IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

Civil No. A-86-CA-207 JUDGE NOWLIN

​

COLLEEN PRIDE, Plaintiff,
v.
THE BOOK PUBLISHING COMPANY, Defendant.

MEMORANDUM OF LAW IN SUPPORT OF THE DEFENDANT THE BOOK PUBLISHING COMPANY'S MOTION TO DISMISS

Albert Bates
Richard Levy
Joel Kachinsky
Attorneys for the Defendant

August 1, 1986

PRIDE V. BOOK PUBLISHING CO.
DEFENDANT' S MEMORANDUM

 

TABLE OF CONTENTS

TABLE OF CONTENTS......................................... ii
TABLE OF CITATIONS.........................................iii
INTRODUCTION .................................................. 1
STATEMENT OF FACTS ...................................... 2
Background of The Farm ..............................…..2
The 501 (d) Tax Structure ............................... 3
Compilation of Tofu Cookery ............................ 6
SUMMARY OF ARGUMENT ................................... 9

ARGUMENT........................................................ 11
I. THE COURT IS WITHOUT JURISDICTION OF THE SUBJECT MATTER ............................................ 11

A. THE PLAINTIFF LACKS STANDING TO BRING AN ACTION FOR COPYRIGHT INFRINGEMENT …......................................... 11
B. THERE MAY BE NO FEDERAL CLAIM BETWEEN CO-OWNERS.................................................13
C. FEDERAL COURT JURISDICTION DOES NOT EXTEND TO UNJUST ENRICHMENT................................................ 14
D. THE CLAIMS ALLEGED ARE BARRED BY THE STATUTE OF LIMITATIONS ................................................................... 16
E. COUNT II OF THE AMENDED COMPLAINT IS NOT COGNIZABLE UNDER 17. U. S. C. 501 OR 28 U.S.C. 1338 ................................. 18
F. THE CLAIM IS BARRED BY LACHES .................. 18

II. THE PLAINTIFF HAS FAILED TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED ....................................................... 20

A. THE PLAINTIFF WAS INCAPABLE OF ACQUIRING RIGHTS TO ANY LITERARY PROPERTY BECAUSE OF HER VOW
OF POVERTY .................................................... 20
B. THE PLAINTIFF COULD NOT ACQUIRE A COPYRIGHT INTEREST IN A WORK FOR HIRE................................................................. 28
C. PLAINTIFF’S CHALLENGE TO HER VOWS OR OTHER TRUSTEE RELATIONSHIP IS A NON-JUSTICIABLE RELIGIOUS QUESTION WHICH MUST FIRST BE PURSUED IN THE APPROPRIATE ECCLESIASTICAL FORUM ............. 30

III. THERE IS A LACK OF PERSONAL JURISDICTION OVER THIS DEFENDANT IN TEXAS AND A CONCOMITANT INSUFFICIENCY OF SERVICE
AND PROCESS................................................... 31

A. THE BOOK PUBLISHING COMPANY IS NOT DOING BUSINESS IN TEXAS OR OTHERWISE FOUND WITHIN THE DISTRICT.............................. 31
B. PROCESS AND SERVICE ARE INADEQUATE ………………………. 35

IV. VENUE DOES NOT PROPERLY LIE IN TEXAS …………………………….37
V. THE PLAINTOFF HAS FAILED TO JOIN AND INDISPENSIBLE PARTY …39
CONCLUSION…………………………………………………………………….43

NO. A-86-CA-207 - PAGE ii - AUGUST 1,1986

[ * * * ]

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
Civil No. A-86-CA-207 JUDGE NOWLIN

COLLEEN PRIDE, Plaintiff,
v.
THE BOOK PUBLISHING COMPANY, Defendant.

MEMORANDUM OF LAW IN SUPPORT OF THE DEFENDANT THE BOOK PUBLISHING COMPANY'S MOTION TO DISMISS
 

INTRODUCTION

This case concerns the copyright claim of the plaintiff, Colleen Pride, a resident of Austin, Texas, to a cookbook entitled Tofu Cookery.

At the time the book was compiled, the plaintiff was a resident of Tennessee where she was a member of a communal religious society that required her to take a vow of poverty.

The original publisher and copyright registrant was a business division of the religious society using the trade name of "The Book Publishing Company." The copyright, and the rights to use the name, "The Book Publishing Company," have since been transferred twice, and are now held by the defendant, a for-profit, shareholder-owned corporation chartered in the State of Tennessee in 1984.

STATEMENT OF FACTS

Background of The Farm From 1972 until 1983, the plaintiff was a member of a communal religious society known as "The Farm." The Farm was founded upon the teachings of a religious scholar who led the group from California in 1970 to settle into a monastic setting in Tennessee in 1971. See: Affidavit of Ina May Gaskin, Exhibit 3 (appended).

During the time the plaintiff belonged to the society, The Farm's size ranged from 350 to 1,500 members. Upon joining The Farm, each member surrendered all worldly possessions to the common treasury and took a vow of poverty. Each member received food, shelter, clothing, medical and other needs according to the needs of the member and the society's ability to provide. Each member was expected to work wholeheartedly for the society, with the fruits of that labor to be shared by all members or put to the charitable purposes of the society. Id.

In 1971, prior to the plaintiff's joining the society, The Farm formed a Tennessee corporation to hold title to its material possessions and to manage its commercial affairs. This non-profit membership corporation was called "The Foundation." The Foundation applied for and was granted tax-exempt recognition under section 501(d) of the Internal Revenue Code.

The 501(d) Tax Structure

Religious or apostolic associations or corporations encompassed by I.R.C. 501(d) are exempt from taxation under I.R.C. 501(a) if they have a common treasury or a community treasury, even though they engage in business for the common benefit of the members, provided each of the members includes at the time of filing his return in his gross income the entire pro rata share, whether distributed or not, of the net income of the association for the taxable year of the association ending with or during the member's taxable year. Any amount so included in the gross income of a member is treated as a dividend received. The corporation itself files a partnership return which reports the income it receives from all activities. 2 Fed.Tax Reg.1986 1.501(d)-1(a) and 3 Fed.Tax Reg.1986 1.6033-1(a)(5)(i).

The organization of The Farm's corporate form, The Foundation, was examined and found to be within the traditional criteria for a section 501(d) classification when an initial Internal Revenue Service review was completed prior to issuing the society's tax-exempt status, and was reaffirmed by field examinations and informal rulings in subsequent years. Affidavit of Robert W. Moore, Exhibit 4.[1]

-----------------------------
[1] For a list of the criteria used by the IRS in making such a determination, see Rev.Proc. 72-5, Cumulative Bulletin 1972-1 p. 709.
 

The 501(d) form permitted The Foundation to engage in any business activity which it desired. As the Ninth Circuit has explained:

“Nothing about the doctrine of "unrelated trade or business" has any relevance to a 501(d) organization because this organization is granted its exemption not because of function, but because of form. It is totally unrestricted in function. Indeed, 501(d) specifically allows the organizations it exempts to engage in business and thus compete with nonexempt entities. The only requirements for the exemption are that there be a common treasury, that the members of the organization include pro rata shares of organization income when reporting taxable income and, implicitly, that the organization have a religious or apostolic character. Once this requirement of form is fulfilled, the exempt organization is unlimited as to function. It can farm, as the Milford Colony does, or engage in manufacturing, or any other business or combination of businesses.” Kleinsasser v. United States, 707 F.2d 1024, 1029 (9th Cir. 1983).

The section 501(d) structure of The Foundation was made known to all prospective members. Upon joining, they were asked to surrender all they owned and to sign a written vow of poverty. While members, they were included in the joint partnership tax form filed with the IRS each year. In 1973, and again thereafter, the plaintiff executed a vow of poverty, in writing, which bound her to the society.(2] From 1972 through 1983, her earnings were reported to the IRS in The Foundation's annual Form 1065 filing.

Under this organizational structure, each new member of The Farm surrendered equitable ownership of property acquired while a member. Any personal property acquired was held in trust for the benefit of the religious community. [3]

-----------------------------
[3] The full text of that vow is as follows:

VOW OF POVERTY

We are organized on a communal basis according to the Book of Acts of the New Testament, Acts, 2:44,45: And all that believed were together, and had all things in common; and sold their possessions and goods, and parted them to all men as every man had need. We have a common treasury. All money from whatever source is given to our bank which distributes the money according to need -- to further our religious and educational purposes, and to provide everyone in our community with food, clothing, housing, and ordinary medical and dental supplies and services. No individual member of our church owns property. No part of the net earnings of The Foundation, the corporation that handles the material affairs of our community, inures to the benefit of any private shareholder or individuals and if an individual or member has given money or property to the community or corporation, he is not entitled to get that money and property back. This vow does not apply to property or money acquired by someone after leaving our Church and our community.

Name
Date

 

Nearly all of the world's central religions have some communitarian history and some continuing practice of communal living among devoted believers.[4] The principal rationale for religious collectivity is virtually the same in all instances.

"In this united capacity, the strength of the whole body becomes the strength of each member; and being united *** they have a greater privilege to serve God than they possibly could have in a separate capacity, and are better able to be mutual helps to each other; and they also find a greater degree of protection from the snares of a selfish and worldly nature. "[5]

Compilation of Tofu Cookery

Immediately after forming The Foundation corporation and establishing 501(d) tax status, The Farm formed a number of subsidiary business divisions within The Foundation.

One of the first of these divisions was a printing and publishing shop which developed the trade name, "The Book Publishing Company." At times, more than 100 members of the community were employed by this division, which developed, published and copyrighted more than 26 literary works. Affidavit of Ina May Gaskin, Exhibit 3.

-----------------------------
[3] See generally: Cox. v. Commissioner of Internal Revenue, 297 F.2d 36 (2d Cir. 1961); Barry's Estate v. Commissioner of Internal Revenue, 311 F.2d 681 (9th Cir. 1962).
[4] For a summary see: Emory and Zelenak, “The Tax Exempt Status of Communitarian Religious Organizations: An Unnecessary Controversy?,” 50 Fordam L.R. 1084 (1982).
[5] Green and Wells, A Summary View of the Millenial Church of United Society of Believers (Commonly Called Shakers) (1823).
 

In 1980, work was begun on the cookbook which was to become Tofu Cookery. Approximately 17 months after starting development of the book, the plaintiff was asked to assist as a recipe tester. The plaintiff performed this work as part of her duties to The Farm and, owing to her vow of poverty, accrued no personal interest in the literary property. In 1982, the cookbook was completed and published under the title of Tofu Cookery. Copies of the printed work were given to each of the society's households, including the plaintiff's. Id.

The plaintiff's name appeared in the frontspiece of the book, together with the names of all others who contributed to the creation of the work. The frontspiece also contained the notice of copyright, which read: (c) 1982 The Book Publishing Company. Tofu Cookery, page 2; Exhibit 2.

Application for registration was made on October 8, 1982, and registration issued on October 18, 1982. Exhibit 1, Copyright for Tofu Cookery. In 1983 the plaintiff departed the order and renounced her vows. She subsequently asked for, and received, a dispensation from the Foundation in the form of occasional gratuities from sales of Tofu Cookery.[6]

-----------------------------
[6] In 1984, the Council of Elders transferred the jurisdiction over requests for dispensations for departing or former members to a newly-elected nine-member Board of Directors. The plaintiff conveyed a need for financial assistance to Louise Hagler, who in turn conveyed the request to the Board of Directors of The Foundation. Affidavit of Robert W. Moore, Exhibit 4.
 

In 1984, the entire publishing division of The Foundation was transferred to new owners, together with the copyright to Tofu Cookery and the trade name, "The Book Publishing Company." In January, 1984, the defendant corporation purchased the rights to the trade name, "The Book Publishing Company," and all 26 copyrights, including Tofu Cookery.

In 1985, the Book Publishing Company came under new management and a full audit of all accounts was conducted. Affidavit of Robert Holzapfel, Exhibit 5. The new, shareholder-owned Book Publishing Company recognized that it had no obligation to honor any request for gratuitous royalties which had issued from The Foundation's Board at a time when the printing shop was a wholly-owned division. In November, 1985, a letter was sent to the plaintiff advising her that the Book Publishing Company could not recognize any rights to uncontracted royalties for Tofu Cookery. The letter did not request the return of moneys previously disbursed.

On April 11, 1986, the plaintiff filed a complaint in the Western District of Texas charging The Book Publishing Company with infringement of copyright and unjust enrichment.

SUMMARY OF ARGUMENT

From 1972 through 1983, the plaintiff was a member of The Farm communal religious society. In 1973 and again thereafter, the plaintiff executed a vow of poverty, in writing, which bound her to the society and surrendered ownership of all her worldly possessions. Under the terms of her agreement with The Farm, the plaintiff held any personal property thereafter acquired in trust or the benefit of the society, for as long as she remained a member. This relationship legally prevented the plaintiff from acquiring any rights to the literary property she now claims is infringed.

While the jurisdiction of this Court is invoked under the Copyright Act of 1978, the jurisprudential principles involved trace back more than seven centuries. The Court is being asked to enter into a dispute between a former penitent and her departed order over the meaning and full implications of her vow of poverty. American courts have repeatedly refused to embark upon such inquiries, referring the litigants instead to the appropriate ecclesiastical fora.

Even if the plaintiff could establish an interest in the literary work as a joint author, she lacks federal standing to sue for infringement unless and until she pleads an ownership interest in the copyright registration. Even if she were to amend her complaint to plead equitable co-ownership, she is still prohibited from asserting an infringement claim against a defendant co-owner.

The only remedy available to a non-registrant is against the Register of Copyrights. The only remedy available to a co-owner is a state action for equitable distribution of the proceeds arising from publication of a joint work.

The plaintiff has failed to join either the religious society, her fellow co-authors in the work, or the subsequent owner of the registered copyright. These parties are indispensable to any adjudication of the plaintiff's claims of equitable ownership in the copyright, fraudulent concealment, or unjust enrichment. Yet these parties, like the named defendant, have no business activity or other presence in Texas, are not within the personal jurisdiction of this forum and cannot be served with process. The cause of action arose in Tennessee, and venue is properly laid in that state.

Because the plaintiff has no possible claim to ownership of this literary work, she has failed to state a claim upon which relief can be granted. The amended complaint should be dismissed.

[ * * * ]

II. THE PLAINTIFF HAS FAILED TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.

A. THE PLAINTIFF WAS INCAPABLE OF ACQUIRING RIGHTS TO ANY LITERARY PROPERTY BECAUSE OF HER VOW OF POVERTY.

As with any non-profit membership association, Ms. Pride did not acquire a severable right to any of the property or funds of the organization, but merely acquired a right to the joint use and enjoyment thereof, so long as her membership continued. Ligett v. Koivunen, 229 Minn.114, 34 N.W.2d 345 (1948); 7 C.J.S. Associations 27b, p.70. And see: Raulston v. Everett, 561 S.W.2d 635, 638 (Civ.App. Texas, 1978) (gathering cases).

Termination of membership in any society is governed by the by-laws and resolutions of the organization or by applicable state laws. In the case of The Farm, at the time of the plaintiff's departure, termination of membership was effected by notice to The Farm's Council of Elders and physical departure from the community. Affidavit of Robert W. Moore, Exhibit 4.

While departing members have no right to demand any of the assets of the society as compensation for their years of labor, it is the custom of The Farm to consider requests for special dispensations to assist departing members in transition to life outside The Farm community. At the time of the plaintiff's departure, such determinations were undertaken by the seventy-member Council of Elders. They are now undertaken by The Foundation's seven-member Board of Directors. Affidavit of Robert W. Moore, Exhibit 4.

The plaintiff's 1984 request for compensation for her labor on Tofu Cookery, coming after her departure, was referred to The Foundation's Board of Directors for determination. That body directed that a small amount of money be allocated from publishing revenues to assist Ms. Pride's transition, in keeping with standard practices with regard to departing members. Id. Ms. Pride chose to regard this as a royalty, but it represented no more than a gift from The Foundation, with no contractual obligations involved. Id.

Communitarian legal principles have been contested since at least the time of the municipal law of Spain published in 1263 A.D.. For a review, see: Order of St. Benedict v. Steinhauser, 179 Fed. 137, 140 (D.Minn., 1910). In early Catholic societies, a vow of poverty was eternal, and not even the Pope was empowered to dissolve it. Breach of the vow was regarded as a serious infraction, even under civil laws. Under early Spanish law, a monk who died with money in his possession would be buried in a public dump, and his money buried with him. Law 14, title 7, Partida 1 of the Seven Partidas; Id. at 142. In current times, both canon and common law provide that a penitent may be relieved of his vows by consent of his order, if permitted by the rules or constitution of the order. Id. at 143.

Nonetheless, the Supreme Court of the United States has been asked to rule on the validity of the vow of poverty on more than one occasion. In Goesele v. Bimeler, 14 How. 589, 604-607, 14 L.Ed. 554 (1852), the heirs of a member of the religious society of Separatists sought partition of their decedent's interest. The Court said:

“He then signed the first articles, which, like the amended articles, renounced individual ownership of property, and an agreement was made to labor for the community, in common with others, for their comfortable maintenance. All individual right of property became merged in the general right of the association. He had no individual right, and could transmit none to his heirs. It is strange that the complainants should ask a partition through their ancestor, when, by the terms of his contract, he could have no divisible interest. They who now enjoy the property, enjoy it under his express contract.
* * *
"By disclaiming all individual ownership of the property acquired by their labor, for the benefits secured by the articles, the members give durability to the fund accumulated, and to the benevolent purposes to which it is applied. No legal objection is perceived to such a partnership. If members separate themselves from the society, their interest in the property ceases, and new members that may be admitted, under the articles, enjoy the advantages common to all.
* * *
"And this is certainly reasonable. Can a member expect to be supported by the society, when he refuses to perform his part of the contract which entitles him to a support?"

The Supreme Court took up the question again four years later in Baker v. Nachtrieo, 19 How. 126, 15 L.Ed. 528 (1856), and once more thirty years thereafter in Speidel v. Henrici, 120 U. S. 337, 7. S.Ct 610, 30 L.Ed. 718 (1886). Both cases involved the Harmony Society, a communitarian experiment in Economy, Pennsylvania, which was also the subject of a decision of the Supreme Court of Pennsylvania in Schreiber v. Rapp, 5 Watts 351, 30 Am.Dec. 327 (1836). All cases affirmed dismissal of claims brought by former Harmony Society members seeking property of the society or compensation for their labors.

The issue came again to the Supreme Court in 1902, in Schwartz v. Duss, 187 U.S.8, 23 S.Ct 4, 47 L.Ed 53. The Court again affirmed:

"The purpose was definite and clearly expressed. It was certainly thought to be clear enough by the men who framed it, to declare and accomplish the ' sacrifice of all narrow and selfish feelings to the true purposes of the association,' as the articles fervidly declared. And it was provided that the member who withdrew from the society could make no demand against it 'as a matter of right.' The member who died left no right to his representatives. It needs no argument to show that, as such members had no rights, they could transmit none to the petitioners in this case."

The same result has obtained in every case ever brought by those seeking to recover property or compensation from communitarian societies. See: Waite v. Merrill, 4 Me. 102, 16 Am.Dec. 238 (1826) (former members of Shakers could not recover the value of their services); Gass v. Wilhite, 2 Dana 170, 26 Am.Dec. 446 (1834) (change of Shaker's faith divests no individual interest in common property, for the members retain no individual interest); Gasely v. Separatists Soc., 13 Ohio St. 144 (1862) (former member of Separatists precluded from claiming any divisible interest to common treasury); Burt v. Oneida Community, 137 N.Y. 346, 33 N.E. 307, 19 L.R.A. 297 (N.Y., 1893) (every member of Oneida community was at liberty to withdraw, but could not demand any share in the joint property); State v. Amana Soc., 132 Iowa 304, 109 N.W. 894, 8 L.R.A. 909, 11 Ann.Cas. 236 (1906) (members of Amana Society own property in common, which does not violate public policy); Maas v. Sisters of Mercy, 99 So. 468 (Miss., 1924); (vows of poverty and obedience result in trust relationship between a sister and her order as to all property acquired by sister in individual capacity); Canovaro v. Order of Hermits, 191 Atl. 140 (pa., 1937) (right in church property is not a personal asset of a member and cannot be inherited, sold, assigned, liened, seized for debt, or subjected to claims); Cf: Fogarty v. United States, 780 F.2d 1005 (Fed.Cir., 1986) (property acquired by a member of Jesuit community becomes community property that inures to the benefit of the Jesuit Society).

The application of communitarian assignments to intellectual property was firmly established by the U.S. Supreme Court in the landmark case of Order of St. Benedict v. Steinhauser, 234 U.S. 640, 34 S.Ct 932, 58 L.Ed. 1512 (1914). This one case, as binding precedent, provides sufficient authority to dispose of the plaintiff's entire claims at this juncture. The Steinhauser case arose from a dispute between the administrator and heirs of a benedictine father, Augustin Wirth, and the Order of St. Benedict of New Jersey. Wirth's heirs claimed entitlement to the royalties and copyrights of books produced during Wirth's years with the Order. After painstakingly dissecting the history of communitarian laws, the Circuit Court for the District of Minnesota held that by joining the Order in 1887, Wirth agreed to give to it everything which he then possessed and everything which he might thereafter acquire. The copyrights, although registered to Wirth, were found to be owned by the Order. Order of St. Benedict v. Steinhauser, 179 Fed. 137 (D.Minn. 1910).

In 1912, the Eighth Circuit Court of Appeals reversed, holding that the contract between Wirth and the Order which surrendered all of Father Wirth's rights to acquire and hold property was void as contrary to public policy. The Circuit Court held:

"Such an agreement is no more enforceable, in the civil courts at least, than would be an agreement by one to surrender or forfeit to another his life. [citations omitted] * * * In this country, it is the inherent and natural right of every person to acquire and hold property in his own right; and the state is interested in preserving the liberties as well as the lives of its members, and they are guaranteed against the deprivation thereof, either by the state law or by any person, individual or corporate, without due process of law." Steinhauser v. Order of St. Benedict, 194 Fed. 289, 297, 114 C.C.A. 249 (8th Cir. 1912).

In 1914, the U.S. Supreme Court granted certiorari and reversed. After analyzing the long line of communitarian society cases, the Court found:

"As we have said, the question here is not one of canon law or ecclesiastical polity. The requirement of complainant's constitution must be read according to its terms, and its validity must be thus determined.
* * *
"So far as the corporation, and the civil rights and obligations incident to membership therein, are concerned, it leaves no doubt that the member may voluntarily leave the Order at any time. His membership in the corporation, and the obligation he assumes, are subject to that condition. If he severs his connection with the corporation, it cannot be heard to claim any property he may subsequently acquire. His obligation runs with his membership, and the latter may be terminated at will.
* * *
"In the present case, there was no infringement of Father Wirth's liberty or right to property. He did not withdraw from the Order. He had agreed, by accepting membership under the complainant's constitution, that his individual earnings and acquisitions, like those of other members, should go into the common fund, and, except as required for the maintenance of the members, should be used in carrying out the charitable objects of the Order. It is not unlikely that the copyrights upon his books derived their commercial value largely, if not altogether, from his membership. Certainly, the equitable ownership of these copyrights, by virtue of his obligation, vested in the complainant, and the moneys in question when received became in equity its property and were subject to its disposition. As to both, Father Wirth stood in the position of a trustee." Order of St. Benedict v. Steinhauser, supra, 234 U.S. at 651-652, 58 L.Ed. at 1517-1518.

When the plaintiff produced the literary work here in issue, she was an active member of the religious society and bound by her vow of poverty. By virtue of her prior assignment and "work for hire" relationship, any rights to the literary property were owned entirely by the society. So long as she remained a member of The Farm, she shared an undivided interest in the property and benefited from it. When she left The Farm, she surrendered and abandoned all joint and indivisible interests and rights to any of the society's assets, including its literary properties. By the terms of her vow, she never acquired any copyright interest in Tofu Cookery.

The Foundation was within its rights to register a copyright on the work in the name of The Book Publishing Company, and to later transfer ownership of both the publishing name and the copyright to a purchaser for value. The rights subsequently acquired by the defendant were whole and entire, and good against all the world.

The plaintiff has no possible copyright claim to this literary work. She has thus failed to state a claim upon which relief can be granted.

B. THE PLAINTIFF COULD NOT ACQUIRE A COPYRIGHT INTEREST IN A WORK FOR HIRE.

The Copyright Act, 17 U.S.C. 101, defines a "work for hire" as:

"(1) a work prepared by an employee within the scope of his or her employment or
"(2) a work specially ordered or commissioned for use as a contribution to a collective work *** if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. ***"

When the plaintiff joined the religious society she signed a written vow of poverty and expressly agreed that she would have no rights to any property acquired during her membership. While the society avoided using the expression "employees" in referring to its members,(9] in effect all members were employed by the society. At the time Tofu Cookery was prepared, each member was assigned to work by a personnel committee. A large bulletin board at the offices of The Foundation held the names of each member, and placed each name under the company or business division in which that person was employed. Affidavit of Robert W. Moore, Exhibit 4.

-----------------------------
[9] The word "employee" has different connotations under I.R.S. regulations, Social Security, workers' compensation statutes, and other state and federal laws. While it would be inappropriate to apply the term to the members of a religious society in all circumstances, it is reasonable to apply it to the concept of intellectual property as protected by the Copyright Act.

When Louise Hagler asked for the assistance of Colleen Pride as a recipe tester for Tofu Cookery, the publishing division applied to the personnel office for permission. With that permission secured, Ms. Pride's card was placed under the publishing division. Affidavit of Robert W. Moore, Exhibit 4.

Ms. Pride worked under the supervision and control of Louise Hagler. She was hired at Ms. Hagler's discretion and could have been fired at Ms. Hagler's discretion. Both Ms. Hagler and Ms. Pride could have been removed from work on the cookbook by a decision of the management of'the publishing division, the personnel office, the Board of Directors of The Foundation, or the society's Council of Elders. The publishing division, the Board, and the Council each had independent authority to suspend work or terminate the cookbook project at any time. Id.

Ms. Pride thus never stood in the position of an independent contractor accruing her own copyrights. She worked under the supervision and control of her superiors within the corporation. Her initial vow of poverty contract bound her to that "employment" relationship. Any work she performed on Tofu Cookery was a "work for hire" within the meaning of 17 U.S.C. 101. See generally: Scherr v. Universal Match Corp. 417 F.2d 497 (S.D.N.Y. 1969); cert.denied 397 U.S. 936, 90 S.Ct 945, 25 L.Ed.2d 116 (factors to consider are right to direct and supervise, expense, facilities used, nature of compensation); Picture Music Inc. v. Bourne Inc., 314 F.Supp 640 (S.D.N.Y. 1970), aff'd 457 F.2d 1214, cert.denied 409 U.S. 997, 93 S.Ct 320, 34 L.Ed.2d 262 (factors include exclusivity of employment, supervision, right to suspend or dismiss). 17 U.S.C. 201 provides:

"In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."

And see: Brattleboro Pub. Co. v. Winmill Pub. Corp., 369 F.2d 565 (2d Cir. 1966); Sawyer v. Crowell Pub. Co., 46 F.Supp 471 (S.D.N.Y. 1942), aff'd 142 F.2d 497, cert.denied 323 U.S. 735, 65 S.Ct 14, 89 L.Ed 589 (creations within scope of employment are held in trust for employer).

C. PLAINTIFF'S CHALLENGE TO HER VOWS OR TO HER TRUSTEE RELATIONSHIP IS A NON-JUSTICIABLE RELIGIOUS QUESTION WHICH MUST FIRST BE PURSUED IN THE APPROPRIATE ECCLESIASTICAL FORUM.

As a member of The Farm religious community, Ms. Pride had a "joint but indivisible interest" in the literary property owned by The Foundation. When she elected to depart the society, she abandoned all equitable ownership of that property. If the plaintiff is aggrieved by the amount or duration of the parting dispensation provided her, or seeks an interpretation as to the meaning of her vow of poverty, her proper recourse is to apply to the society for ecclesiastical review. These questions do not implicate grounds for federal jurisdiction.

As the United States Supreme Court has said:

"In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe on personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for." Watson v. Jones, 16 Wall. (80 U.S.) 697, 728-729, 20 L.Ed 666, 676-677 (1871).

NO. A-86-CA-207
- PAGE 31
AUGUST 1,1986