Based solely on an unsworn declaration by defendants' counsel, and without any certification of copyright ownership from the U.S. Copyright Office, the district court erroneously declared that Groden "continues to holds [sic] the book's copyright jointly with Harrison Livingstone. See Defendants' Exhibit C." The defendants' "Exhibit C" to which the district court referred purported to be a photocopy (unattested as to its genuineness or validity other than by defendants' counsel) of a copyright notice from a Berkley paperback reprint of High Treason. This document, standing alone, did not constitute competent or admissible evidence that Groden had ever held a a copyright interest at all, let alone that he continued to hold the copyright to High Treason. In this deceptive manner, the defendants' standpoint on the quote was accorded a presumptive status, notwithstanding the lack of formal evidentiary qualification, as though the copyright was self-evident. On its face, however, the document indicated that High Treason was written by two authors at two different times, their contributions separated by a number of years:
(Groden v. Random House, Inc., et al., Record on Appeal Document No. 8)
Groden and his attorney countered this purported "evidence" in the lower court with an entirely different copyright notice from another Berkley paperback reprint that placed the defendants' contention, and the lower court's objectivity, into serious question. This notice claimed that sole copyright ownership resided in Livingstone:
(Groden v. Random House, Inc., et al., Record on Appeal Document No. 19)
Denied discovery and an evidentiary hearing, it was all Groden could do.
What Newman was struggling to conceal from his readers was a serious and irreconcilable conflict in the record before him -- a conflict between two different copyright notices that both he and the lower court failed to disclose but which, in any other litigation, would have virtually required reversal and remand to the Southern District Court for clarification and further proceedings, including discovery, an evidentiary hearing, and possibly a trial. Absent any reconcilation of this conflict, Newman sought comfort in the district court's finding that Groden "held himself out to the public as a co-author of the entire work." But this "finding" similarly lacked any factual underpinnings. It was a bare, conclusory statement by the district court, issued without the benefit of any evidence, discovery, or adversarial hearing, and in the face of denials by both Mr. Groden and his attorney. It was nothing more than a district judge's appraisal of what an unattested photocopy signified to him, or rather, what he wished to conjure from it.
In any event, copyright ownership is not the same as authorship. Copyright is a form of intellectual property capable of being sold, assigned, bequeathed to heirs, or relinquished to the public domain. It is pertinent, however, to the right to control whether a work is published, and the manner in which it is published. According to Groden's uncontested sworn statements on personal knowledge, it was Livingstone who retained and exercised that control over the publication of High Treason.
The salient facts are that defendants failed to submit any competent affidavits, official certificates, or other proof that Groden had actually written the statement attributed to him, or that it represented his views, and unlike Groden -- who was denied any means by which to establish the facts other than his own sworn affidavits -- they failed to produce any competent evidence contradicting him. The defendants offered no proof that Groden had ever held himself out as author or "joint author" or "the copyright holder" of the entire work, High Treason, or more specifically, that he had ever propounded a theory similar to the one they affixed to him. Moreover, the defendants produced no evidence -- either by affidavit or in any other admissible form -- that they had relied upon the quote in the good faith belief that it represented Groden's views. The argument implicit in their defense was that, if they wished to insinuate in the public mind a false picture of who Groden was, and what he represented, they were entitled to do so in service of their promotional needs for Case Closed, which in turn best suited the public interest in their own view.
It is a totalitarian idea to falsely impute opinions to someone by associating him with others, then persecute and ostracize him because of that mistaken belief about his views.
On the other hand, besides competent testimonial evidence, Groden and his attorney presented the courts with copious citations to previous "authors' rights" cases, all of them decided within the same jurisdiction, in which the courts had found the false attribution of editorial credit to be misleading and violative of the Lanham Act. And for the benefit of any lawyers reading this, Groden's appellate briefing further analogized what the defendants did in this case to . . .
. . . the gasoline misbranding cases. Amoco Oil Co. v. D.Z. Enters. Inc., 607 F. Supp. 595 (E.D.N.Y. 1985); Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 478 F. Supp. 243 (E.D. Pa. 1979), aff'd, 637 F.2d 105 (3d Cir. 1980), cert. denied, 451 U.S. 911, 101 S. Ct. 1981, 68 L. Ed. 2d 300 (1981). The "gas station owners" (defendants) decided to "draw" a quote from a "storage tank" (i.e., High Treason) used by several "refiners" (i.e., the coauthors), each owning a distinctive mark, and then "sold" it as Groden's opinion, thereby appropriating his reputation, distinctive customer recognition, and goodwill to their own commercial purposes. In short, this advertising dispenses Harry Livingstone's gas through Bob Groden's pump. Those cases did not turn on whether the owner of the mark commingled his gasoline with that of others, or upon whomever else's gasoline the dealer actually sold -- whether it was the same, any better or worse than the mark owner's -- or whether it contained the additives allegedly unique to the owner of the infringed mark, or even whether the public caught onto the scam. The mark owner was not estopped for allegedly supplying gasoline without the unique additive. It was enough that the dealer palmed-off commingled gasoline as having originated with the owner of the mark, who had the absolute right to designate the gasoline that could be sold under its name. See also Nike, Inc. v. Rubber Mfrs. Ass'n, Inc., 509 F.Supp. 919 (S.D.N.Y. 1981).Finally, Groden challenged the Second Circuit with these questions:
Query 1: Suppose that Livingstone, now the sole copyright owner of High Treason, had "revised and updated" the work, but decided to leave Groden's name on the cover (same advertisement as now before the Court)? It so happens that defendants themselves acknowledge that the paperback printing of High Treason upon which they purport to rely is not the original edition of the book, and they introduced no evidence that the contents of both the original edition and that particular paperback printing are identical; that the paperback was not revised; or that Groden had anything to do with the paperback printing. In point of fact, the paperback edition is a revision of the original work.
Query 2: Under the district court's rationale, how much "longtail insurance" must a contributor to a literary anthology whose name is on the cover of the book purchase for himself, and for how long a term, to protect himself against all conceivable media torts committed by his co-contributors?Legal scholarship, however, was of no avail to Mr. Groden at any point in his litigation before the federal courts. They were set in their devaluation of his particular calling, and unwilling to be constrained by mundane considerations of evidence, reason, or precedent. By fiat, the federal courts effectively declared a blatant and unresolved conflict in the record not material, and Groden unworthy of credence. Neither the defendants nor the courts were ever able to offer any authority -- any case precedent or learned treatise -- for the notion that one contributor to a collective work named as co-author of a book might be named and treated as its sole author and sponsor of its entire contents.
There was nothing "fanciful" about the issue Groden raised. His lawyer did not dream up irreconcilably conflicting copyright notices in the record that could not be resolved absent discovery and competent evidence. He did not imagine these things. Instead, they were hidden by a smokescreen of judicial dissembling -- shrouded in words that were intended to withhold information from their audience, and to deceive.
However, so long as he was able to conceal its actuality from his audience, it is not difficult to understand why, in Newman's view, the conflict in the record "need not be resolved in order to determine that the quote was properly attributed to Groden." At every point in the litigation where issues of fact existed, the federal courts treated those issues as matters of law susceptible to resolution by blithe judicial decree. For the self-styled elite of the American legal establishment, it was imperative that Groden not be seen as having raised any triable issue that might provide him with a platform before a jury. And we will see other ways in which this imperative was implemented during the weeks and months ahead.
