Following downloaded from the Legal Forum,
BBS opinion # 92A0137P.03
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
d/b/a/ Ed Marco Photography
ACCENT PUBLISHING CO., INC.;
LAPIDARY JOURNAL, INC.;
GERRY J. ELMAN;
FREDERIC M. WILF;
ELMAN & WILF, P.C.,
Defendants on Counterclaim
Ed Marco, d/b/a Ed Marco Photographer
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 91-02057)
June 10, 1992
Before: MANSMANN, SCIRICA and ROTH, Circuit
(Filed July 23, 1992)
Frederic M. Wilf, Esquire (Argued)
Gerry J. Elman, Esquire
Elman & Wilf
20 West Third Street
P.O. Box 703
Media, PA 19063
Counsel for Appellant
David M. Ginsberg, Esquire (Argued)
Sidney Ginsberg P.C.
1420 Walnut Street
Philadelphia, PA 19102
Counsel for Appellees
Charles D. Ossola, Esquire (Argued)
Hunton & Williams
2000 Pennsylvania Avenue, N.W.
Washington, DC 20006
Counsel for Amicus Curiae
OPINION OF THE COURT
MANSMANN, Circuit Judge.
We focus here on the application
of agency law in the context of the "work for hire" provision of
the Copyright Act of 1976. 17 U.S.C. _ 101(1). We find that the
district court misapplied agency principles to the facts in
holding that a freelance photographer was the employee of a
publisher. Because the district court premised the denial of a
preliminary injunction on this erroneous conclusion of law, we
will vacate the district court's judgment and remand for further
The district court has exclusive
subject matter jurisdiction of this action arising under the
Copyright Act. 28 U.S.C. _ 1338(a). We have appellate
jurisdiction to review the district court's refusal to grant a
preliminary injunction. 28 U.S.C. _ 1292(a)(1).
We review the denial of
injunctive relief for abuse of discretion, which occurs if the
district court's decision rests on a clearly erroneous finding of
fact, an error of law, or a misapplication of law to the facts.
See Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d
1240, 1242 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984).
In determining whether an underlying error exists, we exercise
plenary review of the district court's application of the law of
agency to the facts. See, e.g., Levendos v. Stern Entertainment,
Inc., 909 F.2d 747, 748 (3d Cir. 1990); United States v. Adams,
759 F.2d 1099, 1106 (3d Cir.), cert. denied, 474 U.S. 971
Most of the salient facts are
not in dispute. In recounting them, we adopt the findings of the
district court so long as they are not clearly erroneous. See,
e.g., Mellon Bank PSFS, N.A. v. Farino, 960 F.2d 1217, 1220 (3d
Cir. 1992); Leeper v. United States, 756 F.2d 300, 308 (3d Cir.
In 1990, the appellant, Ed
Marco, photographed jewelry for Accent Magazine, a monthly trade
journal for the costume jewelry industry. Accent Publishing Co.,
Inc. had engaged Marco on the basis of his portfolio, without a
written contract and without negotiation concerning copyright or
licensing. Accent supplied the jewelry and the props, sketched
the shots, and retained the right to have Marco reshoot
unsatisfactory photographs. Accent did not name Marco on the
Marco, who has ten years'
experience and who earned a Bachelor of Fine Arts degree in
photography at the Philadelphia College of Art, made images for
about six consecutive issues of the magazine and then for one or
two later issues. He thus worked during every month except one
over the course of his business with Accent.
Marco shot the pictures in his
own studio on his own time, subject to Accent's deadlines. For
the most part, he worked on still-lifes, without anyone from
Accent present. On a few occasions, however, Accent provided live
models; Accent's Art Director, Kevin Myers, would pose the
The exact scope of Myers'
control at the live sessions remains in dispute. Marco challenges
as clearly erroneous the district court's finding that Myers
"directed, supervised, and provided artistic contribution to the
Testimony supports this
finding. Myers generally concerned himself with the way models
and jewelry looked in the photographs. See, e.g., Myers test., R.
at 545, 575. Myers also would instruct Marco, in very general
terms, to use more light. See id. Myers candidly admitted,
however, that he did not become involved in the technical aspects
of the photographs. For example, Myers described matters such as
color balance and light meter readings to be beyond his ken and
to be within the purview of a professional photographer. Myers
test., R. at 561.
Marco did not receive an hourly
wage or periodic salary. The district court's finding, that
"Marco was paid at the rate of approximately $150 per photograph
used in advertisements, and $450 per month for all photographs
used in connection with articles," must be read as shorthand for
the facts that Marco received about $450 per issue, that issues
appeared monthly, and that Marco invoiced about one job each
month. Insofar as the finding implies that Marco received a
salary of $450 per month, the finding is clearly erroneous.
Accent thus paid Marco by the
job. Accent also reimbursed Marco's film and processing expenses.
Accent did not withhold taxes or pay employee benefits.
Marco claims to have authored
the photographs and therefore to own the copyrights to the
images. He moved for a preliminary injunction to prevent their
unlicensed republication. After a hearing, the district court
considered Marco's likelihood of success on the merits, and,
reasoning that the photographs were works for hire, determined
that Marco could not prevail on the merits of a copyright claim.
Given its determination that Marco had little chance of success
on the merits, the district court found Marco's evidence of
irreparable injury to be insufficient, and the district court
denied the preliminary injunction.
The photographs in dispute would
be classified as "made for hire" if they were "prepared by an
employee within the scope of his or her employment . . . ." 17
U.S.C.A. _ 101(1) (definition). The district court thus premised
its judgment on the conclusion that Marco was Accent's employee,
as determined by reference to principles of the general common
law of agency. Community for Creative Non-Violence v. Reid, 490
U.S. 730, 750-51 (1989) ("CCNV"); see also Restatement (Second)
of Agency _ 220 (1957) (definition of master-servant
relation)(cited in CCNV).
In Community for Creative
Non-Violence v. Reid ("CCNV"), a charity hired Reid to sculpt a
homeless family huddled on a steam grate. The charity dictated
the work's title and a tight deadline for completion. The parties
agreed to a total cost of $15,000, which covered assistants and
materials. The charity supplied the grate and a steam effect,
visited Reid to check on progress, and insisted on the use of
particular props. After completion, a dispute arose. The charity
claimed that the sculpture was a work for hire. 490 U.S. at
The Supreme Court held that the
sculpture was not a work for hire because Reid was not the
charity's employee. 490 U.S. at 751-52. The Court instructed that
the term employee in the work for hire provision carries its
common law agency meaning. Reid, said the Court, was not the
charity's employee under common law agency principles.
Under this test, which
incorporates the Restatement definition of employee, the CCNV
opinion instructs courts to determine whether an employment
relationship exists by considering the hiring party's right to
control the manner and means by which the product is
accomplished, along with the following factors, among others:
actual control over the details of the work, the hired party's
occupation, local custom, the skill required, source of tools,
work location, length of employment, the right to assign more
work, the hired party's discretion over work hours, payment
method, the regular business of the hiring party, the parties'
understanding, the hiring party's role in hiring assistants, tax
treatment, employee benefits, and whether the hiring party is in
Application of the CCNV and
the Restatement factors demonstrates that the district court
erred in concluding that Marco was Accent's employee. Under the
common law of agency, Marco was an independent contractor.
In its application of
agency law to the facts, the district court recognized only two
factors that indicated independent contractor status: Marco used
his own equipment and paid his own taxes. The district court did
not discuss four more factors that indicate independent
contractor status: Marco supplied his own studio, did not receive
employee benefits, works in a distinct occupation, and was paid
by the job. We need not further develop these six factors, which
all indicate that Marco was an independent contractor.
In addition, the district court
did not properly recognize that Marco had discretion over his
work hours; he could work on any day, at any hour, and for any
stretch of time he chose. The district court did consider
Accent's imposition of deadlines in this context, but deadlines
do not alter an independent contractor's discretion over work
hours. We note that in CCNV, the charity had imposed a strict
deadline for completion, 490 U.S. at 733, yet the Court did not
weigh that deadline against a determination of independent
contractor status. Id. at 752-53 (only the charity's control over
the sculpture's specifications indicated an employment
Nor did the district court
recognize that Accent's absence of a right to assign more work
indicates Marco's independent contractor status. Although the
district court considered Accent's right to require Marco to
reshoot unsatisfactory images, this right was merely a right to
final approval, which differs from the right to assign more work.
The record does not suggest that Accent could assign any more
than one issue's worth of photographs to Marco during any
particular period. Accent could not, for example, require Marco
to photograph its employee of the month.
Another factor, the skill
required of a magazine photographer, indicates Marco's
independent contractor status, although the district court held
otherwise. The district court wrote: "Marco was not a skilled
worker. The position of staff photographer did not have an
educational requirement or [require] more than a minimal
knowledge of photography." Marco, No. 91-2057 at 15. In this age
of Polaroids and Handicams, the photography profession might not
demand the expertise once required to create an image.
Nonetheless, something beyond owning a camera is necessary to
make photographs suitable for a trade journal. Accent, after all,
did not hire Marco off the street; Accent hired him after seeing
his portfolio. Accent's own Art Director testified that "[Marco
is] the person that makes the shot work technically. . . . That's
why I hire a photographer, I'm not a professional photographer,
I'm an art director." R. at 561.
Photographers, moreover, fall
along a spectrum in their skills. Near one end fall the likes of
Ansel Adams, recording the American landscape with an 8x10 view
camera. Near the other falls an untrained clerk, snapping mug
shots with an instamatic. Marco, with a degree in photography and
ten years experience, falls somewhere in between. As a factual
matter, Marco may not be skilled in the sense that Ansel Adams
was skilled. From a legal perspective, however, Marco is
certainly skilled in the sense that Reid, the sculptor in the
CCNV case, was skilled.
As regards another factor, the
length of the relationship, Marco produced photographs for Accent
for six months, but without a regular schedule or regular hours.
Although the district court considered that the continuing nature
of the relationship indicated employee status, the duration of a
relationship indicates an employment relationship when the work
is scheduled and periodic, or full-time. See Restatement _ 220
cmt. h (factors indicating employment relationship include
"employment over a considerable period of time with regular
hours" (emphasis added)); compare CCNV, 490 U.S. at 734 (Reid
worked on charity's sculpture exclusively). Thus, the duration of
this relationship provides only weak evidence, if any, of an
Indeed, of all the factors that
the district court considered, only three would weigh in favor of
a determination that an employment relationship existed. First,
Accent is in business, which increases the possibility that it
would employ people. Second, Accent regularly publishes
photographs of its own conception. As between Accent and a
charity that does not regularly produce sculptures, it is more
plausible that Accent would engage an artist as an employee, but
Accent might easily accomplish its regular business by using
independent contractors rather than employees.
Third, Accent exercised control
over the details of the work. Specifically, Accent supplied
jewelry, props, models, sketches intended to describe the exact
composition of the photographs, and, at some sessions, an Art
Director. This factor is not dispositive. CCNV, 490 U.S. at 752.
Indeed, courts should keep this factor in perspective, since it
resembles the "control of the product" test rejected by the
Supreme Court in CCNV. See 490 U.S. at 737-51.
Moreover, Accent controlled only
the subject matter and composition of the images. Accent did not
control most aspects of the work, which include the choice of
light sources, filters, lenses, camera, film, perspective,
aperture setting, shutter speed, and processing techniques. It
should be recalled that Art Director Myers attended only the live
sessions and that his direction there was limited to composing
the subjects and to commenting on the "feel" of the work. In his
own words, "I am directing [Marco] on the composition of a
photograph, I am directing him on the mood of the lighting, the
emotion within a given scenario." R. at 561. This testimony
illuminates the district court's finding that Myers "supervised"
some of the sessions; even that supervision was limited to
subject matter, composition, and "mood."
Accent's control of the product
was thus no greater than the control exercised by the charity in
CCNV, who articulated the subject and composition, who supplied
models, who occasionally supervised the work, who constructed
part of the sculpture, and who was still not an employer.
Although the district court was correct to consider this factor,
it appears to have given it disproportionate consideration. The
only significant difference between this case and CCNV is that
here the hiring party is in the business of regularly publishing
photographs in connection with advertisements and articles. That
distinction does not give rise to an employment relationship.
We note that the remaining three
factors are indeterminate in this case. First, the record before
the district court was barren of evidence of custom, so we will
not address that factor. Second, the district court did not make
any findings as to the parties' beliefs regarding the assumption
of control by Accent and submission to control by Marco. See
Restatement _ 220 cmt. m (only parties' beliefs about assumption
of control are dispositive). It appears, however, that the
parties here did not hold a common belief. Third, there were no
photography assistants, only models and stylists. Accent paid the
models; Marco, the stylists. Even if Accent had paid both, Accent
did no more than supply the models as subjects for the
photographs. Supplying a subject represents some facet of control
of the product, a factor already counted in favor of a
determination that an employment relationship existed. Mis
characterizing a human subject as an "assistant," however,
resulted in an improper double-counting of factors by the
In summary, a magazine
publisher's regular practice of commissioning photographs of its
own conception does not create an employment relationship with an
experienced photographer who uses his own equipment; who works at
his own studio, on days and times of his choosing, without
photography assistants hired by the publisher; and who receives
payment without income tax withheld, without employee benefits,
for discrete assignments rather than for hourly or periodic
With respect to evidence of
custom, Marco asserts that the district court abused its
discretion in excluding the deposition testimony of an expert.
When the expert was unable to testify on a particular date, the
district court allowed Marco to proffer a transcript of the
deposition. The district court, however, did not allow the expert
to testify later and did not consider the deposition testimony in
We note that, because the
district court allowed Marco to proffer the deposition
transcript, the transcript is part of the record for the limited
purpose of reviewing the district court's exclusion of the expert
We further note that the
district court was within its discretion to exclude the testimony
of Marco's expert. A trial court has broad discretion over
whether to admit or exclude expert testimony. Aloe Coal Co. v.
Clark Equip. Co., 816 F.2d 110, 114 (3d Cir.), cert. denied, 484
U.S. 853 (1987). We observe in this regard that there are
substantial questions as to this expert's qualifications, and
that his testimony on custom appears to have been equivocal.
Because the district court
held that Marco did not own the copyrights, the district court
did not apply the rule that "[a] copyright plaintiff who makes
out a prima facie case of infringement is entitled to a
preliminary injunction without a detailed showing of irreparable
harm." Apple Computer, 714 F.2d at 1254; see also Marxe v.
Jackson, 833 F.2d 1121, 1128 n.4 (3d Cir. 1987); Educational
Testing Svcs. v. Katzman, 793 F.2d 533, 543-44 (3d Cir. 1986);
cf. S&R Corp. v. Jiffy Lube Int'l, Inc., Nos. 91-5614 &
91-5887, slip op. at 15 (3d Cir. June 23, 1992) (trademark
Instead, the district court
applied the approach taken in Kontes Glass Co. v. Lab Glass,
Inc., 373 F.2d 319 (3d Cir. 1967), which we have interpreted to
apply when material peripheral to the plaintiff's business has
been infringed, see Apple Computer at 1254, and which we have
interpreted to require a stronger showing of irreparable harm as
the plaintiff's likelihood of success on the merits wanes, see
id. Damages were speculative in Kontes because the plaintiff's
loss of business would result only indirectly from a competitor's
use of a catalogue similar to the plaintiff's, and because the
amount of that loss would be difficult to prove. In Apple
Computer, however, the infringed programs were central to the
The photographs here are central
to Marco's business. His income as a photographer derives
directly from the licensing and display of the images. If Marco
is the exclusive owner of the copyrights, then with each
unlicensed republication of Marco's images, Marco loses both a
licensing fee and the opportunity to negotiate that fee. Thus, if
Marco has made a prima facie showing of copyright infringement,
he will be entitled on remand to a rebuttable presumption of
irreparable injury. Apple Computer, 714 F.2d at 1254; Educational
Testing Svcs., 793 F.2d at 543-44.
As did the defendant in Apple
Computer, Accent raised defenses before the district court other
than the one we have addressed on appeal; specifically, Accent
raised the defense of joint authorship, see CCNV, 490 U.S. at
753, and the defense that Marco or his agent licensed reuse of
the images, see Nimmer on Copyright, _ 10.08. In assessing
Marco's likelihood of success on the merits, however, the
district court did not go beyond Accent's work for hire defense
to consider the issues of joint authorship and licensed use.
Because it is appropriate that the district court consider these
issues in the first instance and their relevance, if any, to a
preliminary injunction, Apple Computer, 714 F.2d at 1255, we will
remand for the district court's reconsideration of Marco's
preliminary injunction motion.
For the foregoing reasons, we
will vacate the district court's judgment denying Marco's motion
for a preliminary injunction, and we will remand for
reconsideration of the motion in light of this opinion and in
light of any relevant issues timely raised by the appellees.
January 19, 1988
Mr. Thomas R. Daly
American Chiropractic Association
1701 Clarendon Boulevard
Arlington, Virginia 22209
Dear Mr. Daly:
I received today your letter of the 15th, which you state is
in response to my letter of 12/19/87 to Dr. Harris.
You state that:
"The issues are simple. You are writing a book for us and we,
in good faith, have made some pointed comments and
recommendations which is our right.
"First, I do not write books for you or the ACA staff. I
develop books that are designed for the chiropractic profession.
During the past several years, I have offered the ACA Board of
Governors first option as publisher, not ACA staff as censor. The
ACA takes ownership of the copyright upon formal publication, at
which time my ownership of the manuscript as author is
transferred to the sponsoring publisher for that edition. This is
normal copyright procedure and in accordance with the provisions
of section 410(a) of title 17, United States Code, regarding
copyright registration and the transfer of author's rights to a
You are in error when you infer that I am a hired employee of
the ACA. I do not author books for you or for the approval of the
ACA staff. In the jargon of the Copyright Office, I do not
develop manuscripts as "a work made for hire." Thus, it is not
your right to make "pointed comments" about the manuscript. As
mentioned previously, I develop manuscripts believed to be of
interest to the chiropractic profession. I offer the ACA Board of
Governors an option to serve as publisher. If they feel the
proposed book has merit and choose to publish it and enjoy the
proceeds from its sale, they authorize grant funds for its
development. If the ACA Board of Governors is not interested in a
particular title, I have the right of submitting it to another
publisher for consideration. A recent case in point was
Chiropractic Management of Sports and Recreational
Injuries,* which the ACA Board was not interested. The
proposal was then submitted to some medical book publishers of
which Williams & Wilkins submitted the highest bid and has
reaped to date over $ 457,000.00 in sales. Williams & Wilkins
had no ownership rights regarding this edition until my author's
rights were transferred upon distribution of the first printed
You do not have the right but I do grant you the privilege to
make recommendations, and I have the right to agree or disagree
with them. If they are reasonable, I will agree. If not, I won't.
"The issues are simple," as you state.
Thomas R. Daly (2) 1/19/88
I desire my books to contain factually correct information. To
assure this, I usually appoint an editorial board of review
composed of various authorities in the field to approve that what
is communicated is factual. The development of such a board of
review is my custom, as an author, not my obligation. It is a
board selected by me, not by ACA staff, of whom I expect will
offer polite, objective input. With the sole exception of
comments by the ACA staff, my expectations have been completely
You, Mr. Daly, were not appointed to the book's Editorial
Board, nor was [another staff employee]. Nevertheless, if either
of you can point out one or more errors of fact in the
manuscript, I would appreciate it and will correct the error(s)
As I have repeatedly mentioned in previous correspondence, I
welcome the correction of errors of fact. What I do not welcome
are your "pointed comments" and attempts at outright censorship
of whole sections of manuscript without cause. It is beyond me
why you and [an ex-employee] think you can dictate to me how I
should write a book, what I should include, what I shouldn't
include, what I should reference, what I should not reference,
what I should or should not include within illustrations, what
photographs I should or should not use, or what the profession
can or cannot read. I thought the Allies won World War II?
No DC has seen a single mention of a book I have developed via
a grant from the ACA Board of Governors in an advertisement in
the ACA Journal of Chiropractic in over 8 years. The Board has
approved grants for several books, investing many thousands of
dollars, but ACA staff refuses to promote them. However, this
month's issue (January 1988) contains a full-page advertisement
(p 20) of a book titled "Spinal Manipulation" authored by two
medics. At least one of these authors is well known to be a
devoted enemy of chiropractic.
If you think that things like this are going unnoticed and why
some currently on staff are directing such a policy against the
wishes and welfare of the ACA membership and the profession at
large, you are in error
R. C. Schafer, DC
cc: Lists I--III.
Note: If the Board had not
rejected my 1981 proposal, the ACA would be $400,000 dollars
richer today (1993) if they had applied the same marketing
efforts as that of Williams and Wilkins, and these proceeds would
have remained within the profession.
The last paragraph in the above letter proved to be in error.
AMA influence in hindering book development by R. C. Schafer did
In 1981, I read where the ACA was planning to move its
headquarters to the Washington area and wrote Dr. Brassard of my
fear that important materials may be lost in transit. See
Exhibit F. This letter was never answered. However,
during a subsequent conference call with Mr. Morgan and Dr.
Brassard, I asked again that my files be sent to me so they would
not be misplaced during the move. Mr. Morgan quickly replied,
"Oh, No! We must have CONTROL!" --so I did not
argue the point. On hindsight, I should have.
About a year ago, when I was developing the second edition of
the "Paraprofessional Manual," I asked Mr. Morgan to forward my
glossy photographs from the files. Several weeks passed, and as
typical, with no response. A follow-up call revealed that these
files could not be found. "Sorry, Dick, just can't find them," I
was casually informed. Need I mention that one of these releases
was from the American Medical Association. Think about that for a
minute. An informed membership would shutter of the potential
consequences of Mr. Morgan's and Esquire Daly's improvident
attitude. Because of incompetence, there is now no way to prove I
had AMA permission to reproduce their legally protected material.
Through Mr. Morgan's bungling management, we now have no defense
against a suit. [The AMA wins another]
As shown in Exhibit B and others, the evidence clearly
demonstrates that the development and sales of books for the
field can be a highly profitable enterprise for the ACA if
administered conscientiously. It can be (and should be) a
self-supporting effort requiring absolutely no
capitalization from dues. There is no logical reason why the
Board should discontinue a highly successful book development
program as they did last month on Dr. Maurer's recommendation.
In each of my formal proposals to the ACA, I have been
completely forthright about terms. Each states that a proposal is
submitted offering the ACA on publication complete publishing,
sales, and distribution rights to a specific edition
of a specific title. Absolutely no editorial or censorship rights
have been or will be transferred to ACA salaried employees
Naturally, I appreciate errors of fact called to my attention
so that they may be corrected. However, in some instances,
headquarters staff or an appointed representative has, without my
knowledge but with the encouragement of Mr. Morgan and Esquire
Daly, underhandedly altered my copy so the result is either in
error or draws a conclusion of which I strongly disagree. Refer
to Exhibits D-2 and D-3.
These incorrect or false inclusions or changes remain
anonymous, yet my name is left as the author of the entire
text --a gross misrepresentation effecting personal harm. I have
not decided whether this violation of terms and adulteration of
my manuscript for The Chiropractic Assistant should be
resolved through litigation. Much depends on whether current
efforts to block my production for the ACA (prepaid by previous
books) can be auspiciously resolved.
October 7, 1981
Dr. Gerald M. Brassard
ACA Executive Vice-President
1735 De Sales Street, NW
Washington, D.C. 20036
I recently read where the Des Moines office is being phased
out and that operations will be concentrated at the Executive
Offices. With this in mind, I would like to offer a suggestion
that may avoid possible future difficulties in regard to ACA's
major texts: the ACA "Basic Chiropractic Procedural Manual" and
the ACA "Basic Chiropractic Paraprofessional Manual."
The research and reference material used in the development of
these texts is located at the Des Moines office in various
locations. Some material was located within the Public Affairs
Office, some was placed in storage, and artwork and photographs
were filed in the Art Department. I was well acquainted with the
locations of the material and could direct personnel to the
location of necessary materials when needed for revised editions.
However, I have a "gut feeling" that these unreplaceable
materials may become "lost" during relocation.
The 3rd edition of the procedural manual was released last
year, thus a revised up-dated edition will not necessary for 2--3
years. However, it is vital that its references be safeguarded,
else replacement manhours and materials would be in the range of
$15,000--$20,000. This is also true of the CA manual. Several
boxes and files of material are involved. The paraprofessional
manual is in dire need of revision now. In fact, I felt that it
should have been updated prior to its second printing (1980). The
text has found wide acceptance and is being used as a required
text at community colleges that have a CA curriculum. However, it
was first developed in 1977 and has not been updated since.
There have been many changes in the profession in regard to
office systems during the past 4 years. In 1977, professional
advertising was considered unethical. About 20 descriptions and
illustrations of sample ACA materials have since been replaced or
eliminated. Thus, to maintain the manual as a credible reference,
I suggest revision be made in ample time before its inventory is
exhausted --allow about 6 months for R&D and 3 months for
I'm speaking before the Washington Chiropractic Assistants
Association on the 17th in Yakima. The ACA's manual is a required
text at Spokane Falls Community College's chiropractic assistant
training program --and the subject of upgrading in light of new
developments has been mentioned as a concern. As these texts have
been a substantial profit resource and image builder for the ACA,
I feel it would be prudent to gather the background materials for
these texts and locate them at my editorial offices so that they
will be accessible for future editions and be combined with my
files of new methods, procedures, and policies. I think you will
agree that project-resource materials are best consolidated at
ACA (2) 10/7/81
Please discuss the situation with the Executive Committee and
give me a call as to direction. Resolution may require a trip to
Des Moines to consolidate the material before it is lost or
discarded by someone unaware of its importance.
R. C. Schafer, D.C.
P.S. For reference, below is the profit history of the two
texts discussed: ate Edition/Printing Run Quantity Sales Costs
Profit ACA Chiropractic Procedural Manual
5/74 1st edition, 1st printing ....... 5,000 $ 68,750 $12,367 $ 56,383
10/75 1st edition, 2nd printing .... 500 6,875 2,273
6/77 2nd edition, 1st printing ...... 2,500 75,000 22,168
2/78 2nd edition, 2nd printing ...... 2,500 75,000 16,261
9/80 3rd edition, 1st printing ...... 2,500 75,000 31,500
13,000 $300,625 $84,569 $ 216,056
ACA Chiro. Paraprofessional Manual
11/78 1st edition, 1st printing .. 2,500
100,000 31,500 68,500
6/80 1st edition, 2nd printing .... 2,500 100,000
2nd edition .....................................
5,000 200,000 $ 50,400
Total ..... 18,000 500,625 $134,969 $365,556
This letter was never
answered. Several years later, Mr. Morgan admitted he "lost" the
material. However, no mention of his responsibility or
retribution for my financial loss was offered. [The AMA wins
While speaking with Dr.
Redding in December 1991, then the proficient chairman of the
Board of Governors, I asked him why the Board had not taken
action, one way or another, on the proposals I had submitted the
previous June. After locating the minutes of that meeting, he
informed me that the Board had accepted two of the three
proposals. I asked, "If this occurred in June, why hasn't Morgan
informed me in 6 months? "I do not know," he replied, "but I have
had things like this happen before. I'll look into it." I'm sure
that Dr. Redding will remember this conversation, for he was
quite perturbed at the time. Regardless, Mr. Morgan refused to
communicate the Board's action. (The AMA wins again]
Experiences Are Not Unique. Several times in
recent years, I have had telephone conversations with Dr. Paul
Jaskoviak of Parker College of Chiropractic in which he asked,
"Dick, why doesn't Morgan answer his mail? I've had many letters
go unanswered and he also refuses to return my phone calls. What
can I do?" "I don't know, Paul," I replied, "you are not alone in
coping with his insipidness." Again, I'm sure that Dr. Jaskoviak
will remember these conversations, for he was extremely angry at
the times because of Mr. Morgan's indifference to a respected
Dr. Jaskoviak informed me that he has personally sold about
5,000 copies of Applied Physiotherapy, 1st edition, making
it ACA's best seller (despite antagonistic efforts by Mr. Morgan
and Esquire Daly to hinder publication). Yet, Mr. Morgan, rather
than being helpful or respectful of the contributions of a doctor
of chiropractic, will not give Dr. Jaskoviak the courtesy of
answering his letters or returning his telephone calls.
Delay After Delay. It should also be noted that
I forwarded the manuscript of Applied Physiotherapy, 2nd
edition, to Mr. Morgan on March 22. I have yet to receive from
Mr. Morgan acknowledgment of receipt. Shameful behavior is
Toward the best interests of the membership of the American
Chiropractic Association directly and the profession at large
indirectly, I suggest that the House of Delegates in closed
1. Why R. Jay Morgan should be
retained as executive vice-president of the American Chiropractic
Association. He is uneducated in chiropractic and has shown, as
evidenced by the exhibits attached, that he has diminutive
concern of how ACA administration affects the membership and
profession, of how money provided by your hard-earned dues is
misappropriated, of how important book-related materials are
safeguarded, of how legal forms are properly registered, of how
Board-chairman directives are fulfilled, and of how or if ever
Board-approved books are marketed.
2. Why Thomas Daly should be
retained as ACA staff counsel. Rather than providing astute legal
counsel, this over-paid attorney has assumed an authoritarian
role that demands membership obedience in following his
definition of chiropractic --a definition you never had a voice
in developing. He also states that, with his advice, the ACA
does not approve a single chiropractic technique or device
regardless if taught and used in accredited chiropractic colleges
or not. His legal decisions are consistently overturned by
outside expertise at added cost. Yet, he will grasp his
enormous paycheck with glee knowing that you who earn your
living by the application of clinical chiropractic pay his
salary. Is this the man you want to represent your interests in
court? After he delayed publication of the "Economics" and
"Neuroscience" manuals for years, outside legal opinion
completely disagreed in each case and the books were
finally released after severe damage in timing was done. Of
course, an apology was never received.
3. Why book development and its
marketing, proved to be a substantial income producer in the past
under the direction of Dr. Schafer, has been stymied by Mr.
Morgan's and Esquire Daly's subterfuge and the excuse that funds
are not available when book development has shown to be, without
question, a self-sustaining highly profitable operation requiring
not one cent of dues revenues.
In light of the substantial evidence provided herein, it is
recommended that Mr. Morgan and Esquire Daly be dismissed
immediately. The chairman of the Executive Board of Governors
should order the person in charge at headquarters during
convention to seal all files of Mr. Morgan and Esquire Daly to
prevent the destruction of implicating records.
4. Why, under the ACA
headquarter's leadership by Mr. Morgan and Esquire Daly, the ACA
is to apply multiple thousands of your dollars to support yet
another journal that is destined to failure. Even JMPT is
reported to be supported by only 10% of the field, and it has
been marketed for a decade or more. This new journal, as reported
in the ACAJ to be underwritten by your dues, is to
be under the control of two DC-MDs. Imagine that! Here we have
two DCs that were either so inadequately educated in chiropractic
or inefficient in its application that they chose to turn their
backs to the profession and opt for allopathic medicine.
Apparently, they have not found financial success in the medical
field either so they are now trying to fill their pockets by
setting themselves up as editorial experts in what YOU should
read and do in your practice. And membership dues proceeds are to
pay the bill. Shameful behavior.
It is recommended that all development of another journal by
the ACA be halted immediately until a comprehensive field survey
of need and marketing study can be conducted that would show
without question that such a project would be profitable in 3
years. It is incongruent to have headquarters asking for
donations to support this and that yet waste thousands and
thousands of dollars on unprofitable ventures.
Be aware that if the House [of Delegates] in closed session
wishes to take the immediate action necessary on the
recommendations made here --all which are
founded on irrefutable exhibits- that there will
likely be a few guilty members of the Board of Governors that
will try to protect questionable personal goals. Be alert that
they will try desperately to convince you that your actions
should be postponed for one excuse or another (eg, pending
retirement, etc). By so doing, I know you will have the wisdom to
see that this is just a signal of their involvement in continuing
this shame on our association and profession. There are
constitutional procedures for the House to recall governors who
are not serving the best interests of the membership.
Delegates, fellow chiropractors, the future of the ACA is in
your hands. So mote it be.
The following three
letters did not appear in the 1993 document sent to ACA
delegates. However, they are pertinent.
G-A - Letter to Multi-College Editorial Board of Basic
Principles of Chiropractic.
G-B - Letter to W&W which allowed Dr. Maurer's rejected
book proposal to be reconsidered on my recommendation.
G-C - Letter to Dr. Maurer 2 years later, now on the ACA Board
of Governors, in response to his letter in which he stated he
knew more about developing chiropractic texts than I. Dr. Maurer
had now become a legend in his own mind and helped destroy my
career in developing profitable texts for the ACA.
Found to be a duplication of Exhibit E-3]
November 20, 1981
Maureen K. Vardoulakis
WILLIAMS & WILKINS
428 East Preston Street
Baltimore, MD 21202
I was not pleased to hear that Dr. Maurer's proposed book will
not be recommended for publication on the basis of the field
inquiries you have received. I would appreciate it personally if
you would reconsider this decision.
First, the three and only negative reports you received were
all from faculty of National Chiropractic College. Besides my
favorable reply, another was received by a field practitioner not
closely associated with a particular chiropractic college. NCC
has fine roentgenographic facilities, and undoubtedly, if a book
on chiropractic roentgenography is to be published, Dr.
Hildebrandt and his colleagues would prefer that it be developed
by someone close to NCC.
Following are some additional thoughts directed to your
request of the 11th.
I would first like to preface my following remarks with the
fact that Dr. Maurer's proposal comes from one with outstanding
credentials as you can tell by his vita. Thus, I shall try to
offer a viewpoint from that of a publisher of this particular
1. There is a need for such a text. Chiropractic students
(studying diagnostic radiology), members of the ACA Council on
Roentgenology, and those practitioners who have a specialized
interest in roentgenography will find the text most interesting.
2. None in chiropractic. However, the text, admittedly, is a
chiropractic-focused text similar in scope to a series of five
monographs called "Exercises in Diagnostic Radiology" published
by W. B. Saunders and authored by Squire, et al.
3. I am not a roentgenologist, thus not in a position to judge
his scientific accuracy. However, I can assure you that he is
held in high esteem by his knowledgeable colleagues. Yes, the
organization appears overly simplified to appeal to the student;
but I feel this would be a plus for the audience that can be
expected. It is also true, as you state, that the writing needs
heavy editing for grammar and punctuation in several of the pages
quickly reviewed, but this is not unusual for one as Dr. Maurer
who has developed his reputation in oral presentations. I agree
that the title, "Practical Applied ..." is redundant.
4. Dr. Maurer is well known among the members of the American
Chiropractic Association --the largest of the national
professional organizations-- and within the Departments of
Roentgenology of all chiropractic colleges.
MKV:W&W (2) 11/20/81
5. The answer to this point would depend on the quantity
necessary to show a profit. I would venture to estimate that
sales would be between 2000--2500 copies in 5 years, due to the
6. If I were a student or a member of the ACA Council on
Roentgenology, I would purchase this book if available. Thus, I
feel that students and DC roentgenologists are the primary
7. Yes, definitely.
In conclusion, please reappraise your current decision. I feel
that the primary market that can be established for this type
manual is at the chiropractic college level as a supplemental
text. If your market survey indicates initial interest at four or
five institutions, I would, as a publisher, produce a cautious
volume. Don't count heavily on NCC support.
Thank you, Maureen, for allowing me to review this proposal.
No honorarium is necessary. I would like to see W&W develop a
most successful program in chiropractic literature, and I realize
that title choices at this stage are most crucial. Once you have
several highly profitable chiropractic texts established, you may
then offer your usual honorarium for my input.
Towards another point, please pass along to Toni that all
colleges contacted have offered representatives to the editorial
board for my biomechanics text: This offers a total of 12
institutions now involved.
R. C. Schafer, D.C.
P.S. I'm happy to hear that the first book W&W published
by a DC, "Chiropractic Management of Sports and Recreation
Injuries," has quickly become a "Best Seller" for W&W. I hope
that this will encourage you to support other chiropractic
Dr. Edward L. Maurer
2330 Gull Road
Kalamazoo, Michigan 49001
Your letter of the 14th arrived today. I have no idea why it
took 8 days for transport.
There is no argument with anything you state in this letter.
The points made were either personal or relayed opinion, or new
rules for a game developed after the game has been played. It
appears that my work is being judged under criteria that are
either unknown to me or not previously agreed to by the parties
involved. No one has a defense against after-the-fact
The only book I ever developed for the ACA that was a "work
for hire" is the Basic Chiropractic Procedural Manual,
which I developed as an ACA salaried employee. The ACA has full
ownership of this book and all future editions. I retain full
author's rights on all other books I have developed that were
published by the ACA.
When my marketing research finds a title that is of interest
to the field, it is my usual procedure to give the ACA first
option to publish the proposed edition of a specific text.
The terms and my methodology of developing the proposed edition
are stated clearly in my proposals. You may wish to review them.
The ACA then has the opportunity of either accepting or rejecting
the specific proposal. To present criteria different to that
proposed after manuscript development is mute. I am author of the
manuscript, and the ACA may either accept or reject the
opportunity to publish the edition. The ACA is not the author of
the book. My manuscript is not a "work for hire." The ACA has
purchased first North American book publishing rights for a
specified edition of a specific manuscript.
It does not please me that you are disappointed with the
manuscript titled Posttraumatic Rehabilitation. However,
I'm sure you understand that the manuscript was not developed to
meet your approval. I write books that I would wish to buy;
someone else may have different desires. That's okay. Different
people have different preferences. I have never set out to
develop a scholarly work that one might call a "scientific
textbook," yet I am criticized for not doing so when it was never
The ACA has the right to submit each chapter for peer review,
but I would like to review the list of those considered my peers
in the development of an equal number of books for the field. The
ACA may also submit the manuscript for professional editing of
what is stated as my "distracting idioms." I run my manuscripts
through three different computer grammar and spelling checkers
before I submit them to a professor of English at the University
of Oklahoma. My mentor frequently reminds me that one must keep
in mind that grammarians are not always in agreement- each has
personal preferences. That does not make another style right or
If during the reviews proposed a misspelling is found or a
verb number is in error, I would be pleased to have a correction
made. However, as author of the manuscript, I retain my right as
author to approve or disapprove prior to publication any proposed
change made to the submitted manuscript. Nothing may be published
under my name without my prior knowledge and consent.
In regard to ACA marketing of my books, last year I called 14
DCs at random from the membership directory and asked them if
they could just name the topics of (not specific titles of) three
books out of the many published by the ACA. All failed. The most
anyone had any knowledge of was two: two they had bought, and the
doctors were happy with their purchase. Try this test yourself,
and you will soon realize that this mess is just headquarters'
stratagem of finding a means to disguise their lack of effort in
educating the field of what is available.
In your topic "Current Projects," you state that 60% of my
references are dated "pre-1980." You were dismayed. I was
surprised to see that as many as 40% were post-1980. As I
describe in my proposals, I begin each new book with core
references from my databank and library. I have found that about
85% of my search for "new" data is unfruitful (but must be done).
Yes, if somebody reports something in 1993 that another
investigator reported in 1973, I suppose I could update the
reference. But why? How would this aid the targeted reader and
his or her patients?
Would the Board prefer that I annotate Gray's Anatomy
when I describe the talus in ankle function, as does Dana
Lawrence? Yes, it's true, Gray's affirms that the talus is
a bone in the ankle. I'm not sure such annotation will be an aid
in treating the sprained ankle of Mary Anderson in Topeka. Of
"scholarly" references would add another 50 pages to a book-
and to boost the editorial and manufacturing costs $10-$12 per
book. Is this what the current Board desires?
Every criticism that has been directed against my books (Daly
is easy to recognize) can equally be aimed at Merk's Manual
- the most successful book ever published in the history of
health care. I'm honored by the comparison. I'll opt for clinical
substance over scholarly chimera anytime.
Regarding "Future Undertakings," I would never consider a
contract based on a straight royalty basis. This is typical
solely for some unestablished part-time authors. For the four
books I authored that were published by Williams & Wilkins, I
received without negotiation an advance against potential
royalties that was based on the same scale used in
proposals to the ACA. No established author would be so stupid as
to accept a straight royalty basis. He or she has no control over
the book's marketing success.
I assume from the comments in your letter of the 14th that the
ACA does not wish to act on its option to publish HANDBOOK OF
CLINICAL SIGNS AND REFLEXES, 1ST EDITION or SPINAL BIOMECHANICS
AND ERGONOMICS, 1ST EDITION. I have waited a year for this
decision: a length of time approaching discourtesy. May I now
feel free to submit these proposals to other interested parties
for bid on or near May 1, 1993?
R. C. Schafer, DC, FICC
Note: No answer received.
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