Public Documents of the Burton Case
Filed June 6, 1975
IN THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
MICHIGAN
SOUTHERN DIVISION
THE URANTIA FOUNDATION, an Illinois foundation,
Plaintiff,
vs.
ROBERT BURTON,
Defendant.
Civil Action No.
K75-255 Ca 4
Copyright
Infringement and Unfair Competition
C O M P L A I N T
Now comes THE
URANTIA FOUNDATION, Plaintiff herein, and for its Complaint against
Defendant ROBERT
BURTON, states:
1. The URANTIA
Foundation, Plaintiff herein, is, and was at all times material hereto, an
educational
foundation, created by Declaration of Trust, and is a resident of the State of
Illinois,
having its office and
principle place of business at 533 Diversey Parkway, Chicago, Illinois.
2. Plaintiff is
informed and believes, and on information and belief alleges, that Defendant,
Robert
Burton,
is an individual and a resident of the State of Michigan, County
of St. Joseph, residing at R3
Coon Hollow Road,
Three Rivers, Michigan.
3. (a) This is an
action for infringement of Plaintiff's copyright in "THE URANTIA
BOOK" and
arises under the
Copyright Laws of the United States, Title 17 U.S.C. §101.
(b) The jurisdiction of this Court for copyright infringement is based upon Title 28 U.S.C. §1338.
4.(a) This is, also, an action for unfair competition.
(b) The
jurisdiction of this Court for unfair competition is based upon the fact that
this is an action
for unfair
competition which is joined with substantial and related claims for copyright
infringement
under the Copyright
Laws of the United States as provided for in §1338 (b), Title 28 U.S.C.
5. Plaintiff is
engaged in furnishing to the general public, educational goods and services,
including,
without limitation, a
full length, original book entitled "THE URANTIA BOOK," created and
written prior to
December 1955, and which comprises 196 separate numbered papers or chapters,
each bearing a
different title.
6. "THE
URANTIA BOOK" contains original writings, and as such, is copyrightable
subject matter
under the Copyright
Act and all other laws of the United States governing copyright.
7. In 1955,
Plaintiff published "THE URANTIA BOOK" with proper notice of
copyright, therein,
deposited copies in
the Copyright Office; and applied to register its claim to copyright, all in
accordance with the
requirements of the Copyright Act, and thereafter on January 3, 1956, Plaintiff
secured the exclusive
rights and privileges in and to the copyright in "THE URANTIA BOOK,"
and
has received from the
Register of Copyrights a Certificate of Registration, dated and identified as
follows: "Jan -3
1956, Class A, No. A 216389." A copy of "THE URANTIA BOOK" is
attached
hereto and marked for
identification as Plaintiff's Exhibit 1, and a Certified Copy of the aforesaid
Certificate of
Registration is attached hereto and marked for identification as Plaintiff's
Exhibit 2.
8. From and after
the date on which it acquired the exclusive rights and privileges in and to the
copyright of
"THE URANTIA BOOK" up to and including January 3, 1956, Plaintiff
complied in
all respects with the
Copyright Act and all other laws governing copyrights. Since January 3, 1956,
"THE URANTIA
BOOK" has been published by Plaintiff and all copies of it made by
Plaintiff, or
under its authority
or license, have been printed, bound and published in strict conformity with
the
Copyright Act and all
other laws governing copyrights.
9. Since January 3, 1956, Plaintiff has been, and still is, the sole proprietor of all
right, title and
interest in, and to
the copyright in "THE URANTIA BOOK."
10. Plaintiff is
informed and believes, and on information and belief alleges, that Defendant,
Robert
Burton, has been in
the past, and is now, without any authority from Plaintiff, instrumental in
having
"THE URANTIA
BOOK," or parts thereof, translated into Spanish, and has in the past
published
and distributed
booklets containing extensive quotations from "THE URANTIA BOOK," also,
without authority
from Plaintiff, all of which constituted, and does now constitute,
infringements of
Plaintiff's copyright
in "THE URANTIA BOOK," and Defendant was notified of such
infringements
at the time the
aforesaid acts occurred.
11. During the
vast several years, in addition to the aforesaid acts of infringement,
Defendant has,
also, from time to
time, attempted to create dissention, suspicion and distrust among the
membership of URANTIA
Brotherhood, the body responsible for the dissemination of the
teachings of
"THE URANTIA BOOK," by making unjustified accusations against
Plaintiff and its
Trustees concerning
alleged improper activities.
12. In furtherance
of, and consistent with Defendant's pattern of harassment against Plaintiff, as
aforesaid, Defendant
recently and within the past three months, copied, reproduced and distributed,
line-for-line and
word-for- word, without authority from Plaintiff, the complete "PAPER
72" from
"THE URANTIA
BOOK" entitled "GOVERNMENT ON A NEIGHBORING PLANET." one of
said reproductions of
"PAPER 72" as copied from "THE URANTIA BOOK" is attached
hereto
and marked for
identification as Plaintiff's Exhibit 3.
13. Defendant's
publication and distribution of said "PAPER 72" constitutes an
infringement of
Plaintiff's copyright
in "THE URANTIA BOOK."
14. By letter
dated January 26, 1975, Defendant requested Plaintiff to give him permission to
print
copies of the
aforesaid "PAPER 72." A copy of said letter is attached hereto and
marked for
identification as
Plaintiff's Exhibit 4.
15. By letter of
March 25, 1975, Plaintiff denied Defendant's request to print and publish
copies of
the aforesaid
"PAPER 72" of "THE URANTIA BOOK," but in the meantime, and
without having
received permission
from Plaintiff, Plaintiff is informed and believes, and on information and
belief
alleges that
Defendant proceeded to have printed and distributed, line-for-line and
word-for-word,
copies of said
"PAPER 72" on or about March 28, 1975, and continues to distribute
such copies
from time to time
without authorization from Plaintiff. A copy of said letter of March 25, 1975, is
attached hereto and
marked for identification as Plaintiff's Exhibit 5.
16. According to a
letter from Defendant to Plaintiff, dated March 31, 1975, in reply to
Plaintiff's
letter of March 25, 1975, Defendant knew that Plaintiff would not grant him permission to
reproduce and
distribute said "PAPER 72." A copy of said letter of March 31, 1975, from
Defendant to
Plaintiff is attached hereto and marked for identification as Plaintiff's
Exhibit 6.
17. By reason of
the foregoing Defendant's infringement was deliberate, willful and wanton, in
that
Defendant well knew
that Plaintiff's book was copyrighted, that Plaintiff was the proprietor of
such
copyright, and that
Defendant had no authority or license to publish said book or any part thereof.
18. Plaintiff has
notified Defendant that he has infringed Plaintiff's exclusive copyright in
"THE
URANTIA BOOK,"
and despite said notice Defendant has continued to commit such acts of
infringement.
19. Defendant has
been and now is publishing and distributing copies of said "PAPER
72," without
any notice of
copyright thereon, and thereby, has been engaging in unfair trade practices and
unfair
competition against
Plaintiff, to Plaintiff's irreparable damage.
20. Defendant will
continue to follow his aforesaid pattern of harassing tactics against
Plaintiff, and
to infringe
Plaintiff's copyrights, unless enjoined by this Court, and as the direct and
proximate result
of Defendant's unfair
competition, Plaintiff has sustained damages in a sum not yet determined.
Plaintiff will ask
for leave of this Court to amend this Complaint to assert herein the true
amount of
said damages when the
same have been fully and finally ascertained.
WHEREFORE PLAINTIFF PRAYS:
(1) That
Defendant, his agents, servants, employees, successors and assigns, and all
persons in
privity or acting in
concert with him be temporarily enjoined, during the pendency of this action
and
thereafter
permanently enjoined from infringing in any manner, Plaintiff's copyright in
and to "THE
URANTIA BOOK"
and from publishing, selling, marketing or otherwise disposing of any copies of
any portions of
"THE URANTIA BOOK";
(2) That Defendant
be required to pay to Plaintiff such damages as Plaintiff has sustained as a
consequence of
Defendant's infringement of said copyright, and said unfair trade practices,
and
unfair competition as
herein alleged, and to account for:
(a)all gains,
profits and advantages derived by Defendant by said trade practices and unfair
competition, and (b)
all gains, profits and advantages derived by Defendant by his infringement of
Plaintiff's
copyright, or such damages as to the Court shall appear proper within the
provisions of
the Copyright Act and
all other laws governing copyrights but not less than $250.00 for each such
infringement; and
that the Court take cognizance of the willful and wanton nature of Defendant's
acts of infringement
in its assessment therefor.
(3) That the
Defendant, his agents, servants, employees, and all persons in privity or
acting in
concert with him be
required to deliver up to be impounded during the pendency of this action. all
copies of any books,
publications, pamphlets, brochures, tracts, literature and translations
containing any
portions of "THE URANTIA BOOK," and particularly those more fully
described
herein, which are in
his or their possession or under his or their control, and to deliver up for
destruction all
infringing copies and all plates, molds and other matter for making such infringing
copies;
(4) That Defendant pay to Plaintiff reasonable attorneys fees to be allowed to Plaintiff by this Court;
(5) For punitive
damages in an amount which, to the Court may seem just and reasonable in
accordance with the
evidence.
(6) For costs of this action; and
(7) For such other
relief as may seem fitting and proper to the Court and as the equities of this
case
may require.
URANTIA FOUNDATION by Thomas A Kendall
PETER ARMSTRONG
VARNUM, RIDDERING, W
ERENGO & CHRISTENSON
666 Old Kent Building
Grand Rapids,
Michigan 49502
Tel.: 616-459-4186
Attorneys for
Plaintiff
Lloyd C. Root
JOHNSON, DIENNER,
EIRICH & WAGNER
150 North
Wacker Drive
Chicago,
Illinois 60606
Te.: 312-368-8575
Of Counsel for
Plaintiff
Filed June 30, 1975
THE UNITED STATES
DISTRICT COURT
FOR THE WESTERN
DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE URANTIA
FOUNDATION,
No. K75-255 CA 4
Plaintiff,
AFFIDAVIT IN
SUPPORT OF V.
APPLICATION FOR
ROBERT BURTON, PRELIMINARY INJUNCTION
Defendant.
STATE OF ILLINOIS COUNTY OF COOK
Katherine F. Michaels, being duly sworn, deposes and says that:
1. She is a
secretary-receptionist employed by the URANTIA FOUNDATION, Plaintiff herein at
533 Diversey
Parkway, Chicago, Illinois, and makes this
affidavit in support of Plaintiff's application
for preliminary
injunctive relief.
2. As a part of
her duties in such employment she receives and opens mail addressed to
Plaintiff
and customarily
stamps the date on such mail on the date it is received.
3. By letter of
May 12, 1975, a true copy of which is attached hereto and marked for
identification
as Plaintiff's
Exhibit 7, and which bears the Plaintiff's stamp indicating that it was
received by
Plaintiff on May 15,
1975, Defendant requested permission from Plaintiff to print an excerpt
entitled
"THE URMIA
LECTURES" from Plaintiff's copyrighted book "THE URANTIA BOOK,"
Exhibit
1.
4. On May 19, 1975, Thomas A. Kendall, President of the URANTIA FOUNDATION, Plaintiff
herein, gave her a
letter which he had written in longhand and which she thereafter typed and
addressed to Defendant
in which the requested permission was denied on the ground that his
proposed publication
would constitute a serious infringement of Plaintiff's copyright. She
personally
mailed said letter on
May 19, 1975, to the Defendant via registered mail. A true copy
of said letter
of May 19, 1975, is attached hereto and marked for identification as Plaintiff's
Exhibit 8. A copy of
the registered mail
return receipt showing delivery of Exhibit 8 to Defendant is attached hereto
and
marked for
identification as Plaintiff's Exhibit 8a.
5. Despite said
denial of permission, Defendant proceeded to print and distribute the aforesaid
excerpt entitled
"THE URMIA LECTURES" in the form attached hereto and marked for
identification as
Plaintiff's Exhibit 9.
6. Exhibit 9 was
received by Plaintiff in the envelope attached hereto and marked for
identification
as Plaintiff's
Exhibit 10. She personally placed on Exhibit 10 the date stamp indicating that
it was
received on June 11, 1975, and that said stamp was placed thereon on June 11, 1975.
Further deponent
sayeth not.
Signed Katherine
Michaels
Filed June 30, 1975
IN THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN
DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE URANTIA
FOUNDATION,
an Illinois
foundation,
Plaintiff,
V. Civil Action No.
ROBERT BURTON, K 75-255-CA4
Defendant.
AFFIDAVIT NO. 1
STATE OF MICHIGAN
COUNTY
OF ST. JOSEPH
Robert Burton, being first duly sworn, deposes and says that:
He resides at Cold Springs Farm, Coon Hollow Road, Three Rivers, Michigan;
He was personally
acquainted with Dr. William S. Sadler, Sr. during the period 1926 until Dr.
Sadler's death; He
has been personally acquainted with Emma L. Christensen since 1926;
He was personally
present with others in 1926 when the first paper, now forming pages 21-32 of
the book entitled
"THE URANTIA BOOK," was read from a typewritten manuscript by the
late
Dr. William S. Sadler,
Sr. at Dr. Sadler's home in Chicago, Illinois;
He was personally
present at the reading of most of the other 195 papers which constitute
"THE
URANTIA BOOK" as
such readings occurred during the years 1926 to 1935;
He was told by said late Dr. Sadler that the origin of that first paper was as follows:
A. That a certain
patient of Dr. Sadler wrote the paper as a handwritten manuscript but had no
memory of having done
so.
B. That while said
patient was conscious he identified the handwriting in which the paper was
written as his
personal handwriting.
C. That, one Emma
L. Christensen transcribed the handwritten material into the typed manuscript
which was read by Dr.
Sadler in the presence of others and affiant in 1926.
He was further
told by Dr. Sadler that the origin of the manuscript of each of the other
papers,
numbered 2 through
196, inclusive, and which are reproduced in "THE URANTIA BOOK" was
identical to that of
Paper No. 1;
When affiant
inquired of Emma L. Christensen whether she edited the text of the manuscript,
she
informed affiant that
she did nothing other than to type what had appeared in handwritten form on
the original paper,
making no changes of any type whatsoever;
He has never
personally seen any of the handwritten manuscripts and he does not know the
identity
of the person in
whose handwriting the late Dr. Sadler represented to affiant the original
documents
were written;
The identity of
the person whose handwritten manuscripts constitute the text of "THE
URANTIA
BOOK" does not
appear in "THE URANTIA BOOK";
Affiant has been
informed that the last of the 196 papers, together with the Foreword, which
collectively
constitute "THE URANTIA BOOK" was transcribed from the handwritten
original into
a typewritten
manuscript by the end of 1935;
According to the
"DECLARATION OF TRUST CREATING URANTIA FOUNDATION" the
Plaintiff, Urantia
Foundation came into existence January 11, 1950;
The
"DECLARATION OF TRUST CREATING URANTIA FOUNDATION" a copy of which
is attached to
Affidavit No. 3, does not make any mention of any copyright rights being
transferred
to the Urantia
Foundation;
On information and
belief, no assignment or conveyance of any copyright rights in the manuscripts
or their contents was
received by the Urantia Foundation from the author thereof or from any
person;
Affiant was
informed by Dr. Sadler that no one including Dr. Sadler himself ever edited or,
in any
way, changed any of
the manuscripts either in their handwritten or typed form;
Affiant believes
that no one who is now or ever has been a member, officer or employee of the
"URANTIA
FOUNDATION" wrote, edited or, in any manner, added to or subtracted from
the
contents of the text
of any of the 196 papers or the Foreword constituting the text of "THE
URANTIA BOOK."
Robert Burton Subscribed and sworn to before me this 26 day of June, 1 9 7 5 .
Nancy Wagner Notary Public My Commission Expires: Feb. 9, 1976
NANCY WAGNER (S E
A L)
Filed June 30, 1975
IN THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN
DISTRICT OF MICHIGAN
SOUTHERN DIVISION
6/30/75
Memorandum of
Authorities
THE URANTIA
FOUNDATION,
an Illinois
foundation,
Plaintiff, Civil
Action No. K75-255 Ca 4
VS.
Judge Wendell A.
Miles
ROBERT BURTON,
Defendant.
MEMORANDUM OF
AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR
PRELIMINARY
INJUNCTION
The Plaintiff
herein URANTIA FOUNDATION, is the proprietor of the copyright in the book
entitled "THE
URANTIA BOOK" and the Defendant herein, Robert Burton, has reprinted and
copied, or has caused
to be reprinted and copied, and distributed excerpts from said book. This is
an action for
infringement of Plaintiff's copyright in said book.
The verified
Complaint filed herein on June 6, 1975, together with the Exhibits accompanying
the
Complaint, form the
basis for this Motion for Preliminary Injunction.
Exhibit 1
submitted with the Complaint is a copy of Plaintiff's copyrighted book. Exhibit
2 is a
certified copy of the
Certificate of Registration as evidence of the Plaintiff's claim to copyright
and
the registration
thereof in the Copyright Office.
The copyrighted
book contains 196 "papers" or "chapters," each of which is
numbered in the book
from "PAPER
1" through "PAPER 196." Exhibit 3 submitted with the Complaint
is a direct copy of
"PAPER 72"
from the Plaintiff's copyrighted book as copied, published and distributed by
Defendant.
Exhibits 4, 5 and
6 submitted with the Complaint comprise correspondence between Plaintiff and
Defendant, and
clearly establish that Defendant not only knew that the book of Exhibit 1 was
copyrighted but also
knew that Plaintiff was the proprietor of such copyright, because Defendant
requested permission
to copy and distribute such copies of said "PAPER 72." Distribution
of the
infringing excerpt
from the book was carried out by Defendant after permission to publish and
distribute said
"PAPER 72" had been denied.
The Copyright Act
is contained in Title 17 of the United States Code. Section I of that Act
defines
the rights which a
copyright proprietor has in his copyrighted work, and specifies that such
proprietor has the
exclusive right to print, reprint, publish, copy and vend the copyrighted work.
Such proprietor,
also, has the exclusive right to translate the copyrighted work into other
languages.
The pertinent portion
of 51 of the Copyright Act is quoted herein as follows:
"Sec. 1. Exclusive Rights as to Copyrighted Works
Any person
entitled thereto, upon complying with the provisions of this title, shall have
the exclusive
right:
(a)To print, reprint, publish, copy, and vend the copyrighted work;
(b) To translate
the copyrighted work into other languages or dialects, or make any other
version
thereof, if it be a
literary work;...."
The Court need
only compare Exhibit 2 with "PAPER 72" in Exhibit I to determine that
it is a
word-for-word and
line-for-line copy, and since the publication and distribution of such copy was
not authorized by the
copyright proprietor it is clearly an infringement.
It is not
necessary in order to constitute an infringement of a copyrighted work that the
entire work
be copied. It is
sufficient if any part thereof be copied. Section 3 of the Copyright Act is
quoted
herein as follows:
"Sec. 3. Protection of Component Parts of Work Copyrighted; Composite Works or Periodicals
The copyright
provided by this title shall protect all the copyrightable component Parts of
the work
copyrighted, and all
matter therein in which copyright is already subsisting, but without extending
the
duration or scope of
such copyright. The copyright upon composite works or periodicals shall give
to the proprietor
thereof all the rights in respect thereto which he would have if each part were
individually
copyrighted under this title."
This statutory
provision is ample basis for a holding that the copying of one of the Papers of
the
copyrighted book is
an infringement of the copyrighted work.
Section 209 of the
Copyright Act provides that the Certificate of Registration "shall be
admitted in
any Court as prima
facie evidence of the facts stated therein." Since the certified copy of
the
Certificate of
Registration names the Plaintiff herein as the copyright claimant and bears the
title of
the book and the
Registration Number it constitutes prima facie evidence of these facts in this
Court.
Section 112 of the
Copyright Act provides for injunctive relief and said §112 is quoted herein as
follows:
"Sec. 112. Injunctions; Service and Enforcement
Any court
mentioned in section 1338 of Title 28 or judge thereof shall have power, upon
complaint
filed by any party
aggrieved, to grant injunctions to prevent and restrain the violation of any
right
secured by this
title, according to the course and principles of courts of equity, on such
terms as
said court or judge
may deem reasonable. Any injunction that may be granted restraining and
enjoining the doing
of anything forbidden by this title may be served on the parties against whom
such injunction may
be granted anywhere in the United States, and shall be operative throughout the
United States and be
enforceable by proceedings in contempt or otherwise by any other court or
judge possessing
jurisdiction of the defendants."
Having thus
established the fact of infringement and that Plaintiff is entitled to an
injunction we now
turn to the subject
matter before this Court, namely, the granting of a Preliminary Injunction
during
the pendency of this
case and before a trial on the merits. It is well settled law with respect to
copyright
infringement cases that all that a Plaintiff needs to show is a prima facie
case of
infringement to
entitle him to a preliminary injunction. There is no need for a detailed
showing of
irreparable damage.
In the case of Rushton v. Vitale 218 F2d 434,436 (CA2 1955) the Court had
before it the
question of a preliminary injunction in a copyright infringement matter and
said:
"When a prima
facie case for copyright infringement has been made, plaintiffs are entitled to
a
preliminary
injunction without a detailed showing of danger of irreparable harm."
See also Peter Pan
Fabrics, Inc. v. Acadia Company 173 F. Supp. 292,296 (DC SD NY 1959)
wherein the Court
said: "It is settled in copyright infringement cases that a preliminary
injunction
should issue when the
plaintiff makes a prima facie showing that his copyright is valid and that the
defendant has
infringed. (citing cases)
.... Although
plaintiffs in fact have shown that, unless afforded preliminary relief, they
will suffer
substantial and
irreparable injury, no detailed proof of such irreparable harm is required on
this
motion." (citing
Rushton v. Vitale, supra)
Having thus
established the fact that the copyright in the book of Exhibit I is prima facie
valid and
that Plaintiff is the
proprietor thereof, as well as the fact of copying, there is no need for any
further
showing to justify
the issuance by this Court of the preliminary injunction.
In addition to the
foregoing, the need for a preliminary injunction is emphasized by the fact
that,
since the Complaint
herein was filed, Defendant has made copies of and distributed pages 1485
through 1491 of
Exhibit 1 (with the exception of the material appearing below the asterisks on
page
1491), also without
permission from the Plaintiff, even though such permission was requested and
denied. Plaintiff
became aware of this most recent infringement on June 11, 1975, as indicated by
the
"RECEIVED" stamp on the envelope in which the document was mailed by
the Defendant to
the Plaintiff.
As evidence of
this latest act of infringement by the Defendant, there is submitted herewith
an
affidavit of
Katherine F. Michaels, which is accompanied by Exhibits 7 - 10, establishing
the
request for
permission, the denial of permission, the infringing publication and its
receipt by Plaintiff.
A copy of the
letter to Plaintiff from Defendant requesting permission to print this excerpt
from
Exhibit 1 entitled
"THE URMIA LECTURES," dated May 12, 1975, is attached to the
affidavit
and is marked for
identification as Plaintiff's Exhibit 7.
A copy of the
registered letter from Plaintiff to Defendant denying him permission to print
and
distribute the
aforesaid excerpt from Exhibit 1, and dated May 19, 1975, is attached to the
affidavit
and is marked for
identification as Plaintiff's Exhibit 8.
The registered mail return receipt, evidencing receipt of Exhibit 8, is attached hereto as Exhibit 8a.
"THE URMIA
LECTURES" as copied and distributed by Defendant is attached to the
affidavit and
is marked for
identification as Plaintiff's Exhibit 9. It will be noted that even the page
numbers from
Exhibit 1 were
reproduced when the copying was done.
The envelope in
which Plaintiff's Exhibit 9 was mailed to Plaintiff from Defendant is attached
to the
affidavit and is
marked for identification as Plaintiff's Exhibit 10.
It is submitted
that this is evidence of continuing infringement, and there is no reason to
believe that
additional instances
of infringement will not take place unless the Defendant is enjoined by this
Court from continuing
such infringing acts.
In view of the
foregoing, the granting of Plaintiff's Motion for Preliminary Injunction is
respectfully
requested.
PETER ARMSTRONG
VARNUM, RIDDERING,
WIERENGO & CHRISTENSON
666 Old Kent Building
Grand Rapids,
Michigan 49502
Tel.: 616-459-4186
Attorneys for
Plaintiff
Lloyd C. Root
JOHNSON, DIENNER,
EMRICH & WAGNER
150 North Wacker
Drive
Chicago, Illinois
60606
Tel.: 312-368-8575
Of Counsel for
Plaintiff
8/26/75 Filed August 26, 1975
IN THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN
DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE URANTIA
FOUNDATION,
an Illinois
Foundation,
Plaintiff,
V.
ROBERT BURTON,
Defendant.
BRIEF IN SUPPORT
OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
UNDER RULE 56(b),
FEDERAL RULES OF
CIVIL PROCEDURE
The entire issue
in this case revolves around the question of whether Plaintiff's Copyright
Registration No. A
216389 is valid. In the application For copyright Plaintiff claimed it was the
author and Defendant
contends that Plaintiff had no right to make this claim. Plaintiff asserts that
it
had possession of the
manuscript and this fact alone gives it the right to claim copyright. Defendant
challenges this.
Plaintiff offers no evidence of any right other than that of possession.
Defendant has
offered evidence
contradictory of Plaintiff's assertion which evidence has either been admitted
or
has not been
challenged.
It is submitted
that the question of whether or not Plaintiff's statutory copyright is valid is
a question
of law and the facts
involved being uncontested, this case is a proper one for Summary Judgment.
The law supporting
Defendant's Motion For Summary Judgment and manner in which this law
applies to the
uncontested facts of this case will be set forth in Defendant's Brief Contesting
Plaintiff's Motion
For Injunction, and Plaintiff's Motion For Summary Judgment and Supporting
Defendant's Motion
For Summary
Judgment. Since the law, facts and arguments relating to all of these Motions
are
identical or
substantially identical and such Brief is due September 3, 1975, it is
submitted that the
submission of a
single brief on the substantive issues is not only proper but also a
conservation of
the Court's time.
It is respectfully requested, therefore, that Defendant's Motion For Summary Judgment be granted.
Respectfully submitted,
ROBERT BURTON
Defendant
By: Peter P. Price
5740 Foremost Drive,
S.E. P.O. Box 2567
Grand Rapids,
Michigan 49501
(616) 949-9610
Dated: August 25,
1975
IN THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN
DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE URANTIA
FOUNDATION, an Illinois foundation,
Plaintiff,
V.
ROBERT BURTON,
Defendant.
BRIEF IN SUPPORT
OF DEFENDANT'S MOTION
UNDER RULE 37 OF THE
FEDERAL RULES OF CIVIL PROCEDURE
This motion
involves answers to two interrogatories, Nos. 18 and 58, propounded by
Defendant
during an accelerated
discovery process on which the parties agreed, such that all the facts could be
considered prior to
the hearing on the issue of ownership by this Court scheduled in September. In
most cases, the
Plaintiff has provided adequate answers to the interrogatories. In the case of
Interrogatories Nos.
18 and 58, the responses are either incomplete, evasive or nonresponsive.
In Interrogatory No. 18, the Defendant asked:
"State the
name and last known address of the person who actually wrote any or all of the
papers
Nos. 1 through 196
which now constitute the printed text of 'THE URANTIA BOOK'."
It is quite clear
by this interrogatory the Defendant was attempting to ascertain the identity of
the
writer of "THE
URANTIA BOOK," and his or her location. In response to this interrogatory,
the
Plaintiff stated:
"If by `the
person who actually wrote' the papers, is meant the personality through whom
the
material was
transmitted from the superhuman beings, then, in that case, those persons who
had
knowledge of the name
of such personality have taken an oath never to divulge the name of such
personality. In any
event, such personality is deceased."
Thus, in its
response, the Plaintiff did not deny knowledge of the name or the last known
address of
the person whose
identity is requested in Interrogatory No. 18 but simply refused to answer
based
upon an alleged oath
of secrecy, not binding on this Court, and which is preventing the discovery of
information which
could be crucial to an accurate determination of the rights alleged by the
Plaintiff
in this case.
To date, during
discovery and in the Plaintiff's Pre-Trial Brief, there has been no evidence
of, nor
any allegation of, a
transfer of the rights of copyright in the subject book in the form of any type
of
conveyance from the
unidentified writer to The Urantia Foundation. The sole claim of copyright
proprietorship on the
part of Plaintiff rests upon the possession of printing plates. it is clear
under
the law that without
a conveyance from the author or proprietor of the rights of copyright in a
manuscript, such
rights remain with the author or proprietor or his or her heirs or assigns. Van
Cleef
& Arpels, Inc. v.
Schechter 308 F.Supp. 674, 677 (S.D. N.Y., 1969).
In an attempt to
disclaim the actual writer as the author, the Plaintiff has argued that the
author was,
in fact, a spirit or
nonhuman being. It is beyond question, however, that the copyright laws, Title
17
U.S.C. Section 1 and
the underlying U. S. constitutional provision relevant
to copyrights
(Article I, Section 8) protects only natural or corporate persons and not
spirits and
nonhuman entities. It
is clear in this case that if there is an author with a claim of rights of
copyright,
it is the yet
unidentified writer of the original manuscripts and if Plaintiff is to claim
any proprietorship
which could enable it
to obtain a valid copyright registration, it must be by conveyance from this
yet
unidentified person.
Hence, the identity of this person is necessary to ascertain first, if indeed
the
person had any
relationship whatsoever to the Foundation, and more importantly, to ascertain
whether or not there
was a conveyance from this individual sufficient to convey the rights of
copyright to the
Plaintiff.
Without the
author's identity, the anonymity of which is being fostered by Plaintiff, a
determination
of the ownership
issue cannot be made. Accordingly, it is necessary that Plaintiff identify the
writer
of "THE URANTIA
BOOK" so that his or her activities with respect to the original
manuscript can
be determined and the
Plaintiff's now tenuous claim of proprietorship evaluated.
Interrogatory No.
58 states: "With respect to the Answer to Interrogatory No. 7, identify
all
documents other than
those already identified in the Answer to Interrogatory No. 18 to which
Plaintiff makes
reference to its Answer to said Interrogatory."
In this interrogatory, the Plaintiff made the following objection:
"Objection is
made to this Interrogatory on the ground that it is not understood. It does not
appear
that Plaintiff's
Answer to Interrogatory No. 18 makes any reference to documents, and therefore,
reference to
documents other than those identified in the Answer to Interrogatory No. 18
would
appear to need
clarification."
1975 Brief in
Support of Defendant's Motion Inasmuch as no documents were identified in
answer
to Interrogatory No.
18, it is clear that to properly answer this interrogatory, all documents on
which Plaintiff
intends to rely with respect to its affirmative answer to Interrogatory No. 7
must be
identified. The
Plaintiff has attempted to sidestep this interrogatory and evade its clear
requirement
by merely stating
that no documents were identified in Interrogatory No. 18. Such posture in an
effort to thwart the
discovery of clearly discoverable subject matter should not be countenanced by
this Court and
Plaintiff should be required to fully and completely answer this interrogatory.
Accordingly,
Interrogatories Nos. 18 and 58 should be fully and completely answered inasmuch
as
they request
information clearly the proper subject matter of discovery. Plaintiff's failure
to respond
and its improper
objections represent an attempt to conceal information which is necessary for a
determination of the
ownership issue before this Court. Accordingly, Plaintiff should be required to
fully and completely
answer these interrogatories.
In light of the
impropriety of Plaintiff's action in this discovery process, it is respectfully
requested
that Plaintiff be
ordered to pay Defendant's fees and costs in bringing this motion.
Respectfully submitted,
H. W. Reick
5740 Foremost Drive,
S.E. P. 0. Box 2567
Grand Rapids,
Michigan 49501
(616) 949-9610
Filed Sept. 3, 1975
IN THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN
DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE URANTIA
FOUNDATION, an Illinois Foundation,
Plaintiff,
V.
ROBERT BURTON,
Defendant.
PLAINTIFF'S BRIEF
IN SUPPORT OF IT'S MOTION
FOR RECONSIDERATION
OF THE ORDER
COMPELLING ANSWER TO
INTERROGATORY NO. 18
INDEX OF AUTHORITIES CITED PAGE CASES Advisory Committee's Note 48F.R.D.538 5
Burrow-Giles Lithographic Co v Sarony III U.S. 53 7
Goldstein v California 412 U.S. 546 7
Haidey Pen Company
v. United States District Court for the Southern District of California,
Central
Div. 287F.2d 324 4
9/3/75 Plaintiff's
Brief Compel Interrogatory 18 Houghton Mifflin v. Stackpole Sons, Inc. 104 F.2d
306 6
Jones v. Metzger Dairies, Inc. 334 F. 2d 919 4
9/3/75 Plaintiff's Brief Compel Interrogatory 18 Michigan Statues Annotated SS27.910 4
Porter v. Central Chevrolet Inc. 7 F.R.D. 86 4
Title 17 U.S.C. §1 6
U.S. Constitution, Article 1, §8 6,7
Accompanying this
Brief is Plaintiff's Answer to Defendant's Interrogatories Nos. 18 and 58. The
answer to
Interrogatory No. 58 is being given in view of Defendant's explanation as to
what
information Defendant
intended to elicit from Plaintiff appearing on page 4 of its brief in support
of
its motion to compel
Plaintiff to answer this Interrogatory.
If Defendant was
seeking only the identity of documents on which Plaintiff intends to rely with
respect to its
Affirmative Answer to Interrogatory No. 7, it could have so worded the
Interrogatory
so that it would have
been under- standable, in which case it would have been answered in the first
place. The injection
into the Interrogatory of a reference to Interrogatory No. 18, in which no
documents were even
mentioned, made the Interrogatory void of any sense. Thus, Defendant is
thwarting his own
discovery by wording Interrogatories in such a manner that they cannot be
answered.
With respect to Interrogatory No. 18 Plaintiff Foundation has answered it to the best of its ability.
9/3/75 Plaintiff's
Brief Compel Interrogatory 18 Defendant admittedly was attempting to ascertain
the identity of the
person who actually wrote, by hand, the papers which comprise "THE
URANTIA BOOK"
and his or her location. The Defendant, who knows full well that such person
has long since been
deceased, and who also knows full well, because of his many years of
association with the
"URANTIA FOUNDATION" and his many years as a member of THE
URANTIA BROTHERHOOD,
that all persons who had any knowledge of the identity of the
person who actually
wrote the papers which became the text of "THE URANTIA BOOK" took an
oath and pledged
never to divulge the identity of such person.
Defendant, by even
discussing the manner of receiving the subject matter of "THE URANTIA
BOOK," and the
channel through which it came, with anyone other than Urantian members, has
violated the oath and
pledge which he himself made many years before he was expelled from the
Brotherhood, and
obviously is inquiring into this sensitive area deliberately and with malice,
in an
attempt at
embarrassment and harassment, of the only living person, now 85 years of age,
who
might have the
knowledge which he seeks, and even her knowledge is a matter of hearsay.
Plaintiff
Foundation took no part in preparing or requesting such oath or pledge. Indeed,
it was
made long before
Plaintiff Foundation was formed, and it is in no position to force her to
disclose
this information to
Plaintiff, and she is unwilling to do so. Emma L. Christensen was told, by Dr.
William Sadler who
the subject was, but she does not know of her own knowledge the identity of
the person who did
the writing, nor did such person himself tell her that he was the one who wrote
the text which now
comprises "THE URANTIA BOOK." The only information she has is that
which was told to her
by Dr. William Sadler.
Plaintiff
recognizes that, even though this hearsay evidence is not admissible at the
trial, nevertheless
it might properly be
the subject matter for discovery under certain circumstances. One of the
requirements of
discovery is that the question seeks evidence which is relevant to the subject
matter
of the case, or which
may possibly lead to the discovery of admissible evidence.
The Defendant's
statement on page 2 of its Brief to the effect that the information sought by
this
Interrogatory
"could be crucial to an accurate determination of the rights alleged by
the Plaintiff in
this case" is
utterly without foundation.
Defendant has made
no attempt to establish any relevancy of this information to the subject matter
hereof, or necessity
for the disclosure of the information sought. On the contrary, the identity of
such person is
completely irrelevant, and not at all necessary to Defendant's case, because
Plaintiff
is not claiming that
such person is the author, or anything more than a mere conduit. The purpose of
allowing discovery
with respect to the names and addresses of persons, whether they be witnesses,
or other persons who
might have knowledge concerning the facts of the case, is to enable the
interrogating party
to question such persons to determine facts which may be within their
knowledge. Since,
however, the person which is the subject of this Interrogatory has long since
been deceased, and
this fact is known to both the Plaintiff and the Defendant, it is not at all
clear
what possible use
could be made of the identity of such person. He surely could not be
interviewed
by the Defendant nor
can he be called as a witness. The purpose, therefore, of this type of
discovery, is not
present here.
Plaintiff has already
admitted that the person who actually wrote the original manuscript is not
being
claimed as the
author, and that he wrote only what was transmitted through him from another
source. He was the
conduit or pipeline through which the text of "THE URANTIA BOOK" was
transmitted. Thus, it
is not conceivable as to what relevancy or what bearing on this case the
discovery of the
identity of that person could possibly have, and the discovery thereof should
not be
allowed. Jones v.
Metzger Dairies, Inc. 334 F. 2d 919 (C.A.5, 1964); Porter vs. Central Chevrolet
Inc. 7 F.R.D. 86
(D.C. Ohio, 1946).
The situation with
respect to this Interrogatory is analogous to a witness who may have confidential
information which he
is unwilling to disclose because of possible consequences. Unless Defendant
can show that the
information sought is sufficiently relevant and necessary to his case to
outweigh
the harm any disclosure
would cause the person from whom the information is sought, then any
requirement of
disclosure is not warranted. Hartley Pen Company v. United States District
Court
for the Southern
District of California, Central Division, 287 F 2d 324, 331 (C.A.9, 1961). The
harm to which Miss
Christensen would be subjected is the mental anguish she would endure by
being torn between
her duty to comply with the order of the Court if the Court should order her to
answer this question,
and her violation of what she considers to be a sacred oath and pledge.
This situation is
also analogous to the "priest-penitent" privilege. Although no priest
or recognized
minister of the
Gospel is involved, nevertheless the pledge or oath taken by Miss Christensen
is a
matter of religion
and is sacred to her. The Michigan Statute (Mich. Stat. Ann. §27.910) provides
this privilege and
should be construed to cover the present set of facts. Rule 37 of the Federal
Rules
of Civil Procedure
provides for sanctions against parties or persons unjustifiably resisting
discovery.
See Advisory
Committee's Note 48 F.R.D. at 538. We submit to this Court that refraining from
answering
Interrogatory No. 18 by the individual is justifiable under the circumstances
of this case
for the reasons
presented above. Plaintiff Foundation does not have the information sought by
this
Interrogatory and,
unless Defendant can establish clearly that the information sought is relevant
and
necessary to his
case, the individual should not be required to answer the Interrogatory.
The Court's
attention should be directed to certain statements which have been made in
Defendant's
Brief which are
either misleading, erroneous, or without foundation. Defendant has failed to
distinguish between a
"Common Law" Copyright and "Statutory" Copyright.
Defendant's use of the
term "Copyright"
in a broad sense, as on page 2 of its Brief, is an attempt to mislead this
Court into
believing that,
because Plaintiff cannot show a written conveyance to it of a copyright in
"THE
URANTIA BOOK,"
it has no right to claim copyright.
This statement is
only half true. If the Plaintiff had received an Assignment of a Statutory
Copyright,
it would have had to
be in writing. As was made abundantly clear in Plaintiff's Brief in support of
its
Motion for Summary
Judgement, an Assignment of a common law copyright need not be in writing.
It can be oral, or it
can even be inferred or implied by actions of the parties. Since the author or
the
writer of the
manuscript did not have anything but a common law copyright, the rights therein
clearly
could be, and were in
fact, transferred to
9/3/75 Plaintiff's
Brief Compel Interrogatory 18 the Plaintiff at the very least, by the actions
of the
parties. Thus, Defendant's
remarks concerning the lack of any evidence of a transfer of rights by
"any type of
conveyance" is completely uncalled for, since such conveyance is totally
unnecessary.
Another erroneous
statement appears also on page 2 of Defendant's Brief where the statement is
made that the sole
claim of copyright proprietorship on the part of Plaintiff rests upon the
possession of
printing plates. This is not so. Plaintiff claims copyright proprietorship
because it was
in possession of the
manuscript from which the printing plates were made, although it was and is,
also in possession of
the printing plates. As adequately pointed out in Plaintiff's Brief in support
of
its Motion for Summary
Judgement, possession of the manuscripts is sufficient as against a third
party who is not
claiming any rights through the author. The Defendant here is not claiming any
such
rights, and,
therefore, this case falls within the clear ruling of Houghton Mifflin V.
Stackpole Sons,
Inc. 104 F. 2d 306.
Finally, Defendant
has referred to the Copyright Laws, Title 17 U.S.C. Section 1 and Article 1,
Section 8 of the U.S.
Constitution. Defendant has taken these provisions to mean that the laws and
the Constitution
protect only natural and corporate persons and not spirits and non-human
entities.
The clear language of
the Statute and of the Constitution does not support this conclusion, and
Defendant has failed
to cite any authority by way of court decisions or otherwise which would
establish this
interpretation. Defendant's construction of the Constitution and the Copyright
Statute
would require that no
copyright, either Common Law or statutory, could ever exist in any writing if
the subject matter
thereof was communicated to one who did the actual writing by an unknown
author, be he human
or superhuman. The eighth section of the first Article of the Constitution
states:
"To promote
the progress of science and useful arts, by securing, for limited times to
authors and
inventors, the
exclusive right to their respective writings and discoveries."
A case in point is
Burrow-Giles Lithographic Company v Sarony 111 U.S. 53 (1883) regarding the
use of the word
"author" in the Constitution. The Court said that in the
constitutional sense an author
is "he to whom
anything owes its origin."
Thus, if a
copyrightable work owes its origin to an extra-terrestrial being, spirit, or
entity which is
not of this material
world, such originator is an author within the constitutional meaning of that
word,
and within the
meaning of that word as used in the Copyright Act.
In the case of
Goldstein vs California 412 U.S. 546; 37 L. Ed.2d 163; 93 S.Ct. 2303 (1973) the
views of the
Burrow-Giles Case were repeated and the Court there said "the term,
(author) in its
constitutional sense,
has been construed to mean `an originator' `he to whom anything owes its
origin.'"
Thus the Law would
seem to be contrary to that which has been attributed to it by the Defendant in
its position that the
Constitution and the Statute are limited to authors as being only human and
nothing else.
Defendant complains that without the author's identity, the anonymity of which
is being
fostered by the
Plaintiff, a determination of the ownership issue cannot be made. This again is
simply
not so. We again
refer to the Houghton Mifflin authority which is contrary on this point to this
unsupported statement
of a legal conclusion by the Defendant.
Accordingly, it is
submitted to this Court that the identity of the person who did the writing of
the
text which became
"THE URANTIA BOOK," is totally unnecessary to the resolving of any of
the
issues involved in
this case and Defendant has failed to sustain his burden of establishing that
it is.
Plaintiff Foundation
has now answered Interrogatory No. 18 to the best of its ability and, since the
85 year old Miss
Christensen is the only living person who may be able to identify the person
has
taken a sacred oath
or pledge never to divulge this information, the Plaintiff cannot give the
information and the
individual should not be ordered to do so.
Respectfully submitted,
Thomas J. Heiden
Varnum, Riddering,
Wierengo & Christenson
666 Old Kent Building
Grand Rapids,
Michigan 49502
Tel: 616 459-4186
Attorneys for
Plaintiff
Lloyd C. Root
Johnson,
Dienner, Emrich &
Wagner
150 North Wacker
Drive Suite 3000
Chicago, Illinois
60606
Tel: 312 368-8575
Of Counsel for
Plaintiff
IN THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN
DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE URANTIA
FOUNDATION
an Illinois
foundation, Plaintiff,
V.
ROBERT BURTON,
Defendant.
8/11/75
MOTION FOR SUMMARY
JUDGEMENT BY PLAINTIFF
UNDER RULE 56(A)
FEDERAL RULES OF CIVIL PROCEDURE
Now comes THE
URANTIA FOUNDATION, Plaintiff in this action, and respectfully shows to
the Court that:
1. After Plaintiff's
Complaint was filed with the Court and a date was set for argument on
Plaintiff's
application for
Preliminary Injunction, and these documents served on Defendant, the Defendant
filed and served on
the Plaintiff his Brief opposing Plaintiff's Application for Preliminary
Injunction to
which was attached
three affidavits executed by the Defendant. "AFFIDAVIT NO. 1"
contains
certain statements
relating to the origin of the various papers which constitute "THE URANTIA
BOOK," and the
truth of those statements nave not been denied by Plaintiff. Attached to
"AFFIDAVIT NO.
3" and identified as Defendant's Exhibit 2, was a copy of the
"Declaration of
Trust Creating
Urantia Foundation."
2. In due course
Defendant served upon Plaintiff Interrogatories numbered 1 through 45.
Interrogatory No. 25
asked whether Plaintiff denied the truth of certain facts stated in Defendant's
Affidavit No. 1, and
in answering this Interrogatory Plaintiff has not denied the truth of those
statements.
3. On page 3 of
"DEFENDANT'S BRIEF IN OPPOSITION TO PLAINTIFF'S
APPLICATION FOR
PRELIMINARY INJUNCTION" Defendant admits that Plaintiff is a
foundation which had
possession of the original manuscript which became "THE URANTIA
BOOK."
4. Plaintiff's
Exhibit 2, attached to the Complaint, which is the certified copy of the
Certificate of
Registration of
Plaintiff's Claim to Copyright in "THE URANTIA BOOK," is prima facie
evidence
of the statements
made therein.
5. The facts
disclosed by the pleadings, the Declaration of Trust," Defendant's
Affidavits No. 1 and
3, Plaintiff's
Answers to Defendant's Interrogatory No. 25, the admissions contained in
Defendant's
Brief Opposing
Plaintiff's Application for Preliminary Injunction, and the Certificate of
Registration
of Plaintiff's Claim
to Copyright, show that there is no genuine issue in this action as to any
material
fact and that
Plaintiff is entitled to judgment as a matter of law, as more particularly set
forth in
Plaintiff's Brief in
Support of this Motion attached hereto.
Plaintiff moves
for a Summary Judgment on the pleadings, the "Declaration of Trust,"
Defendant's
Affidavits Nos. 1 and
3, Plaintiff's Answer to Defendant's Interrogatory No. 25, the admission
contained in
Defendant's Brief opposing Plaintiff's Application for Preliminary Injunction,
and the
Certificate of
Registration of Plaintiff's Claim to Copyright, as provided in Rule 56(a)
F.R.C.P.
Wherefore
Plaintiff Prays that its motion be granted and that it have judgment against the
Defendant
as prayed in its
Complaint.
By Thomas J.
Heiden,
Lloyd C. Root
Filed August 11, 1975
BRIEF IN SUPPORT
OF PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT
Statement of the Case.
Plaintiff herein,
URANTIA FOUNDATION, has obtained a copyright in the book entitled "THE
URANTIA BOOK,"
and a certified copy of its Certificate of Registration of its Claim to
Copyright
therein was attached
to the Complaint herein, and marked for identification as Plaintiff's Exhibit
2.
The Complaint has
alleged copying of excerpts of Plaintiff's copyrighted book by Defendant, and
Defendant's copying
and distribution of these excerpts have been admitted.
Defendant,
however, has attacked the validity of Plaintiff's copyright on the ground that
the Plaintiff
is not the author of
the book, nor is it legally the proprietor thereof, because of the lack of any
assignment from the
author or any showing of any other chain of title from such author.
It is the
Plaintiff's position that the facts in this case concerning which there is no
dispute by the
parties, are
sufficient under the law to establish Plaintiff as the legal proprietor of the
copyright, and,
this being so,
Plaintiff is entitled to the relief prayed for in the Complaint.
The Undisputed Facts
In 1926, Dr.
William S. Sadler, Sr., was in possession of a typewritten manuscript which he
read to
a select group of
persons, including the Defendant, and which became "PAPER 1" of
"THE
URANTIA BOOK"
covering pages 21 through 32 therein.
The aforesaid Dr.
Sadler also came into possession of other typewritten manuscripts, which were
read from time to
time during the years 1926 to 1935, to select groups of persons, including the
Defendant. These
manuscripts became the Papers numbered 2 through 196 in "THE URANTIA
BOOK." The
handwritten manuscripts, from which the typewritten copies were made, were
written
by a patient of Dr.
Sadler.
These factual
statements appear in Defendant's AFFIDAVIT NO. 1 and the truth of those
statements have not
been denied by the Plaintiff. (Plaintiff's Answer to Defendant's Interrogatory
No. 25).
According to the
"Declaration of Trust Creating Urantia Foundation," a copy of which
was attached
to Defendant's AFFIDAVIT
NO. 3 as Defendant's Exhibit 2, the Urantia Foundation, Plaintiff
herein, came into
being January 11, 1950. At some time between 1935, when the final Paper
making up "THE
URANTIA BOOK" was typed, and 1950, the plates for printing and
reproduction of
"THE URANTIA BOOK" were made. That Plaintiff had Possession of the
original
manuscript which
became "THE URANTIA BOOK" is not denied by Defendant and, indeed, is
stated to be a fact
on page 3 of Defendant's Brief Opposing Plaintiff's Application for Preliminary
Injunction. In fact,
Plaintiff could not have had the plates made for printing "THE URANTIA
BOOK, without having
had possession of such manuscript, and, therefore, also had possession of
the plates. (see the
opening paragraph of the "Declaration of Trust").
Page 3 of the
"Declaration of Trust" recites that certain persons designated as
"Contributors"
wanted a foundation
to be formed and to be known as "URANTIA FOUNDATION." These
Contributors
furnished the funds used for producing the plates from the manuscript of the
book and
such plates were
placed in the custody of certain individuals who formed the Foundation.
While the word
"copyright" was not used in the "Declaration of Trust,"
nevertheless it is clearly
evident that the
duties assigned to the URANTIA FOUNDATION could not have been carried
out, and the
protection of "THE URANTIA BOOK," as directed by the
"Declaration of Trust,"
would not be possible
without a copyright being obtained thereon.
Article I,
paragraph 1.2, of the "Declaration of Trust" acknowledges the
transfer of the plates to the
officers of the
Foundation, prepared from the manuscript of "THE URANTIA BOOK" for
printing
and reproduction
thereof.
Article III of the
"Declaration of Trust" describes the duties of the Trustees of the
Foundation, and
includes as the
primary duty "to perpetually preserve inviolate the text of "THE
URANTIA
BOOK." (see
paragraph 3.1 of Article III) In this same paragraph the Trustees of the
Foundation
are directed to
"use and
employ such means, methods, and facilities...for the preserving and the safe
keeping of
copies of the
original text of THE URANTIA BOOK, duly authenticated by the Trustees, from
loss, damage, or
destruction and from alteration, modification, revision, or change in any
manner or
in any
particular." (emphasis added)
Article III,
paragraph 3.3, of the "Declaration of Trust" defines a further duty
of the Trustees as
being "to retain
absolute and unconditional control of all plates and other media for printing
and
reproduction of THE
URANTIA BOOK and any translation thereof ... to retain the absolute and
unconditional control
of the possession custody, use, and disposition of all such plates and other
media for the
printing and reproduction of THE URANTIA BOOK..." Paragraph 6.15 of
Article
VI of the
"Declaration of Trust" gives the Trustees power in their names or in
the name of
URANTIA FOUNDATION to
sue in any Court of law or equity "to protect or enforce any rights
or interests of the
Trustees in or, related to or in any way connected with any of the Trust Estate
or
any part thereof or
interest therein..."
These defined
duties and powers of the Trustees and the Foundation could not possibly be
carried
out unless "THE
URANTIA BOOK" was copyrighted in the name of the Foundation.
Summary of Undisputed Facts
1. Possession of
the typewritten manuscripts which became "THE URANTIA BOOK" was
originally in Dr.
Sadler and, thereafter in the Plaintiff, URANTIA FOUNDATION.
2. The Urantia Foundation, Plaintiff herein, was formed in 1950.
3. Plates made
from the typewritten manuscript were in the possession of the Plaintiff who had
"THE URANTIA
BOOK" printed with notice of copyright in 1955.
4. Claim to
copyright in "THE URANTIA BOOK" was made by Plaintiff as the
proprietor thereof
after publication of
the book, and a Certificate of Registration of the claim to copyright was duly
issued to the
Plaintiff as proprietor.
Propositions of Law Relied Upon
1. A common law
copyright is that right which attaches to a manuscript to prevent others from
copying it before
publication.
2. A common law copyright is capable of assignment.
3. A common law copyright assignment need not be in writing.
4. A common law copyright assignment may be oral or by implication from conduct.
5. Delivery of a manuscript with intent to pass title in the common law copyright is sufficient.
6. Mere possession
of a manuscript by the purported assignee is sufficient evidence of an
assignment as against
a third party who does not claim through the author.
7. An assignee of
a common law copyright may claim statutory copyright in his own name as the
proprietor.
Argument
In the present
case we have an unidentified person who prepared manuscripts in his own
handwriting, and the
contents of which were imparted to him by unknown superhuman beings. The
handwritten
manuscripts were thereafter typed, and such typewritten manuscripts were in the
possession of Dr.
Sadler, and thereafter in the Plaintiff. Nowhere in the Copyright Law is there
any
requirement that an
author must be able to be identified, when the copyright claimant is a proprietor,
claiming through the
author, as distinguished from the author himself. Thus, from the standpoint of
this case, it makes
no difference who the author is. The author need not be identified. Whether the
author is an unknown
superhuman being, or the unidentified individual who actually wrote the
manuscript in his own
handwriting, is immaterial. In the case of a common law copyright, as against
any third person who
is not claiming through the author, such as the Defendant here, mere
possession of the
manuscript is sufficient to vest in the possessor the right to claim statutory
copyright as the
proprietor.
As far as works
which have come into being through spirit communications is concerned, the
Court's attention is
invited to the case of White v. Kimmell 94 F.Sunp. 502 (D.C.S.D,Cal. 1950).
The decision of the
lower Court was reversed by the Court of Appeals for the 9th Circuit only with
respect to whether
the publication of the work was restricted or general. 193 F.2d 744.
With respect to
the facts in that case Stuart Edward White had written several books which had
been published. The
particular book involved was entitled "THE JOB OF LIVING," and
embodied
some communications
from the spirit world which White claimed to have received chiefly through
his wife, Betty, from
a personality referred to as "Gaelic." In the book, White identified
"Gaelic" as
his and his wife's
nickname for what seemed to them to be a single and definite personality,
"apparently
detailed to tell us what made the wheels go round." The material that came
through
Betty at that time,
by and large, was inspiration, stimulus to growth and expansion, with only
enough
explanation as to
mechanics to give direction. Through "`Gaelic' our intellectual,
curiosities were
given a certain
satisfaction, on the principle that a reasonable measure of knowledge is a
buttress to
faith. These sessions
were rare, and seemed to come only at times when one or another of a certain
few people were
present and in mental quandary."
The material so
received was reduced to manuscript form by White by "various reproduction
processes" and
was designated as the "Gaelic Manuscript" which contained the
communications
from
"Gaelic," as well as certain comments by White. He transferred in
writing his rights in the
manuscript to the
Defendant. The Plaintiff claimed that the manuscript was in the public domain
by
reason of the fact
that White had allowed the unrestricted publication of the material prior to
obtaining statutory
copyright.
The District Court
held that the publication and distribution was restricted, was not general, and
therefore, the
copyright was valid. Note, however, that the fact that some of the material in
the
copyrighted work had
been communicated from the spirit world did not effect the validity of the
copyright, and the
claim to copyright by White as the proprietor of that material.
The Court of
Appeals reversed solely on the ground that the publication had been general and
unrestricted, rather
than restricted, although the Court did agree with the lower Court in its
concept
of property right and
the ownership of common law copyright in unpublished works. Certiorari was
denied at 343 U.S.
957.
In its decision the District Court said, at page 504:
"As the
unpublished material is not copyrighted the question of ownership must be
determined by
common law
principles. The common law had long recognized a property right in the products
of
man's creative mind,
regardless of the form in which they took expression. For this reason, literary
compositions and
philosophical speculations, whether they are presented as the original work of
the
author or are claimed
to have been transmitted to him through one of many forms of inspiration that
have come to be
recognized as the source of intellectual production, are treated as a kind of
property."
As was said by the
Court of Appeals for the Ninth Circuit in 1947, in Universal Pictures CO. V.
Harold Llovd Corp.
162 F.2d 354, 364, "Literary property is not distinguished from other
personal
property and is
subject to the same rules and is likewise protected."
Perhaps one of the
leading cases as authority for possession of the manuscript as being sufficient
to
vest title of the
copyright is the case of Houghton Mifflin Co. v. Stackpole Sons, Inc. 104 F.2d
306
(C.A. 2, 1939) (Cert.
denied 308 U.S. 597 1939) This case had to do with the validity of the
copyright in the
famous autobiographical and political treatise by Adolph Hitler entitled,
"Mein
Kampf." The book
had been published in Germany and there were then two publishers of the book
in the United States,
one of which published the book without notice of copyright, on the theory that
the work was in the
public domain and not protected by copyright. (This is one of the defenses in
the case at bar). The
other published with notice of copyright.
Invalidity was
claimed by the Defendant publisher on the grounds that no assignment from the
author (Hitler) to
the German publisher had been shown. The German publisher claimed to be the
proprietor and the
owner of the copyright in its application for copyright in this country, and
entered
into a royalty
agreement with the United States publisher of the book, which was the Plaintiff
in that
case.
The Defendant
claimed that it did not appear that Hitler, the author, had made any assignment
of the
work to the
proprietors, who were the German publishers. With respect to this defense,
however,
the Court of Appeals
said:
"It is to be
noted that, if an analogy is to be drawn between literary property and ordinary
chattels,
this technical
defense cannot prevail, since possession of the manuscript by the German
publishers is
evidence of
ownership, and the transfer in question is sufficient to convey a title good as
against
third persons,
without any rights in the premises." That analogy has been asserted and
relied on in
the cases Callaghan
v. Myers, 128 U.S. 617, 658, ... Gerlach-Barklow Co. v. Morris & Bendien,
2 Cir., 23 F.2d 59,
161. We think it is sound and justifies the Plaintiff's claim." (Emphasis
added.)
With respect to the matter of assignment the Court then continued and said:
"Since Adolph
Hitler did not himself take out the copyright there was no need of a normal
assignment by him. As
the cases cited show, mere delivery of the manuscript to the publishers was
sufficient."
(Citing Atlantic Monthly Co. v. Post Publishing Co. 27 F.2d 556, 558 and
Callaghan v.
Myers, supra).
"Their possession of the manuscript which they have had and published and
widely
distributed and which
they claim to own is ample evidence of a title good as against the
defendants."
(Emphasis added)
In the case at bar
the Defendant is not claiming any rights himself in the copyright and,
therefore, is a
third person
"without any rights in the premises." The foregoing case is ample
authority for the
proposition that, as
against this Defendant, mere delivery of the manuscript to the Foundation or
its
Trustees, was
sufficient to entitle the Foundation to claim copyright as the proprietor.
After the
Preliminary Injunction issued by the Court of Appeals, Plaintiff brought a
motion for a
summary judgment,
which the District Court granted, on February 14, 1940. 31 F.Supp. 517.
Defendants then
appealed to the Circuit Court of Appeals, which ordered the judgment of the
Court below modified
in accordance with its opinion, 113 F.2d 627.
This modification
dealt only with the issue of whether a trial should be held with respect to the
question of the
authority of the person who signed the assignment from the German publisher,
which
does not affect the
present case.
The District
Court, on remand, found that such person had authority, and handed down its
opinion
in August 7, 1941. 40
F.Supp. 1975. In this latter opinion, one of the matters noted at page 976,
was
."..defendants themselves do not claim title to these copyrights -- they
merely challenge plaintiff's
title;"
In the opinion of the Court of Appeals in 113 F.2d 627, at page 628, the Court noted:
"The more recent authorities in copyright hold that a prima facie case will serve, if justice demands."
Certainly, after
Plaintiff here obtained a statutory copyright twenty years ago based upon
publication of a
book, the text of which appeared in manuscripts and plates in its possession,
there
should be no doubt but
that justice demands a conclusion that a prima facie case has been made out
and Plaintiff is
entitled to judgment.
In the Callaghan v. Myers cas