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