HEALY, Circuit Judge.
Appellant sought a declaratory judgment that a manuscript entitled "Gaelic," authored by Stewart Edward White, and a certain book by the same author entitled "The Job of Living," based on the Gaelic manuscript and quoting from it, are in the public domain and may be quoted without infringement of the copyright claimed by appellee Kimmell or the common-law proprietary rights claimed by her in Gaelic. For convenience appellant will be referred to as the plaintiff, appellee Kimmell as the defendant, and Stewart Edward White as White.
Some preliminary attention should be given the nature of the Gaelic manuscript. Gaelic is supposedly the spirit of an individual who had departed this world and become an invisible non-material entity. The work embodies communications from Gaelic, received chiefly by White's wife. The communications were written down by various individuals, and were subsequently, between about 1920 and 1930, reduced to manuscript form by White. The latter identified Gaelic as his and his wife's "nickname for what seemed to us a single and definite personality, apparently detailed to tell us what made the wheels go round."
Plaintiff's complaint avers that the Gaelic manuscript was abandoned by White to the general public by his reproducing and distributing copies himself and permitting others to do the same without limitation as to use or right to republish and without notice of claim of copyright. The defendant relies on a transfer to her by White of his interest in his work as establishing her exclusive right to quote from Gaelic. This transfer was made in October 1944, about two years before White's death.
The court found that the reproduction and distribution of the manuscript amounted to a limited and restricted publication only; that there was no general publication of it, and that the manuscript is not in the public domain. D.C., 94 F.Supp. 502. The sole issue here is whether these findings are justified by the evidence. We think they are not.
The testimony is not in conflict, although as will later appear, portions of it do exhibit contrasts. The following is a fair summary of the showing made on the part of the plaintiff: In the fall of 1933 mimeographed stencils of the Gaelic manuscript were cut and run off by a Mrs. Maguire, White's secretary, at the instance of White.
Near the end of 1940 a witness, Margaret Oettinger of Palo Alto, wrote to White, whom she did not know, requesting a copy of Gaelic. When informed there were none left, she wrote asking permission to make mimeographed copies for herself. White wrote her that she was at liberty to do so. He did not in his correspondence or otherwise place any limitation on the persons among whom the manuscript might be circulated. Later Mrs. Oettinger wrote White asking permission to charge persons the cost of reproduction. Permission was granted.
A Mrs. Jones testified to having purchased several copies of the manuscript from Mrs. Oettinger through correspondence, and to having paid for them. No restriction or limitation was placed on the use she could make of them. She sent the volumes to people who had asked her for them.
The defendant testified on her own behalf, as did also two other persons, namely a Mrs. Duce and a Mr. Stevens.
White clearly did not wish to publish Gaelic as a conventionally printed book. Several reasons said to have been given by him are testified to — his wife's work in the field was more important and should have precedence; the work was not in proper form for a book; the "Invisibles" had instructed him not to print it.
The trial judge's opinion contains a comprehensive and concededly accurate survey of the judicial precedents relating to limited publication, and there would seem to be no justification for our duplicating his efforts in that direction. We adopt as a fair summary of the applicable principle his statement that a limited publication which communicates the contents of a manuscript to a definitely selected group
It appears to us that the court disregarded in large part vital and uncontradicted testimony, notably that of White's secretary and of Mrs. Oettinger. No mention is made of White's letter of transmittal, testified to by the secretary, which suggested unqualifiedly that the recipients of the copies of the manuscript pass it on to "others." Who these others might be, or what their philosophy, would necessarily be matters completely unknown to White. As to Oettinger, it seems to be implied by the court that actually she was permitted only to make copies under a strict limitation, whereas her testimony is unequivocal that no limitation was put on the number of copies she might turn out, and none on the persons to whom they would go.
Nor is it thought that the case is comparable to those involving publication of lecture notes, or the distribution of copies of a minister's sermon among the members of his congregation, or kindred cases relied on below. It is by such assimilation that the trial court endeavors to satisfy the criterion of the distribution being limited to a specific purpose. But White does not appear in the record as a teacher or as a propagandist endeavoring to persuade. He is not pictured as a man with a message. His only apparent purpose was to enable any persons interested to obtain a copy of the manuscript. No other motive is discernible. Such a purpose, we think, is too broadly general and indefinite to satisfy the test of a limited publication. Obviously only those interested or curious would take the trouble to ask for a copy, and a mere request seems to have been all that was necessary to obtain one.
The court stresses what it found to be White's intent not to publish generally, citing especially the statement in his letter to Mrs. Oettinger, reproduced in note 5 above, namely, that he had no objection whatever to the distribution of copies "provided, of course, it is not in published form." In the context of the case the phrase "in published form" could only mean in book form; and it is in that sense that White must have expected the recipient of the letter to understand it. White was of course quite familiar with the mimeographed distribution. One must in any event look at what he intended to do rather than at what he intended to be the legal consequence of his acts.
Another indication of the limited nature of the publication was thought below to be evidenced by the fact that not more than seventy-five copies were distributed. However, the record clearly shows that at least as many as two hundred copies were put in