Page:Urantia Foundation v. Maaherra (D. Ariz. 1995).pdf/23

, 562 F.2d 1157, 1162 (9th Cir.1977)). The defendant’s admission as to copying the text of The URANTIAUrantia [sic] Book allows me to focus solely on the validity of the plaintiff’s copyright.

The plaintiff claims that “[t]he Contact Commission and Foundation’s exclusive possession of the unpublished manuscripts and the Foundation’s subsequent publication creates a presumption that the copyright was transferred with the manuscript.” (Pl.’s Mem. of Law in Opp’n to Def’s Mot. for Partial Summ.J. as to Pl.’s Claim for Copyright Infringement at 4 n. 3.) [hereinafter Pl.’s Br.] (emphasis added). I find at least three weaknesses in the plaintiff’s argument. First, I disagree with the plaintiff’s assertion that the Contact Commission and the Urantia Foundation had exclusive possession of the unpublished manuscripts. “The URANTIA Foundation admits and states that … the text of at least some of the Papers contained in The URANTIA Book was first set forth in … handwritten form by a human patient of Dr. William Sadler.” (Pl.’s Admis. at 15.) Although the means by which Dr. Sadler obtained those papers is far from clear, it cannot be denied that it was the patient who initially had exclusive possession of at least some of the papers.

Second, the plaintiff’s use of the word “presumption” is inaccurate. “A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” Black’s Law Dictionary 1067 (5th ed. 1979) (citation omitted). I do not read the cases cited by the plaintiff to require a presumption of copyright transfer upon the showing of mere possession of a manuscript. See, e.g., Gerlach-Barklow Co. v. Morris & Bendien, Inc., 23 F.2d 159, 161 (2d Cir.1927) (“Plaintiff must next prove that he is the ‘proprietor’ of the painting.”) (emphasis added); Houghton Mifflin Co. v. Stackpole Sons, Inc., 104 F.2d 306, 311 (2d Cir.) (“[P]ossession of the manuscript … is evidence of ownership.”) (emphasis added), ''cert. denied'', 308 U.S. 597, 60 S.Ct. 131, 84 L.Ed. 499 (1939); Freudenthal v. Hebrew Pub. Co., 44 F.Supp. 754, 755 (S.D.N.Y.1942) (same); see also 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 10.09[B], at 10-78 (1994) (explaining author’s “absolute and unconditional sale of the material object carried with it an implied assignment of the common law copyright therein”) (emphasis added) [hereinafter Nimmer ].

Third, each of the cases cited by the plaintiff is easily distinguished from the instant case. In the cases relied upon by the plaintiff there was ample evidence other than the mere possession of the work to support the conclusion that the publisher acquired the work through a proper transfer from the author. Usually, the evidence included a certificate of registration for the original copyright which, by law, was considered prima facie evidence of the facts stated therein. However, there was often other evidence. See, e.g., Houghton Mifflin Co. v. Stackpole Sons, Inc., 113 F.2d 627, 628 (2d Cir.1940) (holding copyright to Mein Kampf properly transferred to publisher “considering the author’s power and position in Germany … it would be unreasonable to suppose that anyone would have been allowed to [make unauthorized use of it]”); Ripley v. Findlay Galleries, Inc., 155 F.2d 955, 958 (7th Cir.) (“It, therefore, seems inescapable that the proper construction to be placed upon these two letters is that Findlay was authorized by plaintiff to sell any of the paintings … and to pass complete title thereto without reservation.”), ''cert. denied'', 329 U.S. 775, 67 S.Ct. 194, 91 L.Ed. 666 (1946).

The plaintiff encourages the court to give the renewal registration certificate “prima facie evidentiary value and find that the certificates constitute prima facie evidence of the validity of the Foundation’s copyright,