of the Michael Foundation Trial
by Dick and Peggy Johnson
Peggy and I just returned from Oklahoma City. We attended all but thefirst day of trial. That which follows is the writer's impression ofwhat took place, including some guesswork, some insights gained, thedisappointments felt and some opinions of "The rest of the Story."Thanks to R. Burns, Claudia and Lee whose records I have used for thedays they previously reported.
Please simply weigh any material wherein I have expressed opinions orseem to "color" the events. We feel very fortunate to have been there tohear the origins and history of Big Blue openly and freely discussed. Itwas a strange and freeing feeling to look over at the Jurors and knowthey were hearing for the first time the story of its gift to humankind.I don't know if they were impressed, but I was. I wish readers from allsides could have been there. So many myths became just that. Themystery remains, but some of the gloss and wishful rumors are gone. Isuspect Matthew Block's book will clarify this wonderful gift even more.
Michael Foundation, a nonprofit corporation, had published "Jesus A NewRevelation," (JANR) and therefor was the "copyright infringer." U.F. hadfiled suit in Arizona and joined Harry McMullan as a party defendant.The case was dismissed for lack of jurisdiction (incorrect venue) (M.F.being located in Oklahoma and U.F. located in Chicago). MichaelFoundation. filed a "Declaratory Judgment" action in Oklahoma asking thatthe Court determine either that the U.F. Copyright was invalid or thatJANR did not infringe their copyright. U.F. filed a counterclaim forviolation of Copyright, Trademark and a claim of Cybersquatting(acquiring domain names belonging to U.F.).
Jury trial in the 10th Circuit is set by rule. The Jury can vary fromsix to twelve and unless agreed upon by the parties must reach a decisionunanimously. Apparently the parties agreed to eight. Jury selectionbegan Tuesday morning (June 12) and ended up with four men and fourwomen. Some were quite young and most appeared middle aged. They wereadmonished to discuss the case with no one, not even among themselves,till they retired to deliberate.
Michael Foundation, as Plaintiff presented its case first, calling onlytwo witnesses: Richard Keeler and Harry McMullan. A good part ofRichard's time was spent in identifying exhibits. I have littleinformation about his testimony on Tuesday as we didn't get to Courtuntil commencement on Wednesday. Before trial began the Judge had ruledthat the Table of Contents could not constitute co-authorship.
Tom Allen attended part of that first day and said they spent a lot oftime arguing over the use of the word patient. It was resolved that hewould be called "The Patient/Contact Person." On examination by hisattorneys (there were three of them plus one who handled one witness),Rich spent considerable time relating his first visit with Dr. Sadler inwhich Sadler told him numerous details on how the U.B. came about. Whenasked his opinion about JANR, he gave a funny anecdote about someonestealing 800 of his 2000 head of cattle - and that they'd call thatperson a rustler. On redirect he was asked about his memory and headmitted that it was good and that he had taken a memory course. Whenasked what course, he tried and tried, but couldn't remember. At leastwe had one good laugh that day. It did seem strange to some of us thatDr. Sadler, who required all forum members to take an oath of silence, togive such details to a college student whom he had just met.Notwithstanding these two caveats, my impression was that Rich answeredthe questions honestly and didn't try to get in a lot of extraneousmaterial. He was emphatic that Dr. Sadler had told him that the UrantiaPapers were all in the handwriting of the Patient. (Later in the trialthe Foundation stipulated that the Patient/Contact Person was legally theAuthor). My impression was that they had tried to explain away theBurton position that he was the author and were concerned that simplyasking questions would not support the "Work for Hire" position they hadtaken in this case. If the patient was the author, then they couldsomehow show that they had supervision over him as a commissioned work.("Work for Hire can be either as an employee-employer relationship or a'not-for-pay' commissioned work). Rich had sent an email to a reader'sinquiry, explaining that they claim of "work for hire" was because of thefirst 61 pages of the book.
Harry was the second and last witness for Michael Foundation. Except forhis introduction Harry stuck to answers to questions from his attorney(Murry Abrovich). He told how he had come upon U.B. and how deeply ithad touched him, especially the life of Jesus. The shocker came on crossexamination when he was asked whether he had any reason to doubt thestory of how the book was written. He said that he did. He thought itstrange that if all the papers were in the patient's handwriting, andthey had already consulted copyright advice, that he hadn't gotten aformal assignment from the patient and locked it up somewhere. He feltthat the Doctor had a fiduciary relationship with the patient and shouldhave dealt carefully with him. But in addition all of the originalmanuscript had been destroyed, the typewritten copy of the work was alsodestroyed and any person having any knowledge was then sworn to secrecyregarding the patient's identity and any knowledge about the origin ofthe papers. Then to top all this off, they wait 20 years to publishthem. The U.F. attorneys made a good argument that notwithstanding theseseemingly suspicious events; the Doctor and the Patient had nearly 20years of association and it was understandable that they wouldn't haveformalized their mutually understood trust. That the original copyrightwas taken out in the belief that it was a "Work for Hire" and they didn'trequire a formal assignment. Harry also said that other works have beeninspired and the writers could have obtained a copyright as the author.That the Urantia Papers were written just as most books, even ifinspired, are written.
At this point it was, in my opinion, that the issue of the renewal wasgetting lost in the stories about the origin. If the patient was legally"the author," then, although the copyright was valid, only his heirs orestate could renew in 1983. The two exceptions would be a "work for hireas a commissioned work" or if the papers were held to be a compilation orcollection -- an encyclopedic work. In either case, the Foundation couldrenew in its own right.
An affidavit by Scott Forsythe (who worked at the U.F.) was read whereinhe reported that it was important to divert attention from the upcomingrenewal of the copyright in 1982. No other testimony seemed to clarifywhy it should be secretive.
At this point Michael Foundation and McMullan concluded their part of thetrial. This was on Thursday morning. Carolyn Kendall was called totestify to her Father's diary which he had kept as an early Forum member.Notwithstanding that they were not to take notes, he had made notes ofall the papers read at the Sunday meetings. Some of the papers in hisdiary had different titles and the page numbers were quite different --one note of over 3,000 pages (they were typewritten). Much was made ofsubtle changes in titles, some of which appeared to be part headings. I,for one, was thoroughly confused as to their importance. They, ofcourse, were trying to show that the papers were not complete and in adifferent order. On cross it was constantly pointed out that the "SadlerHistory" and the papers themselves all indicated that they were completein 1934 and 1935. The History uses the phrase "completed and certifiedin 1934 and 1935. No testimony cleared up the use of the word certified.
Gard Jameson was next examined by U.F. attorneys. He appeared much morewarm and humanlike than Rich. Primarily his testimony was apparently topaint Harry as a disgruntled, vengeful malcontent. He acknowledged thathe and Mo Siegle and Harry had at one time wanted to print the Life ofJesus as a separate volume but that they had changed their minds. Healso denied having donated funds for the Maahera defense - admitting thathe donated to help JJ Johnson. He also said that the U.F. had apologizedto JJ. for mistakenly including him in the Maaherra lawsuit. Others weresomewhat upset with his apparent disrespect toward the Fellowship.(Frankly, I was embarrassed by his apparent willingness to vilify an oldfriend).
Next was Rob Davis from Oxford Press. His testimony was to establishthat JANR would hurt the sale of Urantia books. He was followed byanother expert witness to establish the economics of book sales. Theyflew him in from Cairo Egypt! Turned out that he got most of hisinformation from Rob Davis and then we discovered that Rob was a readerof U.B. and knew the Foundation. Ah, what a tangled web (pleasedisregard). Keeler had testified that the 2,600 of JANR didn't effectbook sales. Tonya, on the other hand, said that it did and that Keelerwas just a Trustee and wouldn't know about such things.
A former employee of Harry's gave testimony of a luncheon with Harry inwhich Harry had threatened to keep the Foundation in Court. Les Tibbleswrote the Foundation about his conversation and repeated all the detailson the stand.
(I may have some of these witnesses out of the order they appeared)
Tiki Harris and Mary Lou Hales who were forum members testified about allthe years of questions and receipt of papers. They were both grandladies and all of us enjoyed having them there. They, of course, were toestablish the "work for hire" claims. No questions no papers is what thewritten history (attributed to Dr. Sadler) had stated. They of coursemeant if there were no questions they wouldn't have gotten any papers.But it could have meant until they finished questioning, the next paperwouldn't be given yet. Oh, well, I don't think the Dr. wrote it anyway.Most do, I know.
Next was Tonya Baney. She rambled quite a bit instead of answeringquestions directly. She, too, painted a picture of an angry, vengefulMcMullan out to destroy the Foundation. Next up was Ann Garner whosesole testimony was likewise to paid a similar picture of Harry. Mydisappointment was over Les, Gard and Ann. They seemed perfectly willingto disclose private conversations - not just in answer to directquestions, but went out of their ways to "spill the beans." Ah,friendship, why must courts steal you from us?
Now the star of the show: Barbara Newsome. Seems she and Christy workeddiligently amassing letters, journals, records, and writings trying toprepare a history of the movement. Her testimony was abruptly terminatedafter a long conference of the five attorney's and the Judge (JudgeWest). After a 15 minute recess Barbara resumed the stand and beganrecounting from her memory all of the different steps of receipt of thepapers which she said continued into 1942. Because all this was hearsay,the Court admonished the Jury to disregard it.
(With the Jury absent the Foundation tried to get a memo by Barbaraintroduced. She had testified that the records, journal, etc. were keptin a locked file drawer in a back room on the second floor of 533 andthat Christy announced (on Dec. 30, 1979) that they "had disappeared."Barbara claims to have immediately written a 30 page memo of her memoryof those records and the Doctor's Journal. But for 22 years she has nevertold the Fellowship, the Trustees or any other person that she had donethis until on Friday of last week. The Judge disallowed the memo orfurther testimony. Those in attendance have dubbed it "the secretdocument file that disappeared" theory.
The Foundation then rested their side of the case. Harry was called inrebuttal. He covered some of Tibbles testimony and also Gard's denial ofdonating to help Maaherra ($1,500 worth). A letter from Harry to Gardwas introduced indicating that he was still friendly to Gard butdetermined to break the hold the Foundation had over readers. On CrossHarry admitted he had sent an e-mail to a friend saying he'd like todrive a Ryder truck to the Foundation headquarters. (Remember, the trialstarted Tuesday rather than Monday because of the execution Monday ofMcVeigh). That was quite a shocker to those in the court room-especiallythe Jurors. Harry expressed his regrets over having used such blackhumor.
The Foundation ended their surrebuttal. Both sides made motions fordirected verdict which were denied. The survey about Urantia religionwas not introduced or alluded to. Thus ended the fifth day.
Day six began with instructions to the Jury. The Judge first told themthat the trademark, trade name and cybersquatting issues had beenresolved. (That resolution is to be confidential - for how long, we donot know) He indicated that they had a series of questions to answer(interrogatories).
1) Did the U. papers constitute a work for hire or a commissioned work?
2) Did the U. papers constitute a compiled work- a periodic,encyclopedic or composite work. ?
If yes to either 1 or 2, then check the box on the verdict formindicating the copyright renewal was valid.If no to both, then check the box indicating the renewal was invalid
If yes to 1 or 2 they went to the questions pertaining to liability;whether deliberate and willful. (Statutory damages from $200 (if undercolor of right) up to $750,000.
He then read instructions on the law for nearly an hour . I wish I hada copy to share with you. As I listened to them I felt they weresuccinct and clear and would enable even laymen to understand them. Acouple of them you could identify as having been insisted upon by theFoundation and several of them were obviously propounded by Harry's team.All in all I thought that they were fair to both sides and would makethe Jury's task very clear.
Murray Abowitz used 35 minutes to make his closing argument. He usedRich Keeler's and Gard's testimony to show that the papers were meant tobe a whole - not a compiled series of stories. He again apologized forHarry's Ryder Truck statement. He focused on the fact that theRevelatory Commission "drove" the work -- they decided what to write,what questions to answer or not, and how to answer the questions. Thepatient nor the Doctor, nor the Contact Commission, nor the Forum hadanything to do with the writings.
Steve Hill argued for 50 minutes, using charts and exhibits. He arguedthat Christy took notes concerning the first 57 papers; furnished theshorthand equipment and the printing costs as a commissioned work. Heindicated that this was not a copyright case but a case of revenge. Hisargument proceeded smoothly and convincingly. But he spent not a word intrying to argue that it was a composite or compiled work. Murry made surethe Jury noted this failure when he took his remaining 15 minutes ofrebuttal. He spent some time on the difference between copyright andpublic domain. He also pointed out that if a juror wrote a book but thepublisher paid for printing it, the author is the writer not thepublisher. He also reminded them that Christy said she didn't change aword, so she was not involved in the writing of any of the papers. Hethen explained the burden of proof - by preponderance of the evidence.
At 2:40 the Jury retired to deliberate. They sent one message to theJudge saying they are "far from reaching a verdict." They asked forcopies of the 1955 U.B. and a 1983 copy, Sadler's history, CarolynKendall's history, Keeler's email about the table of contents and theDeclaration of Trust. They were dismissed for the night. My feeling afterhearing his instructions and the form of the interrogatories was thattheir task was going to be difficult, but at least they would knowexactly what they had to decide as facts.
We arrived in Court about ten a.m. Other than the lawyers only Peggy andI were there. The Jury was still out. We also learned of negotiationsfor settlement that had occurred after Harry had completed his side ofthe case. Several proposals were made, one of which would enable theFoundation to keep the copyright. None of them came to fruition. It haddelayed trial for almost a half day. By noon, no decision was reached.The day before there were around 30 spectators in attendance. By noonthere were only six or seven of us. We all had lunch.
The Jury sent a question about how to renew a copyright. The Judge andthe lawyers agreed they should just re-read certain instructions alreadygiven them. They then asked whether they had to consider the 1955copyright. About two o'clock we heard that they had reached a decision.Stacy called Harry and Mindy Williams called Hal and Tara. These plusJohn were the only spectators when the Jury filed in. Harry was on hisway but didn't get to hear the verdict read. The Judge asked if they hadreached a decision; the foreman announced they had. He handed theinterrogatories and verdict to the bailiff who passed it to the clerk.The clerk handed it to the judge who read it (for about an hour, itseemed). The clerk stood to take the verdict but the Judge waived hishand and said that he would read it. He then read To InterrogatoryNumber One - Answer No. To Interrogatory Number Two - Answer No.Verdict the copyright is invalid.
End of Trial of the Century.
>From all these facts and histories and testimony I came away with somepersonal observartions:
1) So long as keeping the "text inviolate" is equated with keeping the"copyright." there was bound to be problems. Bill Sadler forsaw that insome of his writings. Martin Myers made sure it would end up in courtfights. They have now had King, Burton, CUBS, Maaherra/Johnson, MichaelFoundation in Arizona and now M.F. in Oklahoma. And the copyright"mandate" is suspect from the very beginning.
2) One impression we, who were there, agree on is that Harry's casecontrasted favorably with that of the Foundation. Harry seldom wanderedfrom the facts of copyright and copyright renewal. He tried not to paintthe Foundation as an Evil Empire nor discredit their witnesses unless itbore some relation to the legal questions. It must have been difficultnot to go into the past and all the heartrending events of the past 20years. The Foundation, on the other hand, while dealing with copyrightspent almost an equal amount of testimony and time in attacking Harry.
We were home by five on Wednesday ready to pack up and leave Oklahoma.Instead we were invited to a spur-of-the-moment pot luck, with Claudiaand Lee as prime cooks. About 20 people came and we rehashed some of theevents of the trial....to all the congratulations to Harry he would say:"No, I didn't win. We did. Now what are we going to do with ournew-faught freedom."3) At the end of this seven days of listening and wondering I have toask this question: "If, as the papers and Dr. Sadler and Christy allsay, the papers were "indited and put into English in 1934 and 1935, WHYall these questions? To me, there are two equally plausible answers. Oneis evolutionary and the other just plain arbitrary.
On Page 1 of the Foreword they say: "I have been directed....as they maybe hereinafter used ....which the Orvonton corps of truth revealers havebeen authorized to TRANSLATED INTO the English language ofUrantia.(Emphasis added)
They had the papers done before ever they contacted us humans.1) Because of restrictions they are not at liberty to just plunk down acomplete revelation without contact with the then prevalent level of"earned knowledge." Thus they could only disclose what they already hadprepared when these humans (the forum) showed that they knew enough toask questions about subjects they were prepared to disclose to us.
2) Because the papers were so all-inclusive they needed questions toknow what to include. If "no questions; no papers" means what thisimplies, then the papers were considerably longer but they only gave thesubject those which the forum were interested in enough to posequestions.
Thus, perhaps the papers were complete by Celestials who gave us justwhat we could handle. This also explains Sadler's statement "noquestions; no papers", and why Part IV was given as a whole and needed noquestions.
If this is the case, I wonder what additional material we would have had,if they asked even more searching and far-seeing questions.