© 2005 The Urantia Book Fellowship
Documents of the lawsuit
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 95-17093
URANTIA FOUNDATION,
a non-profit foundation
Plaintiff-Appellant,
KRISTEN MAAHERRA,
Defendant-Appellee.
On Appeal From The United States District Court for the District of Arizona
BRIEF OF THE FIFTH EPOCHAL FELLOWSHIP, INC., AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLEE, KRISTEN MAAHERRA
Ross A. Plourde
McAFEE & TAFT
A Professional Corporation
211 N. Robinson
10th Floor, Two Leadership Square
Oklahoma City, Oklahoma 73102-7101
(405) 235-9621
Attorneys for Amicus Curiae
Fifth Epochal Fellowship, Inc.
February 28, 1996
This appeal stems from the district court’s grant of summary judgment in favor of the defendant-appellee, Kristen Maaherra, denying the claim of the plaintiff-appellant, Urantia Foundation (the “Foundation”), for copyright infringement. The Foundation asserts that Maaherra infringed the Foundation’s copyright with respect to The Urantia Book. The district court found that the Foundation’s copyright in The Urantia Book is invalid.
The question presented in the instant case — whether the Foundation has a lawful claim to renewal of copyright in a religious revelation entitled The Urantia Book — is of critical importance to amicus curiae, Fifth Epochal Fellowship, Inc. (the “Fellowship”). The Fellowship desires to translate and publish The Urantia Book in many languages. The Fellowship is currently publishing The Urantia Book in a 15,000 copy edition expected to be completed in April, 1996. The Fellowship believes that The Urantia Book should be freely available to the peoples of the world, without exclusive control by any organization.
In addition, many members of the Fellowship are deeply concerned that certain interpretations of their religious traditions about The Urantia Book have been improperly and incorrectly presented as factual evidence in an effort to persuade the Court to validate certain religious convictions over others. The purpose of this brief is to assist the Court in clearly identifying the numerous attempts by the Foundation in its brief to substitute religious tradition for objective and verifiable fact.
In particular, the Fellowship objects to the Foundation’s assertion that a group of human beings known as the “contact commission” was the “motivating factor” behind the creation of The Urantia Book. The Fellowship believes the real motivating factor for the creation of The Urantia Book was exclusively the desire of, and on the part of, spiritual beings who wished to enlighten and inspire the human race. The Fellowship believes that The Urantia Book is a divine revelation, the only reliable information regarding the origin of which is contained within the Book itself (see also, R. 553), and far from being the “motivating factor,” the contact commission is a group not so much as mentioned within its pages.
The Fellowship is well-positioned to facilitate a full exposition of the facts pertinent to the Foundation’s arguments. Formerly known as “Urantia Brotherhood”, the Fellowship was organized in 1955, prior to the publication of The Urantia Book. The initial membership of the Fellowship was comprised of members -2-↑of the Forum, a group which, as is reflected throughout the record prepared by the Foundation, played a substantial role in the reception of The Urantia Book. Thus, the Fellowship has a substantial interest in assuring that the "facts’ which, according to the Foundation make summary judgment improper, are supported by the record, and in pointing out instances in which the Foundation has overstepped the evidence.
On appeal, the Foundation argues that it presented sufficient evidence to establish that it was the successor to a group known as the contact commission and that the Urantia Papers, the papers which were published together as The Urantia Book, were created at the instance and expense of this contact commission. The Foundation argues that The Urantia Book is a “work for hire” and that the contact commission was the “motivating factor” behind the Urantia Papers. Consequently, the Foundation argues that it is entitled to a copyright as the proprietor of The Urantia Book. Alternatively, the Foundation urges that The Urantia Book is a composite work by the contact commission.
The Foundation’s arguments are premised upon the assertion that an unbroken chain of title to the Urantia Papers can be traced from the spiritual beings, who all parties agree were the actual authors of the Urantia Papers, to the Foundation The Foundation acknowledges that “the authors of the Urantia Papers are spiritual beings and . . . no human being wrote any portion of the text of the Papers”. Brief of Appellant Urantia Foundation, pp. 2-3 (emphasis -3-added). Furthermore, the Foundation admits that “[l]ittle is known about the precise manner in which the Urantia Papers were created in tangible written form.” Brief of Appellant Urantia Foundation, p. 3 (emphasis added). In blatant contradiction to these admissions, the Foundation boldly asserts authorship of The Urantia Book and consequent ownership of the copyright thereof.
In its attempt to lead this Court down the path from the celestial authors of the Urantia Papers to the Foundation, the Foundation urges the Court to find that the evidence could support the following conclusions:
Each of these conclusions proffered by the Foundation is crucial to its copyright claim. However, the evidentiary support for these conclusions is non-existent. The evidence cited by the Foundation to support this allegedly unbroken chain from spiritual beings to contact commission to Foundation is uniformly hearsay and not -4-↑admissible to establish the allegations repeated by the Foundation throughout its Brief. Furthermore, when the evidence is carefully examined, it is clear that even if the evidence would be admissible, it simply does not support the Foundation’s statements in its Brief. In short, the Foundation has failed to offer any evidence to show that the contact commission sufficiently contributed to the creation of the Urantia Papers to make it an author or proprietor under the Copyright Act, that the contact commission “organized” the Urantia Papers into The Urantia Book, or that the Foundation succeeded to any copyrights the contact commission may have had in the Urantia Papers.
In order to resist Maaherra’s Motion for Summary Judgment, the Foundation was required to establish the existence of a disputed material fact using evidence which would be admissible at trial. Yeatman v. Inland Property Management Inc., 845 ~ 7.Supp. 625 (N.D. Ill. 1994); Maier-Schule GMC. Inc. v. General Motors Corp., 154 F.R.D. 47 (W.D. N.Y. 1994). A party may not rely upon hearsay evidence to avoid summary judgment. Redd v. Fister Controls, 814 F.Supp. 547 (W.D. Tex. 1992); Federal Deposit Insurance Corp. v. Heidrick, 812 F.Supp. 586 (D. Md. 1991), aff’d., 983 F.2d 1055.
In an attempt to establish the existence of a disputed material fact, the Foundation principally relies upon five items of -5-↑evidence (Footnote 1: The Foundation also relies to a limited extent on the deposition testimony of William M. Hales and Helen Carlson. While the admissibility of such testimony is not contested, this testimony lends no support for the Foundation’s argument. See, pages 28-31 L, infra (Hales), and page 21-22, infra (Carlson). End of Footnote 1). and those five items of evidence form the basis of its argument on appeal. First, the Foundation cites throughout its Appeal Brief a document entitled “History of the Urantia Movement”, an incomplete, unsigned, undated, typewritten narrative discussing the development of The Urantia Book. R. 292-3 20. Second, the Foundation relies upon plaintiff’s Second Supplemental Answers and Objections to Defendant’s Third Set of Non-Uniform Interrogatories. R. 223-240. Third, the Foundation relies upon it; own Responses to Defendant’s Requests for Admissions. R. 242-247. Fourth, the Foundation relies upon deposition of its trustee, Hoite C. Caston. R. 260-263. Fifth, the Foundation relies upon the deposition of its trustee and president, Patricia S. Mundelius. R. 268-274. None of these evidentiary items furnish admissible evidence sufficient to defeat Maaherra’s Motion for Summary Judgment.
A. The “History of the Urantia Movement” Is Hearsay and Not Properly Authenticated and I~ Not Admissible Under the Ancient Documents Exception.
The Foundation relies heavily upon the “History of the Urantia Movement”, R. 292-320, to prove the manner in which The Urantia Book came to be written and published. The document is an unsworn statement written by an unidentified author. Furthermore, it is offered by the Foundation to prove the truth of the matters stated therein — i.e., the history of the creation and authorship -6-↑of The Urantia Book. Consequently, it is hearsay and is inadmissible unless its admission is authorized k y an exception to the hearsay rule. See Federal Rules of Evidence, Rules 801© (Footnote 2: Rule 801© defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” End of Footnote 2) and 802 (Footnote 3: Rule 802 provides that “[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.” End of Footnote 3). See also, Gulbranson v. Duluth Missah and Iron Ridge Railway Co., 921 F.2d 139 (8th Cir. 1990) (Minutes of defendant’s safety committee meeting hearsay in FELA action).
The only exception to the hearsay rule which might arguably apply is Rule 803(16). That rule permitted the admission of “[s]tatements in a document in existence 20 years or more the authenticity of which is established.” Thus, “ancient documents” may be admissible notwithstanding the hearsay rule provided they are properly authenticated. Dartez v. Fibreboard Co., 765 F.2d 456 (5th Cir. 1985).
Rule 901(8) governs authentication of ancient documents. In order to authenticate a document pursuant to Rule 901(8), the party offering the document must establish:
Evidence that a document or data compilation, in any form (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and © has been in existence 20 years or more at the time it is offered . -7-↑ In Dartez v. Fibreboard Corp., supra, the plaintiff attempted to introduce a series of memoranda relating to a contemplated plan to collect information relating to the health risks connected with asbestos exposure. The memoranda were offered pursuant to Rules 803(16) and 901(8). In ruling :hat the memoranda were not properly admissible, the court stated:
Defendants have not challenged the dates on these documents which indicate the papers were about 40 years old at the time of trial. Nor have they raised any arguments concerning their condition. The record shows, however, that plaintiff failed to introduce evidence to establish that the papers were found in the expected place - here the corporate records of Owens-Corning. 765 F.2d at 464.
Similarly, the Dartez court excluded minutes of committee meetings of the Asbestos Textile Institute. The court noted:
Because these documents appear to be more than 20 years old, they could be admitted under the ancient documents exception to the rule against hearsay, Fed. R. Evid. 803(16), as set f orth in the preceding section of this o pinion. However, plaintiff’s introduction of these documents suffers from the same fatal de feet as his introduction of the documents associated with the Ames deposition: he has not satisfied the authentication requirements of Rule 901. There is nothing in the record to indicate the source of the minutes. Id. at 465.
The Foundation has offered no evidence to establish that the “History of the Urantia Movement” satisfies all of these requirements. The Foundation attempted to authenticate the “History of the Urantia Movement” using the depositions of Scott Forsythe and Patricia Mundelius and the affidavit of Scott Wharton, Foundation -8-↑attorney. However, none of them properly authenticated the document and nothing in the record indicates that the document was in a place where it, if authentic, would likely be.
In his affidavit (R. 289-291), Scott Wharton (who identifies himself as “one of the attorneys of record for [the Foundation] in this action”) merely affirms that the “History of the Urantia Movement” document attached to his affidavit is an exhibit to the depositions of Carolyn Kendall ((Footnote 4: Notably, the Foundation chose to proffer none of Carolyn Kendall’s testimony to authenticate the “History of the Urantia Movement” document. End of Footnote 4). and Scott Forsythe. He does not attempt to authenticate the document or express any personal knowledge regarding its creation or source. Nothing in his affidavit provides any facts which could enable the Court to determine the admissibility of the document.
Patricia Mundelius, the Foundation’s president and trustee, did not authenticate the document. To the contrary, Ms. Mundelius testified that the trustees “weren’t aware of” the document entitled "History of the Urantia Movement’’ prior to April, 1994. R. 685. Furthermore, Ms. Mundelius referred to the document in her testimony as “the history that has just recently come to our attention. . .”. R. 691. Her testimony can lead only to the conclusion that the document entitled “History of the Urantia Movement” was not among the Foundation’s files until after the commencement of the lawsuit.
Nor did Mr. Forsythe authenticate the document. He testified regarding a similar document, but one which had numerous -9-↑markings which the exhibit attached to his deposition did not bear. R. 537-538. He had no personal knowledge regarding the document’s creation or origin and did not attempt to testify regarding the source of the version of the document which wa s attached as an exhibit to his deposition.
The Foundation has never asserted that the document was found in a place where it, if authentic, would likely be and the record fails to support such a conclusion. As in Dartez, there is nothing in the record to indicate the source of the document.
Furthermore, the document is of questionable authenticity. The document contains editing marks but there is go indication who did the editing and whether that person was t~e author of the document. Because the document is a poor copy of the original, which was not presented, it is impossible to determine to what extent the document has been altered. The significance of this defect cannot be overstated. Mr. Forsythe was asked to identify the document. He testified:
Q. You mentioned several versions, and I was wondering how many different versions you’ve seen.
A. I may have seen several.
The one I saw — this one doesn’t have any markups that I saw. The one saw had markups, by that I mean, there were paragraphs x’d out and things like that, indicating it was a working document of some kind.
R. 538. As this testimony suggests, the “History of the Urantia Movement” is plagued with suspicious circumstances.
he Foundation has offered nothing to allay these concerns. It merely cites the document without offering any evidence or argument to establish that the document would be admissible in a trial of this matter. In the absence of any such evidence or argument, the document cannot be authenticated pursuant to Rule 901(8), the ancient documents exception to the hearsay rule is inapplicable, and the document should not be considered for purposes of determining the Foundation’s copyright claim.
B. Plaintiff’s Second Supplemental Answers and Objections to Defendant’s Third Set of Non-Uniform Interrogatories Contain Hearsay and Merely Recite the Contents of the “History of the Urantia Movement.”
The Foundation also relies upon Plaintiff’s Second Supplemental Answers and Objections to Defendant’s Third Set of Non- Uniform Interrogatories. The portions of that document cited by the Foundation are found at R. 224-229.
In order for answers to interrogatories to be used in opposition to a motion for summary judgment, the answers must be based on personal knowledge. Schwartz v. Compaqnie General Transatlantioue, 405 F.2d at 270, 273, footnote i (2nd Cir. 1968) (“although answers to interrogatories may be considered `so far as they are admissible under the rules of evidence’ were such answers are not based upon personal knowledge, such answers have no probative value.”); State of Maryland v. Hatch, 198 F.Supp. 1, 3 (D. Conn. 1961) (answers to interrogatories have no probative value on a motion for summary judgment when the “answers ate not based upon personal knowledge” and the person answering “would~ not be competent -11-↑to testify” regarding the facts at issue). See also, Brady v. Blue Cross and Blue Shield of Texas. Inc., 767 F.Supl. 131, 135 (N.D. Tex. 1991).
The Foundation’s Second Supplemental Answers and Objections to Defendant’s Third Set of Non-Uniform Interrogatories are not based on personal knowledge. First, the verification of the Supplemental Answers indicates that they were merely prepared from documents assembled by the staff of the Foundation and the documents are not identified. R. 628. The verification states in part:
The information set forth in the answers was gathered and collated by persons regularly in the employ of the Urantia Foundation and its attorneys from various sources of information, including records and files kept by the Urantia Foundation in the regular and ordinary course of their business. The foregoing answers truly and correctly reflect the information thus gathered, and are true and correct according to the records, information and files available to the Urantia Foundation. Id. As is evident, the verification makes no claim to personal knowledge.
Furthermore, the answers themselves indicate they are made by one who lacks personal knowledge. For instance, in subpart (a) of the Supplemental Answer to Interrogatory No. 1 (R. 224), the person answering indicates that the exact number~and names of all the persons in the contact commission are not known but it was “generally acknowledged” that certain persons were members. Likewise, the information contained in subpart (b) of the Supplemental Answer to Interrogatory No. 1 (R. 224-225) is stated to be what was “generally believed to have occurred.” The responses -12-↑to subparts (d) and (e) of the Supplemental Answer to Interrogatory No. 1 (R. 225-226) indicate that they are also based on the belief of the person answering but nowhere is it asserted that such person had personal knowledge.
R. 228-229, cited by the Foundation, similarly fails to reflect personal knowledge on the part of the person answering. R. 228-229 contains nothing more than quotes from the “History of the Urantia Movement”. That document is not admissible for the reasons discussed above. Quoting language from that document in an interrogatory answer does not make it any more admissible.
Absent a foundation which establishes t~t the person who prepared the Foundation’s answers to interrogatories had personal knowledge of the facts contained therein, the person answering could not testify to such facts at trial. The answers may therefore not be used to oppose the Motion for Summary Judgment.
C. Plaintiff’s Responses to Defendant’s Requests for Admission Are Not Under Oath and Are Therefore Hearsay.
The Foundation also relies upon its own responses to Defendant’s Requests for Admissions. R. 242-247. In particular, the Foundation cites the description of the contact commission contained at R. 246-247.
In 8A C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure: Civil 2d 2264, pp. 571-72 (1994), the authors note: Admissions obtained under Rule 36 may be offered in evidence at the trial of the action, but they are subject to all pertinent objections to admissibility that may be imposed at the trial. A party may -13-↑not utilize its own admissions at the trial. It is only when the admission is offered against the party who made it that it comes within the exception to the hearsay rule for admissions of a party opponent. (footnotes omitted).
The Foundation’s responses to requests for admissions relied upon by the Foundation are not under oath and merely represent the Foundation attorney’s statements. Although such statements would be admissible against the foundation, they represent nothing more than a pleading filed by the Foundation. The Foundation’s reliance upon its own responses to requests for admissions is akin to offering its unverified complaint sent to prove the truth of the matters asserted in the complaint. The Foundation may not rely upon its own pleadings as a basis for overturning the summary judgment granted Maaherra.
D. The Deposition Testimony of Hoite C. Caston Is Inadmissible Because He Lacks Personal Knowledge of the Facts to Which He Testifies.
The Foundation frequently cites the deposition testimony of Hoite C. Caston. Its reliance upon such testimony is misplaced. Mr. Caston was not a member of the contact commission. R. 224. Except for Ms. Christensen, Mr. Caston did not know the members of the contact commission. R. 677. Mr. Caston’s late appearance on the scene is established by the fact that he did not even know Dr. Sadler, the “acknowledged leader” of the contact commission (Brief of Appellant, p.3), who died in 1969 (R. 225), many years after The Urantia Book was published. Mr. Caston disclaims personal knowledge -14-↑relating to many aspects of the development of the Urantia Papers and the role of the Forum in the development of those Papers. At R. 261, Mr. Caston testified:
Q. Can you tell from The Urantia Book as it was published by The URANTIA Foundation, what questions were asked by The Forum?
A. I cannot, because I don’t know what questions there were. _Moreover, Mr. Caston qualifies his description of how the contact commission received and maintained custody of the Urantia Papers with the statement: “That is my understanding.” (R. 262) Mr. Caston’s testimony clearly amounts to nothing more than his recitation of information provided to him by others. Absent personal knowledge, his testimony is hearsay and is not admissible to defeat a motion for summary judgment.
E. The Deposition of Patricia S. Mundelius Is Not Based Upon Personal Knowledge and Is Not Admissible.
The Foundation also relies heavily upon the deposition testimony of Patricia S. Mundelius. However, Like Mr. Caston, Ms. Mundelius lacks personal knowledge regarding the matters to which she testified. Ms. Mundelius was never a member of the contact commission (R. 224 and R. 682-683) and “wasn’t there” at Forum meetings. R. 692. In response to a question about the creation of the Urantia Papers, Ms. Mundelius testified: Well, up until a few months ago wouldn’t have been able to tell you, but I have learned quite a bit recently in the process of answering the interrogatories of [M. Maaherra]…
-15-↑R. 688. Ms. Mundelius denied knowledge regarding the process of creation of the Urantia Papers and The Urantia Book. When asked who transferred the copyright of The Urantia Book to the Foundation, Ms. Mundelius prefaced her statement with the following:
Well, let me — let me say what I think happened, you know, from behavior of these individuals. R. 273. Because Ms. Mundelius lacked personal knowledge of the events to which she testified, her testimony is simply hearsay. She could not testify to such matters at trial and, accordingly, her testimony is not admissible to defeat Maaherra’s Motion for Summary Judgment.
Even if all of the evidence relied upon by the Foundation was properly admissible, it does not support the Foundation’s attempt to establish an unbroken chain from the authors to the Foundation. When each fact recited by the Foundation in its Brief is analyzed, it becomes clear that the Foundation is merely relying on its account of religious tradition and there is simply no evidentiary support for the Foundation’s account of the “facts”.
A. There Is No Evidence That The Contact Commission Was The “Motivating Factor” In the Creation Of The Urantia Papers.
The Foundation’s attempt to establish its involvement in the authorship of The Urantia Book consists of no more than the assertion that the contact commission (its putative predecessor in interest) caused the Urantia Papers to be created through questions -16-↑the contact commission purportedly formulated |nd posed to the spiritual beings who authored the Urantia Papers. Not surprisingly, the Foundation quotes no case law to support its f ~r-fetched theory.
In an attempt to buttress this argument, the Foundation strives to create the impression that all the involvement of William S. Sadler, M.D. in the reception of the Urantia Papers was done on behalf of, and only on behalf of, the contact commission. In its Brief, the Foundation states that Dr. Sadler began communicating with spiritual beings through an anonymous patient and thereafter “arranged for a group of five to six individuals who became known as the “Contact Commission” (of which Dr. Sadler was the acknowledged leader) to participate in the communications. At these meetings, members of the Contact Commission believed that they interacted with spiritual entities.” (Footnote omitted) Brief of Appellant, p. 3.
In support of this statement, the Foundation cites R. 246- 247 and R. 292-295. R. 246-247 is the Foundation’s unverified response to a request for admission. Nevertheless, even though the response is the Foundation’s own pleading, it never mentions Dr. Sadler’s role in the creation of the contact commission or the leadership of the contact commission. Likewise, R . 292-295 nowhere mentions Dr. Sadler.
The Foundation, confronted with a need to establish some evidence of participation in authorship, has seized upon questions which were presented to the celestial authors. The evidence, however, shows that the connection between the questions and the -17-↑creation of the Book is at best attenuated. (Footnote 5: A review of all the testimony regarding the solicitation of questions by the spiritual authors suggests that the authors were using the Forum like present-day marketers use a “focus group” in order to solicit reactions for the purpose of improving a forthcoming product. End of Footnote 5). The Foundation does not know the substance of each of the questions that were submitted or the date of submission, and cannot state the portion or portions of the Urantia Papers to which they relate. R. 619-620. None of the questions appear in recognizable form in The Urantia Book. R. 548. Further, when the Urantia Papers were read, they were not identified as being in response to any questions. R. 543. In summary, the Foundation has provided no support for its assertion that the questions, by whoever formulated and posed, were the motivating factor in creating the Urantia Papers, and thus The Urantia Book.
Nor can the Foundation establish that its putative predecessor, the contact commission, formulated the questions which the Foundation claims “commissioned” the Urantia Papers. The Foundation states at page 3 of its Brief: The Contact Commission subsequently began to devise, solicit, compile and submit questions about a wide variety of topics to these [spiritual] entities. In support of this statement, the Foundation cites R. 298. Rather than supporting the statement that the contact commission formulated the questions, R. 298 contradicts the assertion. That portion of the Record states, in pertinent part: We told the Forum all about this and invited them to join us in the preparation of -18-↑questions. . . . The following Sunday several hundred questions were brought in. (emphasis added) Moreover, because neither the author of the “History of the Urantia Movement” (of which R. 298 is a part) nor his or her colleagues are identified in that document, the Foundation has offered nothing more that its own bare assertion that the pronouns "We’ or “us” refer to the contact commission. Indeed, the following page of the same document, R. 299, suggests that the contact commission’s role was limited to “gathering up the questions and comparing the typewritten text with the original handwritten manuscript.”
In footnote 3 on page 3 of the Foundation’s Brief, the Foundation continues to misattribute to the contact commission the formulation of questions. Footnote 3 states in pertinent part: Dr. Sadler’s [Footnote 6: The Foundation attributes the “History Of the Urantia Movement” to Dr. Sadler without any admissible evidence to show that it was written by him. In fact, the unattributed document twice refers to Dr. Sadler in the third person. R. 297 and R. 304. End of Footnote 6.] History of the Urantia Movement states that none of the Urantia Papers were created before the Contact Commission began to submit its questions: Shortly [after the first questions were presented], the first Urantia Paper appeared in answer to these questions. . . . This was the procedure followed throughout the many years of the reception of the Urantia papers. No questions — no Papers. In support of this statement, the Foundation again cites R. 298. Once again, however, R. 298 simply does not attribute the -19-↑formulation of the questions to the contact commission, but to the Forum.
The Foundation thus over-emphasizes the activities of the contact commission at the expense of the Forum because the Foundation has never claimed and cannot claim to be, successor to the Forum, (Footnote 7: Indeed, the Foundation could not claim to be the successor to the Forum. The Foundation’s own evidence indicates that Urantia Brotherhood (now known as the Fifth Epochal Fellowship, Inc., the amicus curiae herein) was formed from members of the Forum prior to the publication of The Urantia Book. R. 316. One of the histories offered by the Foundation says it plainly: “URANTIA Brotherhood was born out of the Forum.” R. 285. Thus, if one could say that the Forum had a successor, it would be the Fellowship, not the Foundation. It is noteworthy that the Foundation itself claimed at one point in the case that the Forum was an author of The Urantia Book (R. 239), an argument which the Foundation abandoned, perhaps with the realization that it might make the Fellowship proprietor of The Urantia Book. The Fellowship does not accept the contention that human questions commissioned The Urantia Book, but if such questions did commission the work, the Foundation’s theory would make the Fellowship, not the Foundation, the proprietor of the Book. End of Footnote 7). only the contact commission. Faced with the absence of any more compelling evidence of participation in the creation of The Urantia Book, the Foundation can only establish a relationship (however tenuous) with the creation of the Book by reversing the roles of the contact commission and the Forum in the formulation of questions.
Because the Foundation vastly overstates the role of the contact commission in the development of questions, the Foundation apparently feels compelled to downplay the role of the Forum, the group that in fact formulated the questions. The Foundation states: -20-↑The Contact Commission then formalized and limited the membership of the group known as the “Forum” and began reading the early Urantia Papers aloud to that group in regular meetings. Brief of Appellant, pp. 3-4. In support of this statement, the Foundation cites R. 299-300. In contrast to the Foundation’s statement, however, R. 299 indicates that the contact commission was not even formed until the Forum had already been formalized. Furthermore, nothing at R. 299-300 suggests that the contact commissioners read the early Urantia Papers aloud to the Forum. The Foundation also states at page 4 of its Brief: The Contact Commission continued to submit questions to the spiritual beings over this period of years, and in response, the contact Commission received additional Papers and revised and expanded earlier versions of Papers. This process of submitting questions and receiving Papers culminated in the 196 Urantia Papers that are included in The URANTIA Book. In support of this statement, the Foundation cites,R. 66-69, R. 84- 85, R. 229-230, R. 247, R. 298-300, R. 308. R. 66-69 is from the deposition of Helen Carlson. Ms. Carlson, a former Forum member, testified that Forum members would write their questions on slips of paper and drop them into a “fishbowl” where they would be collected afterward by William “Bill” Sadler, Jr. The Foundation alleges that the contact commission was responsible for devising the questions which it contends resulted in the Urantia Papers. The testimony of Ms. Carlson cited by the Foundation establishes, however, that it was the Forum which devised the questions. -21-↑R. 84-85 is likewise a portion of Ms. Carlson’s deposition. The contact commission is not even mentioned. Rather, the only discussion pertains to meetings of the Forum.
R. 229-230 is the quote from the “History of the Urantia Movement” contained in the Foundation’s interrogatory answers. It suggests that any questions were formulated by the Forum and that the contact commission was not formed until after the Forum had been formalized as a group. Nowhere does it suggest that the contact commission formulated questions.
R. 247, the Foundation’s response to request for admissions, does not support the Foundation’s contention that the contact commission formulated questions. Instead, the role of the contact commission is there described as “select[ing] and edit[ing] the questions before submitting them to the authors.” Furthermore, in contrast to the statement that the contact commission “revised and expanded earlier versions of Papers” (Brief of Appellant, p. 4), R. 247 states that it was “the authors” (i.e., the spiritual beings), not the contact commission that revised earlier drafts of some of the Urantia Papers.
R. 298-300 is the portion of the “History of the Urantia Movement” which was quoted in R. 229-230. It simply lends no support to the Foundation’s statements.
R. 308 is merely another portion of the ~ “History of the Urantia Movement” which nowhere mentions the cont ~act commission. The Foundation next states (Brief of Appellant, p.4): The only available evidence shows that but for the questions posed by the Contact Commission, in the Contact Commission’s continuing -22-↑participation, there would be no Urantia Papers. (emphasis in original) In support of this statement, the Foundation cites R. 229, R. 261, and R. 298. R. 229 merely quotes R. 298. As previously observed, both documents suggest that the questions were formulated by the Forum. Rather than supporting the Foundation’s claim that the Papers were attributable to the contact commission’s activities, R. 229 and R. 298 suggest (if the Foundation’s line of reasoning is accepted) that, but for the participation of the forum, there would be no Urantia Papers.
R. 261 is from the deposition of Hoite C. Caston. Mr. Caston testified as follows: Q. Apart from originating questions, what role did The Forum play in the origin of the URANTIA Papers?
A. Well, I think that they — that that was their primary contribution as far as I know . . . Far from supporting the Foundation’s statement, R. 261 flatly contradicts their assertion that the contact commission posed the questions. (Footnote 8: At page 17 of its Brief, the Foundation challenges the Court’s statement at R. 347 that the Urantia Papers came into existence before any questions were asked. Whether the questions or the Urantia Papers came first is immaterial, since the evidence clearly establishes that the questions were not those of the contact commission in any event, but were developed by the Forum, whom the spiritual authors had invited to do so (R. 296) prior to the formation of the contact commission (R. 299). R. 296 makes it clear that the spiritual authors commissioned the questions. End of Footnote 8).
B. There Is No Evidence That The Foundation Organized The Urantia Papers Into The Urantia Book.
The Foundation asserts at page 5 of its Brief: During this same period, William S. Sadler, Jr., acting on behalf of the Foundation, organized the papers and created the “Titles of the Papers” and “Contents of the Book” sections to The Urantia Book. In support of this statement, the Foundation cites R. 215-216, R. 271, and R. 338. R. 215-216 is a portion of Defendant’s Statement of Facts in support of Motion for Partial Summary Judgment as to plaintiff’s claim for copyright infringement. In fact, R. 215-216 furnishes no support for the Foundation’s contention that William S. Sadler, Jr. “organized the Papers.” R. 271 is a portion of the deposition of Patricia S. Mundelius. It likewise furnishes no support for the contention that William S. Sadler, Jr. “organized” anything other than the introductory materials. R. 338 is the Court’s Order granting Maaherra’s Motion for Partial Summary Judgment. Like the other two sources cited in support of this statement of the Foundation, the Order lends no support for the contention that William S. Sadler, Jr. “organized the Papers.”
In contrast to the Foundation’s unsupported claim of authorship, there is ample evidence to establish the absence of human authorship of The Urantia Book. “[N]o human being wrote any portion of the text of the Papers.” Brief of Appellant, p. 3. The Book was published just as it was received in English. There was no editing. R. 550-551. The Book is unchanged from the way the revelators provided it. R. 553. These facts, which were not -24-↑disputed by the Foundation, leave no room for any claim of authorship by virtue of having “organized” the Urantia Papers on the part of the Foundation.
The parties to this case are in agreement that William S. Sadler, Jr. prepared introductory materials. However, the identity of the person who created the “Titles of the Papers” and “Contents of the Book” sections to The Urantia Book is not material to this action. The Foundation has never attempted to assert that Kristen Maaherra has copied these portions of The Urantia Book. As the district court noted at R. 338 footnote 1: The plaintiff does not allege, nor does the defendant admit, a copying of the introductory portions of The Urantia Book. Both parties agree that these portions, entitled “The Titles of the Papers” and “Contents of the Book,” were written by William S. Sadler, Jr. (Pl.'s Statement of Facts at 23.) Furthermore, the issues of whether those portions constitute copyrightable subject matter and whether they are protected by the copyright in the book are not under consideration. C. There Is No Evidence That The Urantia Papers Were Created At The Expense Of The Contact Commission.
At pages 26 through 31 of its Brief, the Foundation argues that the Urantia Papers were created at the “instance and expense” of the contact commission. Once again, however, the evidence fails to support the Foundation’s assertions. Apparently, the Foundation would have this Court believe that the contact commission employed the celestial beings which it acknowledges created the Urantia Papers and devised a method to pay them. The Foundation identifies -25-↑no evidence which tends to establish that it employed or paid anyone to create the Papers. In fact, the Foundation admits that no person was paid to write any part of The Urantia Book. R. 565.
D. There Is No Evidence That The Urantia Book Was Published At The Expense Of The Contact Commission.
The Foundation also attempts to show that the contact commission raised the funds necessary to publish The Urantia Book. As proof of this, at page 4 of its Brief, the Foundation offers the following: In the 1930’s, Dr. Lena Sadler, acting on behalf of the Contact Commission, had already begun to raise money for publication of the Urantia Papers as a single work. The only evidence offered by the Foundation in support of this allegation is R. 314. R. 314 is a portion of the inadmissible “History of the Urantia Movement”. The only mention of Dr. Lena Sadler at R. 314 is the following: Before the demise of Dr. Lena K. Sadler in August, 1939 she had collected about twenty thousand dollars for the publication fund, and this was used to set type and prepare plates for the printing of the Book. Contrary to the Foundation’s assertion, this does not establish that Dr. Lena Sadler acted on behalf of the contact commission to raise money for the publication of the Urantia Papers.
The Foundation at page 5 of its Brief asserts: The Foundation raised the remaining funds that were required to publish the Urantia Papers. -26-↑The Foundation cites R. 267, a letter from William M. Hales addressed to “Dear Friend” asking for donations. R. 267 furnishes no proof that the Foundation raised the funds it was seeking.
E. There Is No Evidence That The Creation And Transfer Of The Printing Plates For The Urantia Book Constituted An Authorized Transfer Of The Copyright To The Urantia Book Or That The Foundation Ever Possessed The Unpublished Manuscript.
Fundamental to the Foundation’s copyright claim is its contention that the transfer of the printing plates for The Urantia Book to the Foundation conveyed to the Foundation the copyright. This requires one to assume that the plates were created with the permission of the authors of the original work and that the plates served as substitute for the original work such that their conveyance conveyed the copyright. To accomplish this two-stage transition, the Foundation offers the following statement:
In 1941, Wilfred Kellogg, acting on behalf of the Contact Commission, entered into a contract with R.R. Donnelly Publishing Co. to manufacture plates which contained the manuscript of the Urantia Papers to be used for their commercial publication. (Brief of Appellant, p. 4-5). In support of this statement, the Foundation cites R. 277-278. R. 277-278 is merely a copy of the contract entered into by Mr. Kellogg, as an individual, with R.R. Donnelly & Sons Company for “Composition and Plates for Book”. The contract nowhere indicates that Mr. Kellogg was acting on behalf of the contact commission. Even if the contact commission was at that time the owner of the copyright, there is no evidence to show that the contact commission consented to the creation of the plates or -27-↑bestowed upon the plates the attributes of the original manuscript, such that the mere possession of the printing plates (without the original manuscript) might signify ownership of the copyright.
On page 7 of its Brief, the Foundation states: [T]he Foundation also produced evidence that it possessed the unpublished manuscripts of the Urantia Papers. . . . Possession of an unpublished manuscript, followed by publication and registration of original statutory copyright, is prima facie proof of copyright ownership. (emphasis added) Similarly, on pages 16 and 17 of its Brief, the Foundation repeats its assertion that it possessed an unpublished manuscript of The Urantia Book. The Foundation offered no proof that it ever possessed the unpublished manuscript to the Urantia Papers (which, according to The Foundation’s evidence was handwritten, R. 299), only the printing plates to the work. (Footnote 9: It is noteworthy that even these printing plates were not transferred to the Foundation by the beings the Foundation admits were the actual authors, but by Mr. Kellogg as an individual (R. 275-276) whose relationship to the contact commission is merely a matter of conjecture. See, R. 224 (“The duties and responsibilities of Wilfred C. Kellogg and Anna K. Kellogg indicated to many that they also were members of the Contact Commission.” (emphasis added)). Mr. Kellogg transferred only his “right, title, and interest” to the plates. R. 275-276. End of Footnote 9). Further, the deposition testimony of William M. Hales, the first president of the Foundation (R. 233), contradicts the Foundation’s unsupported allegation: [Q.] Apart from these plates, was anything else transferred or delivered to the Foundation at its inception?
-28-↑A. To my knowledge, the plates were the only tangible evidence of The Urantia Book delivered to the Foundation.
Q. Apart from the plates, was any other property, either tangible or intangible transferred or delivered?
A. Not that I am aware of. R. 266. The Foundation continues these unsupported assertions at page 5 of its Brief, when it asserts: Upon its creation, the Foundation was given and assumed all rights in the Urantia Papers. In support of this assertion, the Foundation cites R. 247, R. 250, R. 262, R. 265-266, R. 274, and R. 286-288. R. 247 is the Foundation’s unverified responses to requests for admission. Even that document, however, does not go so far as to say that all rights in the Urantia Papers were turned over to the Foundation.
R. 250 is a portion of an order entered by the District Judge and has nothing to do with the alleged acquisition of the Papers by the Foundation.
R. 262 is a portion of the deposition of Hoite C. Caston. Mr. Caston had no personal knowledge of the matter. (Footnote 10: See, Part III.D., page 14-15, supra. End of Footnote 10). He merely testified as to his “understanding”. Moreover, when asked who transferred the common law copyright to the Foundation, he prefaced his response with the following statement: I don’t have a precise knowledge of the individuals or individual — you know, the -29-↑exact transaction of that, so I can’t say who with an identifiable person. R. 262. R. 265-266 is from the deposition of William M. Hales, which is quoted above, in which Mr. Hales states that only the printing plates were transferred to the Foundation. Far from "supporting the Foundation’s statement, Mr. Hales’ testimony flatly contradicts the Foundation’s assertion that all rights in the Urantia Papers were given to the Foundation.
In short, none of this evidence tends to establish anything other than that Mr. Kellogg transferred the printing plates to the Foundation. It does not support the claim that the mere transfer of the plates transferred the copyright associated with the original work or that the Foundation ever possessed the original manuscript.
F. The Foundation Has Produced No Evidence To Establish That It Is The Successor To The Contact Commission.
Sprinkled throughout the Foundation’s Brief are phrases such as “. . . the Foundation’s predecessor (a group known as the Contact Commission). . .” (p. 1), and "[i]n 1955, the Foundation was created as the Contact Commission’s successor. " (p. 5). Faced with the absence of evidence that there was any transfer of the copyright from the contact commission to the Foundation, the Foundation is apparently attempting to argue that it acquired the copyright as successor to all of the alleged rights of the contact commission. This attempt is contradicted by the Foundation’s own -30-↑admission that the Foundation was a new organization established in 1950. R. 555-556. Further, although the Foundation estimates that there may have been six members of the contact commission (R. 224), only three members of the contact commission were founding trustees of the Foundation (see, Brief of Appellant, p. 5 and R. 275), and not one of them was William S. Sadler, M.D. (Footnote 11: William S. Sadler, Jr., who was a founding trustee of the Foundation, should not be confused with his father, William S. Sadler, M.D., who was not. End of Footnote 11), the “acknowledged leader” of the contact commission (Brief of Appellant, p. 3). The Foundation’s argument is also contradicted by the fact that the contact commission continued to exist after the Foundation was created. While the Foundation cannot pinpoint the exact dates of the contact commission’s existence, it estimates that the contact commission endured until 1955 (R. 224-225), five years after the creation of the Foundation into which it purportedly merged.
The deposition of William M. Hales is unequivocal on this point. Mr. Hales testified that the Foundation was not an outgrowth or continuation of any predecessor. During his deposition, Mr. Hales identified an Exemption Application which he signed and caused to be filed with the United States Treasury, Internal Revenue Service on behalf of the Foundation. Mr. Hales was asked to affirm that various statements contained in the Exemption Application were true. He testified: Q. The next box, box 5A asks “Is the organization the outgrowth or continuation of any form of predecessor?” -31-↑
A. No.
Q. Okay. And you said “no” on that, and the box is checked “no.” So I guess my question is was the response check “no” here an accurate answer?
A. (Nodding.) Yes. R. 555-556. As the first president of the Foundation, Mr. Hales’ testimony is unimpeachable. The Foundation’s baseless claim that it is the successor to the contact commission simply does not give rise to an issue of fact.
G. The Foundation Has Identified No Evidence Which Supports Its Copyright Claim.
In summary, there is simply no evidentiary support for the Foundation’s claims that the contact commission commissioned the Urantia Papers, that the contact commission caused the Papers to be published, or that the Foundation succeeded to the rights of the contact commission, if in fact it had any. The role of the Foundation in the creation of The Urantia Book is alleged by the Foundation in its Brief is not sufficient to uphold its copyright renewal claim. As the foregoing discussion demonstrates, that role is vastly overstated in the Foundation’s Brief, and it is unsupported by competent evidence. Accordingly, the summary judgment entered by the District Court should be affirmed.
The Foundation has failed to identify in the record before this Court admissible evidence which would render improper the summary judgment granted by the District Court in favor of Kristen -32-↑Maaherra. Accordingly, the Fifth Epochal Fellowship, Inc. urges this Court to affirm the judgment of the District Court granting summary judgment in favor of Kristen Maaherra.
Respectfully submitted,
Ross A. Plourde
McAFEE & TAFT
A Professional Corporation
211 N. Robinson
10th Floor, Two Leadership Square
Oklahoma City, Oklahoma 73102-7101
(405) 235-9621
COUNSEL FOR AMICUS CURIAE FIFTH
EPOCHAL FELLOWSHIP, INC.
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