Public Affairs Associates, Inc. v. Rickover

• Decision Date: 09 May 1967
• Docket Number: Civ. A. No. 116-59.
• Parties: PUBLIC AFFAIRS ASSOCIATES, INC., trading as Public Affairs Press, Plaintiff, v. Vice Admiral Hyman G. RICKOVER, U. S. Register of Copyrights, U. S. Librarian of Congress, U. S. Secretary of Defense, U. S. Secretary of Navy, and Glenn T. Seaborg, James T. Ramey, Leland J. Haworth, John C. Palfrey, Robert E. Wilson, as members of the U. S. Atomic Energy Commission, all of Washington D. C., Defendants.
• Court: U.S. District Court — District of Columbia

268 F. Supp. 444

PUBLIC AFFAIRS ASSOCIATES, INC., trading as Public Affairs Press, Plaintiff, v. Vice Admiral Hyman G. RICKOVER, U. S. Register of Copyrights, U. S. Librarian of Congress, U. S. Secretary of Defense, U. S. Secretary of Navy, and Glenn T. Seaborg, James T. Ramey, Leland J. Haworth, John C. Palfrey, Robert E. Wilson, as members of the U. S. Atomic Energy Commission,¹ all of Washington D. C., Defendants.

Civ. A. No. 116-59.

United States District Court District of Columbia.

May 9, 1967.

Harry N. Rosenfield, Washington, D. C., for plaintiff.

Royall, Koegel, Rogers & Wells, by William R. Glendon, Washington, D. C., for defendant Rickover.

Irwin Goldbloom, Dept. of Justice, Washington, D. C., for Government defendants.

OPINION

JOHN LEWIS SMITH, Jr., District Judge.

On remand from the Supreme Court of the United States, plaintiff Public Affairs Associates, Inc., a Washington, D. C. publishing house, seeks a declaratory judgment adjudicating the rights of defendant Admiral Rickover in two speeches delivered by him on December 11, 1958 and May 28, 1959. The first of these entitled "Education—Our First Line of Defense," (hereinafter "the Education speech") was delivered at the Harvard Club in New York City; the second speech, "The Shippingport Atomic Power Station—Lessons From Its Operation," (hereinafter "the Shippingport speech") was delivered to the American Public Power Association Convention in Seattle, Washington.

The original action brought by the plaintiff in 1959 concerned twenty-three speeches delivered by Rickover to various groups between October 20, 1955 and January 16, 1959. Plaintiff was denied permission either to quote from or publish them and received written notice from Rickover's publisher that action would be brought if plaintiff infringed on Rickover's legal rights. Plaintiff then instituted an action for declaratory judgment contending the speeches resulted from the Admiral's official duties, were partially prepared on Government time with Government facilities, were in the public domain, and therefore that Rickover had no literary property therein. The Admiral contended the speeches formed no part of his official duties and that he had a proprietary interest which could be copyrighted to bar others from disseminating them without permission.

At trial in this court, Judge Holtzoff dismissed the complaint, holding that a Government officer has a literary property right in speeches the delivery of which forms no part of his official duties, although the subject matter has a bearing on them. The court concluded that such literary products are not in the public domain but remain the property of the author to the extent he is protected by copyright and the common law and that his rights are not affected by the fact of Government employment, Public Affairs Associates, Inc. v. Rickover, 177 F.Supp. 601 (D.C.1959).

The United States Court of Appeals for the District of Columbia Circuit reversed and remanded on the issue of public distribution, holding that there was such distribution of the speeches delivered prior to December 1, 1958 as to place the speeches in the public domain prior to obtaining a copyright, thus forfeiting said right. The court remanded the case on the question of fair use of certain of the addresses, particularly those copyrighted after December 1, 1958, Public Affairs Associates, Inc. v. Rickover, 109 U.S.App.D.C. 128, 284 F. 2d 262 (1960).

The Supreme Court of the United States vacated the judgment of the Court of Appeals and remanded the case to this court, Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962). Commenting that the "Declaratory Judgment Act was an authorization not a command," the court found the record inadequate to support a ruling and remanded for further proceedings to establish a full and complete record on which an action for declaratory relief might be entertained.

Subsequent to remand, plaintiff filed amended pleadings adding the Shippingport speech (not in issue in the original action) and joining two groups of federal officials as co-defendants. The Register of Copyrights and his superior, the Librarian of Congress, were joined for allegedly violating the Copyright Act, 17 U.S.C. § 8 (1964) in issuing a copyright to Rickover for the speeches. The Secretary of Defense, the Secretary of the Navy, and the members of the Atomic Energy Commission, Admiral Rickover's superiors, were also joined as defendants. The amended complaint asserted denial of plaintiff's constitutional rights under the Freedom of the Press guaranty of the First Amendment to the Constitution by virtue of the Government defendants' refusal to treat the speeches as Government publications within the meaning of the Copyright Act and the Printing Law, 44 U.S.C. § 58 (1964). Rickover has surrendered his claim to all but the Education and Shippingport speeches.

At the time these speeches were delivered, Admiral Rickover held two titles. Under orders issued in 1947 detaching him from primary duty in the then Bureau of Ships and directing him to report to the Secretary of the Navy, he was assigned primary duty in the Atomic Energy Commission reactor program and additional duty with the Bureau of Ships.² As Assistant Manager for Naval Reactors, Division of Reactor Development, Atomic Energy Commission, he was responsible for the Shippingport Atomic Power Station, an experimental water reactor built for research in civilian nuclear power. As Assistant Chief of the Bureau of Ships for Nuclear Propulsion, he had primary responsibility within the United States Navy for the planning, developing, and constructing of nuclear propulsion plants for naval vessels. A portion of Rickover's staff also had dual assignments, and information was freely exchanged between the two positions.

In June, 1958 the Harvard Club of New York City invited Rickover to address its members on the general subject of education and he accepted. The speech, typed by the Admiral's wife at his home, was prepared by him during his evenings over a period of weeks. The final draft, typed by Admiral Rickover's administrative assistant at his office, bore a copyright notice obtained from the Copyright Office after consultation with Mr. A. H. Helvestine of the Navy Department's Office of Patent Counsel. The speech was duplicated on Navy Department facilities, apparently for the dual purpose of security review by the Department of Defense and the Atomic Energy Commission and for distribution as a press release at the Harvard Club. On the day of delivery Rickover traveled to New York on official business the exact nature of which he cannot recall. He delivered the speech on his own time that evening, and the Harvard Club sent an honorarium therefor to a charity specified by him.

On February 6, 1959 the American Public Power Association invited the Admiral to address its Seattle convention on the Shippingport Power Station. After suggesting education as an alternative topic, Rickover acceded to the association's request and accepted the invitation. The speech was prepared in the same manner as the Education speech with the exception that copies were furnished by the American Public Power Association and the copyright notice differed slightly. The Admiral traveled to the West Coast on official business, the inspection of potential sites for nuclear facilities. The speech was delivered after working hours and without compensation.

The threshold question of the appropriateness of relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (1964), has been raised by all defendants. Defendant Rickover challenges the presence of the basic criterion, a justiciable controversy. Emphasizing the discretionary nature of the doctrine, he asserts that plaintiff's failure to publish the speeches and legislative action pending on the definition of a Government publication warrant the exercise of judicial restraint and denial of the relief sought. These arguments are not persuasive. Rickover has refused plaintiff the right to publish his speeches and through his publisher has threatened suit should plaintiff attempt to do so. There is no obligation on plaintiff to infringe the copyright he challenges, 28 U.S.C. § 2201 (1964), Fed. R.Civ.P. 57, Paramount Pictures Corporation v. Holden, 166 F.Supp. 684 (S. D.Cal.1958), Scott-Burr Stores Corp. v. Wilcox, 194 F.2d 989 (5th Cir. 1952). Judicial restraint is only exercisable when the presence of an actual case or controversy is questioned, Mechling Barge Lines v. United States, 368 U.S. 324, 82 S.Ct. 337, 7 L.Ed.2d 317 (1961), Eccles v. Peoples Bank of Lakewood Village, California, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784 (1948), Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). The conflict between Rickover's right to copyright his speeches and plaintiff's right to publish materials allegedly in the public domain has been clearly set forth before this court. Consequently, the court finds that as between these parties a justiciable controversy exists.

Declaratory relief need not be considered in connection with the Government defendants since the court lacks jurisdiction. Plaintiff's complaint asks this court to direct nine Government executives to take certain actions in connection with the administration of their respective agencies to protect its own and the public's rights. The court order sought bears on the Register of Copyright's duties under the Copyright Law and internal regulation of employees in connection with that same law by the defense establishment and the AEC. As far back as 1840, it was well settled that no Government officer can be directed in the exercise of his discretionary functions by a court order in the nature of mandamus, Decatur v. Paulding, 39 U. S. (14 Pet.) 497, 10 L.Ed. 559 (1840).

The promulgation of regulations governing the speech making activities of Defense...