Public Affairs Associates, Inc. v. Rickover

• Citation: 284 F.2d 262
• Decision Date: 20 October 1960
• Docket Number: No. 15463.,15463.
• Parties: PUBLIC AFFAIRS ASSOCIATES, INC., Trading as Public Affairs Press, Appellant, v. Vice Admiral Hyman G. RICKOVER, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

284 F.2d 262 (1960)

PUBLIC AFFAIRS ASSOCIATES, INC., Trading as Public Affairs Press, Appellant, v. Vice Admiral Hyman G. RICKOVER, Appellee.

No. 15463.

United States Court of Appeals District of Columbia Circuit.

Argued April 6, 1960.

Decided October 20, 1960.

COPYRIGHT MATERIAL OMITTED

Mr. Stanley B. Frosh, Washington, D. C., for appellant.

Mr. Joseph A. McDonald, Washington, D. C., with whom Mr. Edwin S. Nail, Washington, D. C., was on the brief, for appellee.

Before Mr. Justice REED, retired,^* and WASHINGTON and DANAHER, Circuit Judges.

Mr. Justice REED, sitting by designation.

This is an appeal from the judgment of the United States District Court for the District of Columbia dismissing after trial on the merits a complaint for a declaratory judgment.¹ Appellant, an educational publishing organization, complained on January 16, 1959, that appellee, an admiral of the United States Navy, refused appellant the right to "use, quote or publish" speeches appellee had made "in his capacity as an admiral." Appellant claimed the right to publish because appellee used the "facilities, information and data obtained * * * in connection with his duties as a public official." Appellant further alleged that the speeches have been released to the public press and therefore "are in the public domain and not subject to any curtailment as to use."

Judgment was sought "declaring defendant may not restrict the quotation from these public speeches, either in full or in part, in book form or otherwise, once they have been delivered publicly"; that "copyright" restrictions on his public speeches be declared removed.²

After an answer denying portions of the complaint, an agreed statement of facts was filed. That statement showed that the appellee during the pertinent period was a vice admiral on active duty in the Navy Department as Assistant Chief of the Bureau of Ships for Nuclear Propulsion and Assistant Director for Naval Reactors, Division of Reactor Development, United States Atomic Energy Commission. From October 20, 1955, to the commencement of this action, Admiral Rickover delivered twenty-three speeches in public.³ Some months prior to the institution of this suit, July 9, 1958, he had contracted with E. P. Dutton & Co., Inc., to publish a book to be known as Addresses of Admiral Rickover, based in part on certain of said speeches. The contract asserted that ownership of the speeches was in Admiral Rickover. On December 1, 1958, the Admiral filed, subsequent to their delivery, an application for registration of a claim to copyright in a compilation of the first 22 of the speeches in question with a copyright notice. The appellee recognizes that the "compilation did not revive any exclusive rights held in such material prior to" previous publication. The same day appellee filed application for registration of speech No. 23. This last speech was delivered December 11, 1958. On January 12, 1959, a book published by E. P. Dutton & Co., Education and Freedom, based largely on a number of the speeches in controversy, was offered for copyright in the name of Admiral Rickover and registered.

The agreed statement of facts shows that the writing of these speeches was done at home after normal working hours or while traveling. It was agreed:

"The speeches were written by the Admiral in longhand. A large part of the speeches were typed by Mrs. Rickover at home. The typewritten material plus some handwritten portions were brought in to the Admiral\'s office for the typing of a final copy and the preparation of a multilith master by the Admiral\'s secretary. In some cases the master was prepared directly from the typewritten copy as brought in from home. All of the speeches were multilithed on Government duplicating machines.

* * * * * *

"The defendant admits that it was his practice to have his speeches as prepared for distribution bear his name, his rank in the United States Navy and his title in the Atomic Energy Commission, that the speeches as distributed customarily bore a statement `for release\' giving the date and frequently the time of the release and with few exceptions were on the paper stock used for press releases by the Department of Defense or the Atomic Energy Commission."

After multilithing and at or before delivery, all speeches except Nos. 7 and 12 in footnote 3, supra, were distributed. The statement of agreed facts shows as follows:

"Certain of the speeches, approximately sixteen in number, were also made available to the press through the Public Information Office of the Department of Defense or of the Atomic Energy Commission, or both. In distributing the speeches, Admiral Rickover mailed some to individuals who had requested copies or whom Admiral Rickover believed would be interested in the subject. Some were sent by Admiral Rickover, approximately 50 in each case, to the sponsor of the speech to be made available to the press and others at the place where the speech was to be delivered. Some speeches were sent to the Press Club in Washington by Admiral Rickover for the use of representatives of the press."

Each speech was cleared by the Department of Defense, Office of Security Review. This was done under § 1252 of the General Regulations of the Navy which, inter alia, provide:

"3. Persons in the naval service desiring to publish articles on professional, political, or international subjects in accordance with the provisions of this regulation shall cause their signatures to appear on such articles, together with a statement to the effect that the opinions or assertions contained therein are the private ones of the writer and are not to be construed as official or reflecting the views of the Navy Department or the naval service at large. Immediately upon the acceptance of such articles for publication, the writer shall forward a complete copy of such articles to the Secretary of the Navy for the files of the Navy Department."

There was also a Department of Defense Directive in effect during the time the speeches were delivered.⁴

Admiral Rickover had duties of supervision and inspection that could be carried out at or near the various points of delivery, and arrangements were made to make the speeches in free or "off duty" hours. No transportation costs were paid by Admiral Rickover in connection with his addresses. Honoraria, when offered, were paid directly to charities specified by the Admiral.

The District Court in its opinion determined that the addresses listed in note 3 fell into a class of literary productions "that arise out of the author's official actions, although writing the book or delivering the address in question, is no part of his official duties."⁵ Therefore, the trial court determined these addresses were not governmental publications. It was also held that the issue of the press releases and the delivery of the speeches were not "an abandonment of the literary property or a dedication to the public."⁶

I.

Underlying an analysis of the respective contentions of the parties here is the legal right of an author of books, lectures or addresses in his unpublished writings. Copyright, the exclusive right of an author to publish for a limited time his work, did not exist at common law even though at common law an author had a property right in his unpublished work.⁷ This property right enabled an author to control the disposition of his work until such time as he released it to the public. If this right of control had not ended with publication, there would have been no need of copyright protection. The property right would have been perpetual. The problem of balance between the rights of authors to the fruits of their efforts and the right of the public to have opportunity for learning or diversion was solved by adoption of the copyright acts.⁸ Although after publication the rights of authors in the United States are now measured by the Copyright Act, their common law right to the first publication has been preserved.⁹ We have not depended primarily upon the flexibility of the common law in the development of copyright. This right to choose the time and manner of releasing to the public the labor product of the mind protects against literary piracy.¹⁰

Speeches and lectures for oral presentation may be copyrighted under the Copyright Code.¹¹ Their texts, of course, may be copyrighted as writings under § 4.¹² Were the Admiral a private citizen, therefore, no substantial question would exist as to the susceptibility of these works to statutory copyright. The cases make it clear that an author's common law copyright may exist in lectures and other works that are performed as well as in writings.¹³ Our consideration turns first to whether the lectures' general susceptibility to copyright is affected by the Admiral's status as a high government official and the nature of the material discussed. Narrowly stated in terms of the statutory provisions, were these speeches or their written texts publications of the United States Government in which, under § 8 of the Code, no copyright shall subsist.

In the present case Public Affairs Press asserts first, that as these speeches "resulted from his official responsibilities" they should be classified as a "publication of the United States Government" under 17 U.S.C. § 8, which provides, "No copyright shall subsist in * * * any publication of the United States Government."¹⁴ This generalization creates a sea of troublesome questions. Such publications range from the Presidents' messages on the State of the Union, the Congressional Record, departmental pamphlets, maps, regulations, and judicial decisions to forms for the moving of admission to the bars of the various courts. Apparently the language of the provision originated in the Act for Public Printing, 28 Stat. 601, § 52.¹⁵ It is designed to achieve in a democracy that depends upon accurate public knowledge the broadest publicity for matters of government. No clarification of the...