WHITE v. KIMMELL

Civ. A. No. 11540-Y

94 F. Supp. 502 (1950) | Cited 0 times | C.D. California | December 6, 1950

Stewart Edward White, — to whom we shall refer as "White", — asdistinguished from the plaintiff, who will be referred to as suchor as "the brother", — was a successful writer of books on ethicsand philosophy of a popular nature. Prior to his death in 1947,at Burlingame, California, he published, through well-knownpublishers, books with the titles: "The Unobstructed Universe","With Folded Wings", "The Stars Are Still There", "Anchors ToWindward", "The Road I Know", "Across The Unknown", "The BettyBook". After his death, E.P. Dutton & Company published, in 1948,another book entitled, "The Job Of Living", with the copyright inthe name of the defendant, Susan Kimmell. This book embodied somecommunications from the spirit world which White claimed to havereceived chiefly through his wife, Betty, from a personalityreferred to as "Gaelic". In the book1, White identified"Gaelic" as his and his wife's "nickname for what seemed to us asingle and definite personality, apparently detailed to tell uswhat made the wheels go round. The material that came throughBetty at that time, by and large, was inspiration, stimulus togrowth and expression, with only enough explanation as tomechanics to give direction. Through `Gaelic' our intellectualcuriosities were given a certain satisfaction, on the principlethat a reasonable measure of knowledge is a buttress to faith.These sessions were rare, and seemed to come only at times whenone or another of a certain few people were present and in mentalquandary."

The material so received was, during his lifetime, reduced tomanuscript form by various reproduction processes and designatedas the "Gaelic manuscript", which purported to give thecommunications by "Gaelic" with added comments by White. "The JobOf Living" contained portions of the manuscript.

On October 20, 1944, White executed a Bill of Sale transferringto the defendant Kimmell all his right and title to certaindesignated works, including the old and new "Gaelic manuscripts","with the right to publish or otherwise use said manuscripts, inany way which she in her sole judgment shall determine".

The plaintiff, White's brother and a resident of Santa Barbara,California, in a complaint for declaratory judgment2, seeksa declaration that both manuscripts, "Gaelic" and "old Gaelic",are in the public domain and may be quoted without infringementeither of the copyright claimed by the defendant Kimmell on "TheJob Of Living", or the common-law proprietary rights claimedunder the bill of sale. This is resisted by the defendantKimmell, who asserts that she is the owner of the manuscript andthe material contained therein, whether published or unpublished.She seeks a declaration to that effect, and an injunctionprohibiting the plaintiff from using any portion of themanuscript of "old Gaelic" or "Gaelic" or "The Job Of Living".The plaintiff's claim is bottomed upon the contention that, inhis lifetime, and prior to the execution of the bill of sale in1944, and to the publication of "The Job Of Living," Whiteallowed the unrestricted publication of the material and it isnow in the public domain.

I. The Meaning of "Publication"

The pleadings are broad enough to cover the rights to both theunpublished portions of the manuscript and "The Job Of Living".The declarations sought by both parties would cover all thematerial, either published or not. In truth, however, whatplaintiff seeks, not by reason of his relationship to White, butas a member of the public, is the right to reproduce theunpublished portion of the "Gaelic manuscript".

As the unpublished material is not copyrighted, the question ofownership must be determined by common-law principles. The commonlaw has long recognized a property right in the products of man'screative mind, regardless of the form in which they tookexpression. For this reason, literary compositions andphilosophical speculations, whether they are presented as theoriginal work of the author or are claimed to have beentransmitted to him through one of the many forms of inspirationthat have come to be recognized as the source of intellectualproduction, are treated as a kind of property.3 And theauthor has property in his manuscript which willbe protected by the courts against anyone who seeks to deprivehim of it, either by securing an unauthorized copy of it or bypublishing it. The right exists until the author permits ageneral publication.4 The following language of the SupremeCourt is a pithy summary of the principles just adverted to: "Atcommon law, the exclusive right to copy existed in the authoruntil he permitted a general publication. Thus, when a book waspublished in print, the owner's common-law right was lost. Atcommon law an author had a property in his manuscript, and mighthave an action against any one who undertook to publish itwithout authority".5 (Emphasis added.)

What constitutes general publication has given the courts muchconcern. The Supreme Court has adopted as its own the followingcriterion for determining the matter: "It is a fundamental rulethat to constitute publication there must be such a disseminationof the work of art itself among the public as to justify thebelief that it took place with the intention of rendering suchwork common property."6

The publication, to be effective as a dedication, must be ageneral publication. A limited publication which communicates thecontents of a manuscript to a definite group and for a limitedpurpose, and without the right of diffusion, reproduction,distribution or sale, is considered a "limited publication",which does not result in loss of the author's common-law right tohis manuscript.7

An early American case contains a very clear statement of theconditions which render a publication limited in nature: "Thedistinction between a public circulation of written copies, anda restricted or private communication of their contents, was, forsome purposes, recognized before the use of printing. * * * But,except under special and unusual circumstances, an author whothen parted with a manuscript copy gave to it the most publiccirculation of which it was capable. Now, the parting by anauthor with manuscript copies of his unprinted composition isordinarily regarded as an act of mere private circulation. * * *Printed copies also may be circulated privately. Theircirculation is thus private when they are delivered to a fewascertained person only, who receive them under conditionsexpressly or impliedly precluding any ulterior diffusion of theknowledge of their contents. Such a case occurs when a smallfirst edition of a book, printed with a notice on the title pagethat it is for private circulation, is gratuitously distributedby the author among particular persons. Mr. Justice Talfourd,when at the bar, issued in this manner the first impressions ofhis tragedy of Ion. Here the restriction was expressly defined.It may, in other cases, be implied from the selection of thepersons, and fromthe method or attendant circumstances of the delivery. * * * Thecirculation must be restricted both as to persons and purpose, orit cannot be called private."8 (Emphasis added.)

One of the older authorities on the law of property inintellectual productions has summed up the rights of the authorof an unpublished book in this manner:9 "He has a right toexclude all persons from its enjoyment; and, when he chooses todo so, any use of the property without his consent is a violationof his rights. He may admit one or more persons to its use, tothe exclusion of all others; and, in doing so, he may restrictthe uses which shall be made of it. He may give a copy of hismanuscript to another person, without parting with his literaryproperty in it. He may circulate copies among his friends, fortheir own personal enjoyment, without giving them or others theright to publish such copies." (Emphasis added.)

From this, it is evident that, in determining whether apublication is general or special, the test is "whether there isor is not such a surrender as permits the absolute andunqualified enjoyment of the subject-matter by the public or themembers thereof to whom it may be committed."10

The case from which the foregoing quotation is taken epitomizesthe law on the subject: "A general publication consists in sucha disclosure, communication, circulation, exhibition, ordistribution of the subject of copyright, tendered or given toone or more members of the general public, as implies anabandonment of the right of copyright or its dedication to thepublic. Prior to such publication, a person entitled to copyrightmay restrict the use or enjoyment of such subject to definitelyselected individuals or a limited, ascertained class, or he mayexpressly or by implication confine the enjoyment of such subjectto some occasion or definite purpose. A publication under suchrestrictions is a limited publication, and no rights inconsistentwith or adverse to such restrictions are surrendered.Restrictions imposed upon the use prior to publication protectthe copyright. Such restrictions imposed after publication cannotaffect the public rights acquired by reason of the fact ofpublication. The nature of the subject-matter, the character ofthe communication, circulation, or exhibition, and the nature ofthe rights secured, are chiefly determinative of the question ofpublication."11 (Emphasis added.)

Implicit in these rulings is the thought that if thecircumstances show an intent to communicate the contents of themanuscript to a designated group and for a specified purpose, anddoes not extend to the public at large, the publication islimited. For this reason, the private circulation of an originalmanuscript or copies of it "is not a publication, unless itamounts to a general offer to the public."12

Limited publication, as defined by these authorities, is, inits effect, no more than the exhibition of a painting, therepresentation of a play, or the giving of a lecture, — none ofwhich destroys the right of common-law ownership or confers theright to unrestricted reproduction or circulation.

II. Limited Publication

Tested by the principles just referred to, the evidence in thiscase shows no intention to dedicate any portion of the "Gaelic"manuscripts to the public. And this conclusion may be drawn fromthe evidence offered on behalf of the plaintiff, which consistedof his own testimony, that ofWhite's former secretary, W.N. Maguire, and the depositions ofMargaret Oettinger and Harriet W. Jones.

The plaintiff and the former secretary testified generally thatin 1933 and 1934, copies of the manuscripts, made by what wasreferred to as the "ditto process", were sent out from White'soffice to certain persons interested in the ideas which White hadbelieved in, and which he had made popular through his books. Butthey admitted that the persons to whom the copies were sent werepersons whose names had been sent in by friends or wereinterested in the ideas or belonged to the small elite who werestudying them. No copy was ever placed in a public library, areading room or on the shelf of a book store or club, where itwas made accessible to anyone who wished to look at it. Nor wereany copies offered for sale. Mrs. Oettinger was permitted to makea copy for herself, and she stated, in her deposition, that in1941, she distributed some thirty copies. But it was evident fromher own testimony that in her discussion with White, she hadreferred to the fact that she wished to make copies "for two orthree people". Whereupon, he suggested that he knew other peoplewho might want them, and so he authorized her to make the copies.As she was not a woman of means, he authorized her to charge suchpersons as were referred to her two dollars for the cost ofmimeographing. Her testimony in this respect is very revealing:

"Q. And was there any statements at that time made with respectto where you would sell or distribute the manuscripts which youmade, or the copies which you made? A. No. I hadn't had very muchexperience with it at that time, and I knew of two or threepeople who wanted copies and that is all I knew about it, thattwo or three people wanted copies, and he said he knew severalpeople who would like to have copies, and he gave me from time totime the names of people who would like to have copies of thismanuscript. Several of the copies I disposed of were sent topeople whose names were given to me by Mr. White.

"Q. Did you have a copy of the manuscript before you went tosee Mr. White? A. Yes. I had borrowed a copy from Mrs. — Dr.Benner, I can't think of her name was — Katherine Benner.

"Q. Did she have several copies? A. I think she only had one.She might have — I don't know whether she had more than one ornot."13

While the witness sought to give the impression that she wasgiven carte blanche to reproduce and distribute at will, theexcerpt just quoted shows strictly the limitations which wereimposed. Her own testimony and the testimony of others show thatany of the names sent to her were selected by others, includingthe defendant. Mrs. Harriet White's deposition stated that Whitehad told her that he had given Mrs. Oettinger permission to "passout" the material and that she secured two or three copies fortwo dollars each. Despite the attempt of this witness to provepermission "to sell", the pattern which emerges is that of aselected group of persons recommended either by White or theothers who were interested in the philosophical or ethicalprinciples that he was preaching, who were given access to themanuscript. These are distinguishing marks of privatedistribution.

III. The "Gaelic" Manuscripts Are Not in Public Domain

The New York Court of Appeals, in a case which has already beencited, while holding that the facts in the particular case showeda general publication, laid down the indicia of privatedistribution, in language which is very appropriate to thediscussion here: "* * * if a book be offered gratuitously to thegeneral public, it will constitute publication. This may be doneby presenting it to public libraries, and this is so because theauthor or publisher, by that act, puts it in such a place thatall the public may see it if they choose. The reason why exposingfor sale or offering gratuitouslyto the general public constitutes publication is stated in thelast part of the rule as follows: `So that any person may have anopportunity of enjoying that for which copyright is intended tobe secured.' * * Several cases have arisen where the courts haveheld that the private circulation of pictures, manuscripts, orprinted books did not constitute a publication, such as PrinceAlbert v. Strange, supra; also Bartlette v. Crittenden, 2Fed.Cas. page 981, No. 1,082, 4 McLean, 300, where the plaintiff,a teacher of bookkeeping, for the convenience of his pupils,wrote his system of instructions on separate cards, which theywere permitted to keep for their convenience. So a gratuitouscirculation of copies of a work among friends and acquaintanceshas been held not to amount to a publication. Dr. Paley's Case,cited in 2 Ves. & B. 23, was one where a bookseller wasrestrained from publishing manuscripts left by Dr. Paley for theuse of his own parishioners only. Coppinger, in his work onCopyright, at page 117, after considering the last case cited andothers, reached the following conclusion: `The distinction is inthe limit of the circulation. If limited to friends andacquaintances, it would not be a publication; but, if general,and not so limited, it would be."14 (Emphasis added.) And thelimitation which makes the publication private does not relate tonumbers of persons, but to the type of persons to whom thecommunication is made and the purpose of making it. If limited tofriends or acquaintances, or persons having a common interest ina publication, or in the ideas which it expresses, the limitationis effective, although, in reality, a large number of copies maybe circulated. In a New York case, involving the question whetherthe distribution of reprints of a copyrighted article without anindication of the copyright was a waiver of the copyright, itappeared that thousands of reprints were distributed to theauthor's patients with instructions to call the article to theattention of others. Reprints were kept in the author's receptionroom where they could be examined or carried away by personsvisiting the establishment. Nevertheless, the Court held that thecopyright was not thereby lost, saying: "The primary purpose ofthe distribution was to give information to persons interested inthe subject discussed by the articles, and to relieve Schellbergof the necessity of orally explaining his system of treatment tothose who might wish to learn about it."15

So, here, the inference can be drawn, even from the testimonyon behalf of the plaintiff, that the object of distribution wasnot to dedicate the contents of the "Gaelic" manuscript to thepublic, but to communicate to a few persons interested in thesubject, — kindred spirits, as it were, the philosophy it taught.Indeed, the testimony showed that the manuscript originated, inpart, from written answers which had been given to questionspropounded by readers of White's other books. We clearly have aperson who promulgates a certain philosophy and makes it possiblefor some of those interested in it to see its exposition, bypermitting them to have for their own use a privatelymimeographed copy of an unpublished manuscript. The manuscriptis, therefore, the equivalent of the notes which a student makesof a lecture. The lecturer, by permitting him to make the notesand take them away, does not lose his right to later copyrightthe material.

From the very beginning of the development of this branch ofthe law, it has been conceded that circulation among studentsdoes not destroy the common-law right of the author. In one ofthe oldcases,16 the Lord Chancellor made the following observations:"Now, if a professor be appointed, he is appointed for thepurpose of giving information to all the students who attend him,and it is his duty to do that; but I have never yet heard thatanybody could publish his lectures; nor can I conceive on whatground Sir William Blackstone had the copyright in his lecturesfor twenty years, if there had been such a right as that; but itnever was understood that those lectures could be published; —and so with respect to any other lectures in the university, itwas the duty of certain persons to give those lectures; but itnever was understood that the lectures were capable of beingpublished by any of the persons who heard them." And all thosewho have followed Blackstone and combined teaching with writing,whether in the field of law or others, have had the benefit ofthe rule.17

We add that other evidence in the record supports theconclusion that there was no general publication. As theplaintiff leans heavily on the deposition of Mrs. Oettinger, itis very significant that on the copy of the manuscript which sheproduced with the deposition, there was the printed legend"Reproduced by permission of Stewart Edward White." Such aninscription contradicts the design to publish to the world atlarge. For if the object be to release the material to thepublic, the statement of permissive reproduction is meaningless.Its appearance on the manuscript indicates the limited purpose ofthe permission granted. White, in reporting on November 18, 1940,to the defendant his understanding with Mrs. Oettinger, wrote:"Just a hasty note, before you do any work copying Gaelic.Yesterday afternoon some people were here from Palo Alto who areso stuck on Gaelic that they want to copy it in mimeograph. Theyasked (a) whether I was willing; (b) if so, would I mind theirpass — it around among such of their friends who want copies, (c)if so, again, whether I would mind their charging such people theexact cost. I approved. So, if you write them, you might get oneof those copies. Name: Mrs. Frank Oettinger, RFD #1, Menlo Park,Cal."18 This is a contemporaneous statement, and is verypersuasive as to what the understanding was. In a letter datedMay 18, 1945, to Mrs. Oettinger, he indicates that the right tocopy did not imply the right to publish in general: "As to theGaelic, Sue Kimmell is quite right in saying that you may goahead at your discretion with more copies of it. And your friend,Barbara Kelkin, got the wrong impression. I have no objectionwhatever to the distribution of copies of Gaelic, provided, ofcourse, it is not in published form."19 White had publishedmany books in his lifetime. So, when he spoke of reserving"publication" rights, as he did in the bill of sale and in thisletter, he did not refer solely to "publication by print". Heused the words in the sense in which they are used in the law ofliterary property, with which he was familiar. Otherwise put, hewas determined that the permission granted did not result in ageneral publication.

And in a letter written on October 26, 1944, to the defendant,a few days after the bill of sale was executed, White spoke abouthis brother's possible attempts to assert rights to the "GaelicManuscripts", and gave that as his reason for protecting heragainst "what might be a disagreeable situation. The sort ofsquabble that just might arise if, after I die, he should riseand howl and attempt to do his own Gaelic, and show activeresentment about an `outsider' having the say over him, etc.,etc., you can imagine as well as I."20

The deposition of Ivey Oenita Duce, relating to herconversation with White, offers positive proof of the fact thatstrict limitations were imposed upon all personswho were given the rights to copy the "Gaelic" manuscript,21as does also the deposition of Don E. Stevens.

These occurrences, ranging over a period of years, are not, asthe brother contends, mere self-serving declarations which seekto explain after the act, what was done; they are a consistentseries of statements showing a clear design on White's part tolimit communication. It is true that, notwithstanding suchdesign, it was still possible for those to whom permission wasgiven to destroy the effect of limitations by unlimited generaldistribution.22 But this, fortunately, did not occur. Eventhose who would now generalize the limited right they received,testify to the observance of the limitation. The mostconservative estimate of the number of copies distributed doesnot exceed 75. And, as already appears, this distribution was todesignated persons. None was made to a public institution wherethe public had access to it. None was sold. And the case beforeus comes clearly within the rule stated in Bartlett v.Crittenden23: "To make a gift of a copy of the manuscript isno more a transfer of the right or abandonment of it, than itwould be a transfer or abandonment of an exclusive right torepublish, to give the copy of a printed work. In his treatise onEquity, (section 943,) Mr. Justice Story says, `In cases ofliterary, scientific, and professional treatises in manuscript,it is obvious, that the author must be deemed to possess theoriginal ownership, and be entitled to appropriate them to suchuses as he shall please. Nor can be justly be deemed to intend topart with that ownership by depositing them in the possessionof a third person, or by allowing a third person to take and holda copy of them. Such acts must be deemed strictly limited, inpoint of right, use, and effect, to the very occasions expressedor implied, and ought not to be construed as a general gift orauthority for any purposes of profit or publication, to which thereceiver may choose to devote them.' And he says, to prevent thepublication of manuscripts, without the consent of the author, aninjunction should be issued."

The conclusion is therefore inescapable that there was nogeneral publication of the "Gaelic" manuscript.

The consistency with which the courts for over a century and ahalf have upheld an author's common-law right to his manuscriptand the ardor which they have shown to protect his rights,despite limited publication, is one more indication of thehealthfulness of the common-law system and the determination ofthe courts to use their powers, aided by equitable principles, toprotect intellectual products against piracy. No reason existswhy we should depart from these strict standards. In these daysof quick communication of ideas, a rule which would make alimited disclosure, such as occurred in this case, synonymouswith publication would deny to the creator in the intellectualfield the right to the product of his creative imagination. Thiswould be harmful to the development of ideas. For, if weencourage piracy, we discourage creative minds from sharing, ina restricted manner, their ideas before their full fruition. Thepolicy of the law, in protecting intellectual products, is toencourage productivity.24 A protected limited sharing mayenhance it by giving additional time for a fuller development. Aweakening of this right might result either in prematurepublication or a total withholding of ideas, under fear of injuryto the author's ownership in them. Either would be a loss to thecreative spirit, which the courts should not consciouslyencourage.

Judgment and declaration will, therefore, be for the defendantthat the "Gaelic" manuscripts are not in the public domain, andthat the defendant is their sole owner.

Injunction will issue enjoining the plaintiff from using it inany manner.

Costs, but not attorney's fees, will be allowed the defendant.See, 17 U.S.C.A. § 40; Official Aviation Guide Co., Inc., v.American Aviation Inc., Associates, 1947, 7 Cir., 162 F.2d 541,543.

1. Stewart Edward White, The Job of Living, 1948, p. 22.

2. 18 U.S.C.A. §§ 2201, 2202.

3. 18 C.J.S., Copyright and Literary Property, §§ 4-10; Amdur,Copyright Law and Practice, 1936, pp. 30-31; California CivilCode, Sec. 980. And see: Wheaton v. Peters, 1834, 8 Pet. 591,657-658, 8 L.Ed. 1055; Bobbs-Merrill Co. v. Straus, 1908,210 U.S. 339, 346, 28 S.Ct. 722, 52 L.Ed. 1086; Moore v. Ford MotorCo., 2 Cir., 1930, 43 F.2d 685, 686; Echevarria v. Warner Bros.Pictures, Inc., D.C.Cal. 1936, 12 F. Supp. 632, 634; SupremeRecords, Inc., v. Decca Records, D.C. 1950, 90 F. Supp. 904, 906;Loew's, Inc., v. Superior Court, 1941, 18 Cal.2d 419, 421,115 P.2d 983; Yadkoe v. Fields, 1944, 66 Cal.App.2d 150, 160,151 P.2d 906; Johnston v. Twentieth Century Fox Film Corporation,1947, 82 Cal.App.2d 796, 807-808, 187 P.2d 474.

Our Court of Appeals has summed up the principle in one briefsentence: "Literary property is not distinguished from otherpersonal property and is subject to the same rules and islikewise protected". (Emphasis added.) Universal Pictures Co. v.Harold Lloyd Corp., 9 Cir., 1947, 162 F.2d 354, 364.

See, Note, Literary Property, 1950, 38 Cal.Law Rev. 33;Comment, Common Law Copyright, 1950, 24 So.Cal.Law Rev. 65.

4. Bartlett v. Crittenden, C.C.Ohio, 1849, 2 Fed.Cas. page 967,No. 1076; Press Publishing Co. v. Monroe, 2 Cir. 1896, 73 F. 196,199; Caliga v. Inter Ocean Newspaper Co., 1909, 215 U.S. 182,188, 30 S.Ct. 38, 39, 54 L.Ed. 150; Moore v. Ford Motor Co.,supra, 43 F.2d at page 686; Nutt v. National Institute, etc., 2Cir. 1929, 31 F.2d 236, 238.

5. Caliga v. Inter Ocean Newspaper, 1909, 215 U.S. 182, 188, 30S.Ct. 38, 39, 54 L.Ed. 150.

6. American Tobacco Co. v. Werckmeister, 1907, 207 U.S. 284,299-300, 28 S.Ct. 72, 77, 52 L.Ed. 208, quoting, with approval,Slater on the Law of Copyright and Trademark, p. 92.

7. Abernethy v. Hutchinson, 1824, 3 L.J. Ch. Reports 209; PrinceAlbert v. Strange, 1849, 2 De Gex & S.M., 652, 41 Eng.Rep.(Reprint) 1171; Prince Albert v. Strange, 1849, 1 Mc. & G. 25, 64Eng.Rep. (Reprint) 293; Werckmeister v. American LithographicCo., 2 Cir. 1904, 134 F. 321, 325, 68 L.R.A. 591; Jewelers'Mercantile Agency v. Jewelers' Weekly Publishing Co., 1898,155 N.Y. 241, 49 N.E. 872, 41 L.R.A. 846; Kurfiss v. Cowherd, 1938,233 Mo.App. 397, 121 S.W.2d 282; Waring v. WDAS Broadcasting Co.,1937, 327 Pa. 433, 194 A. 631; Berry v. Hoffman, 1937,125 Pa. Super. 261, 189 A. 516.

8. Keene v. Wheatley, C.C.Pa., 14 Fed.Cas. pages 180, 191, No.7644.

9. Eaton S. Drone, A Treatise on the Law of Property inIntellectual Products, 1879, pp. 102-104. This test has beenrepeatedly cited with approval by the courts. And see,Bobbs-Merrill Co. v. Straus, supra, 210 U.S. 339, 28 S.Ct. 722;Werckmeister v. American Lith. Co., supra, 134 F. at page 324.

10. Werckmeister v. American Lith. Co., supra, 134 F. at page 325.

11. Werckmeister v. American Lith. Co., supra, 134 F. at page 326.

12. Werckmeister v. American Lith. Co., supra, 134 F. at page 325.

13. Deposition of Margaret Oettinger, Plaintiff's Exhibit No. 4,pp. 5, 6.

14. Jewelers' Mercantile Agency v. Jewelers' Weekly PublishingCo., supra, 49 N.E. at page 875.

15. Schellberg v. Empringham, D.C.N.Y. 1929, 36 F.2d 991, 992.This case arose under the Federal copyright law. But whether acommunication takes place which amounts to a general publicationis determined by principles which apply to all situations,regardless of the law under which they arise. So the reasoning ofthis case can be applied with great force to the facts here.

16. Abernethy v. Hutchinson, supra, p. 215. And see, Nutt v.National Institute, etc., 2 Cir. 1929, 31 F.2d 236, 238.

17. Nutt v. National Institute, etc., 2 Cir. 1929, 31 F.2d 236;Waring v. WDAS Broadcasting Co., 1937, 327 Pa. 433, 194 A. 631.

18. Defendant's Exhibit A.

19. Plaintiff's Exhibit 3.

20. Defendant's Exhibit C.

21. Defendant's Exhibit D, Deposition of Ivy Oenita Luce, fromwhich we quote:

"Q. Now, did Mr. White ever give you permission to make copiesof that manuscript? A. Well, I just started explaining to youwhat happened. He told me I could write to this Mrs. Oettingerand get a copy from her, and I wrote to her and she informed methat she had no more copies but that she had some stencils andthat they were very badly worn but that if I wished to I couldmake some copies from these stencils. So then, as I remember it,I wrote to Mr. White and asked him about it, and he said to methat it was perfectly all right for me to make a few copies butthey were to be limited and that I was only to allow a few of myclose friends to see them, that I must be very careful, in fact,to whom I showed them, because since they had not been publishedanybody could, you might say, steal the material; and naturallyI wanted to protect his manuscript from anything like that. So Ihad these two or three friends here who were studying like I was,and we sent up to the lady and she sent us the stencils. And Ihad no mimeograph machine, and a Mrs. Cuthbert had a mimeographmachine and she turned out, as well as I can remember, about tencopies. I know she had to remake or recut some of the stencils,they made such bad copies. * * *

"Q. And what happened to them? A. And I still have three ofthem. And, as I said, I have not referred to them for years,because I, myself, went into the study of mysticism, which goesfar beyond occult phenomena, and I have just very occasionallyread a few paragraphs of it to some of my students who might bepuzzled about something. I have three copies, as well as I know,on my shelf, and Don Stevens received one and we sent one to Mr.Stewart White because he said he was out of copies at the moment.He had loaned his out and didn't have any at the moment. And Ibelieve Mrs. Cuthbert got one and Mrs. Ahlstrand and Mrs. Simpsongot one, and I think we sent one to Mrs. Oettinger. * * *

"Q. Now, those people who received copies were known to Mr.White, were they not? * * * A. He knew who they were.

"Q. He knew who they were, and you had his permission to givethem a copy A. Oh, yes.

"Q. In other words, it was not left to you to distributeto * * * A. Oh, no, because he had adjured me to be very careful as towho saw it, because he didn't want this material to fall into thehands of unprincipled people.

"Q. In other words, I take it that you were given very definiteinstructions that no one except selected groups or individualscould peruse that matter or even see it? A. Very definitely. (Pp.8-11.) (Emphasis added.)

22. Cf. Kurfiss v. Cowherd, 1938, 233 Mo.App. 397, 121 S.W.2d 282,287-288; Larrowe-Loisette v. O'Loughlin, C.C.N.Y. 1898, 88 F.896.

23. Bartlett v. Crittenden, C.C.Ohio, 1849, 2 Fed.Cas. pages 967,970, No. 1076.

24. The American law of copyright stems from the power conferredupon the Congress by the Constitution "To promote the Progress ofScience and useful Arts". Constitution of the United States,Article I, Sec. 8. And, as cases discussed in this opinionindicate, the common-law right to literary property precedes theconstitutionally authorized protection and was not in any wayaffected by the enactment of the copyright laws, except that oneavailing himself of the copyright laws loses the correspondingcommon-law rights. See, Bobbs-Merrill Co. v. Straus, 1908, 210,U.S. 339, 346-349, 28 S.Ct. 722, 52 L.Ed. 1086; Loew's, Inc. v.Superior Court, 1941, 18 Cal.2d 419, 421-425, 115 P.2d 983.

Stewart Edward White, — to whom we shall refer as "White", — asdistinguished from the plaintiff, who will be referred to as suchor as "the brother", — was a successful writer of books on ethicsand philosophy of a popular nature. Prior to his death in 1947,at Burlingame, California, he published, through well-knownpublishers, books with the titles: "The Unobstructed Universe","With Folded Wings", "The Stars Are Still There", "Anchors ToWindward", "The Road I Know", "Across The Unknown", "The BettyBook". After his death, E.P. Dutton & Company published, in 1948,another book entitled, "The Job Of Living", with the copyright inthe name of the defendant, Susan Kimmell. This book embodied somecommunications from the spirit world which White claimed to havereceived chiefly through his wife, Betty, from a personalityreferred to as "Gaelic". In the book1, White identified"Gaelic" as his and his wife's "nickname for what seemed to us asingle and definite personality, apparently detailed to tell uswhat made the wheels go round. The material that came throughBetty at that time, by and large, was inspiration, stimulus togrowth and expression, with only enough explanation as tomechanics to give direction. Through `Gaelic' our intellectualcuriosities were given a certain satisfaction, on the principlethat a reasonable measure of knowledge is a buttress to faith.These sessions were rare, and seemed to come only at times whenone or another of a certain few people were present and in mentalquandary."

The material so received was, during his lifetime, reduced tomanuscript form by various reproduction processes and designatedas the "Gaelic manuscript", which purported to give thecommunications by "Gaelic" with added comments by White. "The JobOf Living" contained portions of the manuscript.

On October 20, 1944, White executed a Bill of Sale transferringto the defendant Kimmell all his right and title to certaindesignated works, including the old and new "Gaelic manuscripts","with the right to publish or otherwise use said manuscripts, inany way which she in her sole judgment shall determine".

The plaintiff, White's brother and a resident of Santa Barbara,California, in a complaint for declaratory judgment2, seeksa declaration that both manuscripts, "Gaelic" and "old Gaelic",are in the public domain and may be quoted without infringementeither of the copyright claimed by the defendant Kimmell on "TheJob Of Living", or the common-law proprietary rights claimedunder the bill of sale. This is resisted by the defendantKimmell, who asserts that she is the owner of the manuscript andthe material contained therein, whether published or unpublished.She seeks a declaration to that effect, and an injunctionprohibiting the plaintiff from using any portion of themanuscript of "old Gaelic" or "Gaelic" or "The Job Of Living".The plaintiff's claim is bottomed upon the contention that, inhis lifetime, and prior to the execution of the bill of sale in1944, and to the publication of "The Job Of Living," Whiteallowed the unrestricted publication of the material and it isnow in the public domain.

I. The Meaning of "Publication"

The pleadings are broad enough to cover the rights to both theunpublished portions of the manuscript and "The Job Of Living".The declarations sought by both parties would cover all thematerial, either published or not. In truth, however, whatplaintiff seeks, not by reason of his relationship to White, butas a member of the public, is the right to reproduce theunpublished portion of the "Gaelic manuscript".

As the unpublished material is not copyrighted, the question ofownership must be determined by common-law principles. The commonlaw has long recognized a property right in the products of man'screative mind, regardless of the form in which they tookexpression. For this reason, literary compositions andphilosophical speculations, whether they are presented as theoriginal work of the author or are claimed to have beentransmitted to him through one of the many forms of inspirationthat have come to be recognized as the source of intellectualproduction, are treated as a kind of property.3 And theauthor has property in his manuscript which willbe protected by the courts against anyone who seeks to deprivehim of it, either by securing an unauthorized copy of it or bypublishing it. The right exists until the author permits ageneral publication.4 The following language of the SupremeCourt is a pithy summary of the principles just adverted to: "Atcommon law, the exclusive right to copy existed in the authoruntil he permitted a general publication. Thus, when a book waspublished in print, the owner's common-law right was lost. Atcommon law an author had a property in his manuscript, and mighthave an action against any one who undertook to publish itwithout authority".5 (Emphasis added.)

What constitutes general publication has given the courts muchconcern. The Supreme Court has adopted as its own the followingcriterion for determining the matter: "It is a fundamental rulethat to constitute publication there must be such a disseminationof the work of art itself among the public as to justify thebelief that it took place with the intention of rendering suchwork common property."6

The publication, to be effective as a dedication, must be ageneral publication. A limited publication which communicates thecontents of a manuscript to a definite group and for a limitedpurpose, and without the right of diffusion, reproduction,distribution or sale, is considered a "limited publication",which does not result in loss of the author's common-law right tohis manuscript.7

An early American case contains a very clear statement of theconditions which render a publication limited in nature: "Thedistinction between a public circulation of written copies, anda restricted or private communication of their contents, was, forsome purposes, recognized before the use of printing. * * * But,except under special and unusual circumstances, an author whothen parted with a manuscript copy gave to it the most publiccirculation of which it was capable. Now, the parting by anauthor with manuscript copies of his unprinted composition isordinarily regarded as an act of mere private circulation. * * *Printed copies also may be circulated privately. Theircirculation is thus private when they are delivered to a fewascertained person only, who receive them under conditionsexpressly or impliedly precluding any ulterior diffusion of theknowledge of their contents. Such a case occurs when a smallfirst edition of a book, printed with a notice on the title pagethat it is for private circulation, is gratuitously distributedby the author among particular persons. Mr. Justice Talfourd,when at the bar, issued in this manner the first impressions ofhis tragedy of Ion. Here the restriction was expressly defined.It may, in other cases, be implied from the selection of thepersons, and fromthe method or attendant circumstances of the delivery. * * * Thecirculation must be restricted both as to persons and purpose, orit cannot be called private."8 (Emphasis added.)

One of the older authorities on the law of property inintellectual productions has summed up the rights of the authorof an unpublished book in this manner:9 "He has a right toexclude all persons from its enjoyment; and, when he chooses todo so, any use of the property without his consent is a violationof his rights. He may admit one or more persons to its use, tothe exclusion of all others; and, in doing so, he may restrictthe uses which shall be made of it. He may give a copy of hismanuscript to another person, without parting with his literaryproperty in it. He may circulate copies among his friends, fortheir own personal enjoyment, without giving them or others theright to publish such copies." (Emphasis added.)

From this, it is evident that, in determining whether apublication is general or special, the test is "whether there isor is not such a surrender as permits the absolute andunqualified enjoyment of the subject-matter by the public or themembers thereof to whom it may be committed."10

The case from which the foregoing quotation is taken epitomizesthe law on the subject: "A general publication consists in sucha disclosure, communication, circulation, exhibition, ordistribution of the subject of copyright, tendered or given toone or more members of the general public, as implies anabandonment of the right of copyright or its dedication to thepublic. Prior to such publication, a person entitled to copyrightmay restrict the use or enjoyment of such subject to definitelyselected individuals or a limited, ascertained class, or he mayexpressly or by implication confine the enjoyment of such subjectto some occasion or definite purpose. A publication under suchrestrictions is a limited publication, and no rights inconsistentwith or adverse to such restrictions are surrendered.Restrictions imposed upon the use prior to publication protectthe copyright. Such restrictions imposed after publication cannotaffect the public rights acquired by reason of the fact ofpublication. The nature of the subject-matter, the character ofthe communication, circulation, or exhibition, and the nature ofthe rights secured, are chiefly determinative of the question ofpublication."11 (Emphasis added.)

Implicit in these rulings is the thought that if thecircumstances show an intent to communicate the contents of themanuscript to a designated group and for a specified purpose, anddoes not extend to the public at large, the publication islimited. For this reason, the private circulation of an originalmanuscript or copies of it "is not a publication, unless itamounts to a general offer to the public."12

Limited publication, as defined by these authorities, is, inits effect, no more than the exhibition of a painting, therepresentation of a play, or the giving of a lecture, — none ofwhich destroys the right of common-law ownership or confers theright to unrestricted reproduction or circulation.

II. Limited Publication

Tested by the principles just referred to, the evidence in thiscase shows no intention to dedicate any portion of the "Gaelic"manuscripts to the public. And this conclusion may be drawn fromthe evidence offered on behalf of the plaintiff, which consistedof his own testimony, that ofWhite's former secretary, W.N. Maguire, and the depositions ofMargaret Oettinger and Harriet W. Jones.

The plaintiff and the former secretary testified generally thatin 1933 and 1934, copies of the manuscripts, made by what wasreferred to as the "ditto process", were sent out from White'soffice to certain persons interested in the ideas which White hadbelieved in, and which he had made popular through his books. Butthey admitted that the persons to whom the copies were sent werepersons whose names had been sent in by friends or wereinterested in the ideas or belonged to the small elite who werestudying them. No copy was ever placed in a public library, areading room or on the shelf of a book store or club, where itwas made accessible to anyone who wished to look at it. Nor wereany copies offered for sale. Mrs. Oettinger was permitted to makea copy for herself, and she stated, in her deposition, that in1941, she distributed some thirty copies. But it was evident fromher own testimony that in her discussion with White, she hadreferred to the fact that she wished to make copies "for two orthree people". Whereupon, he suggested that he knew other peoplewho might want them, and so he authorized her to make the copies.As she was not a woman of means, he authorized her to charge suchpersons as were referred to her two dollars for the cost ofmimeographing. Her testimony in this respect is very revealing:

"Q. And was there any statements at that time made with respectto where you would sell or distribute the manuscripts which youmade, or the copies which you made? A. No. I hadn't had very muchexperience with it at that time, and I knew of two or threepeople who wanted copies and that is all I knew about it, thattwo or three people wanted copies, and he said he knew severalpeople who would like to have copies, and he gave me from time totime the names of people who would like to have copies of thismanuscript. Several of the copies I disposed of were sent topeople whose names were given to me by Mr. White.

"Q. Did you have a copy of the manuscript before you went tosee Mr. White? A. Yes. I had borrowed a copy from Mrs. — Dr.Benner, I can't think of her name was — Katherine Benner.

"Q. Did she have several copies? A. I think she only had one.She might have — I don't know whether she had more than one ornot."13

While the witness sought to give the impression that she wasgiven carte blanche to reproduce and distribute at will, theexcerpt just quoted shows strictly the limitations which wereimposed. Her own testimony and the testimony of others show thatany of the names sent to her were selected by others, includingthe defendant. Mrs. Harriet White's deposition stated that Whitehad told her that he had given Mrs. Oettinger permission to "passout" the material and that she secured two or three copies fortwo dollars each. Despite the attempt of this witness to provepermission "to sell", the pattern which emerges is that of aselected group of persons recommended either by White or theothers who were interested in the philosophical or ethicalprinciples that he was preaching, who were given access to themanuscript. These are distinguishing marks of privatedistribution.

III. The "Gaelic" Manuscripts Are Not in Public Domain

The New York Court of Appeals, in a case which has already beencited, while holding that the facts in the particular case showeda general publication, laid down the indicia of privatedistribution, in language which is very appropriate to thediscussion here: "* * * if a book be offered gratuitously to thegeneral public, it will constitute publication. This may be doneby presenting it to public libraries, and this is so because theauthor or publisher, by that act, puts it in such a place thatall the public may see it if they choose. The reason why exposingfor sale or offering gratuitouslyto the general public constitutes publication is stated in thelast part of the rule as follows: `So that any person may have anopportunity of enjoying that for which copyright is intended tobe secured.' * * Several cases have arisen where the courts haveheld that the private circulation of pictures, manuscripts, orprinted books did not constitute a publication, such as PrinceAlbert v. Strange, supra; also Bartlette v. Crittenden, 2Fed.Cas. page 981, No. 1,082, 4 McLean, 300, where the plaintiff,a teacher of bookkeeping, for the convenience of his pupils,wrote his system of instructions on separate cards, which theywere permitted to keep for their convenience. So a gratuitouscirculation of copies of a work among friends and acquaintanceshas been held not to amount to a publication. Dr. Paley's Case,cited in 2 Ves. & B. 23, was one where a bookseller wasrestrained from publishing manuscripts left by Dr. Paley for theuse of his own parishioners only. Coppinger, in his work onCopyright, at page 117, after considering the last case cited andothers, reached the following conclusion: `The distinction is inthe limit of the circulation. If limited to friends andacquaintances, it would not be a publication; but, if general,and not so limited, it would be."14 (Emphasis added.) And thelimitation which makes the publication private does not relate tonumbers of persons, but to the type of persons to whom thecommunication is made and the purpose of making it. If limited tofriends or acquaintances, or persons having a common interest ina publication, or in the ideas which it expresses, the limitationis effective, although, in reality, a large number of copies maybe circulated. In a New York case, involving the question whetherthe distribution of reprints of a copyrighted article without anindication of the copyright was a waiver of the copyright, itappeared that thousands of reprints were distributed to theauthor's patients with instructions to call the article to theattention of others. Reprints were kept in the author's receptionroom where they could be examined or carried away by personsvisiting the establishment. Nevertheless, the Court held that thecopyright was not thereby lost, saying: "The primary purpose ofthe distribution was to give information to persons interested inthe subject discussed by the articles, and to relieve Schellbergof the necessity of orally explaining his system of treatment tothose who might wish to learn about it."15

So, here, the inference can be drawn, even from the testimonyon behalf of the plaintiff, that the object of distribution wasnot to dedicate the contents of the "Gaelic" manuscript to thepublic, but to communicate to a few persons interested in thesubject, — kindred spirits, as it were, the philosophy it taught.Indeed, the testimony showed that the manuscript originated, inpart, from written answers which had been given to questionspropounded by readers of White's other books. We clearly have aperson who promulgates a certain philosophy and makes it possiblefor some of those interested in it to see its exposition, bypermitting them to have for their own use a privatelymimeographed copy of an unpublished manuscript. The manuscriptis, therefore, the equivalent of the notes which a student makesof a lecture. The lecturer, by permitting him to make the notesand take them away, does not lose his right to later copyrightthe material.

From the very beginning of the development of this branch ofthe law, it has been conceded that circulation among studentsdoes not destroy the common-law right of the author. In one ofthe oldcases,16 the Lord Chancellor made the following observations:"Now, if a professor be appointed, he is appointed for thepurpose of giving information to all the students who attend him,and it is his duty to do that; but I have never yet heard thatanybody could publish his lectures; nor can I conceive on whatground Sir William Blackstone had the copyright in his lecturesfor twenty years, if there had been such a right as that; but itnever was understood that those lectures could be published; —and so with respect to any other lectures in the university, itwas the duty of certain persons to give those lectures; but itnever was understood that the lectures were capable of beingpublished by any of the persons who heard them." And all thosewho have followed Blackstone and combined teaching with writing,whether in the field of law or others, have had the benefit ofthe rule.17

We add that other evidence in the record supports theconclusion that there was no general publication. As theplaintiff leans heavily on the deposition of Mrs. Oettinger, itis very significant that on the copy of the manuscript which sheproduced with the deposition, there was the printed legend"Reproduced by permission of Stewart Edward White." Such aninscription contradicts the design to publish to the world atlarge. For if the object be to release the material to thepublic, the statement of permissive reproduction is meaningless.Its appearance on the manuscript indicates the limited purpose ofthe permission granted. White, in reporting on November 18, 1940,to the defendant his understanding with Mrs. Oettinger, wrote:"Just a hasty note, before you do any work copying Gaelic.Yesterday afternoon some people were here from Palo Alto who areso stuck on Gaelic that they want to copy it in mimeograph. Theyasked (a) whether I was willing; (b) if so, would I mind theirpass — it around among such of their friends who want copies, (c)if so, again, whether I would mind their charging such people theexact cost. I approved. So, if you write them, you might get oneof those copies. Name: Mrs. Frank Oettinger, RFD #1, Menlo Park,Cal."18 This is a contemporaneous statement, and is verypersuasive as to what the understanding was. In a letter datedMay 18, 1945, to Mrs. Oettinger, he indicates that the right tocopy did not imply the right to publish in general: "As to theGaelic, Sue Kimmell is quite right in saying that you may goahead at your discretion with more copies of it. And your friend,Barbara Kelkin, got the wrong impression. I have no objectionwhatever to the distribution of copies of Gaelic, provided, ofcourse, it is not in published form."19 White had publishedmany books in his lifetime. So, when he spoke of reserving"publication" rights, as he did in the bill of sale and in thisletter, he did not refer solely to "publication by print". Heused the words in the sense in which they are used in the law ofliterary property, with which he was familiar. Otherwise put, hewas determined that the permission granted did not result in ageneral publication.

And in a letter written on October 26, 1944, to the defendant,a few days after the bill of sale was executed, White spoke abouthis brother's possible attempts to assert rights to the "GaelicManuscripts", and gave that as his reason for protecting heragainst "what might be a disagreeable situation. The sort ofsquabble that just might arise if, after I die, he should riseand howl and attempt to do his own Gaelic, and show activeresentment about an `outsider' having the say over him, etc.,etc., you can imagine as well as I."20

The deposition of Ivey Oenita Duce, relating to herconversation with White, offers positive proof of the fact thatstrict limitations were imposed upon all personswho were given the rights to copy the "Gaelic" manuscript,21as does also the deposition of Don E. Stevens.

These occurrences, ranging over a period of years, are not, asthe brother contends, mere self-serving declarations which seekto explain after the act, what was done; they are a consistentseries of statements showing a clear design on White's part tolimit communication. It is true that, notwithstanding suchdesign, it was still possible for those to whom permission wasgiven to destroy the effect of limitations by unlimited generaldistribution.22 But this, fortunately, did not occur. Eventhose who would now generalize the limited right they received,testify to the observance of the limitation. The mostconservative estimate of the number of copies distributed doesnot exceed 75. And, as already appears, this distribution was todesignated persons. None was made to a public institution wherethe public had access to it. None was sold. And the case beforeus comes clearly within the rule stated in Bartlett v.Crittenden23: "To make a gift of a copy of the manuscript isno more a transfer of the right or abandonment of it, than itwould be a transfer or abandonment of an exclusive right torepublish, to give the copy of a printed work. In his treatise onEquity, (section 943,) Mr. Justice Story says, `In cases ofliterary, scientific, and professional treatises in manuscript,it is obvious, that the author must be deemed to possess theoriginal ownership, and be entitled to appropriate them to suchuses as he shall please. Nor can be justly be deemed to intend topart with that ownership by depositing them in the possessionof a third person, or by allowing a third person to take and holda copy of them. Such acts must be deemed strictly limited, inpoint of right, use, and effect, to the very occasions expressedor implied, and ought not to be construed as a general gift orauthority for any purposes of profit or publication, to which thereceiver may choose to devote them.' And he says, to prevent thepublication of manuscripts, without the consent of the author, aninjunction should be issued."

The conclusion is therefore inescapable that there was nogeneral publication of the "Gaelic" manuscript.

The consistency with which the courts for over a century and ahalf have upheld an author's common-law right to his manuscriptand the ardor which they have shown to protect his rights,despite limited publication, is one more indication of thehealthfulness of the common-law system and the determination ofthe courts to use their powers, aided by equitable principles, toprotect intellectual products against piracy. No reason existswhy we should depart from these strict standards. In these daysof quick communication of ideas, a rule which would make alimited disclosure, such as occurred in this case, synonymouswith publication would deny to the creator in the intellectualfield the right to the product of his creative imagination. Thiswould be harmful to the development of ideas. For, if weencourage piracy, we discourage creative minds from sharing, ina restricted manner, their ideas before their full fruition. Thepolicy of the law, in protecting intellectual products, is toencourage productivity.24 A protected limited sharing mayenhance it by giving additional time for a fuller development. Aweakening of this right might result either in prematurepublication or a total withholding of ideas, under fear of injuryto the author's ownership in them. Either would be a loss to thecreative spirit, which the courts should not consciouslyencourage.

Judgment and declaration will, therefore, be for the defendantthat the "Gaelic" manuscripts are not in the public domain, andthat the defendant is their sole owner.

Injunction will issue enjoining the plaintiff from using it inany manner.

Costs, but not attorney's fees, will be allowed the defendant.See, 17 U.S.C.A. § 40; Official Aviation Guide Co., Inc., v.American Aviation Inc., Associates, 1947, 7 Cir., 162 F.2d 541,543.

1. Stewart Edward White, The Job of Living, 1948, p. 22.

2. 18 U.S.C.A. §§ 2201, 2202.

3. 18 C.J.S., Copyright and Literary Property, §§ 4-10; Amdur,Copyright Law and Practice, 1936, pp. 30-31; California CivilCode, Sec. 980. And see: Wheaton v. Peters, 1834, 8 Pet. 591,657-658, 8 L.Ed. 1055; Bobbs-Merrill Co. v. Straus, 1908,210 U.S. 339, 346, 28 S.Ct. 722, 52 L.Ed. 1086; Moore v. Ford MotorCo., 2 Cir., 1930, 43 F.2d 685, 686; Echevarria v. Warner Bros.Pictures, Inc., D.C.Cal. 1936, 12 F. Supp. 632, 634; SupremeRecords, Inc., v. Decca Records, D.C. 1950, 90 F. Supp. 904, 906;Loew's, Inc., v. Superior Court, 1941, 18 Cal.2d 419, 421,115 P.2d 983; Yadkoe v. Fields, 1944, 66 Cal.App.2d 150, 160,151 P.2d 906; Johnston v. Twentieth Century Fox Film Corporation,1947, 82 Cal.App.2d 796, 807-808, 187 P.2d 474.

Our Court of Appeals has summed up the principle in one briefsentence: "Literary property is not distinguished from otherpersonal property and is subject to the same rules and islikewise protected". (Emphasis added.) Universal Pictures Co. v.Harold Lloyd Corp., 9 Cir., 1947, 162 F.2d 354, 364.

See, Note, Literary Property, 1950, 38 Cal.Law Rev. 33;Comment, Common Law Copyright, 1950, 24 So.Cal.Law Rev. 65.

4. Bartlett v. Crittenden, C.C.Ohio, 1849, 2 Fed.Cas. page 967,No. 1076; Press Publishing Co. v. Monroe, 2 Cir. 1896, 73 F. 196,199; Caliga v. Inter Ocean Newspaper Co., 1909, 215 U.S. 182,188, 30 S.Ct. 38, 39, 54 L.Ed. 150; Moore v. Ford Motor Co.,supra, 43 F.2d at page 686; Nutt v. National Institute, etc., 2Cir. 1929, 31 F.2d 236, 238.

5. Caliga v. Inter Ocean Newspaper, 1909, 215 U.S. 182, 188, 30S.Ct. 38, 39, 54 L.Ed. 150.

6. American Tobacco Co. v. Werckmeister, 1907, 207 U.S. 284,299-300, 28 S.Ct. 72, 77, 52 L.Ed. 208, quoting, with approval,Slater on the Law of Copyright and Trademark, p. 92.

7. Abernethy v. Hutchinson, 1824, 3 L.J. Ch. Reports 209; PrinceAlbert v. Strange, 1849, 2 De Gex & S.M., 652, 41 Eng.Rep.(Reprint) 1171; Prince Albert v. Strange, 1849, 1 Mc. & G. 25, 64Eng.Rep. (Reprint) 293; Werckmeister v. American LithographicCo., 2 Cir. 1904, 134 F. 321, 325, 68 L.R.A. 591; Jewelers'Mercantile Agency v. Jewelers' Weekly Publishing Co., 1898,155 N.Y. 241, 49 N.E. 872, 41 L.R.A. 846; Kurfiss v. Cowherd, 1938,233 Mo.App. 397, 121 S.W.2d 282; Waring v. WDAS Broadcasting Co.,1937, 327 Pa. 433, 194 A. 631; Berry v. Hoffman, 1937,125 Pa. Super. 261, 189 A. 516.

8. Keene v. Wheatley, C.C.Pa., 14 Fed.Cas. pages 180, 191, No.7644.

9. Eaton S. Drone, A Treatise on the Law of Property inIntellectual Products, 1879, pp. 102-104. This test has beenrepeatedly cited with approval by the courts. And see,Bobbs-Merrill Co. v. Straus, supra, 210 U.S. 339, 28 S.Ct. 722;Werckmeister v. American Lith. Co., supra, 134 F. at page 324.

10. Werckmeister v. American Lith. Co., supra, 134 F. at page 325.

11. Werckmeister v. American Lith. Co., supra, 134 F. at page 326.

12. Werckmeister v. American Lith. Co., supra, 134 F. at page 325.

13. Deposition of Margaret Oettinger, Plaintiff's Exhibit No. 4,pp. 5, 6.

14. Jewelers' Mercantile Agency v. Jewelers' Weekly PublishingCo., supra, 49 N.E. at page 875.

15. Schellberg v. Empringham, D.C.N.Y. 1929, 36 F.2d 991, 992.This case arose under the Federal copyright law. But whether acommunication takes place which amounts to a general publicationis determined by principles which apply to all situations,regardless of the law under which they arise. So the reasoning ofthis case can be applied with great force to the facts here.

16. Abernethy v. Hutchinson, supra, p. 215. And see, Nutt v.National Institute, etc., 2 Cir. 1929, 31 F.2d 236, 238.

17. Nutt v. National Institute, etc., 2 Cir. 1929, 31 F.2d 236;Waring v. WDAS Broadcasting Co., 1937, 327 Pa. 433, 194 A. 631.

18. Defendant's Exhibit A.

19. Plaintiff's Exhibit 3.

20. Defendant's Exhibit C.

21. Defendant's Exhibit D, Deposition of Ivy Oenita Luce, fromwhich we quote:

"Q. Now, did Mr. White ever give you permission to make copiesof that manuscript? A. Well, I just started explaining to youwhat happened. He told me I could write to this Mrs. Oettingerand get a copy from her, and I wrote to her and she informed methat she had no more copies but that she had some stencils andthat they were very badly worn but that if I wished to I couldmake some copies from these stencils. So then, as I remember it,I wrote to Mr. White and asked him about it, and he said to methat it was perfectly all right for me to make a few copies butthey were to be limited and that I was only to allow a few of myclose friends to see them, that I must be very careful, in fact,to whom I showed them, because since they had not been publishedanybody could, you might say, steal the material; and naturallyI wanted to protect his manuscript from anything like that. So Ihad these two or three friends here who were studying like I was,and we sent up to the lady and she sent us the stencils. And Ihad no mimeograph machine, and a Mrs. Cuthbert had a mimeographmachine and she turned out, as well as I can remember, about tencopies. I know she had to remake or recut some of the stencils,they made such bad copies. * * *

"Q. And what happened to them? A. And I still have three ofthem. And, as I said, I have not referred to them for years,because I, myself, went into the study of mysticism, which goesfar beyond occult phenomena, and I have just very occasionallyread a few paragraphs of it to some of my students who might bepuzzled about something. I have three copies, as well as I know,on my shelf, and Don Stevens received one and we sent one to Mr.Stewart White because he said he was out of copies at the moment.He had loaned his out and didn't have any at the moment. And Ibelieve Mrs. Cuthbert got one and Mrs. Ahlstrand and Mrs. Simpsongot one, and I think we sent one to Mrs. Oettinger. * * *

"Q. Now, those people who received copies were known to Mr.White, were they not? * * * A. He knew who they were.

"Q. He knew who they were, and you had his permission to givethem a copy A. Oh, yes.

"Q. In other words, it was not left to you to distributeto * * * A. Oh, no, because he had adjured me to be very careful as towho saw it, because he didn't want this material to fall into thehands of unprincipled people.

"Q. In other words, I take it that you were given very definiteinstructions that no one except selected groups or individualscould peruse that matter or even see it? A. Very definitely. (Pp.8-11.) (Emphasis added.)

22. Cf. Kurfiss v. Cowherd, 1938, 233 Mo.App. 397, 121 S.W.2d 282,287-288; Larrowe-Loisette v. O'Loughlin, C.C.N.Y. 1898, 88 F.896.

23. Bartlett v. Crittenden, C.C.Ohio, 1849, 2 Fed.Cas. pages 967,970, No. 1076.

24. The American law of copyright stems from the power conferredupon the Congress by the Constitution "To promote the Progress ofScience and useful Arts". Constitution of the United States,Article I, Sec. 8. And, as cases discussed in this opinionindicate, the common-law right to literary property precedes theconstitutionally authorized protection and was not in any wayaffected by the enactment of the copyright laws, except that oneavailing himself of the copyright laws loses the correspondingcommon-law rights. See, Bobbs-Merrill Co. v. Straus, 1908, 210,U.S. 339, 346-349, 28 S.Ct. 722, 52 L.Ed. 1086; Loew's, Inc. v.Superior Court, 1941, 18 Cal.2d 419, 421-425, 115 P.2d 983.

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