THE RAMIK REPORT
Memorandum of Law
Literary Property Rights
1790 - 1915
August 14, 1981
Page 1
LAW OFFICES
DILLER, RAMIK & WIGHT, LTD.
PATENT & TRADEMARK CAUSES
WESTBRIDGE SUITE 675
2550 M STREET, N. W.
WASHINGTON, D. C. 20037
DONALD M. WIGHT
1901- 1976
VINCENT L. RAMIK
JOHN P. SNYDER
PATENT AGENT
CHARLES J. DILLER
OF COUNSEL
TELEPHONE
202-223-4466
TELEX
64102 JONROY
CABLE
MASPOR
August 14, 1981
MEMORANDUM OF LAW
LITERARY PROPERTY RIGHTS
1790 - 1915
___________________________________
EARLY HISTORY:
"The right of an author, irrespective of statute, to his own
productions and to a control of their publication, seems to have been recognized
by the common law."[1] "At
common law an author had a property in his manuscript and might have redress
against any one who undertook to realize a profit from its publication without
authority of the author. Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 659
(1834)."[2]
"There was much contention in England as to whether the common law
recognized this property in copyright before the Statute of Anne."[3]
It was not "until the eight year of Queen Anne, when the first copyright
act was passed, giving authors a monopoly in the publications of their works for
a period of from fourteen to twenty-eight years. Notwithstanding this act,
however, the chancery courts continued to hold that, by the common law and
independently of legislation, there was a property of unlimited duration in the
printed books. . . . thereafter the House of the Lords . . . declared that the
common law right had been taken away the statute of Anne, and that authors were
limited in their monopoly by the act. "[4]
While the propriety of these decisions (Donaldsons v. Becket, 4 Burr.
2408 [1774] and Wheaton v. Peters, supra) has been the subject of a good
deal of controversy among legal writers, it seems now (1899) to be considered
the settled law of this country and England that the right of an author to a
monopoly of his publications is measured and determined by the copyright act--in
other words, that while a right did exist by common law, it has been superseded
by statute."[5] Stated
otherwise, "No proposition is better settled than that a statutory
copyright operates to divest a party of the common-law right."[6]
________________________
[1] Holmes v. Hurst,
174 U.S. 82, 19 S. Ct. 606, 43 L. Ed. 904, 13-16 C.O. Bull. 1267, 1269 (1899).
[2] Bobbs-Merrill Co. v.
Straus et al, 210 U.S. 339, 28 S. Ct. 722, 52 L. Ed. 1086, 13-16 C.O. Bull.
364, 368 (1908).
[3] American Tobacco
Company v. Werckmeister, 207 U.S. 284, 28 S. Ct. 72, 52 L. Ed. 208, 13-16
C.O. Bull. 39, 42 (1907).
[4] Holmes v. Hurst,
1269.
[5] Holmes v. Hurst,
1269, 1270.
[6] Bobbs-Merrill Co. v.
Straus et al, 147 F. 15, 13-16 C.O. Bull. 350, 354.
Page 2
EARLY STATUTES:
"In this country it is well settled that property in copyright is the
creation of the Federal statute passed in the exercise of the power vested in
Congress by the Federal Constitution in Art. I, § 8, 'to promote the
progress of science and useful arts by securing for limited times to authors and
inventors the exclusive right to their respective writings and discoveries.' "[7]
Pursuant to the latter section of the Constitution, Congress passed the first
Copyright Act of May 31, 1790, ch. 15 (1 Stat. 124) which provided that an
author "shall have the sole right and liberty of printing, reprinting,
publishing and vending such. . . book or books for the term of fourteen years."
This law further required the following acts to transpire in order to secure the
copyright, namely, (1) the title of the book must be deposited with the clerk of
the District Court and the record he makes must be inserted on the first or
second page, (2) public notice in the newspapers must be given, and (3) within
six months after the publication of the book, a copy must be deposited in the
Department of State. "These acts are absolutely essential to the title of
the author."[8]
The Act of April 29, 1802, ch. 36 (2 Stat. 171) added as a prerequisite to
obtaining the benefits of the Act of 1790 the requirement that the information
published in the newspapers "be inserted in full length in the title-page
or in the page immediately following the title-page of every such book or books."
Under the Act of July 8, 1870, ch. 230 (16 Stat. 212), the subject matter of
copyright was broadened, still included "any book" and the right was "granted
for the term of twenty-eight years from the time of recording the title thereof."
This Act further provided that "if any person--without the consent of the
proprietor of the copyright--sell or expose to sell any copy of such book, such
offender is liable to 'damages as may be recovered in a civil action.' "
Under the Act of March 3, 1891, ch. 565 (26 Stat. 1106), the privileges of
United States copyright law was for the first time extended to foreign
authors or proprietors of books.
Within the time span of this memorandum, Congress passed the Act of March 4,
1909, ch. 320 (35 Stat. 1075) which specifically "protect(s) all of the
copyrightable component parts of the work copyrighted," while specifically
defining "no copyright shall subsist in the original text of any work which
is in the public domain." Specific mention is also made to the prohibition
of importation into the United States "of any piratical copies" of
books during the existence of a copyright therein. The Act of March 4, 1909
essentially codified existing law.
_______________
[7] American Tobacco
Company v. Werckmeister, 42-43.
[8] Wheaton v. Peters,
33 U.S. (8 Pet.) 591, 659 (1834), 13-16 C.O. Bull. 2901.
Page 3
RIGHTS SECURED BY COPYRIGHT:
Justice Story is recognized as the most influential judge in the area of
copyright law in the era in question, and concluded that the copyrightable merit
of a book is that subject matter which is "new and original, in the sense
in which those words are to be understood in cases of copyright. The question is
not, whether the materials which are used are entirely new, and have never been
used before; or even that they have never been used before for the same purpose.
The true question is, whether the same plan, arrangement and combination of
materials have been used before for the same purpose or for any other purpose.
If they have not, then the plaintiff is entitled to a copy-right, although he
may have gathered hints for his plan and arrangement, or parts of his plan and
arrangement, from existing and known sources. He may have borrowed much of his
materials from others, but if they are combined in a different manner from what
was in use before, and a fortiori, if his plan and arrangement are real
improvements upon the existing modes, he is entitled to a copyright in the book
embodying such improvement."[9]
The United States Supreme Court in Holmes v. Hurst, 174 U.S. 82, 19
S. Ct. 606. 43 L. Ed. 904, 13-16 C.O. Bull. 1267, 1270 (1899) defined with
perhaps like exactitude the nature of the right secured by copyright as follows:
-- "The right thus secured by the copyright act is not a right to the
use of certain words, because they are the common property of the human race,
and are as little susceptible of private appropriation as air or sunlight; nor
is it the right to ideas alone, since in the absence of means of communicating
them they are of value to no one but the author. But the right is to that
arrangement of words which the author has selected to express his ideas. Or, as
Lord Mansfield describes it, 'an incorporeal right to print a set of
intellectual ideas, or modes of thinking, communicated in a set of words or
sentences, and modes of expression. It is equally detached from the manuscript,
or any other physical existence whatsoever.' 4 Burr. 2396. The nature of this
property is best defined by Mr. Justice Erle in Jefferys v. Boosey, 4 H.L.C.
815, 867 (1855): 'The subject of property is the order of words in the author's
composition; not the words themselves, they being analogous to the elements of
matter, which are not appropriated unless combined, nor the ideas expressed by
those words, they existing in the mind alone, which is not capable of
appropriation.' "
PIRACY:
The meaning of "piracy," "piratical," and equivalents
vary through- out the decisions from a liberal comparative definition ("what
is original and what is borrowed or pirated," Banker v. Caldwell, 3 Minn.
94, 13-16 C.O. Bull. 96, 199 [1859]) to a more explicitly legal definition
expressing protection afforded literary property "against infringement by
piracy."[10] In Simms
v.
________________
[9] Emerson v. Davies,
et al., 8F.Cas. 615 (No. 4436), 13-16 C.O. Bull. 850, 855, 856 (1845).
[10] Henry Bill
Publishing Co. v. Smythe, 27 F. 914, 13-16 C.O. Bull. 224, 227 (1886).
Page 4
Stanton et al, 75 F. 6, 13-16 C.O. Bull. 2406, 2407 (1896), "pirated
and infringed" are used conjunctively, and properly so. In Maxwell v.
Goodwin, 93 F. 665, 13-16 C.O. Bull. 1727 (1899), one finds the
intermingling of "the test of piracy," "the issue of infringement
or piracy," "the charge of piracy," and the synopsis of the case,
the "Test of Infringement." Perhaps the most precise statement that
could be made is that a person who "passes" the test of
piracy/copyright infringement to be defined hereinafter is guilty of the act of
literary piracy in the performance thereof, and to the extent that such literary
piracy is also legal piracy, such a piratical appropriation would "amount
to piracy" of copyright.[11]
PLAGIARISM:
"Literary crimes are difficult to define accurately: for example,
piracy and plagiarism often overlap. Perhaps one may venture to mark the
difference roughly by saying that the plagiarist always hopes that he will not
be found out, whilst the pirate makes no secret of his crime."[12]
The major distinction between the two (piracy and plagiarism) from a legal
stand-point is in the intention of the subsequent writer, as is perhaps best
evidenced by the following statement from Farmer v. Elstner, 33 F. 494,
13-16 C.O. Bull. 970, 971 (1888):
-- "We have felt considerable difficulty in reaching a satisfactory
conclusion in this case from the fact that the piracies, though numerous, are
not extensive, and from the further fact that defendant's pamphlet was evidently
not intended to supersede or in anyway interfere with the sale of, the elaborate
and instructive work of the plaintiff. Where defendant's publication is designed
to rival or compete with plaintiff's in the market, courts are astute to protect
the technical rights of the plaintiff to his composition, and will even enjoin
an imitation of his general plan and arrangement, though there be no plagiarism
or sentences or ideas. Where defendant has been guilty of a complete or
substantial reprint of plaintiff's work, no difficulty is encountered in
granting an injunction; but where the alleged violation consists in excerpts
from the plaintiff, the court is bound to consider not only the quantity and
quality of the matter appropriated, but the intention with which such
appropriation is made, the extent to which the plaintiff is injured by it, and
the damage to the defendant by an injunction."--
And further in the same case:
-- "Regarding the intent with which the appropriation is made,
it is obvious that the use of a certain amount of an author's production may be
perfectly fair and legitimate in one case, while the use of a similar amount in
another case might be unlawful." -- (emphasis the courts)
________________
[11] Emerson v. Davies
et al., 866.
[12] Literary Ethics
by H. M. Paull, 1928, p. 45.
Page 5
Thus, the manner of taking, the extent of the taking, the intent involved,
and the damage done are all factors from which might be determined the existence
or nonexistence of plagiarism. However, the intention of the appropriator is of
no moment relative to the legal issue of piracy/copyright infringement.
STATUTORY COPYRIGHT INFRINGEMENT:
A most definitive and often quoted statement defining that which constitutes
the infringement of a copyright/piracy is the following by Justice Story from
the decision of Emerson v. Davies, et al., supra, 864, 865:
-- "So that, I think it may be laid down as the clear result of the
authorities in cases of this nature, that the true test of piracy (infringement
of copyright) or not is to ascertain whether the defendant has, in fact, used
the plan, arrangements and illustrations of the plaintiff, as the model of his
own book, with colorable alterations and variations only to disguise the use
thereof; or whether his work is the result of his own labor, skill, and use of
common materials and common sources of knowledge, open to all men, and the
resemblances are either accidental or arising from the nature of the subject. In
other words, whether the defendant's book is, quoad hoc, a servile or evasive
imitation of the plaintiff's work, or a bonafide original compilation from other
common or independent sources."
-- "There must be such a similitude as to make it probable and
reasonable to suppose, that one is a transcript of the other, and nothing more
than a transcript."
--"The question is, therefore, in many cases, a very nice one, what
degree of imitation constitutes an infringement of the copyright in a particular
work." --
Much the same views were earlier expressed in Folsom et al., v. Marsh et
al., 9 F. Cas. 342 (No. 4904), 2 Story 100, 13-16 C.O. Bull. 991 (1841)
cited with approval somewhat later (1858) in Greene v. Bishop, 10 F.
Cas. 1128 (No. 5763),1 Cliff. 186, 13-16 C.O. Bull. 1128, 1138 (1858) as
follows:
-- "all the authorities agree that it is not necessary that the whole,
or even the larger portion, of a work, should be taken in order to constitute an
invasion of a copyright; and they affirm the doctrine, that if so much is taken
that the value of the original is sensibly and materially diminished, or the
labors of the original author are substantially to an injurious extent
appropriated by another, that such taking or appropriation is sufficient in
point of law to maintain the suit." --
In the decision of Drury et al., v. Ewing et al., 7 F. Cas. 1113
(No. 4095), 1 Bond 540, 13-16 C.O. 803, 809 (1862), the Court cited as authority
both Folsom et al., v. Marsh et al., and Emerson v. Davies et al.,
followed by Judge Woodbury's comment from the former decision that the true
inquiry in these cases is:
Page 6
-- "whether the book of the defendant, taken as a whole is
substantially a copy of the plaintiffs'; whether it has virtually the same plan
and character throughout, and is intended to supersede the other in the market
with the same class of readers and purchasers by introducing no considerable new
matter, or little or nothing new except colorable deviations." --
In Lawrence v. Dana et al., 15 F. Cas. 26 (No. 8136), 4 Cliff. 1,
13-16 C.O. Bull. 1545, 1606 - 1607, (1869) Justice Storrow acknowledged:
-- "Few judges have devised safer rules upon the subject than Judge
Story. He held that, to constitute an invasion of copyright, it was not
necessary that the whole of a work should be copied, nor even a large portion of
it, in form or substance; that if so much is taken that the value of the
original is sensibly diminished, or the labors of the original author are
substantially, to an injurious extent, appropriated by another, that is
sufficient in point of law to constitute infringement; that, in deciding
questions of this sort, courts must 'look to the nature and objects of the
selections made, the quantity and value of the materials used, and the degree in
which the use may prejudice the sale or diminish the profits, or supersede the
objects of the original work.' " --
Further variations or comments regarding copyright infringement, but all
generally including the same common thread as the expressed in Emerson v.
Davies et al., are quoted chronologically hereinafter with necessary
brevity:
-- "The question is correctly stated by the learned counsel for the
complainant to be whether the defendants have used the plan, arrangements and
illustrations of the complainant as the model of their own book with colorable
alterations and variations only to disguise the use thereof, or whether the work
is the result of their own labor, skill and use of common materials and common
sources of knowledge, and the resemblances are either accidental or arising from
the nature of the subject." --[13]
-- "These are not mere colorable differences, made for the purpose of
concealing a literary piracy, but they are substantial, and forbid the
conclusion that the defendant has copied the plaintiff's books." --[14]
--"These methods spring from the necessities of the case and the
character of the information intended to be conveyed; and their use by the
defendant is not sufficient to constitute his book a servile imitation of the
plaintiff's books. Notwithstanding the similarity of the methods visible in
these books, it still remains true, that the defendant's book 'is the result of
his own labor, skill and use of common materials and common sources of
knowledge, open to all men, and the resemblances are either accidental or
arising from the nature of the subject.'" --[15]
_______________
[13] Lawrence v. Cupples
et al., 15 F. Cas. 25 (No. 8135), 13-16 C.O. Bull. 1543, 1544 (1875).
[14] Bullinger v. Mackey,
4 F. Cas. 649 (No. 2127), 15 Blatchf. 550, 13-16 C.O. Bull. 469, 475, 476
(1879).
[15] Ibid.
Page 7
--"True, the defendant has not copied the whole, and perhaps not the
larger portion, of either of the works of the plaintiff's. He has, however,
incorporated in his book material portions of each, and this constitutes
infringement." --[16]
-- "It follows that to infringe this right (copyright) a substantial
copy of the whole or of a material part must be produced." --[17]
-- "The sole liberty is invaded when any material part of what is the
author's own work is appropriated." --[18]
-- "the matter and language of said books is the same as the
complainant's in every substantial sense." --[19]
-- "If defendants have reproduced, in substance and effect, the general
characteristics of the original, though some minor particulars are intentionally
avoided, then there is an infringement." --[20]
-- "Probably the most accurate, and at the same time concise, statement
of the test of piracy is that laid down by Mr. Circuit Justice Story in Emerson
v. Davies, 3 Story 768, 8 F. Cas. 615 (No. 4436) (C.C.D. Mass. 1846), a leading
case in this country on the law of copyright. He says:
'It may be laid down as the clear result of the authorities in cases of this
nature that the true test of piracy or not is to ascertain whether the defendant
has, in fact, used the plan, arrangements and illustrations of the plaintiff, as
the model of his own book, with colorable alterations andvariations, only to
disguise the use thereof; or whether his work is the result of his own labor,
skill, and use of common materials and common sources of knowledge, open to all
men, and the resemblances are either accidental or arising from the nature of
the subject. In other words, whether the defendant's book is, quoad hoc, a
servile or evasive imitation of the plaintiff's work, or a bona fide original
compilation from other common or independent sources.' " --[21]
Thus, the law as first, last, and substantially identically quoted is best
reflective of the test of copyright infringement in the time period under
consideration.
EVIDENCE OF COPYRIGHT INFRINGEMENT/PIRACY:
Though seemingly obvious, the evidence necessary to determine the existence
or nonexistence of copyright infringement is rarely direct and most usually
requires a comparison between the literary works under consideration.
_______________
[16] Reed et al., v.
Holliday, 19 F. 325, 13-16 C.O. Bull. 2149, 2151 (1884).
[17] Perris v. Hexamer,
99 U.S. 674 25 L. Ed. 308, 13-16 C.O. Bull. 2050, 2051 (1878).
[18] Gilmore v.
Anderson et al., 38 F. 846, 13-16 C.O. Bull. 1072, 1075 (1889).
[19] Belford v.
Scribner, 144 U.S. 488, 12 S.Ct. 734, 36 L. Ed. 514, 13-16 C.O. Bull. 201,
213 (1892).
[20] Springer
Lithographing Co. v. Falk, 59 F. 707, 13-16 C.O. Bull. 2438, 2443 (1894).
[21] Simms v. Stanton
et al., 75 F. 6, C.O. Bull. 2406, 2408 (1896).
Page 8
"It must be further shown, that the resemblances (upon comparison) in
those parts and pages are so close, so full, so uniform, so striking, as fairly
to lead to the conclusion that the one is a substantial copy of the other, or
mainly borrowed from it. In short, that there is substantial identity between
them. A copy is one thing, an imitation or resemblance another."[22]
"Copied errors are, as many learned judges have said, one of the surest
tests of copying."[23] "Coincidence of citation is also evoked by the complainant as evidence as copying."[24]
However, common errors, common passages, etc. may not establish infringement of
copyright, noting the following from Simms v. Stanton et al., supra,
2417:
-- "The errors which complainant claims have crept into respondent's
work, tending to show that she must have copied from him works, are not
important enough, in my opinion, to establish the fact of servile copying or
piracy. As to the repetitions, all that can be said is that repetitions in a
work such as that on the subject of physiognomy must necessarily occur." --
-- "It is my opinion that, while the respondent did consult and use
complainant's work, she has not drawn from them to a substantial degree; that
such use as she did make may properly come within the designation of fair use;
that, as to other features of these rival works common to all of the books, she
obtained these from sources other than complainant's works, and to which the
latter had no copyright." --
And citing from Emerson v. Davies, et al., supra, 858-859:
-- "he (plaintiff) refers to divers pages of his own book in comparison
with divers pages of the book of the defendants. Now, I say that it is wholly
immaterial whether each of these particulars, the arrangement of the tables and
forms of the lessons, the gradation of the examples to precede the tables, the
illustrations of the examples by unit marks, had each existed in a separate form
in different and separate works before the plaintiff's work, if they had never
been before united in one combination or in one work, or on one page in the
manner in which the plaintiff has united and connected them." --
And, also from Simms v. Stanton et al., supra, 2415, citing with
authority Pike v. Nicholas, L.R. 5 Ch. 251 (1870), the court stated:
-- "although the defendant had borrowed some from plaintiff's work,
still he had not made such use of plaintiff's book as to entitle the latter to
an injunction; that an author who has been led by a former author to refer to
older writers may, without committing
___________________________
[22] Emerson v.
Davies, et al., 861.
[23] Hartford Printing
Co. v. Harford Directory & Publishing Co., 146 F. 322, C.O. Bull. 1202,
1204 (1906).
[24] Lawrence v. Dana
et al., 15 F. Cas. 26 (No. 8136). 4 Cliff. 1, 13-16 C.O. Bull. 1545, 1601
(1869).
Page 9
piracy, use the same passages in the older writers which were used by the
former author; and that an author has no monopoly in any theory propounded by
him." --
"The question is, therefore, in many cases, a very nice one, what
degree of imitation constitutes an infringement of a copyright in a particular
work."[25]
FAIR USE:
"Great difficulty attends every attempt to define in precise terms the
privilege allowed by law to a subsequent writer to use without consent or
license the contents of a book or treatise antecedently made, composed and
copyrighted by another author; or to mark the boundaries of the privilege of
such subsequent writer to borrow the materials in a book like the annotated
editions of the complaint, where the materials have been selected from such a
variety of sources, and where the materials so selected are arranged and
combined with certain chosen passages of the text of the original work, and in a
manner showing the exercise of discretion, skill, learning experience and
judgment. Decided cases are referred to where the principal criterion of
determination is held to be the intent with which the person acted who is
charged with infringement."[26]
"Examined as a question of strict law, apart from exceptional cases,
the privilege of fair use accorded to a subsequent writer must be such, and such
only, as will not cause substantial injury to the proprietor of the first
publication."[27]
QUOTATIONS:
Justice Story, from Folsom et al., v. Marsh, et al., supra, 1001,
cites with authority the following from Wilkins v. Aikin, 17 Ves. 422,
424 (1810):
-- "There is no doubt that a man cannot, under the pretense of
quotation, publish either the whole or a part of another's book, though he may
use, what in all cases it is difficult to define, fair quotation." --
"Bonafide quotations from a book do not constitute such an
infringement."[28]
And from Story v. Holcombe, supra, 2476:
_______________
[25] Emerson v.
Davies, et al., 861.
[26] Lawrence v. Dana,
1606.
[27] Ibid., 1607.
[28] Chapman v. Ferry,
et al., 18 F. 539, 13-16 C.O. Bull. 594, 596 (1883).
Page 10
-- "no one is allowed under the pretense of quoting, to publish either
the whole or the principal part of another man's composition." --
Quite simply, if there is copyright infringement, the use of quotations does
not "avoid liability for taking them to make up another work."[29]
Legitimate or bonafide quotations are one specific aspect of "fair use,"
the presence or absence of which would appear to be of no consequence insofar as
concerns a determination of the issue of copyright infringement, though the
absence of quotations could obviously go to the issue of the intent of a
subsequent author.
ELLEN G. WHITE'S WRITINGS:
The following are representative statements made by others relative to comparisons
between the writings of Ellen G. White and her predecessors:
-- "She copied a great deal more than six. In fact, we have confessed
and I'll read it to you that she used 88 different authors and 400 references in
The Great Controversy alone. So, it's not a small amount."[30]
-- "She used The Great Teacher by John Harris, 1835, which
they've admitted. She used The Life of Christ by William Hanna, 1863,
which they've admitted. She used The Life of Christ by Farrar, which
they have admitted, and others which they have admitted. My book will give a
further list of those that she used. The Acts of the Apostles, she used
The Life and Epistles of the Apostle Paul by Conybeare and Howson, The
Life of Paul by Farrar, The Great Teacher by John Harris, Night
Scenes of the Bible by Daniel March, and The Life of Paul by McDuff.
And The Great Controversy I've read to you from Willie White, that in
the new edition the reader will find more than 400 references to 88 authors and
authorities, page 24, Willie White, General Conference, 1911. Patriarchs and
Prophets, she used Paradise Lost by Milton Clarks Commentary, Night
Scenes of the Bible by March, Edersheim's Old Testament, and even
The Aprocrypha which F. D. Nichol talks about in his book published in
1951. So far, I have found William Hanna, John Harris, Fleetwood, Farrar,
Andrews, and others. I have gotten that, by the way, from a list that Bob Olson
from the White Estate has published on 'Mrs. White and Uninspired Sources.'
Underwood, Gordon, Hanna, Krummacher, Cole, Jackson, Trall, Stowe, Broadman,
Miller, Taylor, Kirk, Horace Mann and Able Stevens and others." --[31]
Donald R. McAdams notes Ellen G. White's "use of historians for her
passages on historical events," and acknowledges "historians as the
major source for her historical descriptions and details."[32]
_______________
[29] Gilmore v.
Anderson et al., 38 F. 846, 13-16 C.O. Bull. 1072, 1075 (1889).
[30] White Lies,
transcript, p. 13, February 14, 1981, Walter Rea.
[31] Ibid.,pp.
22-23.
[32] ELLEN G. WHITE AND
THE PROTESTANT HISTORIANS: THE EVIDENCE FROM AN UNPUBLISHED MANUSCRIPT ON JOHN
HUSS by Donald R. McAdams, March 1974, revised October 1977.
Page 11
From A COMPARISON OF CHAPTER XXIII OF THE GREAT CONTROVERSY, 1911
ED. BY ELLEN G. WHITE AND URIAH SMITH'S 2ND ED. OF THE SANCTUARY AND THE
TWENTY- THREE HUNDRED DAYS OF DANIEL VIII, 14 by Delmer Alonzo Johnson, 1980,
the following:
-- "In general it cannot be said that Ellen White 'copied' from Smith.
The correlation, at most, reveals a close paraphrase or summary of his entire
book. Some sentences in the thirteen page GC (Great Controversy) chapter
appear to be loose paraphrases of The Sanctuary; some tight paraphrases
and some seem to be original. Not one sentence, other than the Biblical texts,
is exactly identical to a sentence in The Sanctuary." -- (page 18)
-- "Nevertheless, there are numerous instances of clear literary correlation
which proves conclusively that Ellen White made use of some of the words,
phrases, ideas and thought sequences in LC." (The Life of Christ).
--[33]
-- "As indicated earlier these are the clearest examples of possible
literary dependency on Hanna we have found in the second half of The
Desire of Ages. Their total number does not constitute a large part of
the second half of the volume. Whatever borrowings occur are in the nature of
words and phrases.
"There are many paragraphs, however, that are parallel in thought to
Hanna, in which use is made of some identical words and phrases. More often,
though, the resemblance between paragraphs between the two authors is one of
ideas rather than literary structure. The occurrence of identical words and
phrases in our two authors is not by itself sufficient evidence of the literary
depending of the later on the earlier. One must note whether they are in common
use, or whether they are unusual ones." --[34]
-- "The material in Mrs. White's book on Paul drawn from Conybeare and
Howson was equivalent to less than 4 per cent of this English book, for it was a
large book. And that drawn from Farrar was equivalent to less than 2 per cent of
his book, for it also was a large work. As to The Great Controversy
(1911 edition) only 4 per cent of the material is borrowed from other authors.
But this 4 per cent is drawn from a number of works, with only a very small per
cent being drawn from any particular work. The same would be essentially true of
the 1888 edition and the 1884 edition." --[35]
_________________________
[33] THE LITERARY
RELATIONSHIP BETWEEN THE DESIRE OF AGES, BY ELLEN G. WHITE AND THE LIFE OF
CHRIST, BY WILLIAM HANNA, Part I by Raymond F. Cottrell.
[34] THE LITERARY
RELATIONSHIP BETWEEN THE DESIRE OF AGES, BY ELLEN G. WHITE AND THE LIFE OF
CHRIST by William Hanna, Part II by William F. Specht.
[35] Ellen G. White
and Her Critics, Francis D. Nichol, 1951, p. 427.
Page 12
LIBRARY OF CONGRESS:
Copyright Records:
Under the Act of 1790, copyrights for books were obtained by, among other
conditions, depositing a printed copy of such book "in the clerks office of
the District Court where the author or proprietor shall reside." It was not
until the Act of 1870 that "all records and other things relating to
copyrights -- shall be under the control of the librarian of Congress and kept
and preserved in the Library of Congress." Therefore, any exact information
in regard to copyrights from 1790 through 1869 could only be obtained by
searching the records of the District Courts of the various states and/or
territories, an obviously monumental project. Limited copyright records are
available on micro-film at the Library of Congress which have been collected
from the various District Courts of the states and territories between 1790 and
1869, and these are available for state-by-state, District Court-by-District
Court searching to determine with a "fair" degree of certainty whether
a particular item has been copyrighted between 1790 and 1869. A review of the
microfilm records at the Library of Congress would constitute an overwhelming
task, and since the results would be questionable such was not done (except for
the territory of Michigan which surprisingly developed a copyright registration
[No. 330] in the name of "Uriah Smith" for "Smith's Adjustable
Weekly Calender" [Feb. 14, 1863]).
A search was, however, conducted through the General Index at the Copyright
Office of the Library of Congress between 1870 and 1897 which lists the works by
title and/or author. The search was continued from 1898 through 1937 listing the
works only by author or claimant. The search was directed toward essentially
determining whether the earlier writings, and particularly those referenced by
Walter Rea, were copyrighted or uncopyrighted, and the result of this
investigation is as follows with the copyrighted and uncopyrighted works being
simply listed hereinbelow under appropriate headings:
COPYRIGHTED
"Walks with Jesus" by Daniel March, 1888, 36 988; "Dawn to
Dark" by Daniel March, 1878, 5900; "Ministry of Healing" by A. J.
Gordon, 1882, 2418; "Sanctuary of the Bible" by J. N. Andrews, 1889,
38390;
"Spiritual Gifts" by White, 1882, 21796; "Spirit of Prophecy"
by White, 1884, 20667; "The Christian's Secret of a Happy Life" by
Hanna W. Smith, 1883, 3840; "God's Will Known and Done" by Underwood,
1885, 7338; "The Higher Christian Life" by W. E. Broadman, 1871, 5443;
and "Parables of Our Savior" by Taylor, 1886, 26936.
UNCOPYRIGHTED
"The Sanctuary and the Twenty Three Hundred Days of Daniel VIII,"
14 by Uriah Smith; "The Life of Christ" by William Hanna; "Paul"
by F. W. Farrar; "The Great Teacher" by John Harris; "The Life
and Times of Jesus the Messiah" by A. Edersheim; "Old Testament"
by A. Edersheim; "Elijah the Prophet" by A. Edersheim; "Night
Scenes of the Bible" by Daniel March; "Sketches From the Life of Paul"
by Conybeare and Howson; "History of the Sabbath" by J. N. Andrews; "Elijah
the Tishbite" by Krummacher; "Life
Page 13
Incidents" by James White; "Life of William Miller" by James
White; "History of Waldenses" by Wylie; "Origin and History of
the Books of the Bible" by Calvin Stowe; "History of the Reformation"
by D'Aubigne; "Philosophy of Health" by Coles; "Paradise Lost"
of Milton Clark's Commentary; "The Life and Epistles of the Apostle Paul"
by Conybeare and Howson; "The Life of Paul" by McDuff; "The
Apocrypha" by Stowe; and "The Life of Christ" by Farrar.
ELLEN G. WHITE WAS NOT A COPYRIGHT INFRINGER:
The "right of an author to a monopoly of his publications is measured
and determined by the copyright act."[36]
Accordingly, "unless the copyright laws were complied with, publication
works an abandonment of all further right."[37]
Thus, all of the books listed earlier herein which were published and uncopyrighted
which may have been used as sources by Mrs. White could not give rise then or
now to any proper or responsible accusation of "copying," "piracy,"
or "plagiarism." These books included, for example, "The Life of
Christ" by Hanna, "The Great Teacher" by Harris, "Sketches
from the Life of Paul" by Conybeare and Howson, and the remainder of the
uncopyrighted works earlier listed herein under the caption "LIBRARY OF
CONGRESS."
A "book -- becomes (when not protected by copyright) public property by
the act of publication."[38]
Accordingly, all of the earlier noted published, uncopyrighted works were from
the time of publication dedications or gifts to the world at large for anyone or
all to use legally, freely and unhesitatingly as they wished to any degree and
in any manner, with or without acknowledgements.
Assuming, however, that all of these earlier works noted herein were
copyrighted, could a successful suit have been brought against the early
Seventh-day Adventist writer? The answer is again in the negative.
The issue of copyright infringement, quite simply, is "whether the book
of the defendant, taken as a whole, is substantially a copy of the plaintiff."[39]
No critics have in any of the comparisons set forth earlier herein alleged nor
could they have equitably alleged than any book of Ellen G. White's, taken as a
whole, is legally substantially a copy of her predecessors. The meaning of "substantially
a copy" is well expressed in law and requires that the value of or effort
involved in an original work be "sensibly diminished," or the "labors
of the original author (be) substantially to an injurious extent, appropriated,"
that in effect the life, body and meaning of the earlier work be "taken as
a whole" absent the exercise of discretion, skill, judgment or the like.
Mrs. White's sternest critics offer the best evidence available supportive
of noninfringement. As an example, the "88 different authors and 400
_________________
[36] Holmes v. Hurst,
p. 1267, 1270.
[37] Nebraska v. State
General Co., citing Corlies v. Walker, 75 F. 436 (1893).
[38] Ibid.
[39] Drury et al., v.
Ewing et al., 7F. Cas. 1113 (No. 4095) 1 Bond 540, 13-16 C.O. Bull. 803, 809
(1862).
Page 14
references" refer to The Great Controversy, and it is suggested
strongly that such utilization by Mrs. White (if true) of this vast reference
material evidences skill and use of common materials and common sources of
knowledge, and not merely "colorable alterations and variations only to
disguise the use thereof."[40]
It is inconceivable that even if Mrs. White used 88 different authors and 400
references in The Great Controversy, she could have taken the value of
any one of the original works to the degree that it be "sensibly
diminished, or the labors of the original author (be) substantially to an
injurious extent, appropriated" by her usages.
What in The Great Controversy or any other book of Ellen White's,
when "taken as a whole, is substantially a copy" of the works of
earlier authors? Here again, when a comparison is equitably made on a
one-on-one, book-versus-book basis, and such is the only comparison that can be
properly made in law, nowhere have we found the books of Ellen G. White to be
virtually the "same plan and character throughout" as those of her
predecessors.[41] Nor have we
found or have critics made reference to any intention of Ellen White to "supersede
the other(s) in the market with the same class of readers and purchasers by
introducing no considerable new matter or little or nothing new except colorable
deviations."[42]
The sheer "compilation" of the works of Ellen G. White necessarily
reflects her labor and skill. So long as she had not, and the evidence clearly
establishes that she did not, draw from any prior works "to a substantial
degree," she remains well within the legal bounds of "fair use."
Moreover, so long as the materials were selected from a variety of sources, and
were "arranged and combined with certain chosen passages of the text of the
original work, and in a manner showing the exercise of discretion, skill,
learning, experience, and judgment," the use was "fair."[43]
It is also necessary in judging the writings of Ellen G. White to reflect
upon the nature, character and influence of these writings which perhaps are
best described by Uriah Smith from Life Sketches (469 et. seq.) as
follows:
-- "Their fruit is such as to show that the source from which they
spring is the opposite of evil.
-- 1. They tend to the purest morality. -- They reveal the devices of Satan.
-- They have aroused and rearoused us to greater consecration to God, more
zealous efforts for holiness of heart, and greater diligence in the cause and
service of our Master.
-- 2. They lead us to Christ.
__________________
[40] Emerson v. Davies
et al., p. 864-865.
[41] Drury et al., v.
Ewing et al., p. 809.
[42] Drury et al., v.
Ewing et al., p. 809.
[43] Lawrence v. Dana,
p. 1606.
Page 15
-- 3. They lead us to the Bible.
-- 4. They have brought comfort and consolation to many hearts." --
Writings of the relationships of God, Satan and men necessarily create
resemblances and often times striking resemblances. However, no prior author had
ever before united in one work that which was authored by Mrs. White, nor do any
of her critics so allege. Critics compare words, phrases, similarities thereof,
but never compare the works of Mrs. White "as a whole." One reason
suggested is that evidence would indicate that though "materials have been
selected from a variety of sources," the same evidence strongly indicates
the materials thus selected were "arranged and combined. . . in a manner
showing the exercise of discretion, skill, learning, experience and judgment."
It is the latter areas where critics fear to tread because had they done such,
their only conclusions could be and would be that the writings of Mrs. White did
not constitute infringements of even assumed to be copyrighted works of her
predecessors.
In summary, and again with the assumption that all earlier works were
copyrighted, if the issue were court-tested between 1850 and 1915, Ellen G.
White would be emphatically held not to be a copyright infringer.
ELLEN G. WHITE WAS NOT A PLAGIARIST:
Approached from a legal standpoint, courts tend to categorize a plagiarist
as one who was legally guilty of piracy. In other words, courts generally have
defined the elements of piracy, and if the appropriator of a book fit the
perimeters of illegal piracy, he was labeled a plagiarist. Therefore, the legal
showing must be such "that the person accused of plagiarism has in fact
copied or imitated another's work, and that he or she has done so in some
substantial degree."[44]
More, however, seems evident from the case law as to what may or may not be
an act of plagiarism. If that which was taken was not the "material and
important parts"[45] of a
book, but the resultant book instead reflects "the effort of his (taker's)
own mind," such is not plagiarism.[46]
One of the most important factors from a legal standpoint between the legal
crime of piracy/copyright infringement and the act of plagiarism is the "intention
with which such appropriation is made."[47]
A plagiarist, therefore, takes from another and utilizes that which is taken
with the intent that the appropriated material be viewed as originating with the
appropriator and not the originator. Therefore, Paull was eminently correct in
concluding
_______________
[44] Simms v. Stanton
et al., 75F. 6, 13-16 C.O. Bull. 2406, 2414 (1896).
[45] Reed v. Carusi,
20F. Cas. 431 (No. 11642) 13-16 C.O. Bull. 2146, 2148 (1845).
[46] Ibid.
[47] Farmer v. Elstner,
33F. 494, 13-16 C.O. Bull. 970 (1888).
Page 16
from a literary viewpoint that the "plagiarist always hopes that he
will not be found out" and though more might be added from a legal
viewpoint, the intent of the taker is of a paramount importance.[48]
The major key to the plagiarism issue is the intent of Ellen G. White, and
critics and advocates alike appear decidedly in agreement on this point, as
evidenced by the following:
-- "I rather think that Mrs. White was sincere in what she believed and
what she wrote and that she believed she was inspired in fact, indeed, she
believed it was a revelation." --[49]
-- "But I am unwilling to believe that Ellen White either consciously
or unconsciously was dishonest. . . . the main tenor of her life was
wonder-fully good and helpful; she stood for principles that were straight and
right." --[50]
One could hardly impugn the good intentions of Mrs. White when she, herself,
seemingly made no effort to hide her sources and indeed acknowledged their
value, as follows:
-- "The Life of St. Paul by Conybeare and Howson, I regard as a
book of great merit, and one of rare usefulness to the earnest student of the
New Testament history." --[51]
The best evidence of the intention of Mrs. White rests in what has been
characterized as the grand central theme of her writings, "God's original
purpose for the world," "the rise of the great controversy"
between God and Satan, and "the work of redemption."[52]
One certainly perceives from Mrs. White's writings that she was motivated by
"the influence of the Holy Ghost"[53]
which itself belies wrongful intent, and proceeding with but the highest of
motivations and intentions she in fact legally modified, exalted and improved
much which others may have thought and expressed. It is impossible to imagine
that the intention of Ellen G. White, as reflected in her writings and the
unquestionably prodigious efforts involved therein, was anything other than a
sincerely motivated and unselfish effort to place the understandings of Biblical
truths in a coherent form for all to see and comprehend. Most certainly, the
nature and content of her writings had but one hope and intent, namely, the
furthering of mankind's understanding of the word of God.
_______________
[48] Literary Ethics,
p. 45.
[49] White Lies,
transcript, p. 35.
[50] ELLEN G. WHITE AND
THE PROTESTANT HISTORIANS: THE EVIDENCE FROM AN UNPUBLISHED MANUSCRIPT ON JOHN
HUSS by Donald R. McAdams, March 7, 1974, October 1977, p. 231.
[51] Ellen G. White
and Her Critics, p. 423.
[52] THE LITERARY
RELATIONSHIP BETWEEN THE DESIRE OF AGES BY ELLEN G. WHITE AND THE LIFE OF CHRIST
by William Hanna, Part II, Chapter 6, Walter F. Specht.
[53] Selected Messages,
Book 1, p. 21.
Page 17
Considering all factors necessary in reaching a just conclusion on this
issue, it is submitted that the writings of Ellen G. White were conclusively
unplagiaristic.
CONCLUSIONS:
Based upon our review of the facts and legal precedents, we conclude that
Ellen G. White was not a plagiarist and her works did not constitute copyright
infringement/piracy.
By:_______________________
Vincent L. Ramik
VLR/skl
Ellen G. White Estate Homepage
Issues & Answers
Regarding Inspiration and the Life and Work of Ellen G. White