Sundeman v. Seajay Society, Inc.

• Decision Date: 23 April 1998
• Docket Number: No. 97-1339,97-1339
• Citation: 142 F.3d 194
• Parties: 1998 Copr.L.Dec. P 27,765, 46 U.S.P.Q.2d 1521 John SUNDEMAN, Successor Personal Representative of the Estate of Marjorie Kinnan Rawlings Baskin; Florida Foundation, Plaintiffs-Appellants, v. THE SEAJAY SOCIETY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 194

142 F.3d 194

1998 Copr.L.Dec. P 27,765, 46 U.S.P.Q.2d 1521

John SUNDEMAN, Successor Personal Representative of the

Estate of Marjorie Kinnan Rawlings Baskin;

Florida Foundation, Plaintiffs-Appellants, v. THE SEAJAY SOCIETY, INC., Defendant-Appellee.

No. 97-1339.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 30, 1998.

Decided April 23, 1998.

ARGUED: J. Lester Kaney, Cobb, Cole & Bell, Daytona Beach, FL; Herbert L. Allen, Allen, Dyer, Doppelt, Franjola & Milbrath, P.A., Orlando, FL, for Appellants. Steve A. Matthews, Sinkler & Boyd, P.A., Columbia, SC, for Appellee. ON BRIEF: Robert O. Meriwether, Nelson, Mullins, Riley & Scarborough, L.L.P., Columbia, SC, for Appellee.

Before WILLIAMS and MICHAEL, Circuit Judges, and KISER, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge KISER wrote the opinion, in which Judge WILLIAMS and Judge MICHAEL joined.

OPINION

KISER, Senior District Judge:

Mr. Norton Baskin (Baskin) is the personal representative of the estate of his late wife, Mrs. Marjorie Kinnan Rawlings Baskin (Rawlings). In Count I of the Second Amended Complaint, Baskin and the University of Florida Foundation (Foundation) (formerly known as the University of Florida Endowment Corporation) seek to recover from The Seajay Society, Inc. (Seajay) physical possession of certain documents which appellants assert are assets of the Rawlings estate. In Count II, the Foundation seeks damages and injunctive relief for Seajay's alleged violation of, and alleged threats to continue violating, its copyright. ¹

Senior Judge Perry tried this case without a jury on September 5 and 6, 1991. After the trial, post-trial briefs, and closing arguments, the lower court, on October 1, 1992, entered judgment for Seajay as to Counts I and II, but did not render a decision on the counterclaim. ² The district court also did not file findings of facts or conclusions of law at that time. Baskin and the Foundation noticed an appeal to this Court on October 30, 1992. This Court, however, dismissed the appeal without prejudice because of the district court's failure to address the counterclaim or include findings of fact and conclusions of law.

On February 5, 1997, after reopening the record, receiving additional evidence on Count II, and hearing renewed closing arguments, the district court found for Seajay as to Counts I and II and the counterclaim. The district court also filed its findings of fact and conclusions of law. That decision is now before this Court on appeal.

I. FACTS

Rawlings died on December 14, 1953 in St. John's County, Florida. She was the noted author of books such as Sojourner, Cross Creek, and The Yearling, which won the 1939 Pulitzer Prize.

In her will, Rawlings designated Baskin and the Foundation as coexecutors of her estate. She also designated one of her closest friends, Ms. Julia Scribner Bigham (Bigham) as literary executrix of her estate. Bigham was the daughter of publisher Charles Scribner, whose company, Charles Scribner's Sons Publishers (Scribner Publishing), published all of Rawlings' works.

On January 27, 1954, the County Judge's Court for St. John's County, Florida appointed Baskin as the sole executor of Rawlings' estate. The probate court never appointed the Foundation as an executor. Likewise, the probate court never appointed Bigham as literary executrix, or as any other fiduciary. Bigham acted in the capacity as literary executrix, however, under the auspices of Baskin from 1953 until her death on October 24, 1961. ³

Rawlings' will left immediate custody of "all manuscripts, all notes, all correspondence, and all literary property of any kind" to Bigham, in her role as literary executrix. Bigham had the power to destroy any of the "notes, manuscripts or correspondence" she believed should be destroyed. She also had the power to determine which materials would be published. Bigham could keep the literary works as long as she wanted, then she was to turn them over to the University of Florida Library. Any income from these literary materials was to be held in trust by the Foundation, along with the remainder of Rawlings' property.

Acting in her role as literary executrix, Bigham collected Rawlings' correspondence, papers, manuscripts, and other materials from Baskin. Bigham also obtained some of Rawlings' materials from Scribner Publishing. At no time did Baskin, the only court appointed fiduciary, ever request an inventory of the materials collected by Bigham.

Bigham scrupulously performed her duties as literary executrix. During the remainder of her life, she wrote an introduction to and posthumously published The Secret River, and then directed the original manuscript be sent to the University of Florida Library; she posthumously published The Marjorie Rawlings Reader, and then returned the typescript and original materials to Scribner Publishing; she worked to ensure that any works retained by Scribner Publishing were later sent to the University of Florida Library; and she transferred numerous other documents to the University of Florida Library. After Bigham's death in 1961, Baskin did not ask any one else to assume the role of literary executor. Instead, as executor of the estate, he assumed that role.

Baskin was not as conscientious as Bigham in performing the duties of literary executor. He admitted that he was aware that Bigham had a significant number of Rawlings' documents at the time of her death, yet he never asked Bigham's family to return any of those documents to the Rawlings estate. He stated that he believed the documents were under consideration for publication by Scribner Publishing, but admits that he knew the documents were at Bigham's residence. In any event, he failed to confirm whether or not the documents were part of the Rawlings estate and whether or not they were being considered for publication by Scribner Publishing. Four years after Bigham's death on October 24, 1961, the Florida probate court closed administration of Rawlings' estate with Baskin still having failed to clarify the status of those documents.

The documents remained stored at the residence of Bigham's widower in two boxes which were labeled "MKR letters and papers." In 1987, Bigham's widower was moving from the residence, so he and his children decided to dispose of the contents of the boxes. Ms. Ann Hutchins, Bigham's daughter, contacted Mr. Glenn Horowitz, a nationally known dealer of rare books and literary and historical manuscripts, to help them sell the material. Horowitz and his staff cataloged the contents of the two boxes as follows:

1. Letters written from Rawlings to Bigham from 1939 to 1953;

2. Correspondence of Bigham in connection with her duties as literary executrix;

3. Publisher's typescript with editor's blue-penciled emendations of Rawlings' The Secret River (a children's book posthumously published by Bigham);

4. Miscellaneous original typescripts, manuscripts, and story ideas written by Rawlings, including her first unpublished novel, Blood of My Blood;

5. Letters written from Bigham to Rawlings from 1940 to 1953. ⁴

After compiling the catalog of documents, Horowitz contacted Dr. James Meriwether, an officer of Seajay, about the letters. Seajay is a small, non-profit organization dedicated to enhancing public aware ness of, and interest in, unduly neglected aspects of South Carolina and southern culture. After negotiations, Seajay obtained the documents by partial purchase and partial gift from the Bigham estate.

After purchasing the documents, Seajay made one whole copy of Blood Of My Blood for Dr. Anne Blythe (Blythe). Blood of My Blood is Rawlings' first novel; it was written in 1928, is 183 pages long, and has never been published. Blythe, also an officer of Seajay, used the copy in preparing a critical review of Blood of My Blood. Seajay made the copy so that Blythe would not damage the fragile original during her analysis. Seajay also made a partial copy ⁵ of the manuscript which it sent to the Rare Books Room at the University of Florida Library. Seajay made this copy for the dual purpose of allowing Baskin, or his designee, to view and authenticate it, and allowing the University of Florida Press to view it and determine if it was worthy of publication. Access to the copy was restricted, and photocopying it was prohibited. ⁶ The University of Florida Library eventually returned its copy to Seajay.

In April of 1988, Blythe orally presented her critical analysis of Blood of My Blood to a symposium of the Marjorie Kinnan Rawlings Society at the University of Florida. Between 150 and 200 members of Rawlings Society attended the symposium. In the presentation, Blythe quoted approximately 2,464 words from the text of Blood of My Blood, or four to six percent of the total text. Blythe submitted a hard copy of her paper for publication with the Marjorie Kinnan Rawlings Society Journal. She also hoped to publish an edited version of her presentation as an introduction to Blood of My Blood, which the University of Florida Press wanted to publish in its entirety. Blythe was aware that neither the Society's Symposium nor the University of Florida Press would be able to publish her article, much less Blood of My Blood, without first obtaining the permission of the copyright holder. Neither publisher was able to secure the necessary permission, thus neither Blood of My Blood nor Blythe's paper has ever been published. ⁷

On February 9, 1990, the St. John's County, Florida probate court re-opened administration of Rawlings' estate, allowing Baskin to bring this suit on behalf of the estate. Baskin then filed the original Complaint, in which he sought recovery of the documents from Seajay, on May 18, 1990. He amended his Complaint on September 21, 1990 to include the Foundation's claim for damages and injunctive relief under the Copyright Act. At...