White v. Kimmell, 12862.

• Decision Date: 21 February 1952
• Docket Number: No. 12862.,12862.
• Citation: 193 F.2d 744
• Parties: WHITE v. KIMMELL et al.
• Court: U.S. Court of Appeals — Ninth Circuit

193 F.2d 744 (1952)

WHITE v. KIMMELL et al.

No. 12862.

United States Court of Appeals Ninth Circuit.

January 7, 1952.

Rehearing Denied February 21, 1952.

Schauer, Ryon & McMahon, Robert W. McIntyre, Thomas M. Mullen, Santa Barbara, Cal., for appellant.

Leslie F. Kimmell, Laguna Beach, Cal., for appellees.

Before STEPHENS and HEALY, Circuit Judges, and McCORMICK, District Judge.

HEALY, Circuit Judge.

Appellant sought a declaratory judgment that a manuscript entitled "Gaelic," authored by Stewart Edward White, and a certain book by the same author entitled "The Job of Living," based on the Gaelic manuscript and quoting from it, are in the public domain and may be quoted without infringement of the copyright claimed by appellee Kimmell or the common-law proprietary rights claimed by her in Gaelic. For convenience appellant will be referred to as the plaintiff, appellee Kimmell as the defendant, and Stewart Edward White as White.

Some preliminary attention should be given the nature of the Gaelic manuscript. Gaelic is supposedly the spirit of an individual who had departed this world and become an invisible non-material entity. The work embodies communications from Gaelic, received chiefly by White's wife. The communications were written down by various individuals, and were subsequently, between about 1920 and 1930, reduced to manuscript form by White. The latter identified Gaelic as his and his wife's "nickname for what seemed to us a single and definite personality, apparently detailed to tell us what made the wheels go round."

Plaintiff's complaint avers that the Gaelic manuscript was abandoned by White to the general public by his reproducing and distributing copies himself and permitting others to do the same without limitation as to use or right to republish and without notice of claim of copyright. The defendant relies on a transfer to her by White of his interest in his work as establishing her exclusive right to quote from Gaelic. This transfer was made in October 1944, about two years before White's death.

The court found that the reproduction and distribution of the manuscript amounted to a limited and restricted publication only; that there was no general publication of it, and that the manuscript is not in the public domain. D.C., 94 F.Supp. 502. The sole issue here is whether these findings are justified by the evidence. We think they are not.

The testimony is not in conflict, although as will later appear, portions of it do exhibit contrasts. The following is a fair summary of the showing made on the part of the plaintiff: In the fall of 1933 mimeographed stencils of the Gaelic manuscript were cut and run off by a Mrs. Maguire, White's secretary, at the instance of White.¹ Originally sixty or seventy copies were made. The secretary, at White's request, mailed out eighteen or twenty of them to a list of persons furnished her by White, together with a letter of transmittal. In this letter White stated in part that he had "finally made some extra copies of `Gaelic' because so many of you wanted them. * * * I am glad to know of your interest, and I wish you to read it, to use it as you like, and pass it on to others, and for as long a time as you can. If you get through with it, you might return it to me to hand to someone else. Otherwise, you are at liberty to keep it." Later, additional copies were mailed out by the secretary at the request of White with the same letter of transmittal. White left four or five copies with the secretary which she gave to friends or clients of hers who were interested in the manuscript. White was not acquainted with these persons. He at no time made any statement to the secretary or to anyone in her presence limiting the use of the Gaelic manuscript by persons receiving it. The distribution was not made to a group or association. A second run of forty or fifty copies was later made by the secretary. These were distributed by White in part to friends and in part to strangers who wrote him requesting a copy. No limitation was expressed by White to the donee as to the use which might be made of Gaelic. At the time of White's death, only two copies were found in his possession. He never sold a copy to anyone. So runs the testimony of the secretary.

Near the end of 1940 a witness, Margaret Oettinger of Palo Alto, wrote to White, whom she did not know, requesting a copy of Gaelic. When informed there were none left, she wrote asking permission to make mimeographed copies for herself. White wrote her that she was at liberty to do so. He did not in his correspondence or otherwise place any limitation on the persons among whom the manuscript might be circulated. Later Mrs. Oettinger wrote White asking permission to charge persons the cost of reproduction. Permission was granted.² Mrs. Oettinger saw White on only two occasions. On the one occasion when the Gaelic manuscript was discussed, White told her that he had no objection to additional copies being made, and no limitations were placed on the amount to be charged nor to whom the manuscript was to be sold. It is clear that Mrs. Oettinger told White she wanted to distribute copies to some of her friends. It was understood that the charge was to cover the cost of materials. Mrs. Oettinger ran off three mimeographed sets of the manuscript, averaging about forty copies apiece.³ The first two sets were sold for $2.00 per copy and the last for $1.50. This witness testified that as time went on she sent copies to persons who were strangers to her, who said they had seen the manuscript somewhere and wanted a copy. These people were apparently strangers to White, also. Most of the people to whom she sold were referred to her by White or by appellee as a source from which copies could be obtained.

A Mrs. Jones testified to having purchased several copies of the manuscript from Mrs. Oettinger through correspondence, and to having paid for them. No restriction or limitation...