Appeal Hearing Transcript
The following is a transcript of the oral argument before the Ninth Circuit Court of Appeals of Civil Case 95-17093, on January 14, 1997 before 3 Appeal Court Judges: The Honorable Judge Lay, the Honorable Judge Schroeder (who was the head of the panel), and the Honorable Judge Goodwin. Joe Lewis was council for Kristen Maaherra, and Dean Booth represented plaintiff Urantia Foundation. Each side was given 20 minutes to talk and answer questions. The plaintiff starts and can divide his 20 minutes to give time for rebuttal.
Judge Schroeder: You may proceed when you're ready.
DEAN BOOTH:
Booth: May it please the Court, I'm Dean Booth, and I'm representing the Urantia Foundation this morning.
Judge Schroeder: You have to keep your voice up because --
Booth: All right Judge. Court Reporters all over the United States have told me I talk low, so, if you indicate, I'll talk louder. (Laughter). I mean, I am convinced I, in fact, talk loud. (More laughter).
This is the appeal from the grant of a Summary Judgment in which the District Court ruled that the appellant, the Urantia Foundation, does not have a valid copyright in a book entitled, The Urantia Book. The Urantia Book purports to be a composite work consisting of 196 papers -- or chapters -- by many anonymous contributors.
We're here today to ask this court to give us a trial on some of the issues in this case because we believe that there are factual issues in the case and also, on some issues we think there may not be any factual issues, but they run our way.
Since this is on appeal on the grant of a Motion for Summary Judgment, this is a more fact-driven case than most cases, so I'll take a minute for background. Starting in the early 1920's, until 1955, a period of over 25 years, a group of people were involved in a joint effort to produce this book.
The exact number is not known, and the exact role played by each is not known. The book evolved over the entire 25 years. Papers were still being refined and worked on in the early 1950's.
All of this effort culminated in the last draft, which was put on plates -- printing plates -- and the final manuscript, if you will, were the plates themselves. The plates were conveyed to the Urantia Foundation by the group that had created the book, the group consisting of two sub-groups called in the Brief and by the parties, the forum and the contact commission.
The parties throughout this time were keenly aware of the fact that this was a work-in-progress, and they were very sensitive to the common law copyright issues. The non-publication of the papers at that stage were something that was carefully avoided, that is, the publication was carefully avoided.
The parties were aware that when finished, the work would be published. During this period the book was evolving and was in progress, money was raised in the late 1930's with a view toward financing the ultimate publication of this effort, which involved -- depending on different testimony -- four to five hundred people. Not that all these people were authors, but they were involved, and were readers, and were contributing. The writers of the papers were and are anonymous.
In 1955, the Foundation applied for and received the copyright in the book.
Judge Schroeder: Just let me -- When you say "writers" of the papers, what are you talking about?
Booth: I said "readers;" I'm sorry, Judge.
Judge: Oh, "readers," ok.
Booth: The, the ah, who -- the, the writers are anonymous, and we don't know who they were, and whether or not they were any members of these 400 people, we don't know either. Ah, the ah, it's clear that these groups, ah -- our position is that the evidence is clear and not in dispute, that these groups, ah, met and asked questions, which were refined by sub-groups and which --
Judge Schroeder: I guess I still don't understand by what you mean by "the writers are anonymous." I, were -- Is this something that human beings composed? Or is this something that --
Booth: Ah, Judge, all the parties to this case think that the ah, people who actually created -- the beings who actually created -- the work are non-humans. The contributors are non-humans. Ah, the issues in the case --
Judge Schroeder: But -- When you are talking about "writers," are you talking about the people who got the message and wrote it down?
Booth: No, Judge. When I talk about the people who created the book in terms of the "actual authors of the text" (is what the copyright office calls it) -- they were non-humans according to my client and according to --
Judge Schroeder: Those are the anonymous entities you were talking about?
Booth: Those are the anonymous entities.
Judge Schroeder: OK.
Booth: They were anonymous. Under the law --
Judge Schroeder: We know who the people are that --
Booth: That were there --
Judge Schroeder: That were there, and that wrote it down.
Booth: All -- Everything took place -- the whole 25 years, even to this day, in the same house in Chicago. And there were, as I say, several hundred people there. I mis-spoke if I said "writers" just now. I meant to say "readers." They would go and they would read the papers that had been presented, and they would -- in our view, in effect -- give topics to the group, that then went and did whatever they did to cause the next papers to appear from this anonymous source. And it would be on the topic which had been given to them by this group.
Ah, the ah, now my client registered this work is a work for hire, or is composite work, and in both cases it is only necessary that my client be a citizen of the United States. It is not necessary that anybody else be a citizen of the United States.
The other side, the Appellees, had a lot to say about the selection on the line in the copyright, I believe where it says the author, and what my client put down. I don't understand that, and in the record on page 14, you have the form and it has a line 3 which says "authors." The citizenship of the author and information concerning domicile must be given. If an organization is the author, and was formed under the laws of the United States or one of the States, citizenship may be stated as USA. Authors may be editors, compilers, translators, ghost writers, etc., as well as authors of original text.
In the case of a work made for hire, the employer is the author. And, I am not sure whether compilers -- I think the word "compiler" includes composite. It is not really necessary for this case, but there are cases that hold the two words as synonymous.
So, anyway, my client obtained the copyright in 1955. The Foundation renewed the copyright in 1983, which I think is really what is at issue in this case. They renewed it as a "proprietor of a work for hire," which it could do. In order for the Foundation to renew under the 1909 Act -- which is what controls here -- the book had to be either a composite work (a work written by more than one contributor), or a work for hire.
Judge Schroeder: Well -- How could this be a work for hire?
Booth: Ah. Judge, under the 1909 Act, the "work for hire" was a very elastic concept, but most assuredly did not require an employer-employee relationship, and there was no requirement that the author of the text be paid anything at all. It was not necessary that any agreement be in writing. It was a question of what the parties intended. A Professor Nimmer says that the endeavor was to ascertain and enforce the intent of the parties. And the cases agree with that. For our purposes, it's enough --
Judge Schroeder: But there has to be some intent, I --
Booth: I would like to --
Judge Schroeder: I am having some trouble with the concept that this celestial being had some intent to hire or engage the services of --
Booth: Ah, Judge you could be a volunteer, and you can contribute without any expectation of contribution under the "work for hire" concept of the 1909 Act. The cases which hold that you don't need to be paid anything at all, you can simply contribute. The question is: Did my client stimulate the topics? In other words -- Was it at our instance?
And we believe the evidence shows, and the record, particularly Helen Carlson's deposition, that the group, the forum and contact commission discussed the topics that they wanted the next paper to be on, and they would spend two or three hours, and then they would write down the questions, which were, in effect, suggestions of topics. And some of the members then would select from that universe the questions to be presented, and at some time in the future, the next paper to be presented would be on that subject. That's all that is necessary in the 1909 Act for "work for hire."
If I asked you to please write something for me, and you understood -- and in the context -- I was going to own the copyright, and you did it, then it would be a "work for hire" under the 1909 Act. An example, I represent a lot of composers, and they have, on occasion, I have four daughters and two of them are married, and they have written for me the toast and the things that I gave the night before, you know, at the rehearsal dinner. And I think in every one of those situations, under the 1909 Act it would have been a "work for hire." They composed it and they gave it to me. If I had registered the copyright it would have been mine. Now if they had written it, and given it to me, then it would simply been an assignment of the copyright. It is necessary that I have to stimulate the activity.
And that's all that was required under the 1909 Act. And is, ah -- Obviously, the word, "work for hire," under the 1976 Act, was very different. And does require an employee-employer relationship. Under the composite work -- which the book itself purports to be -- and the Judge below found that it was a composite work, there is no need for any agreement to be in writing. The leading case in the area is Abend vs MCA, a 1988 decision of this Court. And in that case there was an understanding, there was nothing in writing, there was not even an oral agreement. It was just simply how everybody did it, and so it was assumed that they were doing it the same way. So to be a contributor in a composite work, there's no contract required. It certainly is no requirement in composite work that there be an employment agreement. The Judge below found there had to be an employment agreement, and there's a statement in one case on the District Court level that supports that. All the appellate cases, that there's no need that there be an employment agreement, and in the Abend vs MCA case, there was no employment agreement. There is simply no requirement that there be one.
As far as there being an agreement to use the work, in a composite work, agreements take many forms, and in the Abend case, it was assumed. In cases that held implicit agreements, implied agreements, tacit agreements, constructive trust, and this case -- the Abend case -- the Court held that a constructive trust was imposed because of the dual nature of copyrights in composite works. It is the usual understanding of oral agreements.
Here the evidence shows that the Papers and the ultimate manuscript were kept at 533 Diversity starting about 1920. It was the residence of Dr. Sadler, who is the acknowledged leader of the group that created the -- that caused the work to be published, and that composed the questions that were submitted. He's the father of one of the original trustees. There's overlap of three of the members of the leadership group, predecessors of my client, and the trustees of my client.
They lived in the same location, Dr. Sadler, his son, and the Foundation -- the Urantia Foundation -- all were at the same address, as they evolved for over 25 years. To this day, they are still at that address.
The control was never challenged. No author has ever claimed any interest in this book. The manuscript, and we submit the common law copyright, was transferred to the Foundation by a written, formal trust document, which is very clear as to control. Possession of the manuscript was given to the Foundation.
And the trustees' former leader was intimately involved and acquiesced in, the acquisitions, the activities of the Foundation, before and after the copyright was made. All this, we think, demands a conclusion that there was an agreement that the Urantia Foundation had with the contributors to the composite work. The book purports, on its face, to be a composite work, and we submit those two things together, make it a composite work, and under the 1909 Act, we could renew the copyright of it as a composite work.
Insofar as the copyright is concerned, the cases are clear that if you are entitled to renew a copyright, you are entitled to renew the copyright. If you happen to make a mistake or put down a wrong concept, or there is a debate between the two concepts, then you don't lose what you had. Furthermore, we believe that there's an overlap between works for hire and composite works. You can have a composite work that's a work for hire, and you can have a work for hire that is a composite work. And there are cases that hold that. Under the 1909 Act, the issue was who was to own or hold the copyright. The intent is obvious in this case, even if it doesn't fit neatly into a pigeon hole, that my client was to have the copyright.
Now, how do we think the Judge erred below? There are abundant facts to show possession. And that the Foundation was the proprietor of the original copyright. The Judge was wrong when he said that the evidence was not sufficient to give rise to an inference that the Foundation owned the copyright. He cited a lot of cases that's been the law since State Court cases. Cushman is one of the leading cases decided in 1926. There are numerous other cases we've cited for the Court, all of which hold that the delivery of the embodiment of an idea is delivery of the common law copyright in the idea.
Judge Schroeder: Do you understand the District Court to have held that there was never any ownership of the copyright? Or that it couldn't have been renewed by the Foundation.
Booth: Your Honor, he didn't give us the presumption that we feel like we were entitled to the original copyright, I think he was wrong there because we had both, the original and the renewal. And my understanding is that he held that the original possession was somehow -- the fact that we had the copyright didn't show we owned it. And what we would urge from this Court is that the record shows with the overlap of people with 50 years, that everybody was there physically together in the same place, everybody who had been involved in the process from the beginning to now, who are still alive, and that no one ever complained that we had registered the copyright.
And they continue to be intimately involved in the activities of the Foundation, is really very strong as evidence that even demands a conclusion that we had permission to own it, and we did own it, and it was conveyed to us. And the trust document itself says that.
The Judge also, we think, erred in refusing to give us the presumption of validity for the original copyright. Furthermore, there is no requirement of the 1909 Act, as I said before, that a work for hire be done pursuant to an employment relationship. It is simply not required. And there's no requirement that the compiler of the work, proprietor of a composite work, have any written agreement or an employment agreement with the contributors. That's just not required. And so we think the Judge erred in those findings.
Judge Schroeder: Well, going back to your -- to the very beginning of your argument, when you said that there were triable issues. What are the issues here that -- if we were to send this back -- should be tried?
Booth: Well, on the composite work, Judge, we don't think there are any triable issues. We think we are entitled to Judgment. We think that on the composite work, the Judge found it was a composite work, the book purports to be a composite work, and it ended up the case is (concluded?) on the composite work, we don't have to have any written agreement, we don't have to have an employment contract, which the Judge said we did, so I think Judge Urbom is just wrong there and we ought to have Judgment.
On the issue of a work for hire, keeping in mind there is no dispute here between authors and the holder of the copyright, but on the work for hire there are debatable issues on whether or not --. The creative significance of questions is a debatable issue.
Judge Schroeder: Well -- Do you agree with the other side that you have to show that it's a work for hire?
Booth: No, your honor.
Judge: Because you renewed it under that theory?
Booth: No, Judge, I think the cases show and we cited to the Court, that if we had, if we were entitled to own the work, then whatever we put down on the renewal slip, it is not controlling. If we have another basis for what we still own it. And what I'm trying to show the Court is the tremendous overlap between the concepts of composite work and "work for hire" and it's not like we just intentionally mislead anyone.
Judge Schroeder: But I guess I just don't understand why you're not arguing that you are entitled to Judgment, period. And that -- why you start out by saying that it should go back -- ?
Booth: I am sorry, Judge, I thought I said to start with, we think we are entitled to a trial on some issues, and we think we are entitled to Judgment on the issue of the compiled work. We think it's a compiled work.
Judge Schroeder: If we agree with you, that's the end of it?
Booth: That's the end of it.
Judge Schroeder: OK.
Judge Lay or Goodwin: That's on the copyright claim?
Booth: On the copyright claim, Judge, that's right. The trademark --
Judge Lay or Goodwin: Not on the work for hire?
Booth: No, on the copyright claim on the composite work, that'd be the total end of the case, because the authors -- the only difference would be to an author and they're not complaining. An author would care if it were a work for hire or a composite work. We don't care.
Judge Schroeder: And if we disagree with you as to whether it's a composite work, then you say there are triable issues as to whether it's a work for hire?
Booth: Right, Judge, and I assume if you disagree with me, this Court would tell me what issues they are in the composite work theory --
Judge: I don't know about "work for hire." I'm a little troubled with this having a trial with what kind of understanding there was between these --
Booth: Well, the problem with work for hire is that I think the focus has been on the, on whomsoever and whatsoever the contributors were. But under the work for hire doctrine it just doesn't make a difference. For example, at that time, non-US-citizens could not register a copyright. But it didn't make any difference in a work for hire whether the person was a citizen or not. And I just don't think it is anything this Court needs to get into as to whether the contributors were human or non-human. And maybe it ought not to.
Judge Lay or Goodwin: Where does your argument on the presumption come in? That's not clear to me.
Booth: Judge --
Judge Lay or Goodwin: If this a composite work, and you're entitled to a judgment --
Booth: Right.
Judge Lay or Goodwin: How do we get into the issue of the prima facie case by reason of the original certificate of copyright?
Booth: Well, the way I understand Judge Urbom: He ruled that we didn't own it at all, Judge.
And so on the composite work, if you look at the composite work, we need to own the copyright, and that's what I'm saying about all of the evidence we have about the overlap and the fact that everything was done, was continuum from 1920 to the present day, demands a conclusion that we had permission to use the work and that we owned it. I mean, the trust document says we own it. We think the Judge made a mistake.
Once you get to the copyright, and we own it, then the presumption flows from that, you see. And whether we are the proprietor of the copyright. We said there's a presumption of that simply because we have the copyright
Judge Lay or Goodwin: Right.
Booth: And so that may be enough, your honor.
Judge Lay or Goodwin: But that's a rebuttable presumption.
Booth: It is rebuttable. So that's why I addressed the issue of what we consider to be the overwhelming evidence that we owned it. It is certainly rebuttable. Although none of the cases deal with rebuttable presumptions on the issue of proprietorship. They're all cases on other issues.
Judge Schroeder: All right. You've used your time. We'll give you a minute for rebuttal.
JOE LEWIS:
Lewis: Good Morning. May it please the Court, my name is Joseph Lewis, and I'm from the Washington, D.C. firm of Cleary, Komen and Lewis, and with me at counsel table today is the defendant in this case, Kristen Maaherra.
Judge Lay just asked about the presumption, and the Foundation places a lot of emphasis on its copyright certificate. Of course, in every case that comes before the Court, there is going to be a copyright certificate, and this Court has held -- time and time again -- that any presumptions that would accord any certificate are rebuttable even upon Motion for Summary Judgment.
Judge Lay or Goodwin: Well, it takes evidence to rebut presumptions, and Judge Urbom said that he found, did not find sufficient evidence to support either claim -- that is, either of the claims that it is a composite or a work for hire. Where did he get the idea that the plaintiff has the burden of proving?
Lewis: Well, the plaintiff always has the burden of proving its case.
Judge Lay or Goodwin: They have to prove that they have the copyright.
Lewis: And all that the copyright --
Judge Lay or Goodwin: Do they have to prove line by line all of the stuff in the copyright application?
Lewis: For a copyright in the initial term, they do not, as a matter of first instance. The presumption that's accorded copyright certificate doesn't change the burden of proof -- the burden of persuasion. It just orders the burden of proof. So, yes, the reason why copyright certificates are granted a presumption is so that in an ordinary place, a plaintiff does not have to come in and prove line by line everything that supports the copyright.
Judge Goodwin: I used to be an old common law Judge before I started running for -- doing all the other stuff we do now, but usually if somebody came in with a presumption, then the other side had the burden of going forward. What happened here?
Lewis: Well, in this case, the defendant met her burden. She has shown that the copyright certificate contains false statements. And I asked the court clerk to put before you copies of the copyright certificate.
Judge Goodwin: Yeah, we have 'em -- it's not very clear.
Lewis: And it says right on there that the Urantia Foundation is the only author of The Urantia Book. There is no dispute between the parties that that cannot be the case, because The Urantia Book was fixed and even typeset years before the Urantia Foundation was even in existence, so there is no way that the Urantia Foundation can be the author.
By showing that, we have rebutted any presumptions would accord the certificate. And I also want to point out that were now under the renewal term of copyright.
Judge Schroeder: You aren't fooled by that though are you? You knew all along they couldn't be the author.
Lewis: Well, that's correct -- but the copyright office wouldn't know that, and that's why they issued the certificate.
Judge Lay or Goodwin: Well, how do we define the word "author" in one of these anomalous situations, where somebody finds a book under a rock somewhere on a mountain, or something.
Lewis: Well, the law's very clear that it does not recognize "finders-keepers." But to accept the Foundation's position, this Court would be endorsing a "finders-keepers" rule. The kinship of copyright is authorship, and there was a lot of talk about, "We were all in this house together." Well, everyone was there, except the authors -- and that's where copyright comes from.
Judge Schroeder: Well, these -- the, the -- You don't think this was found under a rock, and that somebody, some other human being owns it? I mean, that's not your theory?
Lewis: No human being owns it, is our --
Judge Schroeder: Yeah, okay. So. Are you challenging the renewal, or are you challenging the original copyright? Because they never had any, they never had the statutory copyright, they never had a common law copyright, they never had anything?
Lewis: The sole issue before the Court is the renewal copyright.
Judge Schroeder: OK.
Lewis: However, we do believe that the uncontroverted facts rebut the presumption of the original certificate as well.
Judge Lay or Goodwin: Well, I wanted to find out what your theory was about this "slop over" between the alleged defects in the original certificate -- which Judge Urbom seemed to think were present -- and the defects in the 1983 renewal. Is that 1983 renewal a freestanding instrument that we can inspect to see whether there are triable questions of fact, or is it -- what is it?
Lewis: The renewal is entirely separate. Unlike other kinds of property rights, a renewal is not merely an extension of the first term. It's an entirely separate property right, and that's well established in copyright law. So a renewal claim -- it has to be looked (at) on its own -- someone who claims renewal. Moreover, under the 1909 Act, there's a distinction between presumptions that are accorded renewal certificates.
Judge Lay or Goodwin: Well, does the holder of the 1999 (sic) copyright have a presumption at the time of renewal that the renewal is valid if it simply recites the recitations of the original document?
Lewis: We believe the Epoch case -- the Epoch Producing case vs Killiam Shows -- is really the primary case on point, and that holds that it doesn't. The Foundation tried to distinguish that case, claiming that Epoch did not have an original term copyright, and they do.
Judge Lay or Goodwin: What happens to divest the original validity of the copyright at the time of renewal? So you start a whole new, a whole new title search at the time of the renewal.
Lewis: That's the way the law is established. For example, if an individual author -- the statute provides expressly in section 304 who the class of people are that are entitled to renewals -- and in the case of something by an individual, it's the author.
If the author assigns his work to another, and it comes time for renewal, the author gets the renewal, not the current owner. So they are entirely separate legal estates.
Judge Lay or Goodwin: This assignee doesn't get anything?
Lewis: Not automatically. Unless he gets a specific separate assignment of the renewal term, AND the individual author happens to survive.
But if Mr. Abend [Stewart v. Abend, 495 US 207, 1990], for example, were to assign a work, and even if he were to expressly assign his renewal rights -- and pass away, the statute provides that assignment is null and void. And that -- it goes under the statute to his widow. So the law does not provide renewal as an incident to original.
But really -- That's not what this case turns on because we have shown that the certificate is not entitled to any presumption -- because it is based on a false statement of authorship.
Even under the theory espoused, Urantia Foundation would not be the author.
Judge Schroeder: Well -- What should they put down?
Lewis: Well, under the current theory, they should have put down this group of individuals, their "predecessor" -- perhaps this group called the "contact commission." If they claim that the contact commission was the "employer for hire," then that's the group that should have been listed as the employer for hire.
And then the Foundation would have an obligation to show how it got the copyright from that contact commission into the Foundation by way of assignment or otherwise. The Foundation is a trust that was set up -- after the book was printed and typeset -- to receive the plates.
Urantia Foundation, the plaintiff here, was not involved at all in the preparation of the text of the book.
Judge Lay or Goodwin: Can't you imply from that conduct itself that there is some evidence of proprietorship of the book?
Lewis: Well, I'm not quite sure what "conduct" you are talking about. All the Foundation did was to print it.
Judge Lay or Goodwin: I mean the fact that they possess the plates.
Lewis: No. I mean -- The case law is very clear that mere possession does not give one property interest in the intangible copyright.
There is the Chamberlain [Chamberlain v. Feldman, 300 NY 135, (1949)]case involving the Mark Twain manuscript -- and the other cases that are cited in the Briefs. In all the other cases, in which possession was considered to be a factor, there was substantial evidence showing the intent of the author that there be a transfer of copyright.
Judge Schroeder: Well, are you saying that what, in this trust, that the, or that the trust instrument that transferred everything from this group to the Foundation --
Lewis: That's correct.
Judge Schroeder: Are you saying that that did not include the copyright? Or that it did not include the renewal rights to the copyright? Or that that group never had the right to the copyright, so they couldn't have given it anyway?
Lewis: There is no evidence to support any of those three. It certainly -- The group never had the copyright because this was not a "work for hire." There was talk today --
Judge Schroeder: I thought that that went to the renewal.
Lewis: Well, the "work for hire" was the claim of both the original and the renewal term. It's our preliminary view, or primary view, that there's no copyright here whatsoever. If there was, it would have to be the author's -- which would either be the spiritual beings, or the human patient who actually wrote it.
Judge Schroeder: Well, I guess I just -- there are lots of more mystical works that have been written, that have been inspired -- where people are writing down what has come to them. I suppose that if you go to Amadeus -- all of Mozart's work was that.
But is what Mozart put down, divine or -- if you sincerely believe that you are writing -- that you had something that was composed by someone else, but they've been -- or the words are someone else's, but you have put them together in this form, are you not entitled to put down, an author -- your name?
Lewis: Well, your honor, this Court many years ago decided White against Kimmel [94 F.Supp. 502 (S.D. Cal. 1950)] in which it was held that a divine inspiration does not divest one of copyright.
Judge Schroeder: Right.
Lewis: But this case, we are not talking about an inspired work, we are talking about work that was materialized.
Much the same in the Old Testament when Moses went up to Mount Sinai. The Ten Commandments were written in Exodus 31:18, "with the finger of God" -- and that's the position here.
It's as if Moses came down from Mount Sinai and said, "Gee, look what I wrote; I've got a copyright here." They have no more proprietary interest than someone who receives something. And the law's clear that you must be an author or have a direct connection from an author in order to claim copyright. So wherever you start with assigning authorship, and --
Judge Schroeder: The fact that you were the chosen instrument of the author to put this into a form that is comprehensible to human beings, isn't enough of a relationship?
Lewis: There's no evidence of that here. Here we have a doctor-patient relationship, in which a patient was coming up with these writings, and the doctor eventually took them and published them. There is no evidence of the transfer of copyright just because it was done.
Much the same way in the Mark Twain case -- even though if you have a manuscript.
This is not a commercial publisher here. It wasn't given with the intent of publication. The Urantia Foundation published the book many years later. If there was this importance in publication, they would have published it right away. They have no -- they have to trace their claim of copyright back to an author, and that has not been done in this case. The burden is on them to do that, and they have not met that burden, because these certificates are not entitled to a presumption.
Judge Lay or Goodwin: How do you -- in the copyright law -- how do you define what is a composite work?
Lewis: Well, a composite work is a work by a number of authors, the most common instances are periodicals or encyclopedias. We have a lot of people writing different things, and they are published together.
We don't believe The Urantia Book is a composite work because it all came from one patient, one individual; therefore, you don't have different authors -- unless the Court were to recognize the multitude of spiritual beings.
Which we think would be inappropriate and would raise serious Establishment Clause issues. So we don't think it is a composite work.
Moreover, as we point out in our Brief, the Urantia Foundation never thought this was a composite work. They do not renew it as a composite work, and cannot now -- after the renewal term has commenced -- change the basis of the claim of a renewal copyright.
The copyright office has specific regulations on that point, and there's no argument by the Foundation at all as to why those regulations are inappropriate. So we don't think it's a composite work for that reason.
And, in any event -- Even if it's a composite work, that just talks about the kind of work it is; it doesn't show who owns it.
I can't take a collection of writings of strangers, publish them together, have a composite work, and then all of a sudden I become a copyright owner in the articles. I have to show how I have the opportunity and right to publish those articles. And that's again where there is no evidence on the Foundation's part to show where they have that authority, again, stemming back from the author.
Judge Lay or Goodwin: Well, they said -- Can't you take an encyclopedia as a contribution by many people, but the publisher collects all those, and that's in a sense a collective work. Can't that publisher get a copyright for that type of work?
Lewis: The publisher can take out a blanket copyright and, in that case, the publisher will have a contractual arrangement with each of the authors that gives them the right to do that. But, absent that, you can't go around collecting articles and publish them and then become the owner of them.
Judge Lay or Goodwin: What if you go back through history and collect all anonymous poetry and so on, and put it into a work, even though you don't know who wrote it, you can't get a copyright on that?
Lewis: You could get a copyright on the collection -- which would be this selection and arrangement. Copyright might be able to protect that.
However, you could not get a copyright in the underlying work -- that is, prevent other people from also copying these public domain poems.
You cannot take something that you don't have title to, or that's in the public domain, and create it out of whole cloth, simply by publishing it as a composite work.
This argument about "work for hire" and commissioned work -- and that's the alternative basis, and is the only basis on which they actually obtained the renewal (that this was a commissioned work).
And -- My colleague here during the discussion talked about the questions: "They asked questions, and then Papers came." And I believe that's a distortion of the record, because it shows that the only effect of the questions -- and I'm referring to the record at 589 -- is that the subject matter was suggested in part by the questions.
And it's also not subject to questions that the contact commission -- this group who they say asked the questions -- had no effect on determining what would be included in the book. It was all the spiritual beings, or the writers of the book -- so they can't claim they commissioned it.
Also, the commissioned work cases all involve payment. There was discussion before about the fact that one could volunteer. There are some cases in which "work for hire" has been found where there has been a volunteer -- but those were all situations where someone was in a traditional employer-employee relationship -- that is, working under the direct supervision and control.
Judge Schroeder: If this -- If the Urantia Foundation now says this is all a fraud, this is actually written by a human being, and we have -- we could trace our rights to the true -- the patient that -- and we want the chance to do that, you say that's perfectly all right?
Lewis: Not -- Well -- It can't be done for two reasons. One is it's already -- They have to do it promptly under the copyright law. They have not done that.
Judge Schroeder: But they claim the copyright that they were the author. Now they say still, we are the author. We have a direct contractual relationship all the way down the line to be the author.
Lewis: There are two cases in our Brief, the Houts [Houts v. Universal City Studios, Inc., 603 F.Supp. 26 (C.D. Cal. 1984)] case and the Arica Institute [Arica Institute Inc. v. Palmer, 970 F.2nd 1067 (2nd Cir. 1992)] case in which hold the copyright owner is estopped from making that kind of an argument.
One who puts out a book as factual cannot -- for expediency in litigation -- change their story on that. And there's several cases on that, including one which the Court said the facts are bizarre (and no more unusual than in this case), but the Court held the plaintiff to the way the book was promoted and published -- as a work of spiritual beings. They have not done that.
If it were copyrightable, then they'd still have to match all the hoops and show who wrote it. So, if they were to say, ok, this patient -- the only human who we know is involved in the actual materialization -- wrote it, then they would have to trace their rights back to the patient. They cannot.
And, now that we are in the renewal term -- as I indicated before to Judge Goodwin -- only that patient can renew the copyright.
So, if the Court were to take the position that we are going to ignore spiritual beings, and that the person who physically wrote it is the person we are going to be deeming the author for legal purposes, then the Foundation's claim fails because only that author could have renewed it.
We know the author was deceased at the time of the renewal, and it would have gone, under the statute, to his statutory successors, not to an assignee, only to the specific person set forth in copyright act.
Judge Schroeder: Is there any case that stands for the proposition you are asserting, that you can't copyright something that is claimed to be divinely -- written by a divine being?
Lewis: Well, let me touch on that.
Judge Schroeder: Does any authority go the other way?
Lewis: I am not aware of, really, any authority squarely on point on that issue.
But in a separate decision from the one granting our Motion for Summary Judgment, Judge Urbom did hold that because The Urantia Book is a literary work, it is therefore copyrightable. And he wrote a -- I think in doing so, he overlooked a fundamental tenant of copyright law, and in a two-page decision, he overturned decades of copyright office practice.
There is extensive testimony from the copyright office in this case as to the fact that these kinds of claims were very common. They may not all get to the Appellate Court, but in the copyright office they were very common. And as a matter of course, the copyright office routinely objected to these claims and would not register a copyright if someone said, "This is a divine work."
On the other hand, Judge Schroeder, if someone came in and said --
Judge Schroeder: Is that because they didn't think that divine work was copyrightable, and they didn't believe that there was such a thing as divine work?
Lewis: Because human authorship is required. In fact, if you went into the copyright office and said, "I was divinely inspired to write this work," they would register it.
But if you say, as is the claim here, this is actually the work of non-humans, they would not register it.
So that distinction is brought out in the testimony of Bernard Deitz, who is the Head of the Renewal Section of the Copyright Office, the head of the examining operation. He does make that distinction.
And, original -- Copyright requires original works. Original doesn't mean, as Judge Urbom said, that it wasn't copied. It involves human creativity and therefore, we think the Judge overlooked that; and -- as an alternative ground for affirmative judgment -- the Court should look into that issue, because it sets a dangerous precedent for allowing works by computers, by pets and by others.
Thank you.
DEAN BOOTH again:
Booth: The form says that if you are an organization, you're an author, and if it's a work for hire, you're an author. And the cases are clear that if the work is a "work for hire," you can buy it, buy it all -- you buy the right to renew. If it's a composite work, you get it, anyhow-- you -- you get it if its a legal conveyance. If you didn't steal it, you own it, you can renew it. The Urantia Foundation has the trust document, has everything, and it owned it, and it is a "work for hire," and it is an author. Now, I agree the Urantia Foundation is not a human being either, but it is an author under the rules of the copyright law.
Judge Lay or Goodwin: They say that's fraudulent.
Booth: Your Honor, I don't know, as I read the forms to the Court, because it says in the form, on line 3, that if its a "work for hire" you put down the name of the organization. That's what it says on the form, that's what the law says, that's what we did. I mean, I agree -- I think he's wrong, I don't know, I don't think he's ever read the fine print.
Judge Lay or Goodwin: Are you -- that's under a claim that this is a "work for hire"?
Booth: Yes, your honor.
Judge Schroeder: Well, it says authors may be editors, compilers, translators or illustrators --
Booth: And it goes on to say --
Judge Schroeder: "As well as authors of original text."
Booth: And it goes on to say that if it's a work for hire --
Judge: Hire --
Booth: The organization is. I mean that's --
Judge Lay or Goodwin: Who did Urantia hire?
Booth: Sorry?
Judge Lay or Goodwin: Who did Urantia Foundation hire?
Booth: Well, Judge, we didn't have to hire anybody in the classic sense, all we had to do was ask somebody a question.
I don't want to be sacrilegious for a host of reasons including the fact that I am very religious, but if Moses had gone up to Mount Sinai and had a conversation with God, and said, "God, would you please give us some rules, we don't really know what we're doing and would you help us write it down." And he had done it and had given it to him, he could have copyrighted it. There's nothing that said, all it says in the law is that if somebody gives it to you, if you get it, then you can copyright it.
Judge Lay or Goodwin: But Joseph Smith couldn't get a copyright on The Book of Mormon, because --
Booth: I don't know about The Book of Mormon, Judge, but in Joseph Smith, when the rockslide occurred in western New York and he saw, I don't know what they call that, but anyway he saw some rules, he didn't ask for that, he didn't stimulate it, he anticipated and this happened, and that's true of any author. But I thought one thing everybody agreed on in this case was that the patient was not the author.
Judge Lay or Goodwin: If a committee is the author, er,.. ah.... form on line 3 says "compilers, editors," etc., but if you have a committee, a self, not appointed, but just self-ordained committee --
Booth: Right.
Judge Lay or Goodwin: And it produces a document, and then says we call ourselves the XYZ Foundation --
Booth: Right.
Judge Lay or Goodwin: You say that can be an author. Is that right?
Booth: Yes, it's a joint work.
Judge Lay or Goodwin: If they say they're the author. If the committee says we're the author, and we go under the assumed business name of XYZ Foundation.
Booth: I think you could, provided that the understanding was that the committee was going to own it and not the individuals.
Judge Lay or Goodwin: Well, if you have a committee, and they're claiming that it's copyrightable as a "work for hire," does it have to be an employer-employee relationship, or can the committee hire itself?
Booth: That's right Judge, the committee can just do it together. You gotta have an -- you gotta have some, you have two -- two, two things to get a work for hire. You got an employer and employee in the classic sense, but you gotta have someone who instigated the work and you have somebody who did the work. If the committee as a group, a corporation for example, instigated it, and the people did it and contributed it, then they could, the corporation could copyright it. I assume the committee as an unincorporated association could have, could have gotten the copyright. But the important thing is that it's an entity separate from the subparts.
Thank you.
Judge Schroeder: Thank you. The case just argued is submitted for decision.
END OF TAPE. . .
Last Updated April 13, 1997 by Kristen Maaherra