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PENGUIN BOOKS v. NEW CHRISTIAN CHURCH OF FULL ENDEAVOR

May 7, 2003

PENGUIN BOOKS U.S.A., INC., FOUNDATION FOR "A COURSE IN MIRACLES, INC.", AND FOUNDATION FOR INNER PEACE, INC., PLAINTIFFS, AGAINST NEW CHRISTIAN CHURCH OF FULL ENDEAVOR, LTD., AND ENDEAVOR ACADEMY, DEFENDANTS.


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge

OPINION

Defendants New Christian Church of Full Endeavor, Ltd. (the "Church") and Endeavor Academy (the "Academy") (collectively, the "Defendants"), have moved in limine to admit certain evidence at the trial of this action presently scheduled for May 19, 2003. The motion is granted with respect to the California materials as described below and denied as to the North Carolina materials, also described below, unless further authenticated.

Prior Proceedings

Penguin Books USA, Inc. ("Penguin"), Foundation for Inner Peace, Inc. ("FIP") and Foundation for "A Course in Miracles, Inc." ("FACIM") filed their third amended complaint on September 21, 1999, seeking injunctive relief to prohibit the infringement of their copyright in "A Course in Miracles" ("ACIM") by the Defendants.

Cross-motions for summary judgment were determined in an opinion and order of July 25, 2000 (the "July 25 Opinion") which dismissed the Defendants' affirmative defenses other than prior publication which remains as the subject of the scheduled trial.

The instant motion was heard on April 30, 2003.

The Materials At Issue

On the issue of prior publication, the Defendants seek to admit:

(1) A book, Journey Without Distance ("JWD") authored by Robert Skutch (a founder, officer and director of FIP) ("Skutch") and published by FIP and in particular, the statement in JWD to the effect that over a hundred people were permitted to make copies of "A Court in Miracles" (referring herein as "ACIM" or "The Course") without a copyright notice in 1975;
(2) a videotape of Joe Janis ("Janis") sent in 1991 by FIP with a covering letter signed by Skutch and Judith Skutch Whitson ("Skutch Whitson"), as vice-president and president of FIP, relating in part to his acquisition of ACIM;
(3) a videotape of Janis recorded in 1991 by David Kravetz ("Kravetz"), a resident of North Carolina, and the testimony of certain North Carolina residents as to a statement made to them by Janis;
(4) audio tape recordings of FIP officers that are over twenty years old, found in the archives of the Association for Research and Enlightenment ("ARE"), a non-profit organization founded in 1931 for dissemination of the psychic readings of Edgar Cayce and the study of other information regarding psychic phenomena.
The Facts

The facts are gleaned from the parties' submissions on this and prior motions and do not constitute findings by the Court.

FIP was founded on October 21, 1971 by Skutch and Skutch Whitson.*fn1 Skutch and Skutch Whitson have been directors since its inception, and were married at the time of its inception. FACIM was organized in 1983 and is headed by Ken Wapnick ("Wapnick"). FIP essentially transferred control of ACIM to FACIM in 1998. The Board of FIP and FACIM are controlled by the same three people, Skutch, Skutch Whitson and Wapnick.

Skutch Whitson and/or FIP received an alleged oral assignment of the right of Helen Schucman ("Schucman") to the copyright to A Course in Miracles sometime in 1975. The creation of ACIM by Schucman was described in the July 25 Opinion and consisted in large measure of her account of messages she received from a voice she identified as Jesus. Skutch filed the copyright for ACIM for FIP on November 24, 1975, swearing to a date of first publication as October 6, 1975 in the form of the Freeperson Press edition.

As president of FIP, Skutch Whitson has stated the purpose of FIP to be "a holding, non-profit foundation that publishes A Course in Miracles and disseminates it." FACIM has essentially the same purposes and is the assignee of all of FIP's rights.

The Defendants have obtained copies of ACIM and seek to use and propagate it in their own studies and endeavors.

Skutch and Skutch Whitson determined that an account of how ACIM came to be should be written in order that the official story be told before someone "who was not close to it" wrote it. Skutch wrote JWD in 1980 over a year-long period in which he gathered information via his own personal knowledge, and in interviews and conversations with his then-wife Skutch Whitson, Bill Thetford, Wapnick and Jerry Jampolsky. Those interviewed or used as sources read a portion of the draft of JWD that related to them and did not object to their contents. Skutch Whitson and Wapnick now assert they requested Skutch not to write the book.

JWD was first published by Celestial Arts Press in 1984 (referred to as the "Celestial Edition"). Sometime in 1996, FIP published the book itself (referred to as the "FIP Edition") with no changes to the text. After this litigation between the parties commenced, FIP published JWD again in 1996, with changes to the text (referred to as the "Modified Edition").

FIP has received all monies generated by the publication and distribution of JWD. There has been appended to The Course since at least 1984, a list of other ACIM related books endorsed by FIP, including a description of JWD in which FIP and FACIM state:

JOURNEY WITHOUT DISTANCE. The complete inspirational story of how A Course in Miracles came to be, taking the reader on a fascinating journey that spans more than seventy years. Meet Dr. Helen Schucman, the highly respected research psychologist who heard a "Voice" dictating the material to her. Learn how Dr. William Thetford, the head of her Psychology Department, aided and supported her. Written by Robert Skutch, co-finder of the Foundation of Inner Peace, publishers of the Course. 142 pages. Hardcover $13.95; softcover $8.95.
The back of JWD on all editions states:
Written by Robert Skutch, co-founder and director of the Foundation for Inner Peace, publishers of the Course, it takes the reader on a fascinating journey that spans more than seventy years . . . questions integral to the telling of the story are vividly answered in this suspense filled and dramatic account told by Mr. Skutch who knew all those involved personally, and who was told the details by the principals themselves. This is a book that will be eagerly read not only by those who are familiar with the Course, but by all who are fascinated by an extraordinary true story.
In the Celestial and FIP Editions of JWD, the book states there was a distribution of copies of the ACIM manuscript to at least 100 people in the San Francisco Bay area prior to any publication with copyright notice. The date for this distribution is contended by the Defendants to be June of 1975, during a trip by Skutch Whitson which occurred approximately ten days after she received the Course on May 29, 1975.

The Celestial Arts and FIP Editions read as follows:

Ten days after she received the Course from Helen and Bill, Judy was scheduled to go to California in order to attend some meetings related to the work of her foundation, and to have meetings with her doctoral advisor, Dr. Eleanor Criswell. She asked Helen and Bill if it would be all right to take the material with her and show it to a number of friends whom she knew would be interested.
"California's three thousand miles away," Bill said lightly. "Nobody knows us out there."
The seven black thesis binders containing the fifteen hundred pages of the Course weighed almost twenty pounds, and though Judy had not taken them out of her apartment since she received them, she had a good idea as to how heavy and cumbersome they were to carry around. When she got ready to go to the airport, the only way she could think of to carry them was in a shopping bag, but even before she picked them up she knew something had to be done to make them more portable.
On the plane she had six hours of quiet time to think about the Course and to recognize how many of her friends were going to want copies once she told them about it. She didn't have any idea how she would be able to accommodate their requests, but she remembered the very first principle of miracles in the Text. "There is no order of difficulty in miracles," and she decided that if her friends were meant to have them, somehow they would get them.
One of the first people she showed the Course to was James Bolen, the editor and publisher of Psychic Magazine . . . The problem then arose concerning how he could work with the Course if Judy had only one copy with her, and Jim decided the only thing to do was to make a Xerox copy. Because of his publishing connections, he was able to have the job done in twenty-four hours, and for "only forty-eight dollars."
Obviously, this was not going to be a very practical solution. Not only was the material in this form much too cumbersome, but Judy couldn't keep lending her copy out for twenty-four hours to everyone who wanted it. Despite this, expedients did develop. Jim's copy started to be reproduced. And those copies were then copied. And before long there were over a hundred people in the San Francisco area in possession of A Course in Miracles
Judy let some friends know that Helen and Bill were coming to the Bay Area for a short stay, and that they were willing to talk about the Course to a few people. Within a week it was obvious that many were interested in coming to such a meeting, and by the time a date was set, over a hundred individuals had indicated that they would attend . . . From the very beginning of that first meeting, it was clear that the people who had Xerox copies of the Course were extremely serious about working with and discussing the material.
Ex. 7 and 8, pp. 109-111.

In the Modified Edition of JWD, the reference to the people with "Xerox copies" was changed to people "who had been told about the Course." The statement that Skutch Whitson "couldn't keep lending her copy out to everyone who wanted it. Despite this expedients did develop. Jim's copy started to be reproduced. And those copies were then copied. And before long there were over a hundred people in the San Francisco area in possession of A Course in Miracles" has been omitted in the Modified Edition.

In early October 1975, Janis came to New York to see Skutch for spiritual healing. On the day Janis came to Skutch and Skutch Whitson's apartment for spiritual hearing, Skutch Whitson claims to have given Janis part or all of the un-copyrighted manuscript of ACIM without copyright notice affixed and also a copy of the Criswell Edition.

At the fifteen year anniversary of Janis's ACIM study group, held in Durham, North Carolina on January 15, 1991, Janis gave a speech videotaped by Kravetz and discussed how he received ACIM from Skutch Whitson and had proceeded to make copies of ACIM and distribute it to a study group in North Carolina where he lived. A number of people in North Carolina apparently received copies from Janis and helped ...


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