© 1975 Fellowship
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:
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.
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.
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.
“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.
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.
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.
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.”
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.
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.
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.
Defendant’s publication and distribution of said “PAPER 72” constitutes an infringement of Plaintiff’s copyright in “THE Urantia BOOK.”
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.
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
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.
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:
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.”
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.
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.”
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.
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
Possession of the typewritten manuscripts which became “THE Urantia BOOK” was originally in Dr. Sadler and, thereafter in the Plaintiff, Urantia FOUNDATION.
The Urantia Foundation, Plaintiff herein, was formed in 1950.
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.
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
A common law copyright is that right which attaches to a manuscript to prevent others from copying it before publication.
A common law copyright is capable of assignment.
A common law copyright assignment need not be in writing.
A common law copyright assignment may be oral or by implication from conduct.
Delivery of a manuscript with intent to pass title in the common law copyright is sufficient.
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.
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 case copyright of the Illinois Supreme Court Reports was involved, and the question of proprietorship and assignment was raised. It appears that Mr. Freeman was the reporter, and the Court indicated that “we perceive no reason why Myers or Myers & Chandler could not become the owners by parole transfer of whatever right Mr. Freeman, prior to the taking of the copyright, had to convey. While the work was in manuscript no written transfer of such manuscript from Mr. Freeman was necessary, because the copyright had not yet been taken.” (Emphasis added)
There can be no question but that a common law copyright may be assigned orally, and, what may be even more important, an assignment may be implied from the conduct of the parties. This observation was made in Van Cleef &. Arvels, Inc. v. Schechter 308 F.Supp 674 (1969). Although the Court held in that case that the evidence adduced at trial did not establish either an oral or a written assignment, nevertheless, the Court cited and relied upon Houghton Mifflin Co. v. Stackpole Sons, Inc. (supra). We submit that in the present case the Plaintiff herein had a common law copyright and, therefore, had a right to claim statutory copyright as the proprietor of “THE Urantia BOOK.”
As the Court said in Atlantic Monthly Co. v. Post Publishing Co. 27 F.2d 556:
“It is not necessary that an author, selling a manuscript to a magazine, should do so by a written bill of sale. Delivery of it with the intention of passing title is quite sufficient.”
These general propositions of law are summarized by “NIMMER ON COPYRIGHT,” published by Matthew Bender, 1975, page 523, Section 120. This authority has said:
“A common law copyright is capable of assignment so as to completely divest the author of his rights, without the necessity of observing any formalities. After such an assignment the author stands as a stranger to the copyright and may himself become an infringer if he wrongfully uses the assigned work. A common law copyright assignment need not be in writing. Such an assignment may be oral or by implication from conduct. Thus delivery of a manuscript with intent to pass title in the common law copyright is sufficient. Mere possession of the manuscript or work of art by the purported assignee has been held sufficient evidence of an assignment as against a third party who does not claim through the author. This is particularly true where over a long period of time the author and other interested parties have acquiesced in the assignee’s ownership.”
The original claim to copyright in THE Urantia BOOK was made in 1955, at the time the book was published, and until recently all interested Parties including the Defendant, has acquiesced in Plaintiff’s ownership of the copyright.
With respect to the Plaintiff’s chain of title “NIMMER ON COPYRIGHT” at page 604, §139.3 states that “where, however, the Plaintiff claims not as author but as a direct or mesne assignee of the author, the question arises as to where the burden of proof lies in establishing the chain of title. Here a distinction must be observed between a Plaintiff who is assignee of the common law copyright first obtained a statutory copyright in the work and a Plaintiff who was merely an assignee of the statutory copyright. Since the former has obtained a Certificate of Registration which states that he is the copyright claimant or owner of the work, it must follow that under Sec. 209 (of the Copyright Act) such Certificate constitutes prima facie evidence of the Plaintiff’s ownership, so that the Defendant has the burden of controverting the Plaintiff’s chain of title.”
Thus, in the present case, there is a Plaintiff who claims not as the author but as an assignee of the author. The common law copyright which the author had has been transferred to the Plaintiff by oral assignment, and by implication from the conduct of all of the interested parties including the Defendant, until recently.
All of the facts which have been established point to the Plaintiff herein as having been the proprietor of the common law copyright in “THE Urantia BOOK” and entitled to obtain a valid statutory copyright. Title 17 USC §209 provides that the Certificate of Registration of the claim to copyright submitted with the Complaint herein constitutes prima facie evidence of the Plaintiff’s ownership, and the Defendant has not established any facts which would controvert the Plaintiff’s chain of title.
As pointed out above, mere Possession of the manuscript which became “THE Urantia BOOK” is sufficient to establish proprietorship as against any third party who is not claiming any rights through the author. Certainly, the Defendant here, is not claiming any rights and, therefore, the possession of the manuscripts by the Foundation, admitted by the Defendant, is sufficient.
Conclusion
The undisputed facts as recited hereinabove, taken into consideration with the law as established by the cases cited above, makes the conclusion inevitable that Plaintiff was the owner of a common law copyright in the manuscript which became “THE Urantia BOOK” and, as the proprietor thereof, is the owner of a valid statutory copyright in “THE Urantia BOOK,” and, therefore, it is entitled to Judgment as a matter of law. It is respectfully requested, therefore, that Plaintiff’s Motion for Summary Judgment be granted.
Respectfully submitted,
THOMAS J. HEIDEN
Urantia Foundation’s Answers to Request for Admissions in the Bob Burton Lawsuit
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 ANSWERS TO DEFENDANT’S REQUEST FOR ADMISSIONS
REQUEST NO. 1
That no natural person was the originator of the text of “THE Urantia BOOK”;
ANSWER Plaintiff admits.
REQUEST NO. 2
That all papers constituting the text of “THE Urantia BOOK” were written by a Single person who was a patient of Dr. William Sadler, Sr.;
ANSWER Plaintiff admits.
REQUEST NO. 3
That the person who wrote the original manuscript of “THE Urantia BOOK” died before the Urantia Foundation came into existence on January 11, 1950;
ANSWER Plaintiff denies.
REQUEST NO. 4
That Plaintiff has no documentary evidence of a transfer of rights of first publication or right to claim statutory copyright signed or otherwise endorsed or executed by the originator or author of the text of “THE Urantia BOOK” and transferring such rights to the Urantia Foundation;
ANSWER Plaintiff admits that it has no documentary evidence of transfer of rights signed, endorsed or executed by the originator or author of the text, but avers that the Declaration of Trust is documentary evidence of transfer of rights to Plaintiff Foundation.
REQUEST NO. 5 That Plaintiff has no oral evidence of a transfer of rights of first publication or right to claim statutory copyright from the originator or author of the text of “THE Urantia BOOK” to the Urantia Foundation.
ANSWER If, by “oral evidence,” in this request for admissions Defendant means that there are no living witnesses who can testify of his own knowledge that the originator or author of the text orally or in writing transferred the right to claim statutory copyright to The Urantia Foundation, then the Plaintiff admits.
REQUEST NO. 6
That the Plaintiff’s claim of proprietorship of “THE Urantia BOOK” is based upon possession by the Urantia Foundation of plates as set forth in the Declaration of Trust creating the Urantia Foundation and previously identified as Defendant’s Exhibit No.2;
ANSWER Plaintiff denies this request for admission as stated, but avers that Plaintiff’s claim of proprietorship is based upon possession by the Urantia Foundation of the manuscripts from which such plates were made.
REQUEST NO. 7
That the meeting between Defendant and Miss Emma L. Christensen referred to in Paragraph 2 of the attached Affidavit executed by Defendant on August 25, 1975 and identified as Defendant’s Exhibit 3 took place;
ANSWER Plaintiff admits.
REQUEST NO. 8
That during the meeting referred to in Request No. 7, Defendant showed Miss Emma L. Christensen a copy of the Certificate of Registration No. A 216389; ANSWER Plaintiff admits.
REQUEST NO. 9
That during the meeting referred to in Request No. 7, Miss Emma L. Christensen made a statement to the Defendant to the effect that the subject who had written the original manuscript of “THE Urantia BOOK” had never given his copyright to anyone;
ANSWER Plaintiff denies.
REQUEST NO. 10
That during the meeting referred to in Request No. 7, Miss Emma L. Christensen made a statement to the Defendant to the effect that the subject who had written the original manuscript of “THE Urantia BOOK” had never assigned his copyright to anyone;
ANSWER Plaintiff denies.
REQUEST NO. 11
That Defendant, during the meeting referred to in Request No. 7, made the statement to Miss Emma L. Christensen to the effect that the naming of the Urantia Foundation as authors on the Certificate of Registration was a false statement;
ANSWER Plaintiff has no recollection of the statement alleged to have been made by Defendant to Miss Emma L. Christensen.
REQUEST NO. 12
That Defendant, during the meeting referred to in Request No. 7, made the statement to Miss Emma L. Christensen to the effect that the Defendant considered the copyright illegal;
ANSWER Plaintiff has no recollection of the statement alleged to have been made by Defendant to Miss Emma L. Christensen.
REQUEST NO. 13
That the Urantia Foundation is not the author of “THE Urantia BOOK”;
ANSWER The answer to the request for admission calls for a legal conclusion and depends upon the intended meaning of the word “author.” If, by “author,” Defendant means that The Urantia Foundation did not write or originate the text of “THE Urantia BOOK,” then Plaintiff admits.
REQUEST NO. 14
That the Urantia Foundation is not the originator of “THE Urantia BOOK”;
ANSWER
The Plaintiff’s answer to this request for admission depends upon the intended meaning of the word “originator.” if by “originator,” Defendant intends to mean that the text of “THE Urantia BOOK” did not have its origin in Urantia Foundation then Plaintiff admits.
REQUEST NO. 15
That the person who wrote the original manuscript of “THE Urantia BOOK” faithfully and without adding any style, arrangement, manner of expression, or any subject matter of his or her own, reduced to written form only that which was transmitted to such person by superhuman beings and such is the copyrighted text of “THE Urantia BOOK.”
ANSWER It is the Plaintiff’s belief that the statement made in request No. 15 is true and on this basis admits.
Respectfully submitted,
THE Urantia FOUNDATION
Plaintiff
By Thomas A. Kendall President
Subscribed and sworn before me this 1st day of September, 1975.
Edith E. Cook
Notary Public
My commission expires July 18, 1976
Urantia Foundation’s Answers to Interrogatories in the Bob Burton Lawsuit
Filed July 22, 1975
PLAINTIFF’S ANSWERS TO DEFENDANT’S INTERROGATORIES NOS. 1 - 45
INTERROGATORY NO. 1
Does Plaintiff have knowledge of the existence of any handwritten documents containing any portion of original writings of the text of “THE Urantia BOOK” (excluding its index).
ANSWER Yes.
INTERROGATORY NO. 2
If the answer to Interrogatory No. 1 is affirmative, identify the name and address of the person presently having custody thereof.
ANSWER The handwritten documents referred to in Interrogatory No. 1 were destroyed and are no longer in existence.
INTERROGATORY NO. 3
If the answer to Interrogatory No. 1 is negative:
a. Describe the history of the original writings of the text of “THE Urantia BOOK” and known to be or reasonably believed by Plaintiff to be accurate; and
b. Identify by name and present address each person from whom information was obtained in preparing the answer to subpart a of this Interrogatory; and
c. Identify each document in the custody of or under the control of Plaintiff which makes reference to the history of said original writings as the same is set out in the answer to subpart a of this Interrogatory; and d. Identify by name and present address the person or persons having custody of the documents identified in the answer to subpart c of this Interrogatory; and
e. State whether Plaintiff without a subpoena will permit Defendant to inspect and make copies of said documents.
ANSWER
Since the answer to Interrogatory No. 1 is affirmative, Interrogatory No. 3 does not require an answer.
INTERROGATORY NO. 4
Does Plaintiff have knowledge of the existence of any typewritten documents containing any portion of the text of “THE Urantia BOOK” (excluding its index).
ANSWER Yes.
INTERROGATORY NO. 5
If the answer to Interrogatory No. 4 is affirmative, identify the name and address of the person presently having custody thereof.
ANSWER The typewritten documents referred to in Interrogatory No. 4 have been destroyed and are no longer in existence.
INTERROGATORY NO. 6
If the answer to either Interrogatories 1 or 4 is affirmative, will Plaintiff permit Defendant to inspect these documents without a subpoena.
ANSWER Defendant cannot inspect the documents referred in either Interrogatories 1 or 4 because they are no longer in existence.
INTERROGATORY NO. 7
Does Plaintiff have knowledge of any documents which purports to give, bequeath, assign or transfer to Plaintiff the right to claim statutory copyright in the writings which constitute the text of “THE Urantia BOOK” (excluding its index).
ANSWER Yes.
INTERROGATORY NO. 8
Does Plaintiff have knowledge of any testamentary document which purports to bequeath to Plaintiff the right to claim statutory copyright in the writings which constitute the text of “THE Urantia BOOK” (excluding its index).
ANSWER No.
INTERROGATORY NO. 9
Does Plaintiff have knowledge of any holographic will purporting to bequeath to Plaintiff the right to claim statutory copyright in the writings which constitute the text of “THE Urantia BOOK” (excluding its index).
ANSWER No.
INTERROGATORY NO. 10
If the answer to Interrogatory No. 9 is affirmative, will Plaintiff assert, at trial, such holographic will as the basis of its claim to being proprietor of the rights to statutory copyright in “THE Urantia BOOK.”
ANSWER Since the answer to Interrogatory No. 9 is negative Interrogatory No. 10 does not require an answer.
INTERROGATORY NO. 11
If the answer to either Interrogatories Nos. 9 and 10 is affirmative, state the name and last known address of the person whose holographic will is referred to in such answers.
ANSWER Since neither of the answers to Interrogatories Nos. 9 or 10 is affirmative, Interrogatory No. 11 does not require an answer.
INTERROGATORY NO. 12
If the answer to Interrogatory No. 9 is affirmative state:
a. The name and address of the person presently having custody of such holographic will; and
b. Will Plaintiff, without a subpoena, permit Defendant to inspect and make copies of the will.
ANSWER Since the answer to Interrogatory No. 9 is negative, Interrogatory No. 12 does not require an answer.
INTERROGATORY NO. 13
Does Plaintiff base its claim to being proprietor of the claim to statutory copyright upon any unwritten or only partially documented assignment, transfer or other claim of title.
ANSWER Yes.
INTERROGATORY NO. 14
If the answer to Interrogatory No. 13 is affirmative, identify by name and address each witness whose testimony or sworn statement will be relied upon to establish the existence or intent and/or content of such holographic will in this proceeding.
ANSWER See the objection of this Interrogatory filed concurrently herewith.
INTERROGATORY NO. 15
If the answer to Interrogatory No. 13 is affirmative, identify each document which will be offered at trial to establish the existence or intent and/or content of such holographic will and as to each document state:
a. Name and address of the person presently having custody thereof;
b. Will Plaintiff permit Defendant to inspect and copy same without a subpoena.
ANSWER See the objection of this Interrogatory filed concurrently herewith.
INTERROGATORY NO. 16
Will Plaintiff assert in this proceeding any document other than the issued certificate of copyright as evidence of Plaintiff’s right to be identified as the “author” or “proprietor” of Copyright Registration No. A 216 389.
ANSWER Yes.
INTERROGATORY NO. 17
If the answer to Interrogatory No. 16 is affirmative, identify each such document and as to each document identified, state:
a. The name and address of the person presently having custody thereof;
b. Will Plaintiff permit Defendant to inspect and copy the same without a subpoena.
ANSWER The document referred to in the answer to Interrogatory No. 16 is the Declaration of Trust Creating Urantia Foundation.
a. The original document is at the Urantia Foundation office at 533 West Diversey Avenue, Chicago, Illinois, and is in the custody of the officers of the Foundation.
b. Defendant has inspected said document in the past, but Plaintiff will Permit Defendant to inspect and copy the same without a subpoena. The document is recorded in the Recorder’s Office of Cook County and a copy thereof may also be inspected in that office. The document was recorded January 26, 1950 as Document No. 14722215 in Book 45191 at pages 105 through 128.
INTERROGATORY NO. 18
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.”
ANSWER 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. ***See Motion to Compel this answer.
Filed August 27, 1975
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
THE Urantia FOUNDATION,
an Illinois foundation,
Plaintiff,
V.
ROBERT BURTON,
Defendant.
OPINION AND ORDER COMPELLING VS. ANSWER TO INTERROGATORIES
Defendant has moved under F.R.Civ.P. 37(a) for an order compelling plaintiff to fully and completely answer two interrogatories. As to No. 18, defendant claims that plaintiff’s response did not deny knowledge of the information requested, but rather refused to answer based upon an alleged oath of secrecy. The Court finds that the information sought by defendant’s Interrogatory No. 18 is properly discoverable and that plaintiff’s response constitutes a failure to answer and does not present a valid reason for such refusal. Therefore, plaintiff is ORDERED to fully and completely answer defendant’s Interrogatory No. 18.
Plaintiff objected to Interrogatory No. 58 on the ground that it did not understand what was being sought because of an ambiguity in the wording. Interrogatory No. 58 seeks identification of “all documents other than those already identified in the Answer to Interrogatory No. 18” which were referred to in a response to a prior Interrogatory. The fact that the answer to Interrogatory No. 18 makes no reference to any documents does not excuse plaintiff from answering. Interrogatory No. 58 clearly seeks “all documents” relied on in a prior answer, whether or not any of them were already mentioned in response to Interrogatory No. 18. Therefore, plaintiff is ORDERED to fully and completely answer Interrogatory No. 58.
Costs to defendant are DENIED. IT IS SO ORDERED.
Wendell A. Miles,
U.S. District Judge
Dated: August 27, 1975
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
Houghton Mifflin v. Stackpole Sons, Inc. 104 F.2d 306 6
Jones v. Metzger Dairies, Inc. 334 F. 2d 919 4
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.
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 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
INTERROGATORY NO. 19
Will Plaintiff, at trial, assert that any of the papers numbered 1 through 196 as they are now printed in “THE Urantia BOOK,” were not first handwritten.
ANSWER No.
INTERROGATORY NO. 20
If the answer to Interrogatory No. 19 is affirmative, please state the form of writing in which the papers to which reference is made in Interrogatory No. 19 were first written.
ANSWER Since the answer to Interrogatory No. 19 is negative Interrogatory No. 20 does not require an answer.
INTERROGATORY NO. 21
With respect to the answers to Interrogatories Nos. 19 and 20, state the name and last known address of the person Plaintiff will assert at trial as having originally written said papers and identify whether such person wrote the same by hand or mechanical means.
ANSWER This Interrogatory has already been answered in the answers to Interrogatories Nos. 19 and 20. Such person wrote the papers by hand. Plaintiff will not assert at trial the name or last known address of the person who originally wrote said papers.
INTERROGATORY NO. 22
As to the person named in the answer to Interrogatory No. 21 state:
a. The identity of all documents Plaintiff will assert at trial to prove its right to claim statutory copyright in the writings of the person named in the answer to Interrogatory No. 18;
b. The name and address of the person presently having custody of the documents identified in answer to subpart a of this Interrogatory; and
c. Will Plaintiff permit Defendant to inspect and make copies of the documents identified in answer to subpart a of this Interrogatory.
ANSWER Since no person was named in the answer to Interrogatory No. 21 no reply to Interrogatory No. 22 is required as to such person. Answering subparagraphs a., b. and c. of Interrogatory No. 22 Plaintiff states as follows:
a. Plaintiff will assert at trial that its right to claim statutory copyright in the writings of the personality referred to in Interrogatory No. 18 evolves not only from the aforementioned Declaration of Trust, but also from the fact that Plaintiff had possession of the manuscripts and plates used to print “THE Urantia BOOK.”
b. The handwritten and typewritten manuscripts have been destroyed, but the original nickel-plated stereotype plates for printing “THE Urantia BOOK” were made by and in the custody of R. R. Donnelly and Sons, Inc. The original such plates were destroyed after the “acetates” were made which are now used in printing the book. These are in the custody of R. R. Donnelly & Sons, Inc., 1009 Sloan Street, Crawfordsville, Indiana.
c. Yes.
INTERROGATORY No. 23
As to any of the papers to which the answers to Interrogatories Nos. 19, 20 or 21 do not apply, state the following:
a. Identify the particular papers;
b. As to each particular paper, identify the form in which they were originally written;
c. As to each particular paper, state the name and last known address of the person who wrote the paper;
d. Identify, and state the name and address of the person having custody of any document Plaintiff will assert at trial as bequeathing, assigning, giving or in any manner transferring to Plaintiff the right to acquire statutory copyright in such writing; and
e. Will Plaintiff permit Defendant without a subpoena to inspect such papers.
ANSWER There are no papers to which the answers to Interrogatories Nos. 19, 20 or 21 do not apply, therefore, Interrogatory No. 23 does not require an answer.
INTERROGATORY NO. 24
Describe the circumstances of the first writing of the papers Nos. 1 through 196 of “THE Urantia BOOK.”
ANSWER See the objection to Interrogatory No. 24 filed concurrently herewith.
INTERROGATORY NO. 25
With reference to Defendant’s Affidavit No. 1, submitted by Defendant with its Brief in reply to Plaintiff’s Request for a Preliminary Injunction, more particularly to the hereinafter quoted statement therein, does Plaintiff deny the truth of any portion of such statement:
"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.:
ANSWER
A. No.
B. No.
C. No.
INTERROGATORY NO. 26
If the answer to Interrogatory No. 25 is anything other than an unqualified negative:
a. Identify the particular portion or portions of said statement the truth of which Plaintiff denies; and
b. State the reason or reasons Plaintiff denies the truth of the statement or portion thereof.
ANSWER In view of the answers to Interrogatory No. 25, Interrogatory No. 26 does not require an answer.
INTERROGATORY NO. 27
With reference to Defendant’s Affidavit No. 1 submitted by Defendant with its Brief in reply to Plaintiff’s Request for a Preliminary Injunction, and more particularly to the hereinafter quoted statement therein, does Plaintiff deny the truth of such statement:
“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;”
ANSWER No.
INTERROGATORY NO. 28
If the answer to Interrogatory No. 27 is anything other than an unqualified negative:
a. Identify the particular portion or portions of said statement the truth of which Plaintiff denies; and
b. State the reason or reasons Plaintiff denies the truth of the statement or portion thereof
ANSWER In view of the answer to Interrogatory No. 27, Interrogatory No. 28 does not require an answer.
INTERROGATORY NO. 29
Did Emma L. Christensen type a manuscript of “THE Urantia BOOK” from an original handwritten manuscript or manuscripts.
ANSWER Yes.
INTERROGATORY NO. 30
If the answer to Interrogatory No. 29 is affirmative, identify the document she typed and the name and present address of the person presently having custody thereof.
ANSWER The documents she typed constitute the typewritten form of “THE Urantia BOOK.” The typewritten documents were destroyed after the original plates were made.
INTERROGATORY NO. 31
Did Emma L. Christensen add or delete any words, punctuation or rearrange the wording of any of the papers 1 through 196 which now form the text of “THE Urantia BOOK.”
ANSWER No.
INTERROGATORY NO. 32
If the answer to Interrogatory No. 31 is affirmative, please state each change Emma L. Christensen incorporated into the text of “THE Urantia BOOK” before its publication.
ANSWER In view of the answer to Interrogatory No. 31, Interrogatory No. 32 does not require an answer.
INTERROGATORY NO. 33
Identify all witnesses Defendant will use at trial to prove the accuracy of the answer to Interrogatory No. 32.
ANSWER In view of the answers to Interrogatories Nos. 32 and 31, this Interrogatory No. 33 does not require an answer, if it is presumed that “Defendant” in the Interrogatory was intended to mean “Plaintiff.”
INTERROGATORY NO. 34
Identify all documents Plaintiff will offer at trial in support of its answer to Interrogatory No. 32 and state whether Plaintiff without a subpoena will be permitted to inspect and make copies of all such documents.
ANSWER Plaintiff does not intend to offer at trial any documents in support of its answer to Interrogatory No. 32.
INTERROGATORY NO. 35
Will Plaintiff assert at trial that any particular person or persons, living or dead, was the originator or author of any of the papers Nos. 1 through 196 or of the Introduction of “THE Urantia BOOK.”
ANSWER No.
INTERROGATORY NO. 36
If the answer to Interrogatory No. 35 is affirmative, state:
a. Whether such person is alive.
b. The name and last known address of such person.
c. The name and address of all persons who have information to corroborate that such person is the originator or author.
d. The identity of all documents Plaintiff would assert in support of such person’s or persons’ testimony if such person or persons were called as a witness at the trial.
ANSWER In view of the answer to Interrogatory No. 35, Interrogatory No. 36 does not require an answer.
INTERROGATORY NO. 37
Will Plaintiff at trial assert that any person who has been or is now an officer or trustee of The Urantia Foundation is the heir or legatee of the person who originated or wrote any or all of the papers Nos. 1 through 196 constituting “THE Urantia BOOK.”
ANSWER No.
INTERROGATORY NO. 38
If the answer to Interrogatory No. 37 is affirmative, will Plaintiff assert at trial that the Urantia Foundation claims right to the statutory claim to Copyright to “THE Urantia BOOK” through such person.
ANSWER
In view of the answer to Interrogatory No. 37, Interrogatory No. 38 does not require an answer.
INTERROGATORY NO. 39
If the answer to Interrogatories Nos. 37 and 38 are both affirmative:
a. Identify such person by name and last known address;
b. State whether such person is alive;
c. State whether such person is presently associated or affiliated with The Urantia Foundation;
d. Identify all documents which Plaintiff will offer at trial in support of its assertion of its right to claim through such person;
e. State the name and present address of the person presently having custody of such documents; and
f. Will Plaintiff without a subpoena permit Defendant to inspect and copy such documents.
ANSWER In view of the answers to Interrogatories Nos. 37 and 38, Interrogatory No. 39 does not require an answer.
INTERROGATORY NO. 40
a. State the name and address of the person presently having custody of the original of the letter, a copy of which was attached to Defendant’s Affidavit No. 3 as Defendant’s Exhibit No. 1.
b. Will Plaintiff provide Defendant with a photocopy of the original of such letter.
c. Will Plaintiff at trial deny receipt of the original of the letter.
ANSWER a. The original of the letter, a copy of which was attached to Defendant’s Affidavit No. 3 as Defendant’s Exhibit No. 1 is in the files of Plaintiff at 533 West Diversey Avenue, Chicago, Illinois, and is in the custody of the officers of Plaintiff.
b. No.
c. No.
INTERROGATORY NO. 41
Identify each person who was present at any time when any of the papers 1 through 196 of “THE Urantia BOOK” were handwritten by the person to which reference is made in the following paragraphs of Defendant’s Affidavit No. 1.
"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."
ANSWER To Plaintiff’s knowledge no person was present other than the person who made the writing.
INTERROGATORY NO. 42
As to each person identified in the answer to Interrogatory No. 41, state whether such person is alive or deceased, and as to each living person, state there name and present address.
ANSWER In view of the answer to Interrogatory No. 41, Interrogatory No. 42 does not require an answer.
INTERROGATORY NO. 43
State the name and present address of each person consulted in obtaining the information necessary to answer Interrogatories Nos. 41 and 42.
ANSWER Emma L. Christensen, 533 West Diversey Avenue, Chicago, Illinois.
INTERROGATORY NO. 44
With reference to the paragraphs A, B and C quoted in Interrogatory No. 25, if the answer is anything otherwise than an unqualified negative, describe what Plaintiff believes to be the correct description of the portion or portions Plaintiff denies.
ANSWER In view of the answer to Interrogatory No. 25, Interrogatory No. 44 does not require an answer.
INTERROGATORY NO. 45
With reference to the paragraph quoted in Interrogatory No. 27, if the answer if anything other than an unqualified negative, describe what Plaintiff believes to be the correct description of the portion or portions Plaintiff denies.
ANSWER In view of the answer to Interrogatory No. 27, Interrogatory No. 45 does not require an answer.
THE Urantia FOUNDATION Plaintiff By Thomas A. Kendall President
Thomas A. Kendall, being duly sworn states that he is the President of Plaintiff, Urantia Foundation, that he has read and signed the foregoing Plaintiff’s Answers to Defendant’s Interrogatories Nos. 1 - 45 and knows the contents thereof; and that said answers are true, except as to those stated therein to be upon information and belief, and as to those matters he believes them to be true.
THOMAS A. KENDALL
Sworn to and subscribed before me this day of July, 1975.
Edith E. Cook
Notary Public
My commission expires July 18, 1976
PLAINTIFF’S OBJECTION TO DEFENDANT’S INTERROGATORIES NOS. 14, 15 AND 24
INTERROGATORY NO. 14
If the answer to Interrogatory No. 13 is affirmative, identify by name and address each witness whose testimony or sworn statement will be relied upon to establish the existence or intent and/or content of such holographic will in this proceeding.
Objection is made to this Interrogatory on the ground that it is indefinite and cannot be answered because no “holographic will” is mentioned in Interrogatory No. 13 upon which this Interrogatory depends.
INTERROGATORY NO. 15
If the answer to Interrogatory No. 13 is affirmative, identify each document which will be offered at trial to establish the existence or intent and/or content of such holographic will and as to each document state:
a. Name and address of the person presently having custody thereof;
b. Will Plaintiff permit Defendant to inspect and copy same without a subpoena.
Objection is made to this Interrogatory on the ground that it is indefinite and cannot be answered because no “holographic will” is mentioned in Interrogatory No. 13 upon which this Interrogatory depends.
INTERROGATORY NO. 24
Describe the circumstances of the first writing of the papers Nos. 1 through 196 of “THE Urantia BOOK.”
Objection is made to this Interrogatory on the ground that it is indefinite and is not understood. Plaintiff is asked to describe “the circumstances of the first writing” of the papers in “THE Urantia BOOK.” What Defendant means by this use of the word “circumstances” cannot be determined, and since Plaintiff does not understand what Defendant has in mind it cannot be answered.
Thomas J. Heiden
Lloyd C. Root
Attorneys for Plaintiff
August 25, 1975
PLAINTIFF’S ANSWERS TO DEFENDANT’S INTERROGATORIES NOS. 46 - 60
INTERROGATORY NO. 46
With respect to the affirmative Answer to Interrogatory No. 13, identify by name and address each witness whose testimony or sworn statement will be relied upon in this proceeding to establish the existence or intent and/or content of the conveyance, assignment or transfer or other claim of title which is the basis of Plaintiff’s affirmative Answer.
ANSWER At the present time Plaintiff does not intend to rely upon the testimony or sworn statement of any witness to establish the existence or intent and/or content of the conveyances, assignment or transfer or other claim of title which is the basis of Plaintiff’s affirmative Answer to Defendant’s Interrogatory No. 13, but should Plaintiff determine at some later time that such testimony is desirable, ample notice of the name and address of each witness will be given to Defendant.
INTERROGATORY NO. 47
With respect to the affirmative Answer to Interrogatory No. 13, identify each document which will be offered at trial which wholly or partially constitutes the conveyance or assignment or transfer or other claim of title referred to in Interrogatory No. 13.
ANSWER Defendant’s AFFIDAVITS 1 and 3 attached to DEFENDANT’S BRIEF IN OPPOSITION TO PLAINTIFF’S APPLICATION FOR PRELIMINARY INJUNCTION; Declaration of Trust Creating Urantia Foundation; the Certificate of the Claim to Copyright, a certified copy of which was attached to the Complaint herein and identified as Plaintiff’s Exhibit 2; and portions of DEFENDANT’S BRIEF IN OPPOSITION TO PLAINTIFF’S APPLICATION FOR PRELIMINARY INJUNCTION.
INTERROGATORY NO. 48
State the date of death of “the personality through whom the material was transmitted” as such phrase is used in Plaintiff’s Answer to Interrogatory No. 18.
ANSWER This date is not known to Plaintiff.
INTERROGATORY NO. 49
State the date when The Urantia Foundation came into existence.
ANSWER January 11, 1950.
INTERROGATORY NO. 50
With respect to the handwritten documents referred to in Plaintiff’s Answer to Interrogatory No. 1:
a. Were any of these documents destroyed before the date when The Urantia Foundation came into existence;
b. Were all of these documents destroyed before the date The Urantia Foundation came into existence;
c. When were the documents destroyed; and
d. By whom were the documents destroyed.
ANSWER
a. Yes.
b. Yes.
c. From time to time after the typewritten manuscripts were made.
d. See the Objection to this Interrogatory submitted simultaneously herewith.
INTERROGATORY NO. 51
With respect to the typewritten documents referred to in Plaintiff’s Answer to Interrogatory No. 5:
a. Were any of these documents destroyed before the date when The Urantia Foundation came into existence;
b. Were all of these documents destroyed before the date The Urantia Foundation came into existence;
c. When were the documents destroyed; and
d. By whom were the documents destroyed.
ANSWER
a. No.
b. No.
c. Immediately after publication of “THE Urantia BOOK.”
d. See the Objection to this Interrogatory submitted simultaneously herewith.
INTERROGATORY NO. 52
Will Plaintiff at trial assert that “the personality through whom the material was transmitted,” as such phrase is used in Plaintiff’s Answer to Interrogatory No. 18, is or was:
a. The author of the Papers which now constitute the text of THE Urantia BOOK;
b. The proprietor of the papers which now constitute the text of THE Urantia BOOK.
ANSWER
a. No.
b. The personality through whom the material which constitutes the text of “THE Urantia BOOK” was transmitted is considered to be merely a conduit through whom the contents of the papers was transmitted to those who became the Proprietors thereof and such personality, therefore, is not considered to be a proprietor within the meaning of the Copyright Act.
INTERROGATORY NO. 53
Will Plaintiff at trial assert that any natural person was or is the author of the papers which now constitute the text of THE Urantia BOOK.
ANSWER If, by the term “natural person” used in this Interrogatory is meant any human being, then the Answer is negative.
INTERROGATORY NO. 54
If the answer to Interrogatory No. 53 is affirmative:
a. Identify such natural person;
b. Describe the chain of title through which The Urantia Foundation will assert at trial that it acquired:
(1) Such person’s common law copyright in said papers;
(2) Such person’s right to claim statutory copyright in said papers;
(3) Identify all documents other than the “Declaration Of Trust Creating Urantia Foundation” Plaintiff will assert at trial to establish such claim of title and state whether Defendant will be permitted to inspect and copy the same without a subpoena.
ANSWER Since the Answer to Interrogatory No. 53 is not affirmative no Answer to this Interrogatory No. 54 is required.
INTERROGATORY NO. 55
With reference to the document entitled “Urantia Foundation” – “Declaration Of Trust Creating Urantia Foundation” a copy of which was attached to Defendant’s Affidavit No. 3, marked Defendant’s Exhibit 2:
a. State whether the document marked Defendant’s Exhibit 2 is an accurate copy of the text of the “Declaration Of Trust Creating Urantia Foundation” referred to in Plaintiff’s Answer to Interrogatory No. 17;
b. State whether the document marked Defendant’s Exhibit 2 is a complete copy of the text of the “Declaration Of Trust Creating Urantia Foundation” referred to in Plaintiff’s Answer to Interrogatory No. 17;
c. If Plaintiff at trial offers in evidence a copy of the “Declaration Of Trust Creating Urantia Foundation” will the document so offered in evidence be in any respect different in content that the document identified as Defendant’s Exhibit 2; and
d. If Defendant at trial offers its Exhibit 2 in evidence, will Plaintiff object to its admission and if the Answer is yes, state the basis of the objection.
ANSWER
a. Yes.
b. Yes.
c. No.
d. No.
INTERROGATORY NO. 56
Will Plaintiff at trial assert that its right to claim statutory copyright in THE Urantia BOOK arises out of intestate inheritance from “the personality through whom the material was transmitted” as such phrase is used in Plainiff’s Answer to Interrogatory No. 18.
ANSWER No.
INTERROGATORY NO. 57
If the Answer to Interrogatory No. 56 is affirmative:
a. Identify the person or persons through whom the inheritance of such right is claimed;
b. Identify all documents which make reference to the inheritance of such right to claim statutory copyright; and
c. Identify all persons who will testify at trial to the existence of such inherited right.
ANSWER Since the Answer to Interrogatory No. 56 is not affirmative no Answer to Interrogatory No. 57 is required.
INTERROGATORY NO. 58
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.
ANSWER See the Objection to this Interrogatory submitted simultaneously herewith.
INTERROGATORY NO. 59
With respect to the “manuscripts and plates” used to print THE Urantia BOOK recited in Plaintiff’s Answer to Interrogatory No. 22a:
a. Identify all documents Plaintiff will assert at trial to establish that possession of said manuscripts and plates entitled Plaintiff to claim statutory copyright in THE Urantia BOOK; and
b. Identify by name and address all persons who will testify at trial to establish that Possession of said manuscripts and plates entitled Plaintiff to claim statutory copyright in THE Urantia BOOK.
ANSWER
a. Plaintiff’s right to claim statutory copyright by reason of its possession of manuscripts and plates is a legal conclusion, and therefore, it is not Plaintiff’s present intention to assert at trial any documents to establish this legal conclusion other than Plaintiff’s brief in support of its Motion for Summary Judgment.
b. Plaintiff’s right to claim statutory copyright by reason of its Possession of manuscripts and plates is a legal conclusion, and therefore, it is not Plaintiff’s present intention to have any persons testify at trial to establish such legal conclusion.
INTERROGATORY NO. 60
Identify all witnesses Plaintiff intends to call at trial and the subject matter to which each such witness’s testimony will be directed.
ANSWER
Plaintiff does not presently intend to call any witnesses to testify with respect to its Motion for Summary Judgment or with respect to the issue of the validity of Plaintiff’s copyright in “THE Urantia BOOK,” however, with respect to any trial which might take place after a decision on Plaintiff’s Motion for Summary Judgment, Plaintiff has no present knowledge of which witnesses might be called since it would depend upon the issues involved.
THE Urantia FOUNDATION Plaintiff By THOMAS A. KENDALL President
STATE OF ILLINOIS COUNTY OF COOK
THOMAS A. KENDALL, being duly sworn states that he is the President of Plaintiff, Urantia Foundation, that he has read and signed the foregoing Plaintiff’s Answers to Defendant’s Interrogatories Nos. 46 - 60 and knows the contents thereof; and that said answers are true, except as to those stated therein to be upon information and belief, and as to those matters he believes them to be true.
Sworn to and subscribed before me 12th day of August, 1975.
Linda L. Haese,
Notary Public
My commission expires December 31, 1978
PLAINTIFF’S OBJECTION TO DEFENDANT’S INTERROGATORIES NOS. 50d. 51d, AND 58
INTERROGATORY NO. 50d
With respect to the handwritten documents referred to in Plaintiff’s Answer to Interrogatory No. 1:
d. By whom were the documents destroyed.
Objection is made to this Interrogatory on the ground that it is irrelevant, immaterial and impertinent. By whom the documents were destroyed cannot possibly have any bearing on the issue of the validity of Plaintiff’s copyright in “THE Urantia BOOK.”
INTERROGATORY NO. 51d
With respect to the typewritten documents referred to in Plaintiff’s Answer to Interrogatory No. 5:
d. By whom were the documents destroyed.
Objection is made to this Interrogatory on the grounds that it is irrelevant, immaterial and impertinent. By whom the documents were destroyed cannot possibly have any bearing on the issue of the validity of Plaintiff’s copyright in “THE Urantia BOOK.”
INTERROGATORY NO. 58
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.
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.
Peter Armstrong & Lloyd Root
Attorneys for Plaintiff
August 15, 1975