Update Nov 5, 2003
Judge Sweet dismissed the complaint
made against the New Christian Church of Full Endeavor, invalidating the
copyright on A Course In Miracles with costs to the defendant. The 32
pages of the judge's opinion, which was issued on Monday, October 27th
2003, is available below.
an Order of Entry of Judgment now being drafted for signature by
the judge and once that is entered, he will mandate a 10 day stay
pending any filing of any emergency proceedings by either side.
The plaintiffs have 30 days from entry of judgment within which to
file a Notice of Intent to Appeal upon various ground, and 6
months within which to physically file the appellate papers. If
they don't file the Notice, the judgment stands as law.
New Christian Church is putting in it in draft Order for Judge
Sweet that the Hugh Lynn Cayce and the Urtext are covered by this
copyright invalidation, since plaintiffs have always argued in
their pleadings that both these 'various prior drafts' documents
were 'encompassed' in the copyright registration for which they
were suing the Church.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PENGUIN BOOKS U.S.A., INC.,
FOR "A COURSE IN MIRACLES, INC.",
FOUNDATION FOR INNER PEACE, INC.,
96 Civ. 4126 (RWS)
- against -
O P I N I O N
NEW CHRISTIAN CHURCH OF FULL
LTD., and ENDEAVOR ACADEMY,
A P P E A R A N C E S:
EPSTEIN, BECKER & GREEN
Attorney for Plaintiff Foundation
for Inner Peace
and Foundation for "A Course in
111 Huntington Avenue
Boston, MA 02199
By: JOHN J. ROSENBERG, ESQ.
CARRIE J. FLETCHER, ESQ.
LAWRENCE E. FABIAN, ESQ.
Attorney for Defendants
444 Madison Avenue, Suite 701
New York, NY 10022
The plaintiffs Foundation for A
Course in Miracles,
("FACIM") and Foundation for Inner
Peace ("FIP") seek to enforce their copyright in A Course in Miracles
(the "Course" or the "Work"), against the defendants New Christian
Church of Full Endeavor, Ltd. ("NCCFE" or the "Church") and Endeavor
Academy (the "Academy"). After the completion of the prior proceedings a
nonjury trial was held from May 19, 2003 to May 21, 2003. Upon all the
prior proceedings and the following findings of fact and conclusions,
judgment will be entered in favor of the defendants dismissing the
This litigation involves
extraordinary materials and deep-seated convictions which have
transformed a copyright action into issues of faith and commitment and
required the examination of events which occurred over a quarter of a
century ago. The preponderance of the credible evidence has established
that the plaintiffs' predecessors in interest distributed the Course
before its publication.
FIP is a New York corporation with
its principal place of business in California. It first published the
Course with a copyright notice on October 6, 1975, transferred the
The parties have submitted a
stipulation dismissing plaintiff Penguin from this action, except for
liability for damages and attorney's fees, in light of the expiration of
the licensing agreement through which Penguin obtained rights to
distribute the Work herein at issue.
Penguin Books U.S.A., Inc.
in 1995 for a five-year
period, and transferred its rights to FACIM in February 1998.
FACIM is a New York corporation
with its principal place of business in Roscoe, New York.
The Church is a Wisconsin
corporation with its principal place of business in Wisconsin
Dells, Wisconsin. Endeavor is a teaching facility
with its principal place of business in Reedsburg,
Penguin filed the original
complaint in this action on June 3, 1996 to enforce their
copyright in the Work. Defendants initially proceeded pro se, but were
ordered on January 24, 1997 to retain counsel. FIP and FACIM joined as
plaintiffs, and discovery proceeded.
In their third amended complaint,
plaintiffs also assert as their second through sixth
claims for relief, violations of the Lanham Act of 1946, 15 U.S.C. §
1051, et seq. This Court possesses
subject matter jurisdiction over
those claims under 28 U.S.C. §§ 1331, 1338(a), and 1338(b). These claims
have been stayed pending the outcome of the primary copyright claims.
On February 3, 2000, Penguin and
the plaintiffs moved for a preliminary injunction, and the Church and
Endeavor cross-moved for summary judgment. In an opinion of July 25,
2000, Penguin Books USA, Inc. v. New Christian Church of Full Endeavor,
Ltd., No. 96 Civ. 4126, 2000 WL 1028634 (S.D.N.Y., July 25, 2000) (the
"July 25 Opinion"), a partial preliminary injunction was granted, and
cross-motion for summary judgment
was denied. The July 25 Opinion held that plaintiffs have established a
prima facie case of copyright infringement in connection with the Work,
that defendants' "public domain" affirmative defense survived summary
judgment, and that Affirmative Defenses 1-6, 8-13 were dismissed.
These defenses related to
invalidity of the copyright due to divine authorship; fraud on the
Copyright Office; unclean hands and copyright misuse; failure to allege
chain of title; estoppel; infringement on freedom of religion; laches;
no standing; abandonment; fair use; permissible quotation of fact only;
uncopyrightability of facts; and that the Course was not copyrightable.
The issue of prepublication
distribution was reserved for trial.
On May 7, 2003, the Court
determined motions in limine with respect to certain evidentiary issues.
Penguin Books U.S.A.,
Inc. v. New Christian Church of
Full Endeavor, 262 F. Supp.2d 251 (S.D.N.Y. 2003).
In accordance with these rulings,
the trial took place from May 19, 2003 to May 21, 2003. Final argument
and submission were heard on June 25, 2003, at which time the case was
considered fully submitted.
Based upon the July 25 Opinion,
the factual issue remaining in the case was whether or not prior to
publication of the Course in 1975, those in possession of the Course
distributed it. Even prior to the trial it had been established that a
number of copies of the Course had been given to various people. The
question, therefore, to which the trial was directed as framed by the
defendants' Seventh Affirmative Defense was the extent of this
distribution and whether or not that publication was general or to a
select group for their review and comment.
As the factual findings to follow
will demonstrate, mysticism, psychic phenomenon, and self-interest are
revealed through the testimony of, and about, unusual people and events.
If there were only one truth, you
couldn't paint a hundred canvases on the same theme.
Pablo Picasso, quoted in Helene
Parmelin, Picasso Says "Truth," tr. 1969.
Notwithstanding Picasso, for
copyright purposes, one truth must be found in order to resolve the
I. Findings of Fact
A. The Source
In 1965, Dr. Helen Schucman ("Schucman"),
an associate professor of medical psychology appointed to the faculty of
the College of Physicians and Surgeons of the Columbia Presbyterian
Medical Center, began to hear the words of what she referred to as "It"
or "the Voice." Schucman later identified this voice as "Jesus." In
October 1965, Schucman reported that she heard from the Voice the words
"This is A Course in Miracles. Please take notes"; Schucman then began
to write down what she described as a form of "rapid inner dictation."
(Tr. 66,384) Over the next seven years, she filled nearly thirty
stenographic notebooks with words she received from the Voice -- words
that would ultimately evolve into the Text, Workbook for Students
("Workbook"), and the Manual for Teachers, the three sections of A
Course in Miracles.
Schucman was a clinical
psychologist at Columbia Medical Center in New York City at the time she
scribed the Course. Dr.
William Thetford ("Thetford") was
her superior and colleague. Schucman and Thetford collaborated working
in private offices in "an air of secrecy." (Wapnick Tr. 374). Schucman
dictated her scribed notes to Thetford, who then typed them. Eventually
the manuscript totaled 1,500 pages and was placed into black thesis
Schucman was embarrassed by her
scribing and considered it her "guilty secret." (Tr. 65, 369, 426). She
did not want her co-workers, professors in the psychology department at
Columbia Medical Center, to know about the existence of the Course.
Schucman and Thetford were afraid
that their professional reputations at Columbia would be adversely
affected if their professional peers found out about the Course and
chose to keep it a secret. Both wrote and copyrighted articles prior to
1973, but never placed a copyright notice or restrictive legend on the
B. The Distribution
As the work began to take shape,
Schucman and Thetford revealed the work to individuals
who they believed would be interested in the intersection of
the psychological and the spiritual realms of consciousness.
Hugh Lynn Cayce ("Cayce") was the
founder of the
Association for Research &
Enlightenment (the "A.R.E."), an institute that was created to
promulgate the teachings of his father, Edgar Cayce, a psychic who had
experiences similar to those of Schucman and had "taken down" messages
of a spiritual nature.
When Schucman experienced some
personal difficulties and hesitance after hearing the "inner voice,"
Thetford contacted Cayce to seek his advice and counsel, and Schucman
met with Cayce before she began to record the Course. Both she and
Thetford found him to be very supportive in respect to the psychic and
spiritual experiences that were making her so uncomfortable. Schucman
and Thetford provided Cayce with a copy of an earlier version of the
manuscript and solicited his feedback, and they wrote in a November 18,
1970 letter to Cayce, "We look forward to any further comments or
suggestions which you may wish to offer, individually or collectively."
(Def. Ex. D) Cayce's copy of the manuscript has been maintained in a
locked room at the A.R.E. and was not made available to the general
Father Benedict Groeschel ("Groeschel")
is a former priest, then a member of a
Franciscan order, who had a doctorate in psychology, had studied under
Thetford, had worked with Schucman at Columbia Presbyterian Medical
Center Psychiatric Institute, and had an established interest in the
relationship between mysticism or spirituality and psychology. He was
given a copy of the Work in 1973. Groeschel testified that he was
instructed by Schucman not
to distribute the manuscript.
Notwithstanding, he discussed it and made it available to Dr. Kenneth
Wapnick "Wapnick"). It was apparent to Groeschel that Schucman and
Thetford did not desire that the manuscript be widely disseminated. He
complied with their instructions not to give the manuscript to anyone.
(Tr. 10, 58).
Calvin Hatcher ("Hatcher"), the
administrative vice-president at Columbia Presbyterian Medical Center,
was a very close friend of Schucman and Thetford and received the
manuscript, probably in 1973. (Tr. 379-380). It was assumed that he
treated it as confidential, making no copies of the manuscript and not
showing it to anyone.
Reverend Jon Mundy ("Mundy") was a
Methodist minister interested in "new age"
spirituality, and he was planning a doctoral dissertation on
psychotherapy and spirituality. He received a copy of the manuscript
from Schucman and Thetford some time in 1974, and he "was told in no
uncertain terms not to show that to anyone." (Tr. 381).
Wapnick was a clinical
psychologist, who between 1967 and 1972, directed a school for disturbed
children and served as chief psychologist at Harlem Valley State
Hospital. As a result of a religious conversion, in 1972 Wapnick sought
to become a monk and, to accomplish that end, abandoned his Jewish faith
and sought to become a Catholic. His conversion, reported to Groeschel,
interested the latter, and they
met. Wapnick had published an article about mysticism and schizophrenia,
the thesis of which was that mystics are not schizophrenics and
schizophrenics are not mystics. Groeschel arranged for an introduction
of Wapnick to Schucman and Thetford in November 1972.
In May of 1973, after a trip to
Israel, Wapnick went to the private offices of Schucman and Thetford and
reviewed a portion of the manuscript. He was provided with a copy of the
manuscript containing some 1,500 8 1/2 x 11 pages. Wapnick also
I'm not sure if it was a direct
statement, but it certainly was implicit that this
was not to be shown to
anybody. I knew that very, very
well. This was not something I was going to tell
people about. I was not going to tell my family or my
friends about [it].
Wapnick recommended editorial
changes and reviewed the manuscript during the spring and
summer of 1973. Starting in or about the fall of 1973, Wapnick and
Schucman began to work together on a comprehensive editing of the entire
Course, ultimately spending 13 or 14 months reviewing the manuscript,
and revising its grammar, paragraphing, headings, and the like. This
editing process was completed in approximately February 1975.
Subsequently, Wapnick became the
founder and president of FACIM and, with his wife, constitutes
its executive board.
On May 29, 1975, Dr. Douglas Dean
("Dean"), a physicist engineer, introduced Schucman,
Thetford and Wapnick to Judith Skutch Whitson ("Skutch Whitson"),
a key witness at the trial and ultimately perhaps the principal person
involved with the use and development of the Work -- Schucman having
died in 1981 and Thetford in 1988.
Schucman and Thetford gave Dean an
uncopyrighted copy of the Course at the same time that Skutch Whitson
received her copy.
Dean was a stranger to both
Schucman and Thetford until the May meeting. He had very little
relationship with Schucman after receiving the Course, and was simply
the "conduit" between Skutch Whitson and Schucman and Thetford. (Tr.
Trans. 2734). Skutch Whitson was a teacher and lecturer at New York
University on the science of the study of consciousness and
parapsychology. She also ran a small non-profit organization, then known
as the Foundation
for Parasensory Investigation
(later renamed the Foundation for Inner Peace), that raised funds for
and otherwise supported parapsychological studies at universities and
hospitals. She was a founding board member of the Institute of Noetic
Sciences in California, which had been founded by astronaut Edgar
Mitchell to further the study of psychological and mystical experiences.
Skutch Whitson became the Chief
Executive officer of FIP and her husband Robert Skutch ("Skutch") became
An empathy developed at the May
1975 luncheon meeting, and, according to Skutch Whitson,
Schucman received guidance that Skutch Whitson was to play an important
role in the evolution of the Course. After lunch Schucman and Thetford
took Skutch Whitson to their offices where the blinds were pulled, and
the door was locked. Wapnick was present. Schucman and Thetford
described the process of developing the
manuscript and Schucman's embarrassment.
Skutch Whitson was permitted to
take the seven thesis binders home with her to review. She carried them
out in a shopping bag. On the way home she called Dr. Gerald Jampolsky
("Jampolsky"), a Stanford-educated psychiatrist with whom Skutch Whitson
had a romantic relationship to tell him about the Work and offered to
show it to Skutch, a businessman and writer, who had been a writer for many years of television plays
and advertising copy.
In or about mid-June 1975, Skutch
Whitson took the manuscript with her on a trip to
California in the course of which she sought the reaction of a number of
people to the Work. Prior to her trip, Skutch Whitson had advised James
Bolen ("Bolen"), a publisher and founder of Psychic Magazine in 1969, a
publication that addressed issues relating to parapsychology, ESP, and
the philosophical nature of humankind, that she had come across a very interesting manuscript that she
wanted him to take a look at, and
that she was coming to California
in the near future. The magazine had a developed readership of
approximately 100,000. Bolen frequently received manuscripts that
individuals sought to have published or excerpted.
Upon arrival in California, Skutch
Whitson showed the manuscript to Bolen and related the story of how the
Work had been prepared without identifying Schucman and Thetford. Bolen
became interested and sought a copy. According to Skutch Whitson, she
obtained permission from Thetford and Schucman to make a copy of the
manuscript for Bolen with the proviso that it not be distributed nor its
authors identified. Bolen sent the manuscript out to a copying service
and arranged for three copies to be made, at a cost of approximately $50
to $75 each. Skutch Whitson returned and picked up both her
original manuscript and the copy Bolen had arranged to be made for her
and left the remaining two copies with Bolen who subsequently made one
additional copy of the manuscript, which he and his partner, Mr.
Hammond, marked up in the course of their review and discussion.
During her trip to California in
mid-June of 1975, Skutch Whitson also gave a copy of the Work to
Jampolsky because he was a trained professional in the field, and she
wanted his opinion and feedback about the value of the manuscript.
Consistent with Schucman's directive, Skutch Whitson instructed
Jampolsky not to
distribute the manuscript to
anyone. Jampolsky complied fully with this instruction.
After this California trip, Skutch
Whitson discussed the results with Schucman and Thetford. In her
testimony she stated that they felt it was "alright to reduce the
manuscript and Xerox it off and put it in whatever kind of binders
temporarily." (Tr. 104) and that subsequently and also after her return
from California that Schucman advised her that "he says it must be
copyrighted." (Tr. 105).
In early July Skutch Whitson
returned to California with a Xerox copy of the Course.
In July, Skutch Whitson also gave
a copy of the Work to Dr. Edgar Mitchell ("Mitchell"), a former
astronaut and the sixth man to walk on the moon in 1971. He was the
founder of the Institute of Noetic Sciences, and Skutch Whitson was a
member of the Institute's Board of Directors. Mitchell was engaged in
parapsychological research at the time, which Skutch Whitson's
foundation ultimately assisted in funding. Skutch Whitson met with
Mitchell and sought his advice as to whether the Work was worth
Also in July, Skutch Whitson gave
a portion of the Work to James Hickman ("Hickman"), an associate of
Skutch Whitson whom
the Foundation for Inner Peace had
sponsored in connection with a research trip to Russia.
David Hurt ("Hurt") was an
engineer associated with the Stanford Research Institute ("SRI"). He
worked at SRI with Russell Targ whom Skutch Whitson knew in connection
with Targ's research regarding the outer reaches of human capability. At
a luncheon in July or August of 1975, attended by Targ, Hurt, Skutch
Whitson, Wapnick, Schucman, and Thetford, Hurt was provided with a
number of pages from the manuscript of A Course in Miracles because of
his particular interest in Schucman's experience in "scribing" the Work.
Evidence presented of statements
made prior to this litigation support a finding that Zelda Suplee, a
friend of Skutch Whitson, was given a copy of the uncopyrighted
manuscript by Skutch Whitson, prior to the publication of the Criswell
edition. Reed Erickson ("Erickson") received a copy from Suplee, which
he used as a basis for study by a group in Mexico. Erickson was the
backer of the first bound version of the Course where he donated 440,000
for the first printing.
Skutch Whitson gave or lent a
manuscript copy to a religious professor, Paul Steinberg ("Steinberg"),
for him to make a copy for himself. Saul Steinberg, a cousin of
Steinberg's and a
printer, was asked to runoff
copies which were studied by his employees and family.
In late July of 1975, Schucman,
Thetford, and Wapnick joined Skutch Whitson in
California. (Skutch Whitson Tr. 129).
The group spent approximately one
month in California, meeting with various colleagues and friends of
Skutch Whitson. In August 1975, Skutch Whitson organized a reception at
2000 Broadway in San Francisco, where Schucman and Thetford were
introduced to a number of people. During this time period a number of
copies were distributed, 100's, according to Skutch Whitson and Skutch
as described below.
During the trip to California in
mid-July of 1975, Skutch Whitson met briefly with her doctoral adviser,
Dr. Eleanor Criswell ("Criswell"), who had a small printing company
called Freeperson's Press. Criswell was a professor of psychology at the
Humanistic Psychology Institute in California. Skutch Whitson was
considering doing doctoral studies with Criswell as her advisor and made
an appointment to discuss her possible doctoral studies on July 10,
1975. (Tr. 81, 122). Skutch Whitson was unsure whether she wanted to
pursue her proposed doctoral thesis on a technology for developing
extra-sensory perception in children or whether she was simply "drawn"
by the Course, a "document that had come into my life in an unusual
way." (Criswell Dep. p. 19, 100-01).
Skutch Whitson brought the Course
to the meeting and Criswell offered to have it
published through her personal publishing press, through which
she had done publishing for students. Criswell advised Skutch
Whitson that she would be willing to assist in having the
manuscript published in a more portable and useful format.
Criswell took responsibility for
the manuscript pages, and in August of 1975, they were taken to a Kopy
Kat copy center in Berkeley to be reproduced. The book was not typeset
or otherwise put into a new format; instead, the actual manuscript was
reduced in size by photo-offset and bound in a four volume soft cover
Consistent with Schucman's
instructions, the softcover "Criswell Edition" of the Work bore a
copyright notice indicating that the copyright was held by the
Foundation for Inner Peace.
C. The Copyright
The first edition of 100 copies of
the Criswell edition was bound with a yellow cover with a copyright
notice. The copyright application was filed on behalf of the Foundation
of the Parasensory Investigation on November 24. The copyright
application was filed by Skutch who had some prior experience with
copyrights. It stated that the first publication was October 6, 1979.
The copyright was registered by the Copyright Office on December 4,
Following distribution of the
first edition, the defendants made a second Criswell edition with a
white cover, and a third edition of the Criswell edition followed with a
The Criswell edition contained
substantially fewer pages (two pages of the 8 1/2 x 11 original having
been reduced to fit the size of one 8 x 11 1/2 page, resulting in
smaller print) and was sold for $50.
D. The Publishing
The Foundation for Parasensory
Investigation changed its name to the Foundation for Inner Peace as a
result of Schucman's distaste for the former name, according to Skutch
However, the date of this name
change was not accomplished until June 9, 1976.
In or about 1976, FIP itself began
to publish A Course in Miracles in a set of three hardcover volumes --
one containing the Text, the second containing the Workbook, and the
third containing the Manual for Teachers. In 1985, FIP began publishing
A Course in Miracles in a single softcover volume. In 1992, FIP began
publishing the second edition of A Course in Miracles in a single
hardcover volume. Each of these editions was published with copyright
In December 1995, FIP entered into
a five-year licensing agreement with Penguin, pursuant to which Penguin
was granted the license to publish and distribute A Course in Miracles
in English in all territories except the United Kingdom. The version of
the book published and distributed by Penguin was a single hardcover
volume. The Penguin licensing agreement expired by its terms in or about
On or about September 22, 1998
through a written transfer and license agreement approved by the
Attorney General of the State of New York, FIP assigned and transferred
to FACIM its right, title and interest in and to A Course in Miracles
and its foreign translations, including its copyright interest therein.
The transfer agreement was filed in the U.S. Copyright Office on April
E. The Interests and Credibility
The Church and Endeavor use the
Course in their teaching and seek to have it freely
available, including publication on the internet.
Skutch Whitson and her ex-husband,
Robert Skutch, and Wapnick and his wife are the key
figures in FIP and FACIM respectively.
Although it was Schucman's
directive that only a nonprofit foundation was to publish the
Course, FIP assigned it to a for-profit company, Penguin, for $2.5
million dollars. Skutch Whitson and her family receive salaries, perks
and benefits from FIP.
Wapnick's income is from his
books, tapes and workshops, in which he talks about the
Course, and from donations. He has published several writings that
include excerpts of the Course.
Jampolsky also has an on-going
financial arrangement to publish excerpted Course materials
without having to pay royalties.
He has had an intimate
relationship with Skutch Whitson with whom he met three days before his
Bolen has received consulting fees
from FIP over the past years of approximately $25,000 a year. He was a
consultant for 5-6 years and consulted up to early 2003, just prior to
the trial, making between $12,000 and $25,000 a year. Additionally, he
has a pending book deal with FIP to write a book on Schucman and
Thetford that is in progress.
F. The Limitations
The plaintiffs did not present any
written evidence of any limitation upon the use of the Course when
found above. The evidence of oral
limitation came from witnesses interested in upholding the copyright.
From the facts as found above, it is a fair inference that Schucman and
Thetford, for their own personal reasons, sought to limit the
distribution and use of the Course.
However, after Skutch Whitson's
California trips, the appeal of the Course to a wider audience became
apparent, and certainly by the time of the initiation of the Criswell
edition in August 1975, a decision was made, certainly by Skutch
Whitson, and presumably by Schucman, to copyright the work so that it
might be distributed more broadly. There is nothing in this record to
indicate that Schucman and Thetford had any objection to the
registration and publication of the Course, nor is there any indication
that they participated in it. The decision to copyright and thereby to
control and profit by the distribution of the Course was made after the
distribution of the xerox copies described above.
Skutch Whitson and Skutch were the
initiators of the act of registration, although they possessed no formal
rights in the property. The act of registration and distribution was not
challenged by Schucman, Thetford or Wapnick, all of whom played a role
in the creation of the Course. The mystical experience reported by
Wapnick and Skutch Whitson was converted by Skutch Whitson into a
Proceeds from the sale of the
Course were paid to Schucman during her life and to her husband after
Despite Schucman's distaste for
parasensory investigations, as testified to by Skutch Whitson, the name
change from FPI to FIP did not occur until almost a year after the
Criswell edition. Assuming that the Voice was the source of Schucman's
decisions as conveyed to Skutch Whitson, the decisions had distinct
Thereafter, but prelitigation,
both Skutch and Skutch Whitson described the distribution of hundreds of
xerox copies -- Skutch in his book Journey Without Distance, Skutch
Whitson in a number of transcribed interviews. Skutch's book, published
by FIP, describes a distribution through Bolen but the distribution is
denied by Bolen, overall a credible witness, and Skutch has no
first-hand knowledge of the California trip and repeated in his book what he has been told by
Skutch Whitson. However, it is fair to infer from the description of the
July meeting that a number of xeroxes were made and that the cost of the
xeroxing was a motivating factor in developing the Criswell editions.
Skutch Whitson's prelitigation
statements of the distributions of hundreds of xerox copies are found on
various tapes made of her remarks. She admitted the authenticity of her
voice but stated that the statements on the tapes concerning the
distribution were false, explaining that "I was telling stories,"
and in answer to her counsel's
question, she "embellished, exaggerated." (Tr. 211).
Skutch's statements about
distribution which were contained in Journey Without Distance, were
altered in the edition which was published subsequent to the initiation
of this litigation. The alteration deleted references to the
distribution of the xerox copies of the uncopyrighted Course.
From all the evidence, it is a
fair inference that, as Skutch Whitson stated, on her second trip to
California she permitted xeroxing "and it seemed very right that people
would pass it along, copy it over and copy it over, until finally
people's copies were getting so light, that they couldn't see them
anymore, and a few of us got together and recognized the need to put it
in some kind of a form that was easier to read. And out of that came
very small little paperbacks that the print was so small you needed a
magnifying glass." (Def. Ex. N, N1, counter No. 1B165-180).
This 1977 statement accords with
the facts of the second California trip and the initiation of the
II. Conclusions of Law
A. Copyright Jurisdiction
The parties agree that this Court
possesses subject matter jurisdiction over this action under the
Copyright Act of 1976, 17 U.S.C. § 101 et seq. and that to succeed on a
claim of copyright infringement under the Copyright Act plaintiffs must
demonstrate (1) ownership of a valid copyright; and (2) unauthorized
copying by the defendant. E.g., Design Options, Inc.
v. Bellepoints, Inc., 940 F. Supp.
86, 89 (S.D.N.Y. 1996). A certificate of registration from the United
States Registrar of Copyrights constitutes prima facie evidence of the
validity of the subject copyright, see 17 U.S.C. § 410(c), and once such
a certificate has been presented, the burden shifts to defendants to
rebut the copyright's presumptive validity. Design Options, Inc., 940 F. Supp. at 89.
To establish their defense to
infringement, defendants must demonstrate that the work was "published,"
as that term is used and defined in the copyright context, without
copyright notice. Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 287-88 (2d
Cir. 1999). The showing of a work to a select group of people for a
limited purpose (such as to seek commentary or criticism) does not
constitute "publication" within the meaning of the copyright
law, and is legally insufficient
to place the work into the public domain. E,g., Acad. of Motion Picture
Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446 (9th
Cir. 1991). In particular, the creator of a work has the right to show
it to a limited class of people without jeopardizing the common law
copyright, and, under such
circumstances, the publication will be deemed "limited." Id. at 1451;
Proctor & Gamble Co. v. Colgate- Palmolive Co., No. 96 Civ. 9123, 1998
WL 788802, at *38 (S.D.N.Y. 1998).
Such a limited publication will be
found where the publication was (1) to a definitely select group, (2)
for a limited purpose, and (3) without the right of diffusion,
reproduction distribution or sale. White v. Kimmell, 193 F.2d 744,
746-47 (9th Cir. 1952); Continental Casualty Co. v.
Beardsley, 253 F.2d 702, 706-07 (2d Cir. 1958), cert. denied, 358 U.S.
816 (1958); Proctor & Gamble Co., 1998 WL 788802 at *38.
A work may enter the public domain
through a general publication where the copyright holder acts in a
fashion that exceeds the scope of this "limited publication." Thus, "[a]
general publication occurs when a work is made available to members of
the public regardless of who they are or what they will do with it."
Acad. of Motion Picture Arts and Sciences, 944 F.2d at 1452;
see also Continental Casualty Co.,
253 F.2d at 706-07.
B. The Plaintiffs Have
the Burden of Proof
The plaintiffs have established
they hold a valid registered copyright in the Course
via their certificate of registration granted in December
1975, Penguin Books, 2000 WL
1028634, at *15, which creates a
presumption of first date of publication. The certificate of
registration contains a date of October 6, 1975 as the date of first
The Church and Endeavor have met
their initial burden of proof to show that the Course entered the public
domain or was "published" prior to October 6, 1975 without notice of
Kepner-Tregoe, 186 F.3d at 287-88.
Acad. of Motion Picture Arts and Sciences, 944 F.2d at 1451; H.W. Wilson
Co. v. Nat'l Library Serv. Co., 402 F. Supp. 456, 458 (S.D.N.Y. 1975).
"A general publication 'occurs
when by the consent of the copyright owner, the original or tangible
copies of a work are sold, leased, loaned, given away or otherwise made
available to the general public, or when an authorized offer is made to
dispose of the work in any such manner even if a sale or other such
disposition does not in fact occur.'" Penguin Books U.S.A., 2000
WL 1028634, at *16 (citing Proctor
and Gamble Co., 1998 WL 788802, at *38 (S.D.N.Y. 1998); Nimmer § 4l04 at
4-20 (3d ed. 1997)).
A distribution of a work to one
person constitutes a publication. Kakizaki v. Riedel, 811 F. Supp. 129,
131 (S.D.N.Y. 1992); Burke v. Nat'l Broad. Co.,
Inc., 598 F.2d 688, 691 (1st Cir. 1979).
As found above, A Course in
Miracles was published without notice of copyright prior to copyright
registration i.e.was "published." Once a distribution or publication
without notice of copyright prior to copyright registration has been
established, the burden of proof shifts to the plaintiff, the holder of
the copyright, to show that the publication or distribution of the work
was for a limited purpose; and as such was legally insufficient to place
the work into the public domain. Kepner-Tregoe, 186 F.3d at 287-88;
Acad. of Motion Picture Arts and Sciences, 944 F.2d at 1451; Proctor &
Gamble Co., 1998 WL 788802, at *38.
A publication that is not limited
is general. White, 193 F.2d at 747; Kakizaki, 811 F. Supp. at 131.
Specifically, to satisfy that a distribution qualifies as a limited
publication, the plaintiffs must sustain their burden of proof to put
forth evidence that the publication was (1) to a definitely select
group, (2) for a limited purpose, and (3) without the right of
diffusion, reproduction, distribution or sale. White, 193 F.2d at
Continental Casualty Co., 253 F.2d
at 706-07; Proctor & Gamble Co., 1998 WL 788802, at *38.
The plaintiffs must prove all
three of the enumerated elements exist or else the distribution may not
be deemed limited and the copyright will not be valid. H.W. Wilson Co.,
402 F. Supp. at 458; Kakizaki, 811 F. Supp. at 131.
C. The Group To Which
Distribution Was Made Was
A select group cannot be created
by an author's "subjective 'test of cordiality.'" Thus, when
works are given or sold to persons deemed "worthy" a select call is not
created and the publication is not limited. When plaintiffs sell or give
the Work to "congenial strangers" the Court is "unable to see in this
picture any definitely selected individuals or any limited, ascertained
group or class to whom the communication was restricted." Schatt v.
Curtis Mgmt. Group, Inc., 764 F. Supp. 902, 911 (S.D.N.Y. 1991) (quoting
White, 193 F.2d at 747). The process by which Schucman and Thetford
decided whether an individual should receive the Course was completely
subjective and done through a test of cordiality as to whether a
particular person was worthy or ready for the Course. The decision that
someone was ready to receive the work lacked objective qualification and
was based on the anticipated interest in or effect of the Course on the
recipient. It is not possible to ascertain what individuals were or
would be part of a select or restricted class. An interest in spiritual experience fails to
define a class adequately.
The common interest in the subject
matter of a work, that is, in this case spiritual
revelation, will not render the publication limited. RPM Mgmt.,
Inc. v. Apple, 943 F. Supp. 837, 842 (S.D. Ohio 1996); 1 M.Nimmer
and D.Nimmer, Nimmer on Copyright, Sec. 413[A](1996).
As found above, a number of
unknown people received the uncopyrighted manuscript prior to
publication without notice. The admitted recipients of the Course
include Skutch Whitson, Wapnick, Hatcher, Hugh Lynn Cayce, his son,
Herbert Puryear, Jampolsky, Bolen, Erickson, John Mundy, Dean, Father
Groeschel, Hammond, Steinberg, and his cousin Saul Steinberg, and Zelda
D. The Distribution Was
Not Limited as to Use
As an initial matter, there is no
evidence of a written limitation on use by either
Schucman, Thetford or Skutch Whitson.
There is no direct evidence of any
limitation to distribution by Schucman and Thetford to Cayce, Puryear,
Mundy, Dean, and Groeschel. Wapnick and Skutch Whitson, interested
witnesses, did testify that they received their copies with the
understanding that the Course was to be held in confidence and not
without Schucman's permission.
While Wapnick's testimony in this regard was unimpeached, Skutch
Whitson's statements were contradicted by her actions, the telephone
call to Jampolsky, the offer to make the Course available to Skutch, the
transmittal to Bolen, and the subsequent review by Hammond.
As found above, after the first
trip by Skutch Whitson to California, the decision to permit
further distribution was made including the decision to copyright the
Course. Meetings were held, and, as found above, additional xerox
were distributed as stated by
Skutch Whitson in comments made two years later, statements that were
consistent with later statements and remained uncorrected until
repudiated in this litigation.
Even if the distribution of copies
had been limited to a selected group, the publication
will nevertheless be general, unless there is an express or implied
limitation as to the specific purpose for which such copies may be used
by the group to which it was distributed. Kakizaki, 811 F. Supp. at 131.
Recipients' common interest in the subject matter is not a limited
White, 193 F.2d at 747.
An author's lack of personal
knowledge or friendship with persons that receive the work is
indicative that a distribution was not limited as to the group or the
purpose. White, 193 F.2d at 747.
At the time of distribution
Schucman did not know or had not met James Bolen, Gerald
Jampolsky, David Hammond, Herbert Puryear, Hugh Lynn Cayce's son, the
Steinbergs, Reed Erickson or Edgar Mitchell. Additionally, Skutch
Whitson, Wapnick, Mundy and Dean were virtual strangers to Schucman at
the time she gave them or allowed them to have a copy of the Course.
The distribution of the
uncopyrighted work must preclude recipients from reproducing,
distributing or selling any copies.
Continental Casualty Co., 253 F.2d
A limited distribution cannot be a
geographically limited distribution but is limited by the
class or group of people a work is given to. Acad. of Motion Picture
Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446,
1452 (9th Cir. 1992)
(distribution only to winners of
the Academy Award.); Burnett v. Lambino, 204 F. Supp. 327, 329 (S.D.N.Y.
1962) (distribution to possible producers of a play for inducing
production was to a limited group); King v. Mister Maestro, Inc., 224 F.
Supp. 101 (S.D.N.Y. 1963) (distribution of speech to members of the
press was to limited group for purpose of news reporting).
Skutch Whitson at trial sought to
contradict her earlier statements on the audiotapes that (i) Schucman
and Thetford did not object to the Courses' distribution in California;
(ii) that 100's of people acquired copies in California; and (iii)
people were running off copies as fast as possible, by asserting that
these statements were merely oratorical hyperbole.
However, such distribution is
consistent with the decision to end the alleged secrecy policy, to
obtain a copyright and to initiate a photo-offset production. There is
no evidence that anyone at the time of making the decision to copyright
aware, or had contemplated, the
effect of pre-publication distribution. The publication date of October
5, 1975 not only binds FIP, but accords with the facts surrounding the
production of the Criswell edition. From all the facts it must be
inferred that all the interested parties intended to make the Work as
available as possible without limitation.
Based upon the facts as found
above and the conclusions of law just set forth, judgment will be
entered dismissing the complaint and granting judgment invalidating the
copyright with costs to the defendants.
Submit judgment on notice. Upon
entry of judgment a stay of ten (10) days will be granted to permit any
further emergency proceedings.
It is so ordered.
New York, NY
October 24, 2003 ROBERT