White v. Kimmel

Court decision in White v. Kimmel

WHITE v. KIMMELL ET AL.
[1] UNITED STATES COURT OF APPEALS NINTH CIRCUIT
[2] No. 12862
[3] 193 F.2d 744
[4] January 7, 1952
[5] WHITE v. KIMMELL ET AL.

[6] Schauer, Ryon & McMahon, Robert W. McIntyre, Thomas M.
Mullen, Santa Barbara, Cal., for appellant.

[7] Leslie F. Kimmell, Laguna Beach, Cal., for appellees.

[8] The opinion of the court was delivered by: Healy

[9] Before STEPHENS and HEALY, Circuit Judges, and McCORMICK,
District Judge.

[10] HEALY, Circuit Judge.

[11] Appellant sought a declaratory judgment that a manuscript
entitled "Gaelic," authored by Stewart Edward White, and a
certain book by the same author entitled "The Job of Living,"
based on the Gaelic manuscript and quoting from it, are in
the public domain and may be quoted without infringement of
the copyright claimed by appellee Kimmell or the common-law
proprietary rights claimed by her in Gaelic. For convenience
appellant will be referred to as the plaintiff, appellee
Kimmell as the defendant, and Stewart Edward White as White.

[12] Some preliminary attention should be given the nature of the
Gaelic manuscript. Gaelic is supposedly the spirit of an
individual who had departed this world and become an
invisible non-material entity. The work embodies
communications from Gaelic, received chiefly by White's wife.
The communications were written down by various individuals,
and were subsequently, between about 1920 and 1930, reduced
to manuscript form by White. The latter identified Gaelic as
his and his wife's "nickname for what seemed to us a single
and definite personality, apparently detailed to tell us what
made the wheels go round."

[13] Plaintiff's complaint avers that the Gaelic manuscript was
abandoned by White to the general public by his reproducing
and distributing copies himself and permitting others to do
the same without limitation as to use or right to republish
and without notice of claim of copyright. The defendant
relies on a transfer to her by White of his interest in his
work as establishing her exclusive right to quote from
Gaelic. This transfer was made in October 1944, about two
years before White's death.

[14] The court found that the reproduction and distribution of the
manuscript amounted to a limited and restricted publication
only; that there was no general publication of it, and that
the manuscript is not in the public domain. D.C., 94 F.Supp.
502. The sole issue here is whether these findings are
justified by the evidence. We think they are not.

[15] The testimony is not in conflict, although as will later
appear, portions of it do exhibit contrasts. The following is
a fair summary of the showing made on the part of the
plaintiff: In the fall of 1933 mimeographed stencils of the
Gaelic manuscript were cut and run off by a Mrs. Maguire,
White's secretary, at the instance of White. *fn1 Originally
sixty or seventy copies were made. The secretary, at White's
request, mailed out eighteen or twenty of them to a list of
persons furnished her by White, together with a letter of
transmittal. In this letter White stated in part that he had
"finally made some extra copies of 'gaelic' because so many
of you wanted them. * * * I am glad to know of your interest,
and I wish you to read it, to use it as you like, and pass it
on to others, and for as long a time as you can. If you get
through with it, you might return it to me to hand to someone
else. Otherwise, you are at liberty to keep it." Later,
additional copies were mailed out by the secretary at the
request of White with the same letter of transmittal. White
left four or five copies with the secretary which she gave to
friends or clients of hers who were interested in the
manuscript. White was not acquainted with these persons. He
at no time made any statement to the secretary or to anyone
in her presence limiting the use of the Gaelic manuscript by
persons receiving it. The distribution was not made to a
group or association. A second run of forty of fifty copies
was later made by the secretary. These were distributed by
White in part to friends and in part to strangers who wrote
him requesting a copy. No limitation was expressed by White
to the donee as to the use which might be made of Gaelic. At
the time of White's death, only two copies were found in his
possession. He never sold a copy to anyone. So runs the
testimony of the secretary.

[16] Near the end of 1940 a witness, Margaret Oettinger of Palo
Alto, wrote to White, whom she did not know, requesting a
copy of Gaelic. When informed there were none left, she wrote
asking permission to make mimeographed copies for herself.
White wrote her that she was at liberty to do so. He did not
in his correspondence or otherwise place any limitation on
the persons among whom the manuscript might be circulated.
Later Mrs. Oettinger wrote White asking permission to charge
persons the cost of reproduction. Permission was granted.
*fn2 Mrs. Oettinger saw White on only two occasions. On the
one occasion when the Gaelic manuscript was discussed, White
told her that he had no objection to additional copies being
made, and no limitations were placed on the amount to be
charged nor to whom the manuscript was to be sold. It is
clear that Mrs. Oettinger told White she wanted to distribute
copies to some of her friends. It was understood that the
charge was to cover the cost of materials. Mrs. Oettinger ran
off three mimeographed sets of the manuscript, averaging
about forty copies apiece. *fn3 The first two sets were sold
for $2.00 per copy and the last for $1.50. This witness
testified that as time went on she sent copies to persons who
were strangers to her, who said they had seen the manuscript
somewhere and wanted a copy. These people were apparently
strangers to White, also. Most of the people to whom she sold
were referred to her by White or by appellee as a source from
which copies could be obtained.

[17] A Mrs. Jones testified to having purchased several copies of
the manuscript from Mrs. Oettinger through correspondence,
and to having paid for them. No restriction or limitation was
placed on the use she could make of them. She sent the
volumes to people who had asked her for them.

[18] The defendant testified on her own behalf, as did also two
other persons, namely a Mrs. Duce and a Mr. Stevens. *fn4 The
testimony of the latter two related to a time apparently not
earlier than 1943. These three persons all said, in
substance, that while they were given permission to reproduce
or to distribute mimeographed copies of the Gaelic
manuscript, they were cautioned by White to use extreme care
not only as regards the persons given copies but also as
regards the persons permitted even to see a copy. Their
testimony, however, related entirely to their own activities
and their own relations with White. None of it purported to
have any bearing on the Oettinger publication or on the
publication of the author himself.

[19] White clearly did not wish to publish Gaelic as a
conventionally printed book. Several reasons said to have
been given by him are testified to - his wife's work in the
field was more important and should have precedence; the work
was not in proper form for a book; the "Invisibles" had
instructed him not to print it.

[20] The trial judge's opinion contains a comprehensive and
concededly accurate survey of the judicial precedents
relating to limited publication, and there would seem to be
no justification for our duplicating his efforts in that
direction. We adopt as a fair summary of the applicable
principle his statement that a limited publication which
communicates the contents of a manuscript to a definitely
selected group and for a limited purpose, 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 to his manuscript; but
that the circulation must be restricted both as to persons
and purpose, or it can not be called a private or limited
publication. The respect in which we are constrained to
disagree with the judge is in the application of the stated
legal principles to the facts of the case.

[21] It appears to us that the court disregarded in large part
vital and uncontradicted testimony, notably that of White's
secretary and of Mrs. Oettinger. No mention is made of
White's letter of transmittal, testified to by the secretary,
which suggested unqualifiedly that the recipients of the
copies of the manuscript pass it on to "others." Who these
others might be, or what their philosophy, would necessarily
be matters completely unknown to White. As to Oettinger, it
seems to be implied by the court that actually she was
permitted only to make copies under a strict limitation,
whereas her testimony is unequivocal that no limitation was
put on the number of copies she might turn out, and none on
the persons to whom they would go. *fn5 Eloquent of her
freedom from restrictions is her testimony that on one
occasion she sent a copy to a person who had seen a copy in a
dentist's office and had written asking her for one. Her
evidence conclusively indicates that some of the people to
whom she sent copies were not friends or even acquaintances
of White, of appellee, or of Mrs. Oettinger herself. Thus it
can not be said, on the basis of this phase of the showing,
that only friends of White, or "kindred spirits," got or were
intended to get copies. Nobody seeking the mimeographed
manuscript appears to have been asked for any sort of
credentials. In a word, we are unable to see in this picture
any definitely selected individuals or any limited,
ascertained group or class to whom the communication was
restricted.

[22] Nor is it thought that the case is comparable to those
involving publication of lecture notes, or the distribution
of copies of a minister's sermon among the members of his
congregation, or kindred cases relied on below. It is by such
assimilation that the trial court endeavors to satisfy the
criterion of the distribution being limited to a specific
purpose. But White does not appear in the record as a teacher
or as a propagandist endeavoring to persuade. He is not
pictured as a man with a message. His only apparent purpose
was to enable any persons interested to obtain a copy of the
manuscript. No other motive is discernible. Such a purpose,
we think, is too broadly general and indefinite to satisfy
the test of a limited publication. Obviously only those
interested or curious would take the trouble to ask for a
copy, and a mere request seems to have been all that was
necessary to obtain one.

[23] The court stresses what it found to be White's intent not to
publish generally, citing especially the statement in his
letter to Mrs. Oettinger, reproduced in note 5 above, namely,
that he had no objection whatever to the distribution of
copies "provided, of course, it is not in published form." In
the context of the case the phrase "in published form" could
only mean in book form; and it is in that sense that White
must have expected the recipient of the letter to understand
it. White was of course quite familiar with the mimeographed
distribution. One must in any event look at what he intended
to do rather than at what he intended to be the legal
consequence of his acts.

[24] Another indication of the limited nature of the publication
was thought below to be evidenced by the fact that not more
than seventy-five copies were distributed. However, the
record clearly shows that at least as many as two hundred
copies were put in unrestricted circulation over the long
period between 1933 and 1946. Through how many hands they
passed among the members of the general public can only be
surmised.

[25] Judgment reversed.

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Opinion Footnotes

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[26] *fn1 This witness had been White's secretary from 1919 or
1920 and remained such until the time of his death.

[27] *fn2 There is a letter in the record written in 1940 by White
to the defendant, which contains the following passage: "Just
a hasty note, before you do any work copying Gaelic.
Yesterday afternoon some people were here from Palo Alto who
are so stuck on Gaelic that they want to copy it in
mimeograph. They asked (a) whether I was willing; (b) if so,
would I mind their it around among such of their friends who
want copies, (c) if so, again, whether I would mind their
charging such people the exact cost. I approved. So, if you
write them, you might get one of those copies. Name: Mrs.
Frank Oettinger, RFD #I, Menlo Park, Cal."

[28] *fn3 These copies were substantially bound with flexible
paper covers.

[29] *fn4 The witnesses Duce, Stevens, Jones, and Oettinger
testified by deposition.

[30] *fn5 A letter written by White to Mrs. Oettinger in 1945 is
in the record, containing the following passage: "As to the
Gaelic, Sue Kimmell is quite right in saying that you may go
ahead at your discretion with more copies of it. And your
friend, Barbara Delkin, got the wrong impression. I have no
objection whatever to the distribution of copies of Gaelic,
provided, of course, it is not in published form."

19520107