Joe's Response (Copyright Appeal)

The following document is Attorney Joe Lewis' Reply Brief of Defendant-Appellee, Kristen Maaherra, to Urantia Foundation's Appeal Motion. Joe takes each of the many different claims of authorship put forth by the Foundation and shows how none of the Foundation's claims can lead to the holding of a valid copyright by the Foundation.

United States Court of Appeals; Reply Brief of Defendant-Appellee, Kristen Maaherra.

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . iii

I. STATEMENT OF JURISDICTION . . . .. 1

II. STATEMENT OF ISSUES . . . . . . . . . . . 1

III. STATEMENT OF THE CASE . . . . . . . 1

IV. SUMMARY OF ARGUMENT . . . . . . . 2

V. ARGUMENT . . . . . . . . . . . . . . . . . . . . . 5

A. SUMMARY JUDGMENT WAS APPROPRIATE IN THIS CASE .. . 5

B. THE COPYRIGHT FOR THE URANTIA BOOK WAS NOT AND COULD NOT HAVE BEEN RENEWED AS A "COMPOSITE WORK." . . . . . . . . . . . . . . . . . . 6

C. THE URANTIA BOOK DID NOT QUALIFY FOR RENEWAL AS A WORK MADE FOR HIRE . . . . . . . . . . . . . . . . . . . . . . . . . .. 10

D. THE FOUNDATION HAD NO RIGHT TO CLAIM THE RENEWAL COPYRIGHT THROUGH AN ASSIGNMENT OR OTHER TRANSFER . . . . . . . . . . . . . . . . . . . . . . . 21

E. THE FOUNDATION IS NOT ENTITLED TO ANY STATUTORY PRESUMPTION.. 24

F. THE RENEWAL CERTIFICATE WAS IMPROPERLY OBTAINED AND IS INVALID BECAUSE THE FOUNDATION IS NOT AN AUTHOR OF THE URANTIA BOOK . . . 26

G. THE TEXT OF THE URANTIA BOOK IS NOT COPYRIGHTABLE . . . . . . . . . . . . . 28

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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I. STATEMENT OF JURISDICTION

Appellee does not dispute the Appellant's Statement of Jurisdiction.

II. STATEMENT OF ISSUES

1. Whether a work for which there is no identifiable human author can be the subject of protection under the Copyright Act.

2. Whether a person can validly assert a renewal copyright in a purported "composite work" without having renewed the work as a composite work and without having established any ownership interest in the work, or any contractual or employment relationship with the contributing authors.

3. Whether reliance upon hearsay evidence and unauthenticated documents is sufficient to raise issues of fact as to whether a work was created as a "work made for hire."

4. Whether an assignee of a purported employer for hire qualifies as an "employer for whom such work is made for hire" and, thus, is entitled to renew the copyright under the renewal provisions of the Copyright Act of 1976.

5. Whether an expired original Certificate of Copyright or a renewal Certificate of Copyright carries presumptions of copyright validity and ownership which cannot be rebutted in a summary judgment proceeding.

6. Whether the statutory presumptions of a Certificate of Copyright are rebutted when a defendant shows that copyright was claimed by making false assertions of authorship and copyright proprietorship.

III. STATEMENT OF THE CASE

The Urantia Book is a text that many people, including both parties to this case, believe is a religious revelation to the people of this planet from celestial and spiritual beings. (R-592, 664, 669.) The book forms the basis of the religion of the Appellee, Kristen Maaherra, and many other adherents of the book, who consider themselves to be "Urantians." (R-663-672, 697-705.) So that she and others could more easily study the more than 2,000 pages that comprise The Urantia Book, Maaherra created a computerized index for the book, which she gave away to other adherents. (R-631.) It was Maaherra's belief that the Foundation's claim of copyright in The Urantia Book was invalid, and that the book was in the public domain. The Foundation brought this action with no prior notice to Ms. Maaherra in order to stop her from continuing to give away this study aid. The facts of this case have been summarized by the district court (R-366-68), and can also be found in greater detail in the Appellant's Record Excerpts at R-207-220. As shown below, the Statement of the Case submitted by the Foundation attempts to create an impression that the Foundation had a far greater role in the creation of the text of The Urantia Book, than any reasonable reading of the admissible evidence of record would allow.

IV. SUMMARY OF ARGUMENT

In this case, the Urantia Foundation claims to be the exclusive owner of a copyright in the text of The Urantia Book, even though it concedes that this text is a religious revelation that was authored entirely by spiritual beings, and that it was transmitted through an unknown individual to a purported predecessor years before the Foundation was formed. (Br. at 2-3.)

The Foundation had standing to bring this litigation on the basis of a renewal copyright registration certificate it obtained for the book in question. It did so by falsely listing itself (on both the original and renewal copyright applications) as the author of the book, despite the fact that the text of the book had been written and typeset before the Foundation was even formed. Now, in an attempt to salvage a copyright in this book, the Foundation has proffered inconsistent and flawed legal theories, bootstrap arguments, speculation, and inadmissible hearsay.

The Foundation admits that the Foundation is not itself an author, joint author, or employer for hire of The Urantia Book. (Br. at 2-3.) Therefore, as the district court noted, the Foundation must show that it succeeded to the rights of the author through an assignment or other device.

Assuming that The Urantia Book was copyrightable, the Foundation could have acquired a copyright interest in the renewal term of copyright in only two ways: (a) through an express written assignment from the author (if he survived until commencement of the renewal term), or his statutory successors (if he did not survive); or (b) if the work falls within one of the special categories of works covered by 304(a)(1)(B) of the 1976 Copyright Act (A-17) (which grants a renewal right to a copyright "proprietor" of a "composite work" or "work made for hire" based on the proprietor's demonstrated relationship with the creator), and if the Foundation can also establish by admissible evidence that it was in fact the eligible "proprietor" of such copyright at the commencement of the renewal term.

The Foundation now concedes that it has no assignment from the anonymous patient who physically "wrote" the text, or his statutory successors. Now, in a desperate attempt to validate its claim to a renewal copyright, the Foundation has tried to establish that The Urantia Book was a work for hire or composite work, and that the Foundation was its proprietor. For the reasons set forth below, the Foundation cannot show that The Urantia Book was such a work, and cannot claim a copyright renewal interest as a proprietor. As the district court correctly held, the Foundation cannot demonstrate by any admissible evidence that it is a proprietor of copyright by virtue of any relationship between the Foundation and the author of the text. See Epoch Producing Corp., supra, 552 F.2d at 745 (absent evidence, a work for hire relationship cannot be "bootstrapped"). See also Van Cleef & Arpels, Inc. v. Schechter, 308 F. Supp. 674 (S.D.N.Y. 1969); Everts v. Arkham House Publishers, Inc, 579 F. Supp. 145 (W.D. Wis. 1984) (conclusory assertions of a work for hire relationship cannot create a genuine issue of material fact to support validity of copyright).

The parties share a sincere conviction in the spiritual and divine nature of the authorship of The Urantia Book. This undisputed origin of the book provides an alternative ground for holding that The Urantia Book is not subject to copyright protection and, thus, for affirming the district court's judgment that the renewal copyright in the book is invalid. Revelations from spiritual beings lack the element of creative "authorship" which is a statutory and constitutional prerequisite of a valid copyright.

However, even if the book were copyrightable, the Foundation's arguments are unsupported by admissible evidence and, in any event, are legally insufficient to prove that it is the exclusive owner of a valid renewal copyright in the text of The Urantia Book. Thus, the book entered the public domain in 1983, at the latest, for lack of a proper renewal.

V. ARGUMENT

A. SUMMARY JUDGMENT WAS APPROPRIATE IN THIS CASE.

The district court applied the correct legal standard in determining that summary judgment was appropriate in this case. (R-368-69.) More than a century ago, the Supreme Court noted that judges are not "required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof. . . ." Improvement Co. v. Munson, 14 Wall. 442, 448 (1872). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

Here, the court afforded the Foundation "the benefit of every doubt," and held that there was "insufficient evidence to suggest" that the Foundation is owner of a valid copyright in the text of The Urantia Book. (R-375-76.) For the reasons stated in the district court's opinion, and the additional reasons set forth below, no reasonable trier of fact could find that the Foundation has met its burden of proof to sustain its copyright claim, and the grant of summary judgment must be affirmed.

The Foundation cites National Presto Industries Inc. v. The West Bend Co., 28 U.S.P.Q.2d 1049 (W.D. Wis. 1993), for the proposition that "it is almost always inappropriate to enter summary judgment in favor of the defendant on the issue of copyright validity. . . ." (Br. at 12.) The Foundation's reliance on this case is misplaced, not only because the case deals with patents rather than copyright, but also because the Foundation misstates its holding. Indeed, it is clear that "patent issues are as amenable to summary resolution as other matters." Quad Technologies Corp. v. Union Sanitary District, 946 F.2d 870, 872 (Fed. Cir. 1991).

Moreover, it is well established that in cases involving copyrights, a copyright may be declared invalid on a motion for summary judgment. S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1086 (9th Cir. 1989); Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986), cert. denied, 484 U.S. 826 (1987); Brown Bag Software v. Symantec Corp. 960 F.2d 1465 (9th Cir. 1992); Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir. 1995); Sassafras Enterprises, Inc. v. Roshco, Inc., 889 F. Supp. 343 (N.D. Ill. 1995).

B. THE COPYRIGHT FOR THE URANTIA BOOK WAS NOT AND COULD NOT HAVE BEEN RENEWED AS A "COMPOSITE WORK."

1. The Foundation is Barred From Changing the Basis of Its Renewal Copyright Claim.

The Foundation did not renew the copyright as proprietor of a "composite work." The Foundation renewed solely as a "proprietor of copyright in a work made for hire," not as proprietor of a "composite work." (R-16.) The Foundation could have filed a claim to the renewal copyright on the dual basis that it was both "proprietor of a work for hire" and a "proprietor of a composite work." See Cadence Indus. Corp. v. Ringer, 450 F. Supp. 59 (S.D.N.Y. 1978). No such renewal claim was ever filed.

The Foundation's failure to claim the renewal copyright as proprietor of a composite work was not a mere omission. The Foundation's attorney stated unequivocally in an affidavit filed in the Copyright Office shortly before the renewal, that "The URANTIA Book is not a collective work..." (R-655.) As used in the Copyright Act, the term "collective work" is the same as "composite work," at least for purposes of renewal. This is a clear admission that the book does not qualify as a composite work.

Copyright Office regulations expressly preclude a change in the basis of a claim of renewal copyright after the initial term has expired. See 37 C.F.R. 201.5(b)(iv) ("supplementary registration to correct the renewal claimant or basis of claim . . . is ordinarily possible only if the application [is] received in the Copyright Office within the last year of the relevant first-term copyright") (A-4) (emphasis added). See also R-490-492. The Foundation continues to ignore the significance of its failure to comply with this regulation. Because the Foundation has waited until years after the initial term of copyright expired, and has never made an application to the Copyright Office to change the basis of its renewal, the Foundation is barred from attempting to change the basis of its renewal claim in arguments to this Court.

2. The Urantia Book Was Not a Composite Work.

The elements of a composite work are: "(1) A number of authors contributing copyrightable matter to a single work; and (2) an employment or contractual arrangement entitling the proprietor to secure copyright in the various contributions." Senate Comm. on the Judiciary, 86th Cong., 2d Sess., Study on Renewal of Copyright at 131 (Comm. Print 1960) (A-48) (emphasis added).

For this Court to accept the Foundation's argument that The Urantia Book is a composite work, it would have to find that the individual "authors" of the Urantia Papers were spiritual beings. Because each contribution to a composite work must be independently copyrightable, Markham v. A.E. Borden Co., 206 F.2d 199, 201 (1st Cir. 1953), this Court would have to hold that each of these spiritual beings was a recognizable "author" under the Copyright Act. Because of the authorship requirement of the Copyright Act, such non-human entities are not legally recognizable authors. See pp. 28-35, infra. Nor would the law recognize a contractual or employment relationship with such entities, which is the second requirement for a composite work.

Neither of the other possible "authors," namely, the contact commission and Dr. Sadler's patient, satisfies the "number of separate authors" requirement for composite works. The Foundation's theory that the contact commission is the author fails because there is no evidence of any separable authorship by any individual member of the contact commission. If the patient is deemed the author of the book, the book cannot be a composite work because he would be the author of each part of the book. See Compendium I at 11.8.3; Compendium II at 1317.04(a) ("a work by a single author of a collection of his writings is not a composite work") (A-36).

The Foundation would have this Court hold that it was entitled to renew the copyright as proprietor of a composite work without having to establish that it was the proprietor. (Br. at 21.) The Court's acceptance of the Foundation's argument would lead to the absurd result of allowing a person to find the unpublished works of several famous writers, publish them in one "composite" book, and subsequently claim the renewal copyright in these writingsthereby creating copyright "ownership" out of whole cloth. As the district court held, one cannot enforce a copyright in a composite work without proof of proprietorship of the contributions that make up the work. Cf., 17 U.S.C. 7 (1976) (compilations of copyrighted works "when produced with the consent of the proprietor of the copyright in such works . . . shall be regarded as new works...") (A-7). Contrary to the Foundation's argument, the district court's holding in this case did not equate all composite works with works for hire. (Br. at 9.) Requiring a person claiming copyright in a composite work to produce proof of an interest in the copyrighted material does not reduce composite works to "a mere sub-species `of the works for hire doctrine'." Id. An employment relationship is one way to establish proprietorship, but one could just as easily establish it by an assignment of copyright, thereby including works that were not made for hire.

Because The Urantia Book is not composed of separately copyrightable works of a number of authors, and the Foundation cannot show an assignment from or an employment relationship with the creator of the text, the Foundation's claim to a renewal copyright cannot be sustained on the ground that The Urantia Book is a composite work.

C. THE URANTIA BOOK DID NOT QUALIFY FOR RENEWAL AS A WORK MADE FOR HIRE.

1. The Urantia Book Was Not Created As a Work for Hire.

The traditional form of work for hire involved a work created by an employee within the scope of the employment relationship, wherein the employer exercised control over the employee. A series of cases under the 1909 Copyright Act expanded the doctrine of work for hire beyond works arising out of a formal employment relationship, to include certain "commissioned works." Such "commissioned works" are created by independent contractors who are specifically engaged by another person to create the work, enabling the commissioning person to claim copyright in the work as an employer for hire, provided further that he or she paid the person who created the work a sufficient amount to indicate that the creator did not intend to retain his or her copyright. See generally Easter Seal Society v. Playboy Enterprises, 815 F.2d 323, 325-327 (5th Cir. 1987). In cases "when one person engages another" courts have applied a presumption "that the mutual intent of the parties is that title to the copyright shall be in the person at whose instance and expense the work is done." Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298, 300 (9th Cir. 1965).

Early in this case, the Foundation argued that The Urantia Book was a traditional work for hire written in part by one of its Trustees (R-568-569), but it subsequently abandoned this theory in favor of a new theory that The Urantia Book should be deemed to be a work made for hire because it was a "commissioned work." The preposterous basis for this new theory is that the "contact commission" collected some unknown questions from the group known as the "forum" and somehow forwarded them through Dr. Sadler's anonymous patient to spiritual beings they had somehow "commissioned," and whose "answers" were in the form of the Urantia Papers.

The record in this case shows that the so-called "contact commission" neither initiated, directed or paid for the activity that eventually resulted in The Urantia Book. As the district court held, there is no admissible evidence that any elements of a commissioned work exist. (R-374.) Specifically, the idea, motivation and initiative for creation of The Urantia Book were not by the "contact commission," the work was not created for the benefit of the contact commission, the contact commission had no control over the process of creating the papers, and the creators were not sufficiently compensated to permit an inference of an intent to transfer the copyright. Thus, the Foundation cannot establish either prong of the "instance and expense" test on which it relies.

The doctrine of commissioned works is "based on the presumed mutual intent of the parties, and does not operate as a matter of law." May v. Morganelli-Heumann & Assoc., 618 F.2d 1363 (9th Cir. 1980). The courts have presumed that when an artist is specially engaged to create a work and paid for his efforts, "the parties expected the employer to own the copyright and that the artist set his price accordingly." Id. at 1368. Merely because someone other than the creator is involved in the creation of the work, does not give rise to a presumption that the actual creator loses all rights and the other person(s) involved become the copyright owner(s).

Therefore, in order to qualify as a commissioning party, the work in which copyright is claimed must have been created at the instance and expense of the purported commissioning party, i.e., a person must be the motivating factor in creating a work and have paid for the creation of the work. (R-373-374.) Only where these factors are present, can any presumption of an intent to transfer copyright arise.

The Foundation asks this Court to eliminate these requirements and adopt a "but for" test; namely, that "but for" any participation of the contact commission, The Urantia Book would not exist. (Br. at 4.) Such a test is contrary to existing case law, and, moreover, would be unworkable in practice. It is common for writers and artists to deal with many persons when creating a work (e.g., editors, publishers, agents, lenders, proofreaders), any of whom could claim, that "but for" their participation, the work would not exist. One must do far more than merely participate in the manner the contact commission purportedly did, in order to be deemed to have "commissioned" a work. Thus, the Foundation's theory must be rejected.

The Foundation's theory must also be rejected because the law cannot recognize an employment relationship with spiritual beings, either as traditional employees or as independent contractors. Oliver v. Saint Germain Foundation, 41 F. Supp. 296, 299 (S.D. Cal. 1941). The Foundation attacks the district court for requiring it to establish an "employment relationship" by implying that the district court improperly burdened it with the task of proving a formal employer-employee relationship. (Br. at 29.) However, the court did not "miss[ ] the point." Id. Rather, the court expressly recognized that the work for hire doctrine was broad enough to include both "traditional employees and individuals commissioned for a particular project" (R-345.) The court correctly applied the "now-familiar litany of the `instance and expense' test" and charged the Foundation with no greater task than producing some evidence that it actually commissioned the book it claims to own. Easter Seal Society, supra, 815 F.2d at 327, citing, Murray v. Gelderman, 566 F.2d 1307 (5th Cir. 1978). The district court's opinion unmistakably shows the phrase "employment relationship" was used in the same broad sense as the phrase "work for hire" has been construed under the 1909 Copyright Act.

a. The Urantia Papers Were Not Produced at the "Instance" of the Contact Commission.
(i) The Evidence Relied Upon by The Foundation is Inadmissible.

The Foundation relies upon three so-called "histories" of the Urantia movement, none of which are admissible evidence. See Hal Roach Studios v. Feiner and Co., 896 F.2d 1542, 1550-1551 (9th Cir. 1990) (purported corporate history was inadmissible to show how plaintiff acquired copyright interest in motion pictures because document lacked a proper foundation).

One "history" is authenticated solely by the Foundation's trial counsel and was written in 1991, after this case arose and decades after the occurrence of the operative facts. This is not a valid authentication. United States v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970); Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). Moreover, the content of the document shows that it is inadmissible hearsaythe preface acknowledges that it consists of the author's "attempt to piece together fragmentary facts . . . conjecture, and occasionally what almost amounts to rumor. . . ." and incorporates his own "opinion and belief." (R-322.) See Mitchell v. Toledo Hospital, 964 F.2d 577, 584 (6th Cir. 1992) (affidavit containing rumors, conclusory allegations and subjective beliefs could not be considered).

A second so-called "history" is an incomplete document for which there is no admissible authentication. This document, supposedly dating back decades, only recently came to the Foundation's attention. (R-272.) The only support for this document in the Foundation's Record Excerpts is its attorney's affidavit identifying the document as an exhibit to two depositions. Neither deposition authenticates the document. The deposition of Carolyn Kendall does not show the deponent's source of the document, nor does the Foundation show that the witness had any personal knowledge of its origin, creation or content. The Foundation cites absolutely no testimony regarding the document. Akzo Coatings, Inc. v. Aigner Corp., 881 F. Supp. 1202 (N.D. Ind. 1994) ("documents or reports received by the affiant, but about which the affiant has no personal knowledge, contain inadmissible hearsay."). The second witness, Scott Forsythe, testified that he was told by others what the document was, and that the document proffered by the Foundation was a different version from what he had seen. (R-536-538.)

A third "history" has no foundation other than the fact that it was in the files of materials prepared by former Foundation officials. (R-280.) The document is clearly hearsay, is not a regular business record and was not contemporaneous with the origin of The Urantia Book. It refers to events in 1979, more than 30 years after the printing plates for The Urantia Book had been completed. (R-696.) Exhibits for which no proper foundation has been laid to authenticate them may not be utilized to defeat a summary judgment. Hamilton v. Keystone Tankship Corp., 539 F.2d 684 (9th Cir. 1976). Federal Rule of Civil Procedure 56(e) mandates that "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein" (A-22).Furthermore, the Foundation cannot rely on its unsworn statements made in responding to Requests for Admission. (E.g., R-242.) Nor can the Foundation rely on its own Answers to Interrogatories (E.g., R-223), because those answers were not based upon personal knowledge. (R-628.) Price v. Rochford, 947 F.2d 829, 832-833 (7th Cir. 1991) (affidavits in opposition to motion for summary judgment must be based upon personal knowledge and not merely upon "information and belief"). Similarly, the cited deposition testimony of the Foundation's own Trustees is inadmissible because these witnesses had no personal knowledge of the events leading to the creation of the Urantia Papers. (R-270, 677, 681, 682.)

(ii) The Contact Commission Was Not the Motivating Factor For the Urantia Papers.

Even if the hearsay evidence relied on by the Foundation were admissible, the only reasonable conclusion that a trier of fact could draw from the record in this case is that the contact commission was not the motivating factor for The Urantia Book. Nothing in the present case establishes that the original manuscripts were created by the patient specifically for the use and benefit of the contact commission.

The Urantia Book itself explains that the book was created at the instance of spiritual beings who are described in the book and were the motivating factor in creating the book. The book, which both parties acknowledge describes its own origin (R-593), does describe the involvement of the patient (R-458, 460-461), but does not even mention the contact commission or the forum groups. (R-584, 689-690.) The book states that it was created at the instance of:

The book further identifies the sponsors of its various parts as spiritual personalities acting pursuant to the authorization of higher beings. (R-422, 426-466.) For example, the book explains that the first 31 papers:

In response to Requests for Admission, the Foundation conceded that the contact commission did not initiate or supervise the creation of the Urantia Papers. The Foundation's own characterization of the questions which purportedly "commissioned" the Urantia Papers was merely that "the subject matter of portions of these [Urantia] Papers was suggested in part by those questions." (R-589.) Indeed, the Foundation has no evidence of the questions that were asked. (R-619.) The Foundation acknowledged that the Urantia Papers arose from a mandate from spiritual sources; that the project was initiated by "planetary celestial supervisors" and that the contact commission was following instructions. E.g., R-581, 614, 678. The Foundation further admitted that the "members of the contact commission were selected by the revelators of the Urantia Papers. . . ." and were following their instructions (R-604, 611, 614); that the contact commission's responsibility came from instructions from the revelators (614, 678); and that the "revelators enlisted and directed the activities of such persons." (R-622.) Moreover, it was the spiritual beings, not the contact commission, who determined what would be included in the book. (R-585.)

These admissions all belie the Foundation's current theory that The Urantia Book was a work initiated and commissioned by unknown questions purportedly submitted by members of the contact commission. The Foundation cannot create a genuine question of fact by contradicting its own prior statements made during discovery. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1410 (9th Cir. 1980); Foster v. Arcata Assocs., 772 F.2d 1453, 1462 (9th Cir. 1985).

Even the hearsay "history" on which the Foundation so heavily relies confirms that the contact commission did not initiate the questioning process. Therefore, the Foundation cannot show that the Urantia Book was created at the instance of the contact commission.

b. The Urantia Papers Were Not Produced at the "Expense" of the Contact Commission.

The circumstances surrounding the creation of the Urantia Papers lack the monetary element which was a key factor in those cases in which a commissioned work was found, i.e., that there was some consideration given to the creator for his time and/or expenses, from which an intent to transfer the copyright can be presumed. E.g., Dumas v. Gommerman, 865 F.2d 1093, 1096 (9th Cir. 1989) (presumption that "anyone who paid an artist to create a copyrightable work was the statutory author under the work for hire doctrine") (emphasis added); Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939) ("If he is solicited by a patron to execute a commission for pay" a presumption of copyright transfer may arise.) (emphasis added). Cf., Neva, Inc. v. Christian Duplications Int'l., Inc., 743 F. Supp. 1533, 1545 (N.D. Fla. 1990) ("A reduced fee for creating a work indicates that the parties intended that the commissioned party was to remain the owner of the copyright to the commissioned work.").

That the book was ultimately printed at the expense of the Foundation is irrelevant. The person commissioning the work must bear the expense of creating the work, not merely the expense of printing and publishing the work after its completion. Everts v. Arkham House Publishers, Inc., supra, 579 F. Supp. at 149 (book of poetry was not a work for hire or a commissioned work, even though publisher had approached author about publishing author's poems, produced and published the poems at publisher's expense, and paid author a royalty).

The circumstances surrounding the origin of the Urantia Papers were simply not of a commercial nature and involved no consideration of any kind; either for services or expenses. (R-565.) The papers arose from a confidential doctor/patient relationship. (R-612.) No intent to transfer copyright can be inferred from such a relationship.

c. The Cases Cited by the Foundation are Distinguishable.

The Foundation misreads Murray v. Gelderman, supra, as holding that evidence of a "working relationship" between a writer and a proprietor makes the resulting book a work for hire. (Br. at 30-31.) In Murray, the idea for writing a book originated with an employer who then sought out a writer to write the book. The employer reimbursed the writer's expenses and was to pay the writer for his efforts (although the exact amount was disputed). The court found that this and other evidence led to the "inescapable conclusion that there was some sort of employment relationship." 566 F.2d at 1310, n.6 None of the factors on which the Murray court based its holding that an employment relationship existed, are present here. The idea for creating The Urantia Book originated with a Revelatory Commission composed of spiritual beings, not the contact commission. (See p. 16, supra.) Nor was any payment or reimbursement made to the spiritual creators of the text, or, for that matter, to Dr. Sadler's human patient. (R-565.)

In Picture Music v. Bourne Inc., 457 F.2d 1213 (2d Cir. 1972), cert. denied, 409 U.S. 997 (1972), the court held that a work was "commissioned" where a motion picture producer had control over an original song, engaged the creator to adapt the song, remained free to accept, reject, or modify the work, and the creator was paid for the work. The present case shares none of these facts.

2. Even If The Urantia Book Had Originally Been Created as a Work for Hire, the Renewal Is Nevertheless Invalid Because the Purported Employer For Hire Did Not Originally Register the Copyright in the Book.

Assuming, arguendo, that the Urantia Book was commissioned by the contact commission, and thus was created as a work made for hire by that group, the Foundation's theory for its renewal right fails for an additional reason. The Copyright Act permits the proprietor of a work made for hire to claim renewal only "[i]n the case of [a] work copyrighted . . . by an employer for whom such work is made for hire." 17 U.S.C. 304(a)(1)(B)(ii) (A-17) (emphasis added). Thus, it is only where the actual employer for hire first obtained the original statutory copyright, that it may be renewed by a subsequent proprietor or assignee. The renewal provisions of the statute make "[n]o provision for the case in which the work was made for hire, but the employer transferred his common law literary property to a third person prior to publication." (Compendium I at 11.8.5, Compendium II at 1317.07 (a) and (c)) (A-32, 39-40).

Here, the purported employer for hire was not the Foundation, which did not even exist at the time, but the five or so individuals known as the "contact commission." Since the initial copyright application was not filed by the purported employer for hire (i.e., the members of the contact commission), but rather in the name of the Foundation (an alleged assignee), The Urantia Book does not qualify for the Copyright Act's limited exception allowing a proprietor to file an application for copyright renewal.

Thus, even accepting the Foundation's claim that the individuals referred to as the contact commission were employers for hire, The Urantia Book could be validly renewed by a subsequent proprietor only if the contact commission had been the party that applied for and obtained the original statutory copyright. Because the original statutory copyright was not secured in the name of the purported employer for hire (namely, the "contact commission"), but rather an alleged successor (the Foundation), the Foundation had no right to claim the renewal copyright term under the copyright statute as a proprietor.

D. THE FOUNDATION HAD NO RIGHT TO CLAIM THE RENEWAL COPYRIGHT THROUGH AN ASSIGNMENT OR OTHER TRANSFER.

1. There is No Evidence That The Foundation Possessed the Original Manuscript For The Urantia Book, Nor Could Such Possession Support the Foundation's Claim to a Renewal Copyright.

The Foundation relies heavily on an unsupported claim that "it possessed the unpublished manuscripts of the Urantia Papers." (Br. at 7.) There is no admissible evidence to support this claim. Quite to the contrary, the record shows that not only the original handwritten manuscript, but also the typewritten copies supposedly made by the contact commission, were all destroyed after printing plates had been made; before the Foundation had even been formed (R-275, 642.). The Foundation's first president testified that the only property the Foundation acquired upon its formation were printing plates. (R-558.) This is confirmed by the Foundation's own charter which refers to a manuscript and printing plates and states that only the plates were turned over to the Foundation. (R-287-288.) Thus, at most, the Foundation had possession only of printing plates which had been prepared from a typewritten manuscript that was itself prepared from the original manuscript. This is not evidence of copyright ownership. The delivery of the physical property in itself does not give rise to an inference that the ownership of the intangible intellectual property contained in the document was transferred as well. Chamberlain v. Feldman, 300 N.Y. 135, 138 (1949) ("It is impossible to spell out from the known conduct of the author that there was a voluntary transfer of the manuscript to anyone which carried with it the privilege of publication.") (emphasis added). See also, 17 U.S.C. 27 (1976) ("The copyright is distinct from the property in the material object copyrighted, and the sale or conveyance . . . of the material object shall not of itself constitute a transfer of the copyright. . . .") (A-11); 17 U.S.C. 202 (A-15-a).

The cases cited by the Foundation in which an implied transfer was found each involved additional evidence besides mere possession. The district court correctly distinguished these cases from the present case on that basis. (R-370.)

Most importantly, even if an implied transfer of copyright were found in this case, as a matter of law, such a transfer could not establish a renewal right on the part of the Foundation. The renewal right is a statutory right that must be assigned in writing, assigned expressly, and the assignor must survive until the renewal term. See 28 of the Copyright Act of 1909, 204 of the 1976 Copyright Act, (A-11, 16) and pp. 23-24, infra.

The Foundation cannot show that it received any express assignment of renewal rights in The Urantia Book. Nor has the Foundation shown that any such written instrument of transfer exists. Thus, the Foundation cannot show ownership of the statutory renewal copyright.

The Foundation's assertion that its possession and publication of the work were "unchallenged" is irrelevant. Especially in this case, no inference can be drawn because the only possible authors, namely the spiritual beings or the unknown patient of Dr. Sadler (who has been dead for at least 20 years), would not be likely to object. (R-639.) Even when there is evidence of a potential author who stands idly by and does not object to another person's claim of copyright, the court cannot infer a work for hire relationship. See Epoch Producing Corp. supra 522 F.2d at 744 (fact that film producer's work-made-for-hire claim was uncontested by director or his heirs, is "clearly insufficient" to support inference of proprietorship.). Nor does the Foundation's rationale apply to works, such as The Urantia Book, which are widely believed to be in the public domain.

2. The Patient's Death Invalidates Any Transfer of Renewal Rights From Him.

The parties agree that whatever direct human involvement there was in the actual "writing" of the text was by the anonymous patient of Dr. Sadler. If, contrary to the beliefs of the parties, the Court deemed the involvement of spiritual beings to be merely the patient's inspiration, he would be deemed the author of The Urantia Book, and the book might be considered copyrightable. Under such a holding, the common law copyright would have initially vested in this patient as the author and, therefore, only that anonymous person (if living) or his statutory successors (under 304 of the 1976 Copyright Act) could properly claim the renewal copyright.

Even were there evidence to support a claim that the patient expressly transferred his renewal rights during the original term of copyright, this claim would fail as a matter of law because even a valid transfer from the author is merely an "expectancy" which does not survive unless the author is alive at the time the renewal term begins. Miller Music Corp. v. Daniels, Inc., 362 U.S. 373, 376 (1960); Stewart v. Abend, 495 U.S. 207 (1990). The patient died sometime before 1975, many years before the renewal term. (R-639.) Therefore, the copyright renewal could never have vested in him, and any claim to the renewal copyright term by reason of a purported assignment from him is invalid as a matter of law. Marascalo v. Fantasy, Inc., 953 F.2d 469 (9th Cir. 1991).

Consequently, even if it were demonstrably the patient's wish that the Foundation take the renewal copyright of the work, only his statutory heirs (widow, children, executor, next of kin) would be legally entitled to claim the renewal. Saroyan v. William Saroyan Found., 675 F. Supp. 843 (S.D.N.Y. 1987), aff'd, 862 F.2d 304 (2d Cir. 1988). Because no eligible heirs applied for the renewal of the copyright, the work lapsed into the public domain upon expiration of the original copyright term. Epoch Producing Corp. v. Killiam Shows, Inc., supra.

E. THE FOUNDATION IS NOT ENTITLED TO ANY STATUTORY PRESUMPTION.

The Foundation quotes at length from the legislative history to the Copyright Act of 1976 as support for its argument that a copyright claimant need do no more than wave a copyright certificate at the court to defeat a motion for summary judgment, even in the face of evidence contrary to its copyright claim. However, the cited legislative history indicates that the presumption affords a plaintiff only minimal protection because the rebuttable presumption "merely orders the burden of proof." H.R. Rep. 1476, 94th Cong., 2d Sess. 156-157 (1976), reprinted in, 1976 U.S.C.C.A.N. 5659, 5772-5773 (A-24, 26-27). The purpose of the presumption is merely to save the plaintiff the effort of proving the validity and ownership of the asserted copyright in the absence of evidence to the contrary. Gaste v. Kaiserman, 863 F.2d 1061, 1065 (2d Cir. 1988).

"[A] certificate of registration creates no irrebuttable presumption of copyright validity. Where other evidence in the record casts doubt on the question, validity will not be assumed." Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 908 (2d Cir. 1980). See also Van Cleef & Arpels, Inc. v. Schechter, 308 F. Supp. 674, 676 (S.D.N.Y. 1969) ("upon proof by the defendant of facts contrary to those stated in the Certificate of Registration, the burden of overcoming this evidence shifts to the plaintiff"). The Foundation cannot meet this burden.

The Foundation asserts that its copyright registration certificate is, in itself, sufficient evidence to preclude summary judgment, relying on National Presto Indus. Inc. v. West Bend Co., 28 U.S.P.Q.2d 1049 (W.D. Wis. 1993), a case involving patents. However, it is well established that "[t]he presumptive validity of the [copyright] certificate may be rebutted and defeated on summary judgment." S.O.S. Inc. v. Payday, Inc., supra; 886 F.2d at 1086. See also Seiler v. Lucasfilm, Ltd., supra; Brown Bag Software v. Symantec Corp., supra; Norma Ribbon & Trimming, Inc. v. Little, supra; Sassafras Enter., Inc. v. Roshco, Inc., supra.

Here, the presumption of validity has been rebutted by the undisputed evidence showing that the Foundation was neither the author of the Urantia Book nor its copyright proprietor, as it claimed in its original and renewal copyright applications. See BancTraining Video Systems v. First American Corp., 21 U.S.P.Q.2d 2014, 2017 (6th Cir. 1992) (statutory presumption was rebutted by showing that plaintiff was neither a joint author nor the employer in a work made for hire arrangement.). Accord, Van Cleef & Arpels, supra, 309 F. Supp. at 676.

Because Maaherra has rebutted any presumption of validity and ownership that the Foundation's copyright certificates may have had, the Foundation had the burden of producing sufficient admissible evidence to permit a trier of fact to find that the Foundation owned a valid copyright.

F. THE RENEWAL CERTIFICATE WAS IMPROPERLY OBTAINED AND IS INVALID BECAUSE THE FOUNDATION IS NOT AN AUTHOR OF THE URANTIA BOOK.

The Foundation's arguments about "composite works" and "works made for hire" are its attempt to claim that it is a proprietor of copyright, but they do nothing to establish the essential element of authorship from which all claims of copyright and copyright renewal must derive. Indeed, the Foundation's efforts to de-emphasize the importance of correct authorship is an attempt to camouflage the absence of a viable basis for its alleged renewal copyright. Under none of the Foundation's theories, would the Foundation be an author of The Urantia Book, as it claimed to be in both the original and renewal copyright applications. (R-14, 16.) Under the Foundation's current theory that The Urantia Book is a commissioned work, the members of the contact commission would be the statutory authors and the Foundation would be their successor, (although all admissible evidence is to the contrary). Under the Foundation's alternate theory that the book is a composite work, the members of the contact commission also would be the statutory authors. In either case, the Foundation could not properly have represented itself to the Copyright Office as "author" of The Urantia Book.

Before the district court, the Foundation tried to downplay this problem by noting that the Copyright Act permits the registration of anonymous works. However, The Urantia Book was not registered as an anonymous work. Nor does this justify a misstatement as to authorship. Even for anonymous works, some information about the authors is required so that the Copyright Office can determine whether the author is eligible for copyright protection. E.g., 17 U.S.C. 9 (1976) (A-8) and 17 U.S.C. 409(3) (A-20) (requiring the nationality or domicile of authors). (R-500A-C.) Further, when an anonymous author attempts to renew a copyright, the Copyright Office requires the name of the author or his statutory successor. Id.

Although a mistake as to authorship on an application for copyright registration may not always immediately and irrevocably invalidate a copyright, such errors must be corrected during the initial 28 year term of copyright in order for a valid renewal copyright to be claimed because the author claimed on the renewal application must match that on the original certificate. Compendium II 1504.06(a); (A-41) (R-490-493). Therefore, the renewal based on the Foundation's statement that it was the author is invalid as a matter of law. The Foundation had ample opportunity, from 1955 until 1983, to correct its mis-attribution of authorship, but never did so. Because neither the original nor renewal copyright registrations were timely corrected, the mis-attribution of authorship cannot now be changed and, consequently, no renewal copyright in The Urantia Book can be valid. 2 Nimmer 9.05[D][1] at p.9-85; Tobani v. Carl Fischer, Inc., 98 F.2d 57 (2d Cir. 1938).

G. THE TEXT OF THE URANTIA BOOK IS NOT COPYRIGHTABLE.

The Foundation argues that merely because the Urantia Book is in literary form, it is, therefore, protectible by copyright. However, there can be no valid copyright in The Urantia Book because the book is not a "work of authorship" within the meaning of the Copyright Act, since it lacks the requisite ingredient of human creativity. 17 U.S.C. 102(a) (A-15). The Urantia Book would be copyrightable if the human patient who physically created it were deemed to be its author, but the Foundation has rejected this source of authorship. (Br. at 2-3.) Because the Foundation has not shown that the text of The Urantia Book has any other valid basis of authorship, the summary judgment that the copyright is invalid should be affirmed on the additional ground that the text lacks copyrightable authorship.

The Foundation proffered, and the district court adopted, a fundamentally flawed rationale that overlooks the purpose of 102 of the Copyright Actthe protection of original works of authorship. Reasoning that because a work is a "literary work" it is necessarily entitled to copyright protection ignores the fact that not every work that meets the definition of "literary work" contains copyrightable subject matter or was the product of creative authorship as required by the Copyright Act.

The district court properly held that there is uncontroverted evidence that The Urantia Book is a "literary work." However, the court erred by going further to conclude that because it is a literary work, it follows that the book is a copyrightable work of authorship. (R-337.)

Although most literary works are protectible; not every literary work is eligible for copyright protection. Only those literary works that have legally recognizable original authorship may be protected. Since the Foundation cannot show any such authorship in The Urantia Book, it does not qualify for copyright protection.

Section 102, which is the cornerstone provision of the 1976 Copyright Act, provides that "Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression. . . ." 17 U.S.C. 102(a) (A-15). This language establishes the statutory prerequisites for copyright protection that literary works, as well as any other form of copyrightable work, must satisfy in order to qualify for copyright protection.

The requirement expressed in 102that in order for a work to be protected by copyright, it must be an original work of authorshipis a principle that is fundamental to the notion of copyright and is a constitutional requirement. Feist Publications, Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340 (1991); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (the nature of copyright is "the exclusive right of a man to the production of his own genius or intellect"); The Trademark Cases, 100 U.S. 82, 94 (1879) ("The writings which are to be protected are the fruits of intellectual labor. . . .") (emphasis in original). See also Goldstein v. California, 412 U.S. 546 (1973); L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2nd Cir.) (en banc), cert. denied, 429 U.S. 490 (1976).

The creativity and authorship that the Constitution of the United States and the Copyright Act both require are "distinctly human activities" and cannot be fulfilled by non-human entities, such as by animals, natural phenomena, machines or spiritual beings. 1 Nimmer, 2.09[F], n. 63. Where the creator of a work is either inanimate (e.g., sound of thunder), or non-human (e.g., the melodies of birds or the roar of lions), there is no copyrightable authorship. 1 Nimmer, at 2.10[A][2].

The law is clear that not all literary works qualify for copyright protection. The telephone directory in Feist Publications, supra, met the statutory definition of "literary work" because it was composed of words and numbers. Yet, the directory was found to be outside the scope of copyright protection because it did not contain the legally required degree of authorship. See also Baker v. Selden, 101 U.S. 99 (1880) (printed forms); Financial Info., Inc. v. Moody's, 808 F.2d 204 (2d Cir. 1986), cert. denied. 484 U.S. 820 (1987) (individual daily bond cards); Sassafras Enter., Inc. v. Roshco, Inc., supra (booklet with product information and recipes). The fact that the Foundation expended effort to print the text of The Urantia Book does not establish the degree of creativity necessary to satisfy the element of copyrightable authorship. It is axiomatic that a work of authorship requires the existence of a legally recognizable "author." Here, there is no known person who engaged in any such act of authorship.

It is not any skill, training, knowledge and judgment that will support a copyright, but only those qualities when exercised as acts of authorship. It is only "authors" who may qualify for copyright. Suppose a scholar were to painstakingly explore the stacks of the British Museum for a number of years, and finally after much effort find that which he was seeking, i.e., a forgotten Shakespeare manuscript. The scholar may well have exercised much skill, training, knowledge and judgment, but should this entitle him to a copyright in the manuscript? Clearly not, since he did not engage in any act of authorship.

1 Nimmer 2.01[A]. The mechanism by which the Copyright Act prevents an appropriation of works where the copyright claimant did not engage in acts of authorship is the limitation of copyright protection by 102 to "original works of authorship" (A-15) (emphasis added). Both parties agree that the "personalities who provided the text of . . . The URANTIA Book are those [spiritual] personalities identified as sources in The URANTIA Book itself," all of whom are non-human. (R-594.) The text of The Urantia Book is a religious revelation indited by divine and spiritual beings, not a creative work of authorship recognized by the Copyright Law. Consequently, although The Urantia Book is a literary work, it is not a copyrightable literary work.

The U.S. Copyright Office has consistently rejected claims of 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. . . ." (R-486.) As Mr. Dietz testified, in order to receive a copyright, "The work, the actual act of authorship had to stem from human authorship." (R-485.) Had the Foundation identified to the Copyright Office the spiritual originators as authors of the text, the Copyright Office would never have issued it a registration certificate. (R-485-486.) Because the Foundation contends as copyright claimant that no human authors created the text of The Urantia Book, the text cannot be protected by copyright.

A distinction must be drawn between a case in which a book is inspired by spiritual belief and the instant case, where no human originated the text but acted only as a scribe. (R-514.) Accordingly, the Copyright Office accepts copyright applications for works that the authors claim were inspired by higher powers, but rejects applications for works claimed to have been authored by any non-human entity. (R-514-516, 485.)

The district court was concerned, and properly so, about the prospect of a judicial declaration amounting to an authentication of The Urantia Book as a religious revelation dictated by spiritual beings. However, no such declaration was sought by either party in this case. Neither party contends that any human being wrote any portion of the text of The Urantia Book (Br. at 3; R-594, 669.) As a consequence of this undisputed fact, the Foundation cannot prove crucial elements of its case that the Urantia Book contains the element of human authorship which is a prerequisite of copyright protection and that such authorship was provided by the Foundation or any predecessor in interest. Since, the Foundation cannot show the authorship required by 102 of the Copyright Act, as a matter of law there can be no valid copyright in The Urantia Book.

The Foundation's arguments that The Urantia Book is a "composite work," a "work for hire" or was "commissioned," do not provide a basis for finding authorship in the text, or relieve the Foundation of its burden of proof on the issue of authorship. These arguments are merely an attempt to create a basis for claiming ownership of copyright. The revelations of spiritual beings are no more copyrightable by an employer or commissioning agent than by the spiritual beings themselves, who are legally incapable of acquiring copyright, providing copyrightable authorship, or conveying copyright to either the patient, Dr. Sadler, the "contact commission" or anyone else. Consequently, if the Foundation were to commission an uncopyrightable work (such as the telephone book in Feist), that would no more make the work copyrightable than if the Foundation had created it itself.

In a case sharing several similarities to the origin of The Urantia Book, the purported claimant's copyright was soundly rejected as a matter of law. Oliver v. Saint Germain Foundation, 41 F. Supp. 296 (S.D. Cal. 1941). The Oliver case also involved a book which was alleged to have been a "revelation" dictated to an individual by a spiritual being. Id. at 298. As the Foundation does here, the plaintiff claimed copyright in the text as a proprietor, not as author.

In dicta, the court expressed doubts as to whether there had been copying by the defendant, but based its decision on the ground that there could be no copyright in such a work, noting:

Oliver, 41 F. Supp. at 299. As a result the court granted the motion to dismiss the copyright infringement action on the ground of invalidity of copyright.

Similarly, in the present case the copyright claimant is seeking copyright protection for text that it claims was authored solely by spiritual beings. No valid copyright can result from such a claim, and the district court's judgment of copyright invalidity should be affirmed on this basis.

VI. CONCLUSION

The Foundation has not presented any admissible evidence upon which this Court could find that a genuine issue of material fact exists requiring a trial. The renewal copyright is invalid for many reasons: the absence of admissible evidence that the Urantia Book was a work for hire or a composite work, and that the Foundation was the proprietor of such a work; the improper registration of the copyright based on the false statement that the Foundation was the author of the book; the absence of any renewal application filed by the actual creator; the failure of the purported employer for hire to copyright the work; the absence of any express written assignment of the renewal copyright in the book; or the uncopyrightability of a work for which no human author is claimed. Regardless of which of the Foundation's theories is considered, Maaherra is entitled to summary judgment as a matter of law, and the judgment of the district court should be affirmed.

Respectfully Submitted,

Joseph D. Lewis

CLEARY & KOMEN

Attorney for Defendant-Appellee Of Counsel: Kristen Maaherra

Robert C. Lind SOUTHWESTERN UNIVERSITY SCHOOL OF LAW

STATEMENT OF RELATED CASES

Appellee, Kristen Maaherra, knows of no cases pending in this Court which are related to this case.

Last Updated April 13, 1997 by Kristen Maaherra