Page:Michael Foundation, Inc. v. Urantia Foundation v. McMullan.pdf/9

 The Urantia Book is a composite work is one of law for the court and The Urantia Book was in evidence, this court should disregard the jury’s verdict, examine the 2097 pages of The Urantia Book itself, and hold as a matter of law that it is a composite work; (3) if the question of whether The Urantia Book is a composite work was properly one of fact for the jury, McMullan’s testimony should not determine the outcome because he was an accused infringer; and (4) the district court improperly instructed the jury that, when the works of a single author are collected together, the intent of the author determines whether a composite or a unified work results.

In response to the first assertion, Michael Foundation argues that the evidence indicates that The Urantia Book is, in fact, a unified literary work by a single author and not a compilation of works selected and arranged by a third party. For example, the jury heard evidence that the Contact Commission did not select or arrange the papers that comprise The Urantia Book, but published them precisely as the Conduit presented them. The Conduit also announced, before writing the papers that eventually became The Urantia Book, that he would create a book, not a series of separate papers. The jury also heard evidence that, while the individual papers bear separate titles, they are not distinct, unrelated works but chapters of The Urantia Book, which the Conduit intended to constitute a unified work. Such evidence satisfies the deferential standard of review applicable to this argument.

We addressed Urantia Foundation’s second argument in our discussion of the appropriate standard of review and need not repeat that discussion here. We disagree with Urantia Foundation’s third proposition. Its contention that the testimony of McMullan—the person it has sued for infringement—may not be allowed to “determine” the outcome of this case is without merit. The jury was free to consider McMullan’s testimony and give it whatever weight it found appropriate; that is the jury’s function. Moreover, the jury heard a great deal of testimony, and there is no reason to believe that McMullan’s testimony “determined” the outcome. Finally, Urantia Foundation objected to none of the testimony below; thus, if there is an argument to be made here Urantia Foundation has waived it. Fed.R.Evid. 103(a)(1).

Finally, Urantia Foundation argues that the district court improperly instructed the jury that where a single author’s works are compiled, that author’s intent determines whether the work is unified or a composite. Urantia Foundation properly preserved this objection below, though