White v. Kimmell

White (plaintiff) v. Kimmell et al. (defendant)
94 F.Supp. 502, 1950
Facts: White’s brother was an author. He wrote two manuscripts known as the Gaelic manuscripts, about 30 copies of which were distributed by his secretary to persons interested in the topic. Before passing away he sold the right to publish or otherwise use several of his manuscripts, including the Gaelic manuscripts. Kimmell later published “The Job of Living” using excerpts from the Gaelic manuscripts after the author’s death.
Procedure: White brought suit against Kimmell and E.P. Dutton & Co. Inc. in federal district court for the Southern District of California. White sought a declaratory judgment that the manuscripts were in the public domain, Kimmel brought a countersuit, seeking a declaratory judgment that she was the owner of the manuscripts as well as an injunction preventing White from using them.
Issue: What constitutes publication rendering a manuscript in the public domain.
Holding: Judgment for defendant and injunction against plaintiff’s use of the manuscripts. Evidence showed the publication of the manuscripts was limited in nature and therefore manuscripts were not in the public domain and author retained common law intellectual property rights.
Reasoning: There is no copyright for the unpublished portions of the manuscripts, but they are protected by principles of common law, which recognizes a property right in the products of the creative mind, regardless of the form of expression. This gives authors a property right in their manuscript and protects against unauthorized copy or publishing until the author permits general publication. General publication must be such dissemination of the work to the public as to justify the belief that it took place with the intention of rendering the work common property. Limited publication without the right of diffusion, reproduction, distribution, or sale does not result in a loss of the author’s common law property right in a manuscript. Limited publication includes an attempt to communicate contents to a designated group for a specified purpose. There was no intent to dedicate any portion of he Gaelic manuscripts to the public when the 30 copies were distributed to limited persons with restrictions on the number of copies and the people who were permitted to see those copies. The Gaelic manuscripts are therefore not in the public domain.

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