Docket #10/17/91:
DEPOSITION OF BERNARD C. DIETZ
Washington, D.C., October 17, 1991 The deposition of BERNARD C. DIETZ, called for examination by counsel for Defendant in the above-entitled matter, pursuant to Notice, at the Library of Congress, Madison Building, Washington, D.C., Convened at 10:00 a.m., before Leslie K. Heird, a notary public in and for the District of Columbia, when were present on behalf of the parties:
APPEARANCES: On Behalf of the Plaintiff CRAIG FOCHLER, ESQ. PATRICIA S. SMART, ESQ. Pattishall, McAuliffe, Hilliard & Geraldson Suite 5000 311 South Wacker Drive Chicago, Illinois 60606 (312) 554-8000
on Behalf of the Defendant E. FULTON BRYLAWSKI, ESQ. JOSEPH D. LEWIS, ESQ. Brylawski, Cleary & Komen 801 Pennsylvania Avenue, S.E. Washington, D.C. 20003 (202) 547-1331
CONTENTS EXAMINATION BY COUNCIL FOR PLAINTIFF 62, 107 DEFENDANT 4, 100, 112 EXHIBITS NUMBER 1, 2, 3, 4, 5 FOR IDENTIFICATION 11, 11, 15, 16, 29
PROCEEDINGS Whereupon, BERNARD C. DIETZ was called for examination by counsel for the Defendant, and having been first duly sworn by the notary public, was examined and testified as follows:
EXAMINATION BY COUNSEL FOR THE DEFENDANT BY MR. BRYLAWSKI:
Q. Please state your name and home address.
A. Bernard C. Dietz and I reside at 2205 Yardly Court in Alexandria, Virginia. Q. Would you describe your educational background?
A. I'm a graduate of Fairfield University in Fairfield Connecticut and Catholic University School of Law in Washington, D.C. I have a B.S. degree and J.D. degree.
Q. When did you graduate from Catholic University Law School?
A. 1967.
Q. Would you tell us what you did after graduating from law school?
A. I took the District of Columbia bar exam and then immediately came to work in the copyright office in August of 1967.
Q. Are you still working in the copyright office?
A. Yes.
Q. What is your present title and responsibilities?
A. Head of the renewal section of the examining division.
Q. How long have you held that position?
A. 11 years.
Q. Prior to that what responsibilities did you have?
A. Head of the arts section, now known as the visual arts section, of the examining division.
Q. And in that earlier capacity as head of the visual arts section did you have experience in connection with the registration of claims in visual arts work and works of art?
A. Yes.
Q. Did some of those works have literary content?
A. Yes. We also examined works in what would be regarded as the literary classes. The scope of the subject matter involved periodicals, contributions to periodicals, unpublished lectures, published and unpublished dramas, works of art,, reproductions of works of art, pictorials, illustrations and motion pictures.
Q. Are you familiar with the practices in the book section of the examining division?
A. Yes.
Q. How many years experience have you had in connection with the examination of copyright claims on books and renewals?
A. 24 years.
Q. Have you lectured or written articles in the field of copyright?
A. Yes, I have. I'm a member of the editorial staff of the European intellectual property review published in Oxford, England. I've also authored a number of articles published in the United States. I'm a co-author on a couple of treatises on copyright and I've lectured all over the world on copyright.
Q. Approximately how many articles have you written on the subject of copyright?
A. I've written about 12.
Q. Can you recall the titles of some of them or subject matter?
A. The one article I wrote about following a registration through the copyright office and the title of the work was "Copyright is not a four letter word. I wrote an article that appeared in the Performing Arts Law Review based primarily on performing arts. I've written an article on copyrightability of utilitarian works published as a lead article in the European Intellectual Property Review. I'm a co-author of a practice manual published by the Boston Visual Artists Union involving registration and protection of works of art for individual artists among numerous other articles.
Q. And you have spoken before groups and participated in seminars. And approximately how many times have you appeared in that role?
A. I have given over 50 speeches for the copyright office worldwide.
Q. I'm going to ask you questions in connection with your familiarity and expertise on copyright registration and renewal practices. And I'm going to address you specifically in connection with the subject matter of this lawsuit which is a publication called The Urantia Book published in 1955 which was registered for copyright in 1956 and which I will show you was renewed in 1983. Before I do that though I would ask you, did you bring with you some documents which I ordered through you and asked you to bring?
A. Yes, I brought with me a certified copy of a registration made for the book entitled The Urantia Book under our number A216389 and a certified copy.
Q. I would like to have this marked as Dietz Exhibit 1.
MR. FOCHLER: Is this being produced in response to a document request?
MR. BRYLAWSKI: No. For purposes of the deposition.
MR. FOCHLER: Was there a request for this? I don't know if there was a subpoena or some request.
MR. BRYLAWSKI: These are available to the public.
MR. FOCHLER: I'm just trying to clarify.
MR. BRYLAWSKI: What we have here, and I will list them and mark them separately, is we have a certified copy of -- strike that. We have here an additional certificate of copyright registration of The Urantia Book number A-216389. We have an additional certificate. We have an additional certificate of copyright renewal registration number RE-152-055-. We also have copies of the original registered application from which the copyright certificate was prepared in 1956. These are documents which are available to any member of the public upon paying the fees.
MR. FOCHLER: Is this deposition being taken pursuant to subpoena?
MR. BRYLAWSKI: No.
MR. FOCHLER: And there was no document request that was served on copyright office?
MR. BRYLAWSKI: No.
MR. FOCHLER: So these -- that's what I'm trying to understand.
MR. BRYLAWSKI: These are charged to our account. We didn't do it in writing. we did it orally. But we have a deposit account here so that these are documents that we have purchased.
MR. FOCHLER: And they were requested to be brought for purposes of the deposition?
MR. BRYLAWSKI: Yes.
MR. FOCHLER: Okay, I'm going to object to all those documents. I think any time there's a document request the other sides supposed to be given notice of it.
MR. BRYLAWSKI: I don't think these documents are new. They are copies of documents. You are welcome to examine them before we attach them to the deposition or ask questions about them. Would you like to look at them?
MR. FOCHLER: I believe Mr. Dietz gave me copies of two of them, of the application and the certificate renewal. You mentioned a third. Excuse me. I've got two different documents here. Can I see the three?
MR. BRYLAWSKI: One of those is an application for copyright registration and the other one is an additional certificate of the original copyright which is a little different and the third is a renewal of the copyright. The first document is the certified copy of the original registration for the book, The Urantia Book, registered for copyright January 3, 1956 under entry number A-16389 and that is being marked Dietz Exhibit 1 (Dietz Exhibit No. 1 was marked for identification.)
MR. BRYLAWSKI: The second is a certificate of renewal registration for The Urantia Book renewal registration dated January 3, 1983, number RE152-055. We will not need to put in the third document I have given you at this time, which is a little redundant. It is the uncertified copy of the original registration. (Dietz Exhibit No. 2 was marked for identification.)
MR. BRYLAWSKI: I'd like to make the statement for the record that Mr. Dietz is appearing here among other things as an expert in copyright registration practices and procedures.
MS. SCHRADER: I'd like to make a brief statement. I'm Dorothy Schrader, General Counsel of the Copyright Office, representing Mr. Dietz. The copyright office has made Mr. Dietz available for this deposition for the purposes of relating information about copyright office registration procedures and practices and he is offered as an expert in those areas. He is not offered as an expert on copyright law in general and we are not willing to have his so-called mental processes examined. I don't know that there's any occasion for those questions to come up but if there should be questions about why the copyright office did one thing or another, the question generally will not be appropriate. What the copyright office did, what its practices are, that, of course, is the subject of Mr. Dietz's expertise. But why the copyright office made a certain registration determination would be beyond the scope of the deposition that we are willing to participate in.
MR. BRYLAWSKI: Thank you. I hope that I don't exceed that scope. I think for purposes of clarification I would like to offer some hypotheticals which I think illustrate the practices and I hope that he will be able to answer those. It will be extremely helpful, I think, to the Court which is pretty far removed from the copyright office and may not be that familiar with copyright office practices.
BY MR. BRYLAWSKI:
Q. Dealing with your background in copyright registration practices I ask you, Mr. Dietz, would the copyright office question a statement of authorship in a book application if there were no author shown on the copies deposited or the author shown on the copyright application conformed with the name of the author on the copyright deposit?
A. No, it would not.
Q. I show you Exhibit 1 and I'd like you to keep this in front of you as well as Exhibit 2 for purposes of these questions.
(Discussion off the record.)
BY MR. BRYLAWSKI:
Q. Mr. Dietz, I hand you Library of Congress Special Search form which has been filled out for The Urantia Book, the original 1955 edition, which was registered for copyright in 1956. Would you examine that, please? (Witness examining document.)
BY MR. BRYLAWSKI:
Q. According to that report what were the results?
MR. FOCHLER: Objection, the document speaks for itself.
MR. BRYLAWSKI: I'm sure it does but it would be nice to have a simple statement.
MR. FOCHLER: It hasn't been marked as an exhibit.
MR. BRYLAWSKI: Not yet.
MR. FOCHLER: So we are going to I'm going to object to that too. I thought the witness was here to testify as to practices and procedures in the copyright office and not about specific individual claims.
MR. BRYLAWSKI: I think this is a related background. Your objection has been noted. Let me have this marked as Dietz Exhibit 3.
(Dietz Exhibit No. 3 was marked for identification.)
BY MR. BRYLAWSKI:
Q. Would you please read into the record the result of the report?
MR. FOCHLER: May I take a look at it?
(Brief pause.)
BY MR. BRYLAWSKI:
Q. The question is would you read the results of the search?
A. This was a search request for the original deposit copy of the work in question. And it states on the report that the copy although it has a call number has been recorded as missing, which means that at one time or another it was removed from its place on the shelf and not returned.
Q. Thank you very much. Mr. Dietz, I show you a publication entitled The Urantia Book, which according to the inside is the 10th printing. We are just marking this for identification purposes only. Would you mark this as Dietz Exhibit No. 4.
(Dietz Exhibit No. 4 was marked for identification.)
MR. BRYLAWSKI: We'll ask the reporter to put in the record only for purposes of identification the title page as well as the page which refers to the printing and has the 1955 copyright notice only.
BY MR. BRYLAWSKI:
Q. Mr. Dietz, would you look at this copy and let me know whether there's any indication of authorship or nonauthorship on this which would have caused the copyright office to have raised any question in connection with the original authorship claim in the name of the Urantia Foundation?
MR. FOCHLER: Objection, lack of foundation.
THE WITNESS: Based upon the application that was filed or made there would be no reason to question the authorship of this work.
BY MR. BRYLAWSKI:
Q. Why is that?
A. The space three, line three of the form A states that the author of the work is the Urantia Foundation and there's nothing on the cover, the title page, the prefatory material, or a slip appearing in the book to indicate to the contrary.
Q. Does the name of Urantia Foundation appear in that copy as an author?
MR. FOCHLER: Objection, the document speaks for itself.
THE WITNESS: The Urantia Foundation is referred to in a number of places as a source of the book, not as an author. The book does not identify any individual or any organization as an author. The closest it comes is there's a table of contents listing a number --listing 196 individual papers referring to an author as being a general title which we would assume would be something emanating from the Urantia Foundation. An examiner examining this claim back in the 50's would have borne the presumption that this was a work made for hire by the employees or staff members of the Urantia Foundation.
BY MR. BRYLAWSKI:
Q. In 1956 would the copyright office have registered a claim of copyright for a book without any statement of authorship?
A. The application form itself --
MR. FOCHLER: I'm going to object. Again, lack of foundation.
THE WITNESS: The application form itself calls for a statement of the citizenship or domicile of the author in addition to the author's name. in 1955 at the time this work was published as long as there was a statement on application form that the author was a U.S. citizen or domiciliary of the United States or a citizen or domiciliary of a country in which the United States had copyright relations we would accept the work without the specific name of the author. It would be regarded as an anonymous work.
MR. FOCHLER: Just so the record is clear so I don't have to make a lot of objections, we don't have any question that Mr. Dietz is expert for certain points in time with certain areas that he's worked in. But to the extent we don't think any foundation has been laid regarding his personal knowledge -- that he has personal knowledge or has been established as an expert on what actually transpired in the copyright office in the mid 1950's-
(Discussion off the record.)
THE WITNESS: I was trained in renewal examining back in the late 60's by people who examined these claims in the 40's is and 50's and my job is to examine renewal applications in light of the practices-. that existed at the time the original registration was made. So that's what I do as one of the few people in the copyright office who knows this stuff.
BY MR. BRYLAWSKI:
Q. Taking up the form A which was used for the copyright registration of The Urantia Book in 1956 based on a 1955 publication, I think it would be helpful if we break down the information requested. In space one as I understand it is the copyright claimant. Is that the party that owns the copyright at the time of the publication of the book? A Yes, it is.
Q. In space two we have the title. In space three we have a statement of authorship. And I believe you stated that there had to be either a name of a party that was consistent with the copyright deposit, is that correct, or a no name but a domicile or citizenship that conformed with the copyright law?
A. Not quite. The portion of line three referring to the name would identify an individual or organization responsible for the authorship of the work. We examined that name against the deposit material or any related material for consistency. Citizenship and domicile for works published in 1955 were examined to make sure that that individual, whether it is named or not, is eligible for copyright protection in the United States. So there is a requirement that either the citizenship or the domicile of the author be stated. There was no requirement that the name be stated but if the name is stated we exam for consistency.
Q. So if the name is not stated the copyright applicant still had to provide the domicile or citizenship of the author?
A. Yes, to determine along with other factors that the work was indeed eligible for copyright protection in the United States, keeping in mind that the universal copyright convention had been drafted at this time but it had not been -- it was just in its earliest stages of implementation. So what the United States was looking to was bilateral copyright regulations back in the 50's.
Q. Is it correct and consistent with a what you said that if the statement of authorship was incorrect that there had to be at least a correct statement of citizenship or domicile of the true author for there to be a registration?
A. Yes.
Q. At that time, 1956, what would have been the copyright office practice if the copyright office knew from the applicant's accompanying letter or from copies of material deposited that the author given on the application was not the author of the entire work?
MR. FOCHLER: I object to the form of the question.
BY MR. BRYLAWSKI:
Q. Please answer that.
A. The copyright office would inquire as to who wrote what.
Q. If there was no response to the inquiry would they have registered the claim?
A. Back in the 1950's and 60's if there was no response to the inquiry the case would have been considered a compliance matter and we would have actually taken regulatory action to compel a response.
Q. And if the response indicated that the author shown in space three of the application was not the author of the entire work what would the copyright office have done?
A. We would have asked that the applicant set out the individual authors and the nature of their contributions and then made a registration based upon the delineated claim.
Q. On only the matter that --
A. Only the copyright matter.
Q. -- that it was an author of?
MR. LEWIS: Did you agree with that last statement?
THE WITNESS: Yes.
MR. FOCHLER: Can I have the last question and answer back?
(The reporter read the requested portion of the record.?
BY MR. BRYLAWSKI:
Q. To make it, your last answer, perhaps clearer for the record, what you mean is that the delineated claim is a more limited claim to that which the person indicates that they were the author of?
MR. FOCHLER: I object to the form of the question. He's a third party witness. That's leading. You can't characterize testimony to a third party witness and ask them to agree with you.
BY MR. BRYLAWSKI:
Q. Would you answer for the record?
A. Yes.
Q. In light of the copyright practices which you are describing if the copyright office received a diary from someone who has not written the diary and claimed copyright in that diary would you register the claim?
A. Under the act of 1909 which is the law that was in effect in the 1950s we would have asked the applicant to trace ownership of the copyright from the time the diary was written to the time the claim is made. And if the applicant was able to actually show a chain of title coming down and to demonstrate that the work had been unpublished up to the time of this first publication we would have registered the claim.
Q. Thank you. If the person responded and said he found the diary in his attic and provided no further information would you register the claim?
A. No, because the copyright emanates from the author and the author would had to have had transfer either formally or by legal process the common law copyright of the work until the work was published.
Q. If the response was that he had been given the copy of the diary would that suffice for registration?
A. No. There's a distinction between the ownership of a physical article and the ownership of the intellectual property right as the copyright. And the copyright itself had to have been transferred.
Q. In terms of copyright office practice as to authorship at the time of the registration of The Urantia Book did the author have to be a human being or a legal entity?
A. The work, the actual act of authorship had to stem from human authorship.
Q. And therefore a legal entity was capable of being an author under what circumstances?
A. Under the circumstances that it employed human authors to create a work on its behalf in its employ.
Q. Do you know what the term "divine revelation" means?
A. No.
MR. FOCHLER: Objection.
BY MR. BRYLAWSKI:
Q. If someone had responded that what they were seeking to copyright in 1956 was not created by them but came to them by divine revelation what would you have done?
MR. FOCHLER: Object to the form of the question?
THE WITNESS: It was not unusual during that period to receive claims to copyright for works for which the individuals asserted that this was revealed to them in a dream by an alien from outer space or a divine being and these claims were routinely rejected.
BY MR. BRYLAWSKI:
Q. On what basis?
A. That they were not works -- in the second instance that they were not works of human authorship, and in the first instance, that the author of the work did not have -- was not a member of a governmental body that had copyright relations with the United States, Mars, for example, or the moon.
BY MR. BRYLAWSKI:
Q. Would it be fair to analogize that with the 10 commandments in the sense that Moses was not the author of the 10 commandments?
A. Exactly.
Q. He merely had received them and written them down?
A. Yes.
Q. So as I understand it the mere writing down of someone else's statements or expressions does not constitute the person writing it down as an author?
A. No. The authorship has to emanate from an individual. There has to be something that could be attributable to that individual.
Q. Jumping a little bit now to the renewal of copyright practice, if the authorship on an original work is incorrect what need the party interest in the renewal do to correct the original registration as to authorship?
A. The original copyright claimant or the successor in interest to that original copyright claimant could file a corrective registration on our form CA setting out the facts of the original registration and then either correcting or amplifying those facts. But the form CA could only be filed by the original copyright claimant or its successor.
Q. There was a change in the copyright law in what, 1976, effective 1988?
A. No. The act of 1976 became effective on January 1, 1978.
Q. If I were -- if the copyright office strike that. Prior to 1978 how would someone have corrected an authorship statement on an original copyright registration?
A. We had a procedure then that would have allowed for what was called the corrective registration. This would be an entirely new filing of, in this case, the form A and then its space in line five of the form A the applicant would state to correct registration number and then give the registration number. In the alternative, the applicant could have filed an affidavit setting forth the amplification or the correction and that affidavit would have been recorded in our assignments and related documents file. In both cases the original registration in the record book would have been annotated by the copyright office to refer to that subsequent matter.
Q. So that the copyright office at the time of the renewal would have become aware of the corrected authorship
A. Yes.
Q. -- in the original registration?
A. Yes.
Q. After January 1, 1978 was that practice followed or was there a different practice?
A. We instituted a form CA in which the applicant completes a form provided by the copyright office and pays a filing fee. Again, the original registration is annotated to refer to this later registration but in this case the form CA is assigned a new registration number in the original registration series.
Q. I show you a printed form entitled "Application for Supplementary Registration Form CA,,, which has both apparently instructions as well as the form itself. Would you identify that as being the CA form which you have just described?
A. Yes, it is.
MR. BRYLAWSKI: Please mark this as Dietz Exhibit 5.
(Dietz Exhibit No. 5 was marked for identification.)
BY MR. BRYLAWSKI:
Q. Would you examine the instructions as well as the descriptive material on the front of the form and indicate whether that conforms with copyright office policy and practice?
(Witness examining document.)
A. Yes, this is a fair statement of the practices.
Q. Thank you very much. Is there any time limit for correcting an original registration with respect to the authorship statement?
A. Yes. The corrected registration would be accepted at any time during the first 28 year term of the original term of copyright. This is referring to works that are subject to renewal registration as opposed to works that have a different term of copyright under the act of 1976.
Q. In this case with the original publication date in 1955 what would that 28 years expire?
A. The last day of December 1983.
Q. When would the renewal application be due for The Urantia Book in this case?
A. No later than December 31, 1983.
Q. And to the extent that the original registration was not corrected to reflect a different authorship what would be the last date on which the renewal registration could be corrected?
MR. FOCHLER: Objection to the form the question. The question assumes there was a need for correction in the application for The Urantia Book. I don't see how the witness can answer what the last date was for something that hasn't been established. was required. I object to the form of the question.
BY MR. BRYLAWSKI:
Q. I'll rephrase the question. Assuming that there was a need for a correction of the authorship statement on the original copyright registration for The Urantia Book when would have been the last date on which a renewal registration based on the original statement could have been corrected?
A. During the last day of the renewal filing period, that's the 28th calendar year following publication.
Q. That's December 31st of what year?
A. In the example you gave December 31, 1983.
Q. So as I understand it that if the Urantia Foundation as stated as the author on the original application was not correct, there could be a correction of that name as the author on the original registration and the renewal registration any time up to December 31, 1983?
A. Yes.
Q. Would you look at Exhibits 1 and 2 and see if there's any evidence on those documents that any correction was made of any kind to either the original registration or the renewal registration of The Urantia Book?
A. No, there's not.
Q. If there had been any corrective registration in accordance with either the pre-1978 practice or the practice after January 1, 1978 would it have been noted on those documents?
A. In regards to making a renewal filing it would have. The form CA has been accepted in cases where someone other than the original copyright claimant was filing the form CA. Although those corrective registrations were made, they couldn't serve as a basis for renewal registration.
Let me clarify. We have two types of corrective registrations, one of which involves the annotation of the original registration record. And if one were to look at the back of the form itself in the space directly above space D, there's a notation where the examiner checks a box whether or not the original registration is annotated. A renewal can only be based upon an annotated CA. So if the original claimant or its successor had filed a form CA to amend or amplify or correct the registration made under number A-216389 then our original record in the bound record book would have an annotation in it and we would be able to make a renewal registration based upon the change. If it was done informally even though there was a form CA the renewal examiner would not be able to make a renewal registration based on the change.
Q. Do you see any annotation on either Exhibit 1 or 2?
A. No.
Q. Does the copyright office in its practices follow the definition of joint work in the copyright act of 1976?
A. Yes, it does.
Q. Would you read the particular portion of the practice that relates to joint works?
A. I'm reading from Compendium II of the copyright office practices and in chapter 1300, it is section 1318, it states "joint renewal claimant's, when the author is dead and there's more than one person in the class of beneficiaries entitled to renew under the statute registration by one claimant secures renewal for all those who were entitled to claim." And just immediately preceding that in section 1317.07-D states "when more than one author contributed to a work the renewal claimant need not specify that all the authors were employed for hire. The copyright office will accept claims by authors or beneficiaries and proprietors of copyright and the work made for hire of the same application provided there's no patent inconsistency presented.,,
Q. If a work is a joint work need all the authors, all the joint authors, be listed in the original registration?
A. No, they are not always.
Q. Need they be listed in the renewal registration?
A. No, they need not. As long as -- as far as the basic registration is concerned, as long as one eligible author is identified, again establishing eligibility for copyright protection the basic registration would be made. As far as the renewal is concerned, a renewal claim on behalf of one joint author secures the renewal on behalf of all the joint authors.
Q. Let me take a form, your Exhibit 2, which is an additional certificate a copyright of the renewal. In section three where it has authors of renewable matter, if The Urantia Book was a work of joint authorship could just one author be listed in space three or would both joint authors or all joint authors have to be listed?
A. Well we would -- ideally we would ask that the applicant identify all the authors but if there was nothing on the copy or any accompanying material to indicate that there was more than one author, we'd accept the claim as it was presented.
Q. Let me see if I can follow this through. if the copyright office knew in 1956 at the time of the original registration that the Urantia Foundation was only one of two or more joint authors would you have registered a claim of copyright showing Urantia Foundation as at sole author?
MR. FOCHLER: I object to the form of the question. My understanding is this was a fact deposition, not asking what the office would have done on a particular claim.
MS. SCHRADER: Not asking why we made registration in a particular way, not examining why a particular registration was made. To examine into the practices of the office. I think certain hypotheticals would seem acceptable. I haven't objected to this point to them with the understanding that the office has in fact made registration for The Urantia Book on the basis of the claim of authorship by the Urantia Foundation and those are the facts that are in the registration records of the copyright office.
BY MR. BRYLAWSKI:
Q. I'm asking the question in connection with the practice, if the copyright office knew that the Urantia Foundation was only one of two or more joint authors in 1956 would they have registered the claim of copyright showing the Urantia Foundation as the sole author?
A. We would have asked that individual authors be identified and we would also ask if possible for the applicant to delineate who did what, in other words what was the contribution of each of the joint authors.
Q. And if the copyright claimant in that hypothetical did not make a response or disclosure of the other authors what would the copyright office have done?
A. As long as the copyright office -- as long as the examiner was satisfied that the author named on the application form and identified as an author eligible for U.S. copyright protection contributed copyrightable material to the work the claim would have been put through under a no reply procedure, which means that the examining division would have requested the information and then followed up the request with a follow-up letter and then a new letter reiterating its request but when in the lack of -- with a lack of a response as long as there was a colorable showing of copyright eligibility and a showing that that author contributed to copyrightable material the claim would have been cleared.
Q. If the applicant had not responded what would have been the effect of such a copyright claim?
A. It would have been cleared but the correspondence record would have reflected that the copyright office had made the inquiry.
Q. And would the copyright office have made that registration to give the applicant a benefit of the doubt that there was some copyrightable matter?
MR. FOCHLER: Object to the form.
BY MR. BRYLAWSKI:
Q. Does the copyright office have a practice of a rule of doubt?
A. Yes, it does.
Q. And do they in connection with registration matters exercise that rule of doubt to affect registration in matters such as you have described?
A. Yes.
Q. So that the registration, as I understand it, would have been made on the basis that the Urantia Foundation as an author was the author of some copyrightable matter in the book?
MR. FOCHLER: Objection. This is calling for speculation as to what happened. Now we are asking for this witness to testify what happened. There's no foundation.
MR. BRYLAWSKI: I'm only trying to say what the practice was --would have been with respect to something that was not done in this case.
MR. FOCHLER: If you are going to proceed with hypotheticals based on correspondence I'm going to object unless there's any evidence of correspondence that comports with the hypotheticals. Otherwise the hypotheticals are improper.
MR. LEWIS: I think the hypotheticals are based on the absence of correspondence. We are asking what the procedure would have been if there had been correspondence in this application or any application.
MR. FOCHLER: Just so it is clear then that you are asking from here on in what would be the case if there was no correspondence because I understood all the questions up to here to be about the situation where there had been correspondence.
MR. LEWIS: We are not making any claim that there was correspondence in this case.
MR. FOCHLER: Then my objection still stands. We are talking about correspondence, nonexistent correspondence.
BY MR. BRYLAWSKI:
Q. To continue with the questions, if in the response to the inquiry from the copyright office the copyright claimant had indicated that the Urantia Foundation was only the author of the table of contents and not the text of the book what would the copyright office have done?
MR. FOCHLER: Objection.
THE WITNESS: Based upon the copy in front of me I would expect that if there was no other showing of authorship the claim very well may have been rejected.
The question would be whether or not there was actual copyrightable authorship in preparing the table of contents. And what I have in front of me is just an orderly listing of titles, titles and subtitles. An inquiry would have been made as to whether or not the purported author contributed the subtitles or whether or not the subtitles were a mere listing from the material taken from other sources. In order to be copyrightable or registerable there has to be something attributable to the author. It cannot be a mere copying of information taken from another source.
BY MR. BRYLAWSKI:
Q. My question was, assuming the table of contents did have copyrightable authorship and the Urantia Foundation did respond to indicate that the foundation was only the author of the table of contents what would the copyright office have done in connection with the original copyright application?
A. We would have asked that they complete line five of the application to state copyright claim in the table of contents.
Q. And in that case what would have been the scope of the copyright claim?
A. The original authorship attributable to that author in the table of contents.
MR. FOCHLER: Can I have the last two questions and answers back?
(The reporter read the requested portion of the record.)
BY MR. BRYLAWSKI:
Q. Under the rules of practice in 1956 if there had been a disclosure that the text of the book was preexisting and written by an unidentified author, that is an author not identified on the application, and the table of contents was written by the Urantia Foundation would you have registered the copyright for the entire book in the name of the Urantia Foundation?
MR. FOCHLER: Objection. Lack of foundation.
MS. SCHRADER: We are really going much too far in terms of asking specific questions about the Urantia application. Mr. Dietz is here to answer general questions about the copyright office registration practices and procedures and you should be able to get your information by asking a general question.
MR. BRYLAWSKI: I understand. I withdraw that.
MR FOCHLER: I think we are going through a series of questions where Mr. Dietz -- and perhaps he's had time to sit here and think it through -- is answering questions about what would have been done on very few facts without what all the inquiries would have been and all the different types of responses that might have come in through those correspondence. And I think to continue with this is further to my point of hypotheticals being misleading.
MR. LEWIS: I think the witness is entitled to make his answer in response to the questions based on the facts as represented. If you want, add additional conditions on cross examination
BY MR. BRYLAWSKI:
Q. On the rules of practice 1956 if a book was submitted for copyright registration in 1956 where it was disclosed that the text of the book was written by an unidentified author and the table of contents was written by the author given on the application would you have registered a claim of copyright in the name of the author of the table of contents for entire work?
A. No, we would have asked for a limited statement on the face of the application limiting the claim to that author's contributions.
Q. Under what circumstances, if any, would you have registered a claim of copyright on the entire book in the name of the author of the table of contents?
A. None.
Q. If the author of the table of contents had claimed that the author of the pre-existing text had assigned to him a common law copyright on the text would you have registered a claim of copyright on the entire book in the name of the author of the table of contents?
A. Only if both authors were listed. It's line three of the application. Again, it is necessary to in that period of time it was necessary to determine that second author's eligibility for copyright protection in the United States.
Q. That is the second author, if he isn't identified, he would --there would have to be what kind of information supplied to the copyright office on that unidentified author?
A. Either the citizenship or domicile of that author.
Q. And the citizenship or domicile of that author had to be stated in what form?
A. At line three.
Q. And if that was a country with whom we didn't have copyright relations what would happen?
A. The claim would be limited to the material by the author for whom we had copyright relations.
Q. What kind of review does the copyright office conduct in connection with registering a renewal claim of copyright?
A. We examine the facts appearing on the renewal registration against the facts appearing on the basic registration.
Q. Does the renewal department try to take cognizance of any other records in connection with making renewals?
A. We do not attempt to go behind the basic registration. It is our policy to accept the basic registration on its face except in cases where it is specifically brought to our attention that there may be inaccuracies.
Q. Suppose at the time of a renewal in 1983 you became aware of the fact that the authorship statement on an original application was incorrect, what, if anything, would you do.
MR. FOCHLER: Objection to the form. It is vague and ambiguous.
BY MR. BRYLAWSKI:
Q. Answer the question, please.
A. We would have made an inquiry to the applicant.
Q. And if the applicant were to assure you that the original authorship statement was correct what would you do?
A. we would accept the applicant's statement on its face.
Q. If the renewal applicant were to explain that the original authorship statement was incorrect and that it was the author of something less than the entire work what would you do?
A. We would suggest to that individual to file a form CA to correct the basic registration and then make a renewal based upon that corrected registration.
Q. In making renewals do you index or rely upon reported court decisions?
A. As a general rule we do not.
Q. Are you aware of a decision in the case of the Urantia Foundations versus Burton?
MR. FOCHLER: Objection.
BY MR. BRYLAWSKI:
Q. You don't know anything about that case?
A. No.
MS. SCHRADER: And you recall I said Mr. Dietz isn't presented as a expert in copyright in general. He happens to be an expert but he's not presented as one.
BY MR. BRYLAWSKI:
Q. if in terms of what you may have heard or learned in connection with a renewal you base that information on a reported case that you had read would you bring that to the attention of the renewal applicant?
MR. FOCHLER: Objection to the form. Again, it is vague and ambiguous.
BY MR. BRYLAWSKI:
Q. If there was in a case that you read a statement relating to the authorship of a book on which you then had a pending renewal application where the case indicated that the authorship was different than your records what would you do?
A. We would make an inquiry to the author to the applicant but again we would accept the applicant's response at face value.
Q. Where you have a renewal of copyright in 1983 based upon a book which was registered for copyright without a statement of authorship or without a statement of name of author or what we call published anonymously would you have -- would you accept a renewal without a statement of authorship?
A. You are going to have to restate that. I didn't follow you.
Q. If the original registration has no name for the author but merely his domicile or citizenship as you have stated and you receive a renewal in the name of someone other than the author, would you register that renewal?
A. If that individual falls within the statutory scheme of proclaiming renewal we would, but if it does not then we would have to get the name and basis of claim within that scheme.
Q. A work published anonymously where the citizenship or domicile of the author is given is usually involves an individual author in your experience; is that correct?
A. Yes.MR. FOCHLER: Objection.
BY MR. BRYLAWSKI:
Q. In your experience have you ever seen an anonymously published work where the unidentified author is a corporation or someone other than an individual?
MR. FOCHLER: In a single individual?
BY MR. BRYLAWSKI:
Q. Yes.
A. I really couldn't say because it would not be possible to determine whether it was an individual or a corporation if they weren't named.
Q. In the case of an undisclosed author where the work is published anonymously and the person is seeking to renew the copyright in the work of that individual author the copyright office practice is to require the renewal registration to be made in whose name?
A. The name of the author.
Q. The author then has to be identified at the time of the renewal?
A. This is a matter we have speculated over for years but surprisingly to my knowledge a specific case has never come up. I can't recall a single case where a work was published anonymously and then 28 years later the author was not revealed. But informally anticipating what our practice would be the prevailing view is that we would ask for the identity of that author, the author's name.
Q. And if he were not alive you would require still his identity in connection with anyone else that would renew?
A. No. Upon the statement that the author was deceased we could renew in the name of the author's widow and/or surviving children. If they didn't exist, then the executor under the author's will. Lacking a will, the next of kin of the deceased author. But they would not have to come forward and name the author.
Q. So they could claim if he was deceased that they were the widow or children or executor of an undisclosed author?
A. Yes. And, again, this is speculation because I'm unaware in 24 years of this ever having come up while I worked there.
Q. What is the difference between a registered copyright application and a certificate of copyright for the same work?
A. The application form is completed by the applicant and submitted to the copyright office. A number is then placed on that application form. That is a registered copyright application. The registered copyright application through a photocopy process is then reproduced on a certificate stock which contains the signature and seal of copyrights in the copyright office and that is the certificate of registration.
Q. Is it correct to say that the information on the first page of each is substantially the same?
A. They are supposed to be identical.
Q. That first page includes the name and address of the copyright claimant, the title of the work, the authorship, et cetera?
A. Yes.
Q. If you received in 1983 a renewal application for renewal of copyright by the author of the table of contents of a work but the claim of copyright -- but the claim of renewal copyright was on the entire work, what would you do?
MR. FOCHLER: Objection to the form. It is vague and ambiguous.
BY MR. BRYLAWSKI:
Q. Looking at the renewal form that was used in 1983 there are two lines there. One says renewable matter and there's another line that says author or authors of renewable matter. Do you see those?
A. Yes.
Q. If in 1983 you received a renewal application on a work on which the original copyright was limited to the table of contents but the renewal was on the entire work as in a sense of the renewable matter what would you do?
A. The examining practice is for the examiner to strike through the statement "entire work' and type in the limiting statement verbatim from the original application form with an annotation that this amendment was made by the copyright office.
Q. And those two sections, renewable matter and author of renewable matter, have to be read together; is that correct?
A. Yes.
Q. So if the renewable matter is the table of contents then the author of the renewable matter should be the author of the table of contents; is that correct?
A. Must be.
Q. So that in connection with the renewal application filed for The Urantia Book based on what you have said the Urantia Foundation would have been the author of the entire work?
MR. FOCHLER: Objection.
BY MR. BRYLAWSKI:
Q. I'll ask the same question. In general if the renewable matter is for the entire work then the author of the renewable matter listed is the author of the entire work; is that correct?
A. Not necessarily. There may be more than one author and the requirement is that only one author of copyrightable material need be named.
Q. But as I understand it he would then still if he would be in effect the author or the joint author of the entire work?
A. If the claim was in the entire work and it was a work of joint authorship, yes.
Q. So what you are saying is that if the facts or the original record indicated there was a joint work then there could be a renewal claim on the entire work by one of the authors?
A. Yes.
Q. Would it have been proper if there was more than one author to have shown only one author or all authors, all joint authors, on the renewal application?
A. It would have been preferable to include all the authors but there was a requirement that only one author be named.
Q. So if there's only one author on the original application and no limitation of claim of copyright on the original application there would be no reason for the renewal examiner to question a renewal of copyright on the entire work with a single statement of authorship?
A. No, there would not.
Q. Can the renewal application now be corrected to reflect joint authorship? Under the present practices of the copyright office could we correct the 1983 renewal registration on The Urantia Book if the Urantia Foundation so desired?
MR. FOCHLER: Objection to the form of the question?
THE WITNESS: Our regulations are not specific on the point but reading from section 201.5 of copyright office regulations -- the citation is 37 CFR 201.5 sub 4 B14 -- states "supplementary registration to correct renewal claim or basis of claim in a basic renewal registration may be made only if the application for supplementary registration and fee are received in the office within the statutory time limits for renewal. If the error or omission of a basic renewal registration is extremely minor and does not involve the identity of the renewal claim or the legal basis of claim, supplementary registration may be made at any time. Supplementary registration is not appropriate to add a renewal claimant."
What is vague about this is that the regulation is very specific regarding who may claim renewal. It does not mention the identity of authors. But it goes on to limit itself to making amendments after the time period to minor changes. The identity of an author would be considered a significant change.
Q. So that a correction of authorship, if that were deemed appropriate, could only be made up until December 31, 1983?
A. Based on my reading of the regulation that would be our interpretation; however, the regulation itself does not speak to that.
Q. I think I've asked this before but I want to make it clear. If the party claiming copyright was merely the author of the table of contents or index to a book in 1955 and 1956 wouldn't it have been proper to have described its authorship and the scope of its renewal as the table of contents or index on the renewal application?
MR. FOCHLER: I object again.
BY MR. BRYLAWSKI:
Q. If the facts are that the copyright claimant was merely the author of the table of contents or index of the book and claiming no other authorship would not it have been proper to have listed on the renewal application that the claim of the renewal was also limited to the table of contents or index of which he was the author?
A. Based upon the exhibits in front of me, 1, 2 and 4, the answer is yes.
Q. And conversely if there's no limitation under renewable matter to a table of contents or index then the claim of the renewal is on the entire work; is that correct?
A. That's our presumption.
MR BRYLAWSKI: Let's take a break.
(Brief recess.)
BY MR. BRYLAWSKI:
Q. Mr. Dietz, in connection with the original examination process of a book in 1956 did the examiners read the book or the copyright deposit?
A. They didn't read it but they made an examination. The examination consisted of a look at the title page, cover, they were expected to take a cursory look through any information appearing on the dust jacket, a very very quick scan of any introductory material or prefatory material so they have an idea of what the work is and what it is all about. The purpose of that examination, of course, was to form an opinion whether this is an original work or whether it is a derivative work based on some earlier writing.
Q. And I believe you stated that the renewal examination is largely limited to the information on the original copyright registration record?
A. Yes, we accept the original record on the its face.
Q. And in your capacity as head of t he renewal section are you aware of the scope of the renewal application or renewal registration in court.
MR. FOCHLER: Could you repeat the question?
BY MR. BRYLAWSKI:
Q. Do you know whether it is entitled to presumptions of validity or factual correctness?
MR. FOCHLER: I'm not sure what the question is.
BY MR. BRYLAWSKI:
Q. The question is, are you aware as to whether the renewal registration or renewal certificate is entitled to a presumption, a statutory presumption, of validity and factual correctness?
A. It is my understanding that it is not given the same weight as a basic registration. There's no prima facie presumption.
Q. You had referred earlier in connection with works of joint authorship to a compendium of copyright office practices. Would you read to us the definition of joint authorship?
A. Reading from section 1317.04-A -- I'm sorry. That's not it. I had it. It is 1317.04-A. It states, "a work which is the product of joint authorship and common design or which consists of elements which have been indistinguishably merged into a single entity cannot be regarded as composite as they are joined." So a joint work would be a work in which the individual contributions are merged to form a single work of authorship.
Q. Is that merger based on the intention of the authors?
A. That's the presumption.
Q. If a copyright application is presented to you or was presented to the copyright office in 1955 and 1956 where the text had been written by one author and the table of contents had been written by a second author and the second author had received an assignment of the rights and copyrights of the first author of the text, would that work be a joint authorship between the assignor of the text and the author of the table of contents?
MR. FOCHLER: Objection to the form. It is vague and ambiguous and not enough facts.
(Witness confers with counsel.)
BY MR. BRYLAWSKI:
Q. A man writes a table of contents. He has received an assignment of a pre-existing work to which he adds his table of contents. Under those circumstances would the author of the text that has been assigned and the author of the table of contents be joint authors?
MR. FOCHLER: Same objection. There's no facts about the intent of the author of the text, what he expected at the time, what circumstances he got the text under.
(Witness confers with counsel.)
THE WITNESS: I really can't answer based on those limited facts. But what I must say is that in examining the claim what the examiner would look for is having both authors listed in space three of the application form because the examining process does not involve whether or not it was a work of joint authorship or a work of coauthorship but simply that all authors of copyrightable material be identified on the application form as authors, be they joint, independent, co-authors or whatever. The issue of joint authorship would be a legal issue.
BY MR. BRYLAWSKI:
Q. I think you said earlier it involves the intention of the parties?
A. Right.
Q. And you would not normally know the intention of the parties based simply on an application form?
A. Yes.
MR. BRYLAWSKI: That is all at the moment. Thank you very much, Mr. Dietz.
MR. FOCHLER: Let's take a few minutes.
(Brief recess.)
EXAMINATION BY COUNSEL FOR THE PLAINTIFF BY MR. FOCHLER:
Q. Mr. Dietz, referring you to Deposition Exhibit 1 and in particular paragraph 5, which I believe is entitled "Previous Publication'?
A. Right.
Q. I thought I understood you to testify earlier that if there was a pre-existing work combined with another work or something else that was copyrightable that the fact that the first work was pre-existing would have to be disclosed, should be disclosed in paragraph 5; is that right?
A. That space is a used as an appropriate place to put limiting statements, yes.
Q. Section A under 5 states (a) "New matter in this version: If any part of this work has been previously published, in the United States or elsewhere, give a brief general statement of the nature of the new matter --
MS. SCHRADER: Excuse me, can we just take a short break?
MR. FOCHLER: Sure.
(Brief recess.)
BY MR. FOCHLER:
Q. Let me rephrase it. I understand the instructions under section 5 in Exhibit 1 paragraph 5 to state that descriptions of previously published material are supposed to be described in that section, not necessarily pre-existing but unpublished?
A. Right. The instructions are designed for situations where the copyright is being claimed in a derivative work and that new material is added to previously published or public domain work; however, the examining practice was to use that line as an appropriate space to include other types of limiting statements simply because the form itself didn't accommodate all the situations.
Q. So if something occurred to the examiner for some reason they would ask for something to be put in there?
A. Right. Say for example that a work is derived from a work that is in the public domain by reason of its lack of eligibility. For example, back in the 1950s the United States didn't have copyright relations with Russia so works by Russian authors were with the public domain in the United States. If an English translation was made for a work made by a living Russian author, say for example, Solzenitschenl the examiner would have used space 5 to put that limitation on the application form even though the work may have been published for the first time.
Q. Was it the practice of the copyright office in the 1950s to inquire, make requests for information about whether or not the tables of contents for books should be listed separately from the text?
A. No.
Q. Earlier you used the phrase "table of contents" in response to a number of questions. Can you tell us what your definition of "table of contents" is?
A. The definition in regards to my testimony is the item in Exhibit 4 identified as table of contents.
Q. I'd like to show you what has been marked for identification as Exhibit 4 and refer you to page Roman -- I don't have -- if I remember that number from high school -- 13, and is that the beginning of what you are referring to as table of contents?
A. Right, contents of the book.
Q. That's what you were referring to when you were talking about the table of contents earlier?
A. Right.
Q. Now, again hypothetically talking about general practices, not referring to any specific work, if a text is prepared by one author and it is the author's intention to have somebody prepare a detailed table of contents to go with it, that other person prepares the detailed table of contents to go with the work, would that be joint work?
MR. LEWIS: Objection on the same grounds that Mr. Fochler objected. There's not enough facts. There are additional facts that could come into play?
THE WITNESS: As a general rule the table of contents is regarded as an appendices to the work itself and not a part of the work. Conceivably there are cases -- and I know there are cases -- where the table of contents is so intricately related to the material that it could be regarded as a part of the basic work and then you would have a joint work but generally it is an adjunct to the basic work; it's not really a part of the basic work.
BY MR. FOCHLER:
Q. I'm an author, individual, I don't have any help, I decide to prepare a work and I write a text and I write a table of contents, I do it all because I want it distributed because I want people to find what is in my texts, for those types of reasons. Can I register that as single work?
A. Yes.
Q. So that would be a single work?
A. It is a single work, yes.
Q. So if I have -- if I collaborate with somebody and they prepare -- the same situation except I collaborate with somebody and they prepare the table of contents for me; is that a single work?
A. Not necessarily. A single work consists of copyrightable and uncopyrightable material. it consists of copyrightable material that can be regarded as work of joint authorship or could consist of independent separate creations which are not. For example, if a text is prepared and it exists and then a table of contents is prepared by a second party, those are separate elements. They are within the same covers making it a single work but that does not just because it is a single work does not mean it a work of joint authorship.
Q. But it could be?
A. Texts and illustrations, for example, the illustrations are not necessarily a work of joint authorship. in many instances you have work of coauthorship where the illustrator and the writer work independently of each other and some editor put it together and there are actually separate claims in the text and in the illustrations. The same would be true with the table of contents.
Q. When you say the same would be true--
A. Would be the true with the table of contents where the author creates the body of work and then a second party arrives on the scene after the work is created and creates a separate table of contents. But it has to be kept in mind that in the vast majority of cases the table of contents itself is not copyrightable; it's nothing more than a listing of the citations in the book. There has to be something uniquely attributable to that author of the table of contents to make it copyrightable.
Q. So if he made some decisions of what to put in it?
A. Right. As I testified earlier, if the subheadings were the product of the author of the table of contents we would regard that table of contents as copyrightable but if those subheadings merely identify subheadings on the basic text, if I was the examiner I would not have registered a claim in that table of contents.
Q. But you are not -- first of all, I don't understand you to be claiming to rendering an opinion on the copyrightability of any part of The Urantia Book here today, are you?
A. No. I'm just talking about the table of contents in the abstract.
Q. None of your testimony today should be construed as rendering an opinion about any part of The Urantia Book, correct?
A. Absolutely.
Q. Let's say I've got a long work, many subparts, large parts and then subparts within them, and I could index, if you want, or provide a guide to go through it in a variety of different ways, I could do it broadly or on a detailed basis, I make some judgment for the purposes for which I want to make the direction?
A. Right, and that's what raises the authorship to the level of copyrightability as opposed to merely reciting the headings and subheadings that appear on the text.
Q. But if I make a decision about which headings to use -- maybe there's headings and subheading and then additional information beyond subheadings that's very difficult to understand.
A. No, it's not. The test is substantially a sweat-of-the-brow test, which by the way the courts are taking less and less recognition of, but how much labor is involved in selecting, compiling, deleting and editing that material to make that particular author's work. So for example the white pages of the telephone book have recently been held not to be copyrightable because nothing has been omitted or arranged or selected, they have simply alphabetized.
Q. Because there was no selection?
A. Right. It was just alphabetized and it was a practice over the years for these compilation companies to put in deliberate errors to invent names and make mistakes, and the idea being that those mistakes were their element of selection and that's now being disallowed by the courts. The same would be true of any scholarly text, if the headings and subheadings and sub-subheadings appear in the text and the editor simply took those headings and decided, okay, I'm going to list all the main headings and all the subheadings but I won't list the sub-subheadings or the footnotes that would be a methodical copying and it would not be copyrightable. However, if the author arranged or selected those materials to make the material within the book uniquely findable to assist the reader then the authorship would rise to a higher level of copyrightability. But in all cases when you are dealing with a table of contents you are dealing with a marginal type of authorship.
Q. So I take it then that if in this generic table of contents whoever was putting that together added information other than the headings from the book that would also elevate the authorship?
A. Right, that's what the examiner would be looking for.
Q. In your reference to the course of compilations, are you guided by what the status of the law is in determining whether or not --strike that.
MR. BRYLAWSKI: I don't think there was any testimony on compilations.
BY MR. FOCHLER:
Q. Is part of the examining process by the copyright office for copyright registrations to determine whether or not a work qualifies as a copyrightable compilation?
A. In the case of the basic registration, yes.
Q. And what standard did they use?
A. There has to be something attributable as an element of authorship to that author.
Q. Showing some selection of something that didn't
A. Something uniquely the author's own.
Q. Even if that's a matter of unique selection or a selection that would not have been obvious?
A. Right, but some stroke of creativity.
Q. Once a registration issues, I take it, as far as the copyright office is concerned the work that might be been evaluated in terms of compilation is thereafter as far as the copyright office is concerned a copyrightable subject matter?
MR. BRYLAWSKI: I want to make an objection that there has been no testimony on direct as to copyrightability of compilations. I have certainly no objection to your exploring it but I'm indicating that you are going beyond the scope of direct.
THE WITNESS: Compilations are appropriate subject matter for copyright.
BY MR. FOCHLER:
Q. Once a registration has been issued for a compilation is it then the position of the copyright office that the subject matter of the registration of that compilation is copyrightable subject matter?
A. If the compilation is actually the subject of the application. In other words the compilation -- the claim to compilation would have to be delineated on the application form; otherwise what the examiner is looking for is a determination that the work as a whole is copyrightable, not that the individual elements comprising any one or two individual elements comprising that entire work is or not copyrightable.
Q. If I have a work that includes a compilation plus more, the examiner is going to view it as a whole?
A. Right, unlike a patent application where you have to delineate and exclude. The copyright examiner looks at the work in its entirety.
Q. You mentioned earlier some instances I think from the 50's or 60's -- I forget which -- of people claiming that they got a work from a dream or something else and that registration was refused. I wasn't quite sure I understood your testimony.
A. We routinely received claims to copyright in words dictated to people in dreams from angels or a deity. After the moon landing in particular we got a lot of missives from aliens offering better ways of doing things. I know there were a number of musical compositions from Mars. But in the section I was working in we were dealing with lecture material in particular and artistic works. We got large amount of materials from mental hospitals in particular where the doctors considered us good therapy for the patients and encouraged us to write to them and keep them happy.
Q. So in those situations the patient was attempting to get a copyright in something that they informed you had been created by an alien?
A. By an alien or spiritual being. I remember one in particular was the writings of an individual called Invisible Mouse. And when we asked the applicant to show us that this mouse existed he provided us with a photograph of an invisible mouse.
Q. We all hear about various types of authors, musicians who claim to have been inspired by higher powers, whatever or a variety of different things. I take it that if somebody claims to have been motivated by some source beyond their physical body that isn't a reason for refusal of copyright?
A. Not at all because it is one thing to be inspired and to create a work based upon that inspiration. It is another situation to serve as nothing more than a scribe; and this is the situation I'm talking about where these individual authors claim to do nothing but record the material verbatim as it was dictated to them.
Q. In those situations you are saying that the person who -- they are claiming to be author by the way, I take it, the people who wrote it down?
A. Pardon? No, the author would be the spiritual being.
Q. These are copyright attempts to get copyright registrations?
A. Right. I'm claiming copyright based upon material that was presented to me by a divine being in a dream. I'm listed as the copyright claimant but the divine being is listed as the author.
Q. So this is a situation where the person, if we will, reduced the expression to a fixed form?
A. No, transcribed the expression. Referring to the earlier testimony I think the 10 commandments is the best example where Moses recorded the information verbatim in the manner it was dictated to him by the Lord on Mount Sinai.
Q. So you--
A. Now Moses would be the copyright claimant but he would not be the author.
Q. What if Moses when he came down hadn't said that -- didn't have any -- never contended that he had any recollection of having been given that by any higher spirit?
A. Then he would be claiming as the author.
Q. He would be considered the author by the copyright office?
A. No, he would be considered the author. He would be claiming he was the author. We would have no way of knowing.
Q. If those facts were presented to you though under those circumstances then the copyright office would accept that person as the author?
A. We would accept their claim to have been the author. In other words, if Moses came down from the mountain and said I wrote these and now I'm going to register a claim to copyright it we would not, without any other information, we would not refuse to register the claim. We would simply accept his statement of authorship on its face.
Q. What I said I wrote these and I really don't know why I wrote it but I wrote it. So if somebody writes something and does not attribute it, say I got this from somebody else, then they are the author?
A. Unless we have specific information to the contrary. And even if we have specific information to the contrary we only make an inquiry.
1950s rock and roll is the best example. Elvis Presley was listed as an author on virtually every single one of his early recordings. We know now that he never wrote "Hound Dog" or 'Jail House Rock." He didn't write those songs. But on the original application form he was listed as the co-author. When we got the renewal applications in the name of his daughter, Lisa Marie Presley, we made an inquiry to the applicant which was the original publisher and said we have reason to believe that Elvis was not the co-author and they came back and said oh yes he was and we accepted that on its face. We did the same thing with Alan Fried, who was a popular disc jockey in the early '50s because he named himself as a co-author and we knew he wasn't. We also did that with works written by a number of popular authors back then simply because 28 years later we have knowledge but we will not say, you lied, we refuse to deal with you. But we are an office of record. We make the inquiry, we accept the response on its face and then that record stands or falls in a court of law.
Q. But you don't make the determination?
A No.
Q. Going back to Moses, essentially Moses is a situation where the copyright claimant is saying I'm not the author, he's providing information that he's not the author?
A. Right.
Q. Is that a fair way to summarize those situations?
A. Right. And what we have to do in that case is determine whether or not the actual author is eligible for U.S. copyright protection.
Q. Did UCC have any effect on that?
A. Yes.
Q. What effect did that have?
A. UCC provides that a work by a citizen or domiciliary of any country first published in a UCC country is eligible for copyright protection under the UCC- So you have a third factor. You not only look to citizenship and domicile but another factor that you can use is the place of publication. So for example Svetlana Stalin, when she wrote her memoirs, was a Russian citizen domiciled in --I don't think she took U.S. domiciliary at that time but she was living in Charlottesville. And what she did is she first published in the U.K. and then claimed copyright protection in the United States under the UCC by virtue of publishing in a UCC country. So you are not bound by the author's citizenship or domicile if you can look to a publication in a UCC country outside the U.S.
Q. Is the employer in a work for hire situation considered the author for the purposes of renewal?
A. Yes.
Q. Does the copyright office evaluate applications for renewal according to its interpretation of applicable copyright law?
A. Yes.
Q. Earlier in the day you were talking about, I believe -- if I'm wrong I apologize. I'm not trying to mischaracterize -- I believe your understanding of what the law was on joint works during authorship?
A. Yes.
Q. Was that based on your reading of the cases?
A. Yes.
Q. So that's -- does that purport to be exhaustive?
A. Pardon?
Q. Does that purport to be exhaustive?
A. Pretty much.
Q. Can you state for us what your understanding then of the law is?
A. A joint work is a work by two or more authors with the intention that the resulting product be a single work. I believe the law itself Title 17 has it, if I could just refer to it.
Q. Certainly.
A. Quite frankly it is not something I have thought about recently?
A. In Section 101 the definitions, a joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of the whole." So that was pretty good.
Q. Where was that?
A. 104 is a list of definitions and then alphabetically you can see "joint work."
Q. And that would be the definition the copyright office would follow?
A. Yes.
Q. Do you know what definition it followed in 1955?
A. I came to the copyright office in 1967 where we were applying the definitions under that law, that's the 1909 act, and that was essentially the definition we followed.
Q. So it was close?
A. Yes.
Q. Under the copyright office's practice and procedures what's considered to be a composite work?
A. A composite work is a work which is a collection of separate materials published together as a collection.
MR. BRYLAWSKI: I'm going to object to the line of question because that was not part of direct.
THE WITNESS: Composite work, by example, would be a periodical in which a number of individual authors contributed separable components to make a collective work.
BY MR. FOCHLER:
Q. So it would be a work containing a variety of different subjects by different authors?
A. It does not have to be different subjects but each contribution is actually a free standing element.
Q. How many do you need?
A. A group of short stories by a number of authors published together as a volume, an anthology, a magazine containing a number of different articles. It could all be on the same subject matter. For example, medical research on a specific area of science would still be a composite work.
MR. BRYLAWSKI: My objection to examination into the question of composite works is continuing as beyond the scope of the direct. I won't repeat it after this.
BY MR. FOCHLER:
Q. Earlier today, Mr. Dietz, you talked about works for hire. During the 1950s did the copyright office include voluntary works under works for hire?
A. No, it didn't.
Q. It didn't.
A. The definition of "work for hire' is a work that was created under the direction and control of a director; we say an employer. Whether that individual who worked under the director control was paid or unpaid was not a factor. It is an element of control.
Q. Is it your testimony that during the 1950s if a work was prepared, for instance for a group for another entity by somebody in order to further the activities of that second entity, and it could be an organization perhaps for humanitarian means or religious means or something like that, that that work would not have been considered and then given to the second entity, that that work would not have been considered by the copyright office in the 1950s for the work for hire?
MR. LEWIS: Objection.
THE WITNESS: Not necessarily. For example a Jesuit priest as a member of the Society of Jesus takes a vow of poverty and that priest is not entitled to own property, but the Society of Jesus does not control the mental process of its members, so although he is working for the benefit of his religious society and actually to further the aims of the society, he is a free-thinking, free-willed individual and he cannot own his copyright but he is an author. He's not an employee. If the religious organization, however, told him we want you to write this, here are the parameters in which you have to operate, do it and we are going to review it and when we review it we would like you to change this this and this, then it would be regarded as a work made for hire. So just because he didn't get paid and just because it's being done under the control of another authority does not necessarily of itself make it a work made for hire. The test is the amount of direction or control placed on that individual in the creative process.
BY MR. FOCHLER:
Q. Now, my question might have been a little narrower than what you just answered. I'm asking about what the practice was in the copyright office in the 1950s, what the examiners told people and how they made their decisions?
A. The examiner looked to the amount of direction and control provided by an outside individual or entity in the individual's creative process to determine whether or not it was a work made for hire.
Q. Do you know if there were examiners who stated that it was the copyright office's policy back then, in your Jesuit situation for instance, where the Jesuit does the work on his own for the order to be treated as a work for hire?
A. Again, the examiner, if the examiner was doing his or her job would have approached it from the angle I mentioned and not simply from the position as to whether or not it was done on behalf of somebody or something else. It is not who it was done on behalf of; it is the amount of control exercised by the employer.
Q. So there may have been some examiners doing what I stated?
MR. LEWIS: Objection.
THE WITNESS: Well examiners make mistakes. We had good examiners and not so good examiners.
BY MR. FOCHLER:
Q. You weren't responsible for the examiners who were for instance making decisions on books back then, were you?
A. I--
Q. I withdraw that. Of course you weren't. I forgot the time frame. In your description of the Jesuit, if the Jesuit started to work, brought somebody in the order and they said yes, I want you to keep doing that, keep working on that, generating more of that type what you're doing, would that be work for hire?
A. No. What the provincial would have to say is I want you to do it this way, do it like this.
Q. What if he said keep doing it just like you have been doing it, isn't that telling him?
A. Only in the first instance he provided that direction.
Q. You mean he can't adopt that standard?
A. No, because the author's -- that approach belongs to the author. That was part of the individual author's original creative process. Copyright stems from authorship, stems from an individual intellect and another party can't usurp that and declare authorship. You can't find it and say I declare this to be mine now. It does not work that way.
Q. Maybe I didn't make it clear.
A. For example, say an individual member of a religious association created a line of textbooks, Latin, for (four) years of Latin in high school, and that individual wrote volume one for freshman and the provincial said that's great, now do it for two, three and four, and do it just like you did number one, number one was the intellectual process of the individual and all they're doing is continuing to do it the way he created it. That does not make it a work made for hire. But if the provincial said, look, I see how you did number one but we would like you to do number two, three and four a little differently and you follow these guidelines and we are going to review your work before it is released, then that would make it a work made for hire back then.
Q. So if there was a review process in there and the provincial, as you mentioned, asked questions, raised points that they would like to see in the work or at least raised questions that (the) work maybe didn't have certain matter in it and then, you know, further work came that supplied those materials, would that be a work for hire?
A. Yes, back then. There's a different definition under the current act.
Q. So if we --
A. If there's somebody looking over the individual's shoulder.
Q. And giving them feedback?
A. Right.
MR. FOCHLER: I think if we take a short break we can wrap up our examination. One thing before we go off the record, I guess as far as this Exhibit No. 4 is concerned, everything up to the forward as far as the exhibit, is that what you intended?
MR. BRYLAWSKI: No, we are not going to have the forward.
MR. FOCHLER: I said up to. I didn't say including.
MR. BRYLAWSKI: Yes, everything up to the forward.
MR. BRYLAWSKI: We will put a paper clip around that and it will be understood number one but not including.
(Brief recess.)
BY MR. FOCHLER:
Q. Mr. Dietz, earlier during your direct examination I believe you testified that the transfer of the work physically didn't constitute an assignment of the copyright?
A. Right. There's a distinction between the physical property and the intellectual property.
Q. Do you know if in attempting to determine whether or not an assignment of a copyright was made to transfer of the physical material is that -- can be evidence of an assignment?
A. It wasn't very persuasive, no.
Q. The fact that somebody came by the physical body lawfully was not indicative that they obtained the copyright.
Q. Are you talking about a particular situation?
A. The diary in the attic situation, for example, where an individual says I bought a house and along with it the bill of sale included all the fixtures and anything found in it, therefore, it is mine, would not indicate to the examiner that the intellectual material in the diary or the copyright material in the diary was also purchased. If an artist sold a painting, that did not mean that the artist sold the copyright to the painting. And to say that I bought this painting from the artist would not persuade the examiner to register a claim in the name of the purchaser.
Q. That fact alone?
A. That fact alone. It would have to be some other indication that there was an intention to convey the copyright.
Q. Earlier before the break we were talking about works for hire and you mentioned about the law under the 1909 act or defining what is work for hire?
A. Right.
Q. And just so I'm clear, was your testimony on what constituted work for hire, for instance in the Jesuit situation, were you giving us your understanding of the case law?
A. At that time, yes.
Q. Under the 1909 act?
A. Right.
Q. You mentioned earlier during your direct that you didn't believe that the case law construed renewal certificates -- excuse me --you testified -- you had some testimony about the effect of renewal certificates, how they were treated as evidence and I guess what I'm really curious about, again, were you referring to case law when you answered the question? What is your basis?
A. The basis was the statute. The statute states that the certificate of registration has prima facie validity in the facts stated in the application. It does not refer to the renewal certificate.
Q. So as long as the certificate of registration is in force it has -- A. Right, the renewal certificate is nothing more really than an administerial act.
Q. So it does not change the effect of the certificate of registration?
A. Right. It simply continues copyright protection on behalf of whoever it is who is eligible.
Q. With whatever prima facie --
MR. LEWIS: Objection. That's not what the witness testified to.
BY MR. FOCHLER:
Q. Mr. Dietz, prior to your deposition today have you ever heard of The Urantia Book?
A. No. Let me preface that. I first heard about it when Mr. Brylawski asked me to give this deposition.
Q. When was that?
A. About three weeks ago.
Q. What did he tell you at that time?
A. He asked me if I would be available to have my deposition taken. He asked me to look up this basic registration and the renewal registration. He gave me some very general background as to what The Urantia Book was about.
Q. And what was that?
A. That it was -- that a divine being related material to somebody, it was written in the form of a book and a group of people treat it as some type of religion, that there was some controversy involved as to the use of this book. Basically I think that was it. Until this morning I really didn't know who was on which side. Until then I really wasn't aware of The Urantia Book. I saw it for the first time this morning, that volume.
Q. So when you testified this morning the facts you just told us are the ones that -- or what you believe to be facts -- are the ones you operated under about The Urantia Book?
A. Yes.
Q. Do you recall anything else in that discussion?
A. It was just a matter of general background really.
Q. I'm just trying to understand why for a deposition on practices and procedures in the copyright office would it be relevant for you to know the background of a book or a represent presentation on that kind of a book?
A. As far as practices and procedures is concerned I really didn't have to know anything about it. But I think the way the conversation went is Mr. Brylawski said would you be available to have your deposition taken and I said what's it all about and he just gave me some general information about the case.
Q. He didn't tell you any more about what your deposition would be at that time?
A. Just in the broadest terms. And I was having lunch with my daughter at the time and really didn't pay too much attention. We were just sort of talking and he gave me some background information. But I didn't know whether you were for the plaintiff or defendant this morning and I really didn't get very involved in any background.
Q. You had been given the idea before the deposition that somebody was contending that there was something wrong with the copyright claim of The Urantia Book?
A. Not in the copyright claim. I thought what I was going to do was tell you what we do in renewal registration and I brought with me the compendium of practices relating to our current practices and the renewal and I brought with me the compendium of practices relating to how the original claim was registered.
Q. So you distinguish between the renewal and the copyright claim?
A. Yeah, there are two different laws and two different sets of practices. This compendium of practices is effective through December 31, 1977. This one became effective January 1, 1978.
Q. What is referred to as Compendium II?
A. Yes.
Q. So Compendium I was directed to works under the 1909 --
A. 1909 act, yeah.
Q. I take it as far as you are concerned nothing you said to Mr. Brylawski prior to the deposition as well as anything you have said during the deposition today was intended to be an opinion on the validity of the copyright owned by the Urantia Foundation that you were shown today?
A. I don't think I was ever posed with any questions on that.
Q. So the position of the copyright office as of today is that the registration is a valid registration?
MR. LEWIS: Objection. He's not testifying as the copyright office?
THE WITNESS: The copyright office does not comment as to the validity of a copyright. We are an office of record and under our regulations we are not authorized to comment one way or the other as to the legal effect of the copyright.
BY MR. FOCHLER:
Q. You only testify as to whether it is in effect?
A. All we can testify is as to registrations, registration practices and procedures and what we did relating to a registration.
Q. And whether the registration is still in effect?
A. No, we can't because a lot of things can happen after the fact of which we would not have any way of knowing.
Q. I couldn't find out what are the current registrations as opposed to expired ones?
A. What we know is that a registration was made in class A and that a renewal registration was made on January 3, 1983. Whether that renewal registration for one reason or another is effective at all, we don't know. All we know is we made it on the bases of facts presented on the application form.
Q. And what you made --
A. And we don't know if these -- we don't take a position as to whether or not the statements on the renewal application are prima facie valid or not. A work made for hire is claimed by the present owner of the copyright. In many cases there's a dispute as to who actually owns the right at that time and will put on a conflicting renewal registrations and the names of the adverse claimants and let them sort things out in court. The renewal registration is made on a showing that the renewal application meets the requirements of our renewal registration practices and that's it. All this renewal registration is saying is that Urantia Foundation claims renewal copyright in this work, period.
Q. As far as-the copyright office is concerned the statements in the original certificate and the renewal are true? They've been accepted, right?
A. We separate them on the face.
Q. And if--
A. We separate them as being true or being made of good faith.
Q. And if you knew they were false would you accept them?
A. If we knew they were false we would inquire of the applicant. If the applicant reiterated the claim we would make the renewal registration.
Q. Even if you knew it was false?
A. It's the example I gave you with the Elvis Presley material. Based on our current writing we knew that the statements made on the original registration were not true. We made the inquiry and we let it go at that.
Q. So the copyright office, they make the determination whether the facts presented to it warrant registration of the claim to copyright initially and later the renewal?
A. Can you repeat that?
Q. Is it correct that the copyright office in initially registering the copyright claim and then later a renewal makes a determination that the facts presented to the copyright office warrant the registration and warrant the renewal?
A. In the case of the basic registration the examiner is free to delve into things and the office reserves the right to refuse to make a registration when it knows the facts presented to it are false. In the case of a our renewal registration it is our policy to accept the facts on the basic registration on their face and we do not as a general rule look behind anything appearing on the original registration.
Q. So you accept them as true?
A. Yes. MR. FOCHLER: No further questions.
MR. BRYLAWSKI: I only have a few questions on redirect.
FURTHER EXAMINATION BY COUNSEL FOR THE DEFENDANT BY MR. BRYLAWSKI:
Q. To make it clear, Exhibit No. 4, which was introduced for two reasons, one for purposes of identification and also for purposes of inclusion of some introductory pages. Those introductory pages concern the title page, the page immediately after, and pages vii to lxvi. The latter portion of that has two sections, one called the Titles of the Papers, and the other, Contents of the Book. And I want to make it clear in the testimony that you have given when you have discussed table of contents you're addressing both the sections dealing with the titles of the papers as well as the contents of the book; is that correct?
MR. FOCHLER: Objection. It is leading. it is mischaracterizing the testimony and it's directly contrary to what the witness testified during-cross.
MR. BRYLAWSKI: Would you answer the question, please?
THE WITNESS: If I could see the exhibit, I'll cite the pages I referred to. What I regarded as the table of contents is vii through lxvi. The table of contents, which I think I referred to or meant to refer to in my direct testimony was two sections. One was a listing of titles and then the other one included subheadings. That was my intention and if I said something different on cross I didn't mean to. But it is the prefatory material giving titles and page numbers.
BY MR. BRYLAWSKI:
Q. Dealing with the example of the Jesuit priest in the Society of Jesus on which there was a considerable amount of testimony on cross, based on copyright practice where the Jesuit priest was not an employee for hire, would it have been proper for the employer to have copyrighted his work initially?
A. Well, anybod