Page:Michael Foundation, Inc. v. Urantia Foundation v. McMullan.pdf/12

 party must establish that it had the right to control the content of a work in order for the work to qualify as a commissioned work.” Urantia Foundation neglects to mention that it drafted the language upon which the district court relied. For obvious reasons, Urantia Foundation did not object to the instruction below; it has consequentially waived the argument on appeal. Urantia Foundation’s disingenuous challenge to its own jury instruction is without merit.

Urantia Foundation next argues that the evidence presented to the jury mandates judgment as a matter of law as to the existence of a commissioning relationship under the “instance and expense” test. We need not resolve the parties’ dispute as to whether the proper test includes factors beyond instance and expense. Even under the two-prong test Urantia Foundation urges us to adopt, Urantia Foundation’s argument is without merit. Urantia Foundation argues that the “instance” prong is met because the Contact Commission, its predecessor in interest, “solicited, formulated, selected, and submitted questions” to the Conduit and “supervised hundreds of sessions with” the Conduit. The Urantia Papers arose, however, out of the Conduit’s psychiatric sessions with Dr. Sadler. The sessions occured at the Conduit’s instance, not Dr. Sadler’s. As Michael Foundation correctly points out, in the doctor-patient relationship, the doctor is the patient’s fiduciary, not the other way around. Furthermore, the Conduit began writing the Urantia Papers on his own initiative, and “announced to the contact group the plan to initiate the Urantia Papers” after having delivered papers of celestial origin to Dr. Sadler for twenty years. The Conduit himself requested the questions from the Contact Commission. The Supreme Court has indicated that the test for whether a work is commissioned applies “at the time the commission is accepted.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 741, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (discussing general principles of agency law while construing section 101 of the 1976 Act). Upon review of the record, we agree that the Contact Commission’s role in creating The Urantia Book was “little more than a reaction to an already ongoing process of creation.”

Urantia Foundation argues that the “expense” prong is met because of costs incurred in providing stenographic materials, typing the Conduit’s handwritten manuscripts, correcting spelling and capitalization errors, and financing the later publication of The Urantia Book. But the Conduit produced the papers that comprise The Urantia Book alone, in long-hand, and one witness testified that the Contact Commission received the information at the Conduit’s home. Michael Foundation argues that, “[d]istilled to its essence, Urantia Foundation’s argument is that because it acted as publisher of the work and defrayed all expenses in that capacity, the work itself is transmogrified ex ante into something produced on commission.” We agree that such a view would render most published works “commissioned.”

Finally, Urantia Foundation argues that (1) its 1983 renewal certificate, which lists The Urantia Book as a “work for hire”