Kramer v. Newman

• Decision Date: 29 October 1990
• Docket Number: No. 89 CIV 6114 (KC).,89 CIV 6114 (KC).
• Citation: 749 F. Supp. 542
• Parties: Victor A. KRAMER, Plaintiff, v. Mary NEWMAN, Trustee of the James Agee Trust, Defendant.
• Court: U.S. District Court — Southern District of New York

749 F. Supp. 542

Victor A. KRAMER, Plaintiff, v. Mary NEWMAN, Trustee of the James Agee Trust, Defendant.

No. 89 CIV 6114 (KC).

United States District Court, S.D. New York.

October 29, 1990.

Karen Shatzkin, Shatzkin & Reiss, New York City, for plaintiff.

Mark W. Budwig, Rembar & Curtis, New York City, for defendant.

ORDER

CONBOY, District Judge:

This action involves copyright claims to several assertedly unpublished works of James Agee, the celebrated twentieth century American author. Plaintiff, an author who seeks to use the works in a book on James Agee, requests a declaration that the manuscripts are in the public domain and that therefore, the defendant, the present Trustee of the James Agee Trust, cannot prevent him from using them. The issue is joined in this motion of the plaintiff for partial summary judgment.

Plaintiff's book, presently entitled The Development of Agee's Career as a Writer: Literary Documents of Twenty Years (hereinafter "Documents") contains, substantially in their entirety, seventeen pieces authored by James Agee in which the Trust claims copyright, as well as an essay or article entitled "Scientists and Tramps", which includes extensive excerpts from a draft screenplay or treatment by the same name in which the Trust claims copyright. The Agee pieces in question are the following, in the order in which they appear in the Documents Table of Contents, along with the numbers of the pages in Documents on which they appear, and the registration number of those that have been copyrighted by the Trust.

                        Title of Piece and                                             Copyright Registration
                        Document pages                                                 number and year
                     1. "Pygmalion" (poem) (123-27)                                    TXu 268-408 (1987)
                     2. "Reflections on Permit Me Voyage" (193-99)                     TXu 270-573 (1987)
                     3. "Before God and this Company" (201-06)                         TXu 270-572 (1987)
                     4. "James Agee by Himself" (208-10)                               B 77285 (1963)
                     5. "Whenever a critic ..." (212-16)                               TXu 270-595 (1987)
                     6. The Complete "Work" Chapter for Famous Men (276-94)
                     7. Notebook entries written in conjunction with Famous
                        Men (296-98)                                                  TXu 270-598 (1987)
                     8. A letter to an unidentified recipient ("Notes and suggestions
                        ...") (300-09)
                     9. A letter to Archibald MacLeish ("This seems a very good
                        selection ...") (311-18)                                       TXu 268-409 (1987)
                    10. "Poor child, forgive us ..." (poem) (334-35)
                    11. "In the White House ..." (poem) (336-37)
                    12. "If gasping but victorious ..." (poem) (338)
                    13. "The noise we make ..." (poem) (337-38)
                

                        Title of Piece and                                             Copyright Registration
                        Document pages                                                 number and year
                    14. "We soldiers of all nations ..." (poem) (338-39)               BB 35102 (1968)
                    15. "Marx, I agree ..." (poem) (339-40)
                    16. "All through the night ..." (343-56)                           TXu 270-596 (1987)
                    17. "Scientists and Tramps (357-69)                                TXu 270-597 (1987)
                    18. "1928 Story" (371-389)                                         BB 35102 (1968)
                

All of the registrations with numbers beginning "TXu" were obtained by the Trust in 1987. Item 4 was published in Esquire magazine in 1963. Esquire, Inc., obtained the copyright and assigned it to the Trust in 1968, which recorded the assignment on August 7, 1968. Items 15 and 18 were published in the Texas Quarterly, Spring, 1968 issue with separate copyright notice in the name of the Trust. Affidavit of Mary Newman, Trustee of the James Agee Trust, dated March 13, 1990, 1-2.

Prior to his death in 1955, Agee transferred "all right, title and interest in his unpublished works of every kind together with such right, title and interest as he still had to those various works which were already marketed and published" to his wife, Mia Agee. Affidavit of Martha M. Pearson, dated February 19, 1990, Ex. 4 ("Pearson Aff."). In 1956, Mia Agee transferred these rights to Reverend James Harold Flye ("Father Flye"), a family friend. Pearson Aff. Ex. 5. In 1956, another family friend, David McDowell, formally executed an instrument creating the James Agee Trust, in which the purposes of the Trust are set forth, including the following:

to collect, preserve, organize, edit, hold, manage and control the various writings published and unpublished of the late James Agee; to publish or cause to be published or reprinted any and all writings of the late James Agee; and to hold, transfer, assign, encumber or otherwise receive, own and dispose of in every way all copyrights, reproduction rights, publication rights and other literary rights to these said writings.

Pearson Aff., Ex. 6, 1-2.

In January of 1957, Father Flye transferred all of his right, title and interest in the manuscripts he obtained from Mia Agee to the Trust. Pearson Aff., Ex. 8.

Victor A. Kramer, the plaintiff, is a Professor of English at Georgia State University who has devoted his entire professional life, since 1962, to "scholarly projects pertaining to the writings of James Agee." Affidavit of Victor A. Kramer, dated February 19, 1990, ¶ 2 ("Kramer Aff."). He is an accomplished and recognized scholar, particularly with respect to the life and works of James Agee, Thomas Merton and Frederick Law Olmstead. Id., Ex. 9. As a graduate student at the University of Texas in the early 1960's, he urged the Director of the Harry Ransom Humanities Research Center at the University of Texas (hereinafter "HRC"), F. Warren Roberts, to purchase certain Agee materials and manuscripts then on the market, for HRC's Library.

Sometime in 1963 or 1964, Hamill and Barker, Antiquarian Booksellers in Chicago, offered for sale a collection of manuscripts and documents written by Agee. This collection was offered for sale "without restriction as to persons who could be granted access to read these materials and without restrictions as to their use." Affidavit of F. Warren Roberts, dated February 17, 1990, ¶ 6 ("Roberts Aff."). On March 30, 1964 Hamill and Barker wrote to Mr. Roberts at the HRC and stated:

Here at last, is a factual description of the James Agee papers. We are pleased to offer the material, as listed, for a net of $15,000. This includes manuscripts, notes, letters, typescripts, proofs, sketches and miscellaneous papers; together there are approximately 1785 quarto pages in Agee's small hand, plus some 1700 typed pages many with ms. corrections. Mrs. Agee has assured us that we will have first refusal of additional material, as she is able to give the time to hunt it out.

Roberts Aff., Ex. 1. The accompanying "factual description", from the same exhibit, is here set forth in its entirety:

JAMES RUFUS AGEE (1909-1955)

Collection of original manuscripts, notes and letters; corrected typescripts, proofs and a few drawings. The manuscript material, both published and unpublished, is heavily corrected and revised throughout; often whole passages are deleted. There is a great deal of careful rewriting, sometimes ten or more trials of one paragraph before the author is satisfied. Agee wrote mostly in pencil on quarto second sheets — yellow or white.

* * * * * *

Let Us Now Praise Famous Men, begun 1936, published 1941 Notebook containing ideas, outline and purpose of work Corrected typescript of last part of work Reviews, adverts, letters to do with book Group of 8 short stories written between 1928 and 1946 Headed Dreams, Story 1928; News Stories on Children who May Die Soon, etc.

Book Reviews and notices: Ezra Pound; T.S. Eliot: Charles Frost; Dylan Thomas; H.G. Wells (Death of), etc. 1939/45 Group of 13 articles on various subjects, probably written for Time Magazine between 1942 and 1946. Religion, movies, politics, The pre-Aryan Goddess Kali, Pseudo-Folk, etc.

Henry Ford Begins "Henry Ford died last week ...". 1946 Typewritten notes on Ford supplied to Agee from Life Magazine morgue

Articles and letters relating to Newspaper Guild at Time/c. 1945

Monsieur Verdoux, played by Chaplin. (See Agee on Film I) Review of the movie for Nation, with note from editor dated June 13, 1947

Elaboration of the Nation review, apparently for a much longer article. With a note from Agee to Henry Luce, dated July 25, 1947. Probably unpublished.

Shoeshine, Italian made movie, 1947. (See Agee on Film I) Review, also Proof The Book and the Artist. Notes and text about a set of photographs by Helen Levitt taken in New York City and in Mexico. Agee wrote the commentary for Helen Levitt's film "The Quiet One" 1948.

Notebook, notes and comments on photography, c. 1948

Scientists and Tramp, piece for the TV or movies, with Chaplin cast as the tramp. c. 1948, probably unpublished. Wiltwych Movie, about a "Boy's school for boys who need help" laid on the Hudson near New York City. c. 1948, unpublished

The Blue Hotel, critical analysis of the screen play, 1948. (See Agee on Film, II)

A Death in the Family, probably begun about 1948, published after the author's death in 1957. Screen version title is "All the Way Home"

*Original manuscript as used for publication, complete except for the prologue which was added by the editors. There are numerous corrections, deletions and side notes

*Additional manuscript notes and sequences. The first 23 pages consist of a summary of what Agee had in mind, to quote "Maximum simple: Just the story of my relation with my father and, through that, as thoroughly as possible, an image of him — winding into other things on the way but never dwelling on them". This is followed by 91 pages, mostly unused and unpublished — elaboration of the visit to Agee's grandparents, and the events surrounding the

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