Robert W. Sweet

“ Nevertheless, despite its New Age trappings, the Course is explicitly grounded in Christian theology. Its somewhat bewildered, bewildering, yet not terribly novel message appears to be that the world humans perceive with their senses is merely an illusion projected by our minds outside of ourselves, and that the true world is "God," who is love, which is "all there is." This is an admittedly subjective summation, but perhaps more informative than the cryptic summation provided in the Course itself: "Nothing real can be threatened. ”

“ The defense of copyright misuse applies when a plaintiff has allegedly extended the copyright monopoly in a manner that constitutes an unreasonable restraint of trade. See Basic Books v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1537-38 (S.D.N.Y. 1991) . It has no applicability in the instant dispute.
E. First Amendment Defendants claim that Plaintiffs' enforcement of its alleged copyright would prevent Defendants' members and students from engaging in the practice of their religion, in violation of the First Amendment. ”

“ As a matter of law, dictation from a non-human source should not be a bar to copyright. However, Defendants have invoked the defense of "factual" estoppel peculiar to the copyright field, maintaining that because Plaintiffs have continually represented that the author of the Course is Jesus, they cannot now claim that it is an original work of Schucman. ”

“ F. Merger Defendants maintain that the "merger doctrine" applies here. "When an idea is so restrictive that it necessarily requires a particular form of expression, that is, when the idea and its expression are functionally inseparable, to permit the copyrighting of the expression would be to grant the copyright owner a monopoly of the idea." ”

“ If the secondary use adds value to the original -- if copyrightable expression in the original work is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. ”

“ To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works) , and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble, or obvious" it might be. Originality does not signify novelty ”

“ 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 non-jury 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 copyright. ”

“ 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 presence of a copyright notice is evidence of one's intent not to abandon one's copyright. See id. No evidence has been presented to indicate an overt act of abandonment. Notwithstanding the evidence that Plaintiffs did not always enforce the copyright as vigorously as they are currently attempting to do, there is no evidence of an overt act by Plaintiffs evidencing an intent to surrender the copyright.
To establish waiver, defendants must show that plaintiffs "relinquished a right with both knowledge of the existence of the right and an intent to relinquish it." ”

“ 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." ”

“ 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 designation affixed.
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. ”

“ Plaintiffs have moved for summary judgment on their claim for federal copyright infringement, and for preliminary injunctive relief to prevent members of Church or students of Endeavor from posting on web sites materials that infringe on Plaintiffs' alleged copyright in the Course. Defendants have cross-moved for summary judgment on all claims. [4] Because resolution of a motion for a preliminary injunction requires inquiry into the likelihood of ultimate success on the merits of the action, the summary judgment motions will be addressed first. ”

“ See Urantia, 114 F.3d at 963 (rejection of fraud on the Copyright Office defense because even though plaintiffs did not reveal divine authorship of Urantia Book, they submitted copies with their application and the "Book clearly describes its own origin") .
3. Chain of Title FIP's certificate of registration of the Course constitutes prima facie evidence that it possesses a proper chain of title, in this instance, that the copyright passed from Schucman to FIP by oral assignment prior to registration. ”

“ 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. ”

“ Skutch Whitson at trial sought to contradict her earlier statements on the audio-tapes 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. ”

“ If, when viewing the evidence produced in the light most favorable to the non-movant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. See Burrell, 894 F. Supp. ”

“ Nothing unreal exists. Herein lies the peace of God."
Perhaps not surprisingly in this day and age, the Course has developed a substantial following. Well over a million copies have been printed, and multiple foreign-language editions exist, with more planned for the near future. Teachers, lecturers, and study groups flourish, and a steady stream of books, pamphlets, brochures, newsletters and magazine articles continue to appear in which the Course is discussed, analyzed, and explained. ”

“ 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”) . ”

“ 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. ”

“ It is not a statement of fact at all. The Workbook, in particular, is composed mostly of prescriptive statements. In this respect, the Course is fundamentally different from the work which was the subject of Arica.
Additionally, the alleged infringements in Arica involved the use of single words and phrases and conceptual titles. See Arica, 970 F.2d at 1072-77. Here, the alleged infringements are a verbatim reproduction of the entire 488-page Workbook and verbatim reproductions of complete sections of the Course in a series of pamphlets. The scope of the infringement here is thus far greater. ”

“ While the material that eventually became the Text went through these three drafts, Schucman continued to hear the Voice and take down by hand the material that would become the Workbook and the Manual, and Thetford continued to type out this material as Schucman read it to him during the day. The Workbook and the Manual were not edited and revised nearly as heavily as the Text. However, much of a draft of the Workbook was included in the material sent to Cayce, and the correspondence between Cayce and Thetford suggests that at least some editing of the Workbook was expected to take place. ”

“ LEXIS 21932, at *7 (with regard to issue of originality, held that there was "no legal relevance to the assertions by both parties that the information was provided by spiritual guides") (citing Urantia II, 210 U.S.P.Q. 217 ("legally ... the source of the [author's] inspiration is irrelevant.") ) .
Thus, the defense of lack of originality fails on two independent grounds: the Course is an original literary work of Schucman, and even if it were not, it would still be an original compilation of facts. ”

“ FIP subsequently licensed the Course to Penguin for publishing. FIP later assigned the copyright to FACIM, in writing, subject to the Penguin license. The chain of title is valid and Defendants have not met their burden of proof to demonstrate otherwise.
Because the facts sustain neither the originality defense, nor the fraud on the Copyright Office defense, nor the chain of title defense, Plaintiffs have a valid copyright in the Course. ”

“ 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 Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole This factor also weighs against Defendants. Defendants have copied the entire Workbook, which comprises nearly 40% of the Course. With regard to Defendants' pamphlets, many consist almost entirely of excerpts from the Text. Other pamphlets intersperse substantial verbatim quotations from the text with other material. However, juxtaposing text "wedged between two non-infringing sections" of the secondary work does not constitute fair use. ”

“ Although the copy submitted did not contain the introduction in which Schucman discusses the process by which she wrote down the material, i.e. by hearing the Voice, it is clear from the context that the purported source of the material is some divine being. In fact, Defendants repeatedly assert that the Course indicates clearly that its author is Jesus. ”

“ In particular, " [t] hose who were responsible for the creation of the tangible literary form that could be read by others, could have claimed copyright for themselves as 'authors,' because they were responsible for the revelations appearing 'in such a way as to render the work as a whole original.'" Urantia, 114 F.3d at 958 (quoting Feist, 499 U.S. at 358) .
In the instant case, FIP, FACIM, their principals Wapnick, Skutch-Whitson, and Skutch, and Schucman and Thetford have repeatedly asserted that Jesus dictated the Course to Schucman. ”

“ In addition, the following excerpt was contained in the pre-1996 editions: "Judy [Skutch] couldn't keep lending her copy out for twenty-four hours to everyone who wanted it. Despite this, expedients did develop. Jim's copy started to be reproduced. And those copies were then copied. And before long there were over a hundred people in the San Francisco area in possession of A Course in Miracles." This was replaced in the 1996 edition by the following: "Judy [Skutch] didn't want to lend her copy to anyone else. ”

“ Moreover, Plaintiffs claim that expert discovery on the trademark issues has been stayed pending resolution of the copyright issues in the case, and that they have retained an expert on the issue of the secondary meaning of the disputed marks. Defendants respond that discovery has closed and Plaintiffs have failed to notify them of this purported expert. ”