented above, it is quite possible that a court might depart from Burton's finding and conclude instead that the Patient did not transfer his common-law copyright to Sadler when he delivered the manuscript into the doctor's custody.20 If so, the Foundation, which claims copyright as a transferee of Sadler, would have no claim to the Work.

The fact that the Work was published by the Foundation would not divest the Patient's common-law copyright since, under this theory, such publication would not have been authorized by the Patient. See Birnbaum, 588 F.2d 319, 327 (unauthorized publication does not affect common-law copyright). Thus, again assuming no transfer of rights to Sadler, the Patient would have retained his common-law copyright until his death, at which time the right

19 Where the author is not paid and surrenders possession of a handwritten manuscript to a close acquaintance, it might seem far better to make an analogy with personal correspondence than with the commercial submission of manuscripts. The law is well-settled that the sender of a letter retains the common-law copyright in the literary content of the writing, even as the recipient acquires title to the tangible manuscript. See Sinkler, 623 F.Supp. 727, 732; Salinger, 811 F.2d 90, 94; McCormick, 92 U.S.P.Q. 393. This general rule is subject to the proviso that the author of a letter may transfer the copyright in the literary matter, if it can be shown that such was the author's intent. Hemingway, 296 N.Y.S.2d 77 (C.App. 1968). But as noted above, the focus for this inquiry must be the conduct of the author, and not the conduct of the recipient.

20 The Burton decision is not binding on anyone who was not a party, or in privity with a party, to that lawsuit. As will be discussed below, however, the doctrine of judicial estoppel may preclude the Foundation from now asserting any position inconsistent with the arguments which succeeded in Burton.

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would have passed by will or intestate succession to his heirs. After 1978, this common-law copyright, held by the Patient's heirs, would have been converted to a statutory copyright by operation of the new Copyright Act, and would endure well into the next century. See 17 U.S.C. 303, 302. Since we have no information concerning the exact date of the Patient's death, the status of his heirs, if any, or the descent and distribution laws of the state in which he died, it is impossible to say with certainty whether any claim to such rights would be time-barred under an applicable statute of limitations. Given that the Patient appears to have been dead since at least 1975, however, and the fact that his heirs have not come forward to claim their rights, or to contest the Foundation's publication of the Work, it is likely that the Patient either (a) has no heirs, or (b) has heirs who have never asserted a claim to their rights and are now time-barred from doing so, or (c) has heirs who are not time-barred but who have abandoned their common-law copyright by failing to act against unauthorized publication of the Work. Stuff v. E.C. Publications, 342 F.2d 143 (holders of common-law copyright found to have abandoned work by allowing unauthorized publication). In any of these cases, and assuming that the Patient did not transfer his common-law copyright to Sadler, the work would be in the public domain. If, however, the Patient has heirs who are not barred by either an applicable statute of limitations or the doctrine of abandonment, such heirs might still have a valid claim to the Work: But given the history of this Work, one might reasonably assume that, were such heirs in existence, they would have asserted a claim to their rights by this time.

3. The Patient Did Not Transfer His Renewal Interest To Sadler

If one assumes, arguendo, that the Patient did in fact transfer his common-law copyright to Sadler, then Sadler clearly had the right to obtain a statutory copyright in the Work. Under such circumstance, Sadler would be free to transfer this right to the Foundation, as he appears to have done in no uncertain terms, and upon registration with the Copyright

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Office, the Foundation would have acquired a valid statutory copyright in the Work for a term of 28 years, measured from the date of first publication in 1955. At the end of 1983, however, this term of protection expired and the Work was only entitled to continued protection upon the proper filing of a valid application for renewal. 17 U.S.C. 304. Subject to certain qualifications discussed below, such an application can only be filed by the author, or by one to whom the author has explicitly assigned his rights to the renewal term. However, as the Patient did not explicitly assign the renewal term to Sadler, and to our knowledge there has never been any testimony even suggesting that he did, Sadler could not have acquired any interest in the renewal term which he would be capable of assigning to the Foundation. The Work would thus have lapsed into the public domain in 1984 for lack of a timely renewal by the proper party.

The renewal term of copyright is not merely a fortuitous bonus for the owner of the initial copyright in its 28th year. As the Fifth Circuit wrote in Harris v. Coca-Cola Co., 73 F.2d 370 (5th Cir. 1934),

"[t]he second period is intended, not as an incident to the first for the benefit of the then owner of the expiring copyright, but as a second recognition extended by the law to the author of work that has proven permanently meritorious by giving directly to him, if alive, or if not, to his widow [or heirs] . . . a supplementary copyright." Id. at 371 (emphasis added).

To give effect to this legislative intent, courts have held repeatedly that any transfer of copyright by the author which does not expressly include the author's right to take the renewal term will not be construed to transfer the renewal, absent evidence of contrary intent. See, e.g., Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 747 (2d Cir. 1975) and cases cited therein; see also Nimmer 9.06[A][2]: "the assignee bears a heavy burden in establishing the grantor's intent to include renewal rights absent an express reference thereto."

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The facts of Epoch Producing, supra, mirror the present circumstances in many ways, not the least of which is that the plaintiff was an assignee of a statutory copyright, which was in turn derived from a transfer of the author's common-law copyright. Citing Austin v. Steiner, 207 F.Supp. 776 (N.D. I11. 1962), the Epoch court noted that "such an assignment by the author of a work conveys only the initial term copyright, reserving the renewal for the author himself." 552 F.2d 737, 747. The Foundation here stands in much the same position as the plaintiff in Epoch, and the result should be the same: an unwritten transfer of common-law copyright will not carry with it the right to claim the renewal.21

4. Patient's Death Invalidates Any Transfer Of Renewal Rights

While it seems unlikely that the Foundation could present sufficient evidence to support a claim that the Patient expressly transferred his renewal rights to Sadler, or even that he had any intention of doing so, this claim would be futile as a matter of law because even a valid transfer from the author does not survive unless the author is alive at the time the renewal term begins. Bartok v. Boosey & Hawkes, 523 F.2d 941, 947 (2d Cir. 1975). From the discovery materials produced in the Burton case, it appears that the Patient died sometime before 1975. See Plaintiff's Answers to Defendant's Interrogatories Nos. 1-45, Answer No. 18, supra note 2. The renewal term began in 1984. Consequently, even if it was demonstrably the Patient's wish that the Foundation take the renewal of the Work, only the Patient's statutory heirs (widow, children, executor, next of kin) would be legally entitled to claim the renewal. Saroyan v. William Saroyan Foundation, 675 F.Supp. 843 (S.D.N.Y. 1987). Since these heirs did not apply for the renewal of the copyright in a timely fashion, the work has lapsed into the

21 The fact that Sadler's transfer to the Foundation might purport to convey renewal rights is immaterial, since Sadler never acquired a right to the renewal term from the Patient.
Lewis Music Pub. Co. v. Shapiro Bernstein & Co, 33 A.D. 679, 305 N.Y.S.2d 904 (1st Dept. 1969).

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public domain, and there is no rightful party for whom the renewal may be held in trust. Tele-Pac Inc. v. Rohauer, 6 U.S.P.Q.2d 1726 (ICY. Sup. Ct. 1987) .22

5. The Foundation Cannot Claim Renewal Under Section 24

The facts of the present case indicate strongly that the Foundation cannot by law have a valid renewal interest which derives from any transfer between the Patient and Sadler. Thus, the only route by which the Foundation could even arguably assert a right to the renewal term is by purporting to be a "proprietor," under Section 24 of the 1909 Act, of a work falling into one of four categories: posthumous works, composite works, works of joint authorship and works copyrighted by a corporate body. The Work, however, does not fit within any of these categories.

A. Posthumous Works

The Foundation might claim that the work was posthumous. As a threshold issue it is impossible to say whether this claim is true even under a literal reading of the word "posthumous," since we do not know whether the Patient was alive when the work was first published in 1955. Legally, however, the exact date of the patient's death may be irrelevant under the doctrine announced in Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941 (2d Cir. 1975). In Bartok, composer Bela Bartok's "Concerto for Orchestra" was performed and broadcast prior to his death in 1945, but because of wartime conditions the actual publication was delayed until 1946. A district court declared the work posthumous because it had not been "published" in the formal sense prior to the author's death, and thus permitted the publisher to take the renewal under Section 24.

22 The statutory heirs would have had to apply for the renewal within one year prior to the expiration of the initial copyright term, 17 U.S.C. 24 (1909), to prevent the Work from lapsing into the public domain.

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The Second Circuit reversed the district court's ruling. It held that because Bartok conveyed his copyright to the publisher prior to his death, thus resulting in the work not being included in the composer's estate at the time of his death, the work was not "posthumous" and therefore the renewal right reverted to the Bartok heirs. Id. at 946. Compare these findings with Burton, in which the Foundation claimed (and the court found) that the Patient had conveyed his common-law copyright to Sadler during his lifetime. Because of this conveyance, the Work under the prevailing rationale of Bartok would necessarily have to be deemed not a "posthumous" work in order to effectuate the legislative intent of permitting the Patient's heirs to enjoy the renewal term in a work which was not in the Patient's estate at the time of his death. Burton at 221.23

Thus, given the fact that the Foundation claims the Patient parted with his own interest in the work prior to his death, a court would likely find that the Work was not posthumous for purposes of Section 24.

B. Composite Works and Joint Authorship
(i) Composite Works
Section 24 also provides for the taking of a renewal term by the proprietor of a "periodical, cyclopedic or other composite work upon which the copyright was originally secured by the proprietor thereof." While the courts have interpreted this language in various ways, the provision was clearly meant to apply to works such as dictionaries, encyclopedias, and law digests in which a large number of individuals contribute to an essentially impersonal work of authorship. See, e.g., Shapiro Bernstein & Co. v. Bryan, 123 F.2d 697, 699 (2d Cir. 1941) (L.Hand, J., defining composite works as "those to which a number of authors have contributed distinguishable parts.")

23 Here again, the principle of judicial estoppel, discussed below, could prevent the Foundation from making any inconsistent arguments on these points in any future litigation.

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As former Register of Copyrights Barbara Ringer wrote:

"The legislative history shows that the determining factors in a composite work were: (1) A number of authors contributing copyrightable matter to a single work; and (2) an employment or contractual arrangement entitling the proprietor to secure copyright in the various contributions. Above all, it was the number of authors that was in the committee's mind. The whole purpose . . . was to give the proprietor the renewal in those relatively few cases where, as a practical matter, there were too many authors to join in the renewal claim." STUDIES ON COPYRIGHT, ARTHUR FISHER MEMORIAL EDITION, B. Ringer: Study No. 31: Renewal of Copyright, at 131 (1960).

Unless the Foundation can successfully advance the argument that the various spiritual sources named in the Work's table of contents are legally the multiple authors of the Work, there is little support in the legislative history or the case law for calling the Work "composite" in the sense intended by Section 24. If the contributions of the Forum or Commission in the 1930s were to be urged as a basis for the Foundation's right to renew, the fact that they did not contribute copyrightable material would preclude a finding that the Work was a composite under the statute. Harris v. Coca-Cola, 73 F.2d 70 (5th Cir. 1934)
(composite works defined as "those composed of the copyrightable work of several persons.")

(ii) Joint Authorship

The contributions of Sadler's son, minimal though they are, might arguably be copyrightable, but following the reasoning of Shapiro Bernstein & Co. v. Jerry Vogel Music, 221 F.2d 569 (2d Cir. 1955), the addition of these elements to the plaintiff's text could at best create a joint work, not a composite work,24 and then not as to the pre-existing text solely authored by the Patient.

24 In any event, the contributions of the Forum and commission, if any, would in all likelihood not qualify for joint authorship status since they involve no specific copyrightable expression; "comments and feedback," even when acted upon by an author, do not give rise to a joint authorship claim under the 1909 Act. See Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993). See also Harris v. Coca-Cola, supra, at 372 ("The fact that Mr. Frost was trying to portry ideas suggested by the writings of Mr. Harris did not make the artistic work of Frost that of Harris.")

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In Shapiro Bernstein v. Jerry Vogel Music, a composer, Bowman, wrote an instrumental piece, and assigned his current and renewal interest to publisher Jenkins Co. Jenkins Co. later asked a lyricist, Sumner, to write words to Bowman's music. Summer kept his renewal interest for himself. The result was a song, which the court held was jointly authored by Bowman and Summer. Sumner, the lyricist, later assigned his renewal rights in the song to a separate publisher, Jerry Vogel Music. Jenkins Co., meanwhile, assigned all rights in Bowman's work, including the instrumental piece and the jointly-authored song, to publisher Shapiro Bernstein. On rehearing, the court held that Vogel and Shapiro Bernstein both had a renewal interest in the joint work, but that only Shapiro Bernstein had a claim to the instrumental work.

The same result might occur with respect to the Work here, if the court were to find the contributions of Sadler's son to be independently copyrightable. Even so, however, ownership of a renewal copyright on a joint work does not convey any rights to the renewal term of the preexisting work, e.g., the text of the work solely authored by the Patient. If the Foundation was not entitled to renew the manuscript based on its transfer from the Patient -- and it was not, since the Patient died before any such right vested -- it did not become so entitled by virtue of having later published someone else's work in conjunction with the manuscript. As George D. Carey wrote of the Shapiro Bernstein case, "the court recognized that the composer's assignee alone held copyright in the music when it was used without the lyrics."25 Here, the same result should apply: the Patient's assignee alone holds renewal copyright in the manuscript when it is used without the contributions of Sadler's son. Since the Patient's death precludes any valid assignment, and since no statutory heir claimed the renewal in a timely fashion, the work is necessarily in the public domain.

25 Study 12: Joint ownership at 92.

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C. Works Copyrighted by a Corporate Body

Section 24 also allows renewal by the proprietor of a "work copyrighted by a corporate body (otherwise than as an assignee or licensee of the individual author)." This provision has often been dismissed as unclear and "practically meaningless," Bartok, supra, at 948, except for the negative implication it raises, namely, that a corporate body which claims as an assignee of an individual author is clearly not entitled to take the author's renewal. See id.; see also Nimmer S 9.03[C] (if corporate body acquires copyright by assignment of common-law rights from author, corporation "is not by reason of such fact entitled to claim the renewal copyright.")

Since the main thrust of the Foundation's argument in Burton was to show that "Dr. Sadler was the assignee of the rights of the author," Burton at 221, and since the court there declared that "[s]ince the plaintiff is not the author . . . it must demonstrate its claim of copyright as an assignee of the rights of the author," it seems unlikely that the Foundation would attempt to defend its renewal rights on this ground. If it has no argument for its ownership other than the chain of assignments alleged in Burton, it cannot possibly claim renewal rights under the "corporate body" provision, and if it does not rely on those assignments, it will presumably assert its other arguments directly rather than claiming them under this ambiguous and unhelpful rubric.

D.Work Made for Hire (and Judicial Estoppel)_

Of all the Section 24 proprietor renewal provisions, this is probably the one most likely to be asserted, given that the Foundation relied on it when filing its renewal application in 1983.26 The case law is quite clear, however, that unless the author was either employed or commissioned to create the work, work for hire status will be denied. Barbara Ringer's summary of the issue in her 1960 study made the following observations:

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(1) A "work made for hire" is not one which the author created on his own volition and then sold to a proprietor. There must have been some arrangement, going beyond an assignee-assignor relationship, before the work was undertaken.

(2) A regular salary is usually indicative of employment for hire. However, whether or not a work was "made for hire" is not necessarily dependent upon whether it was prepared by an employee exclusively during regular working hours, or for a fixed salary.

(3) The phrase "work made for hire" probably applies to some commissioned works, although not to works prepared by independent contractors as "special job assignments" or to works created by an employee entirely outside the scope of his employment.

(4) The employer need not have contributed anything in the sense of "authorship" to a work made for hire; his only contribution need be the "hire" for which the employee-author worked.

Ringer, Study 31: Renewal, supra, at 141-142 (citations omitted).

The first of Ringer's observations notes that any work for hire arrangement must go beyond a mere assignee-assignor relationship. Before attempting to analyze the relationship between and among the Patient, Sadler, the Commission and the Forum in the context of an alleged work-made-for-hire status, it might be possible here to invoke the principle of judicial estoppel and hold the Foundation to its earlier position that it was an assignee of the Patient's rights under Section 9. See Burton at 221.

(i) Judicial Estoppel

While a party is always free to plead alternative legal arguments, even if based on inconsistent facts, a party may not assert a position which is inconsistent with a sworn assertion which was accepted in a prior proceeding and which resulted in a judgment in that party's

26 Despite the renewal of the Work in 1983, after the new Copyright Act went into effect, the new Act's "provisions on work for hire operate prospectively and do not govern this case." Forward v. Thorogood, 985 F.2d 604, 606 n.2 (1st Cir. 1993).

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favor. In Teledyne Industries Inc. v NLRB, 911F.2d 1214, 1220 (6th Cir. 1990), the Sixth Circuit noted that judicial estoppel is "not bounded by the limits of mutuality and finality that protect the parties in collateral estoppel," and thus may be invoked by a litigant who was not party to the prior proceeding. The Sixth Circuit then defined the principle as follows: "In order to invoke judicial estoppel, a party must show that the opponent took a contrary position under oath in a prior proceeding and that the prior position was accepted by the court." Id. at 1218.

The Foundation's prior position, that it was an assignee of the Patient's rights by virtue of its possession of the manuscripts of the Work, is amply represented in sworn statements submitted by the Foundation in the Burton case, see, e.g., Plaintiff's Answers to Defendant's Request for Admissions, Answer number 6. Further, this position was successful, and the Foundation obtained a judgment that it was entitled to the initial term of copyright in the Work as an assignee. Burton at 221, 222. For a "work made for hire" claim to be barred by judicial estoppel, then, would require a showing that such a claim is, in fact, contrary to the assignment claim which prevailed in Burton.

Certainly proprietorship of a work made for hire is an entirely separate theory of ownership, but it is not clear that a court would find it "contrary" to a claim based on assignment unless it could be shown that the two theories are mutually exclusive. Courts have often reasoned as though a publisher must be either one or the other: "If Chicago Music was the proprietor of these copyrights on works made for hire, only Chicago Music...had the right to renew. If Chicago Music was a mere assignee or licensee of the composer, then only the composer had the right to renew." Austin v. Steiner, 207 F.Supp. 776 (N.D. Ill. 1962).

Absent in such reasoning is the idea that a publisher may be both an assignee and a proprietor of a work for hire, which is the argument the Foundation would have to make.

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Phrased in this way, it appears that the two theories of ownership are mutually exclusive, since they are based on different assumptions about the work: an assignment presupposes that the creator of the work initially has something to assign, while the creator of a work made for hire has no rights in the work at any time. A party could plead these irreconcilable theories as alternatives, and perhaps the Foundation did so in Burton, but, under the Teledyne approach to judicial estoppel, there is a strong argument that the Foundation, having obtained a judgment in its favor as an assignee, cannot now deny that whatever interest it obtained it took by way of an assignment of the Patient's rights. And if the Patient had rights, any rights at all, then the manuscript could not be a work made for hire.

(ii) Work Made for Hire

It is possible that the foregoing argument will not prevail, and that the work made for hire claim will have to be defeated on the merits. If so, the burden will be on the Foundation to prove that the Work was made for hire, since unlike a registration certificate, a certificate of copyright renewal gives rise to no presumption of validity or truthfulness. This point was squarely addressed in Epoch Producing Corp. v. Killiam Shows. Inc., 522 F.2d 737, 745 ( 2d Cir. 1975), which rejected any presumption of validity regarding a renewal certificate.

In order to make out a prima facie case that the Patient's manuscript was a work made for hire, the Foundation will be required to expand significantly on the positions asserted in Burton. To establish that the Patient was an employee for hire, as the Foundation now claims,27 the "critical issue," Epoch at 744, will be the relationship that existed between the Patient and the other parties at the time the Work was written.28 The relationship described in

27 The Foundation asserts that "any person who served as a conduit . . . including the `Contact Personality' [the Patient], was a person who is an `employee for hire' within the meaning of the Copyright Act." Urantia Foundation v. Maaherra, Civ. 91-325 PHX SMM (D. Ariz. 1991), Plaintiff's Responses to Defendant's Requests for Admissions, at 115.

28 Because it does not appear that either the Commission or the Forum contributed any copyrightable expression to the Work, it does not matter whether the persons in those groups could be considered employees for hire under the Copyright Act.

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Burton, in which the Patient gratuitously entrusted the manuscripts to his doctor, while the Forum made indirect suggestions which resulted in "expansions and clarifications" of the text, bears no meaningful resemblance to the circumstances courts have recognized as legitimate work-for-hire arrangements.

As Ringer's four-point summary quoted above indicates, a formal, salaried employment relationship is not necessarily determinative, although the absence of any such relationship here substantially weakens the Foundation's position. The "most important" single factor, rather, is "whether they could have exercised the requisite power to control or supervise [the author's] work, which is the hallmark of an `employment for hire' relationship." Epoch at 744.

The situation described in Burton shows only one possibility for control and supervision, namely the "comments and feedback" of the Commission and the Forum. Unless further evidence is presented as to the details of this process, however, a court will not likely accept it as sufficient. The Patient's manuscript, according the Foundation, was not altered or edited in any fashion by either Sadler or the Forum, but instead was published exactly as the Patient wrote it. Even the "revisions" and "adjustments" to the text described in the Maaherra discovery materials (e.g., Plaintiff's Responses to Defendant's Requests for Admission at 16)
are said to have been carried out by spiritual sources who alone "determined what would be included in the text." Id. at 13. This hardly suggests employment or control "in the substantial sense required by the Copyright Act." Donaldson Publishing Co. v Breqman Vocco & Conn, Inc, 375 F.2d 639 (2d Cir. 1967).29

In a similar case, a music fan organized and paid for two recording sessions by a blues band, and even suggested specific songs for the band to play. The band "then played those

29 Moreover, if the spiritual "sources" are accepted as the authors of the text, the Foundation would have to establish that it exercised control not over the Patient's work but that of the spirits themselves.

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songs in precisely the same manner that it always played them," and turned over the physical tapes produced at the session to the music fan. The court rejected the fan's "work made for hire" claim on the tapes and, in the absence of any compensation to the musicians, the court did not even consider whether the fan's suggestions were evidence of employer-like control. Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993).

The courts have also applied a so-called "instance and expense" test to determine work made for hire status under the 1909 Act, when an explicit employment relationship cannot be established. Under this test, the court looks first to whether the creation of a work was "motivated" or "induced" by a putative employer, that is, "pursuant to a particular assignment and direction and . . . in no sense original or spontaneous." Tobani v. Carl Fischer, Inc., 36 U.S.P.Q. 97 (S.D.N.Y. 1937).

The Foundation could perhaps argue (subject, of course, to the introduction of credible proof) that at least some of the papers produced by the Patient were "motivated" or "induced" by the Forum's "comments and feedback" but, under the recent decision in Playboy Enterprises, Inc. v. Dumas, 91 Civ. 6268 (S.D.N.Y. Sept. 9, 1993), slip op. at 36, this alone is not sufficient. In addition to motivating or inducing the creation of the work, the employer must also bear the expense of producing the work itself, not merely the expense of publishing the work.
Where, as in Playboy, the artist "provided his own tools, worked his own hours, hired his own assistants, and paid his own taxes and benefits," id., the "expense of preparation" is said to be borne by the artist, not the publisher. Thus, any sums expended by Sadler or the Foundation for preparing the typed transcript, the printing plates, or the finished volume, would not satisfy the "expense" prong of the "instance and expense" test.
Not only does the Foundation's version of the facts fail the various tests for establishing a work made for hire relationship, it also includes many factors which have been cited as evidence against finding such a relationship. For example, both the Foundation and the Forum only came

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into existence after the Patient began the Work. As Ringer's summary notes, the work for hire relationship must exist before the work is undertaken, and cannot be imputed retroactively; see loch at 745; see also H.R. Rep. No. 51-374, 89th Cong., 1st Sess., Part 5, 1964 Revision Bill with Discussion and Comments at 145 (1965) (testimony of B. Ringer).

Moreover, the predecessors of the Foundation, namely Sadler and the commission, were not engaged in any business relevant to publishing the Patient's writing and apparently derived no income from their activities in connection with the Work. Under such circumstances, the court in Epoch refused to recognize an employment relationship. Epoch at 745.

Thus it does not seem likely that any court would be persuaded that the Patient's writings constituted a work made for hire. If the Patient's writings are not considered a work made for hire, then the text of the Work has lapsed into the public domain, and only the protectable elements, if any, of the materials contributed by Sadler's son may remain under copyright. Since there was no compensation to Sadler's son, it should be added that even those materials may not have been properly claimed for renewal by the Foundation.

CONCLUSION

Based upon the foregoing reasons and authorities, we believe that the text of the Urantia Book is in the public domain.

Respectfully submitted,
COWAN LIEBOWITZ & LATMAN P.C.

By:
Peter Herbert

Robert W. Clarida Of Counsel

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ADDENDUM

We have reviewed the responses by the Foundation to the Requests for Admissions in Urantia Foundation v. Maaherra, Civ. 91-325 PHX SMM (D.Ariz. 1991) (the "Maaherra responses").The "Facts" portion of our analysis above incorporates the information contained in these responses, particularly with regard to the role of the Commission in the creation of the Work. Nothing in the Maaherra responses affects our conclusion that the text of the Work is in the public domain. At your request, we offer the following supplemental analysis of the most salient points raised by the Maaherra responses, in a form which highlights our view that the assertions made in these responses, even if true, do not alter the legal status of the Work. Paragraph letters correspond to the four subparagraphs of paragraph 3 in your letter of June 16, 1994.

A. The Commission's contact with the various non-human entities listed as the authors of the Work appears to have been entirely through the medium of the Patient. As we noted in our analysis above, The Commission is said to have selected and edited the Forum's questions before presenting them to the Patient and thus to the spiritual authors of the Work. Maaherra responses at 12. The language used in this response must be read carefully. The Commission is said to have "work(ed) directly with the contact personality in the production of the text of the Urantia Papers. In this process the Contact commission engaged in communication with the personalities listed as authors in The Urantia Book, providing feedback and receiving instructions regarding the disposition of the Papers." Id. (emphasis added). A fair reading of this response would appear to be that the Commission members "engaged in communication" with the spiritual authors only by way of the Patient, and were not themselves in direct contact with the spiritual authors named in the Work. Nowhere does the Foundation make any assertion which contradicts this interpretation.

B. Whether or not the Commission members had any unmediated contact with the spiritual authors of the Work, the only "contribution" which makes any difference for copyright purposes is providing concrete verbal expression, that is, words which appear on the pages of the Work. The most fundamental principle of copyright law is that it protects expression, not ideas. Asking questions of the authors, suggesting revisions, providing "concepts," giving "feedback" and so forth are not grounds for claiming copyright. If they were, copyrights would be owned by editors rather than authors.

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The Maaherra responses do not assert that the Commission "determined what would be included in the text" of the Work; in fact, they assert just the opposite. As the analysis above observes,

By responding through the Patient, the spiritual authors are said to have "revis[ed] the early drafts" of some of the texts included in the work in response to questions from the Commission and the Forum. It is the position of the present copyright claimants that the spiritual authors named in the text, and not the. Commission or the Forum, "determined what would be included in the text" of the Work, id. at 13, and that the text of the Work "is in the most recent form that was transmitted by" the named authors. Id. at 38. By the claimants' own admission, none of the named authors is a "human personality" Id. at 75. Therefore, the claimants contend that the entirety of the expression contained in the Work is of non-human creation, though some was allegedly created in response to questions posed by the Forum and the Commission, and many passages make use of the Biblical Gospels, human "concepts" and other "information from purely human sources."

In short, since the Commission did not determine what would be included in the text, it has no claim to copyright by virtue of its conceptual "contributions." Any "responsibility" or "authority" which the Commission claims to have been given could only be relevant to the issue of an implied transfer of copyright and, as explained in detail above, such an implicit transfer does not carry with it any rights to the renewal term. Finally, even if the renewal right were transferred, the Patient's death before the commencement of the renewal term would void any transfer.

C. Because "concepts" are not grounds for claiming copyright, it makes no difference whether certain of the concepts used by the spiritual authors originated with the Patient or the Commission. Only expression is copyrightable.

D. It makes no difference whether the members of the Forum and/or the Commission were "employees for hire," since they did not contribute any copyrightable expression to the Work. If the Patient were an "employee for hire" under the 1909 Copyright Act, then the Foundation might have a claim to the renewal term for the text of the Work but, as explained

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above, the most important single hallmark of a work-made-for-hire relationship is control. Absent a formal salaried employment relationship, the power to control or supervise the author's work in a "substantial sense," Donaldson Publishing v. Bregman, Vocco & Conn, Inc., 375 F.2d 639 (2d Cir. 1967), is an absolute requirement for work-made-for-hire status. See also Forward v. Thoroqood, 985 F.2d 604 (1st Cir. 1993). Since the Foundation acknowledges that the spiritual authors alone "determined what would be included in the text," Maaherra responses at 13, it is unlikely that a sufficient showing of control can be made.

In conclusion, the Maaherra responses do not affect our opinion that the text of the Work is in the public domain.

 

Are you a follower of Jesus? Do you follow, support, and promote his teachings? "Forbid him not," he said, ..."How can you expect that all who will believe the gospel shall be subject to your direction?" P. 1764 "Be willing to suffer injustice rather than to go to law among yourselves." P. 1571