EXHIBIT D-5

Some Excerpts That Tell A Story



Excerpt from a letter to Mr. Morgan dated 8/9/82

Dear Ray:

I received today the enclosed letter [to a Dr. Holcomb] that undoubtedly was inserted by error into an envelope addressed to me. Possibly, Holcomb received my letter?

Excerpt from a letter to Mr. Morgan dated 8/14/82

Dear Ray:

I received your letter of the 6th today. It was forwarded from the Peterson Chiropractic Clinic of Pueblo, Colorado.

Excerpt from a letter to Dr. Brassard dated 4/30/86

I received the impression on the telephone that you considered me a staff employee, which I am not. It is true that you sign some of the checks I receive, but it is also true that these checks are underwritten from the profits of previous books, booklets, folders, forms, etc that I created for the ACA.

Excerpts from a letter to Dr. Harris dated 9/10/87

One time when I was employed at ACA as director of Public Affairs and Lou Gearhart was on vacation, I received a letter from a novelty manufacturer who wanted permission to place the ACA logo (the old one) on a door mat and sell it to members. I replied (and copied Lou) that I didn't think it was in good taste for people to wipe their feet on the chiropractic emblem. When Lou returned, I received a verbal thrashing for my opinion, which was soon followed by a similar chastisement from Harry N. Rosenfield, Esq. I just cannot follow the motivation behind such thinking.

The ACA [staff] reviewer wishes to delete the four-sentence paragraph beneath the subhead. He calls them "opinionated and could be interpreted as the advocacy of unscientific practice." The first three sentences are the words of the distinguished chiropractic scholar, Joseph Janse (in Principles and Practice of Chiropractic, Lombard, IL, NCC, 1976). See Attachment M.

Excerpts from a letter to Dr. Sportelli dated 3/1/88

Well, here it is March and I haven't received that letter from headquarters that you mentioned I would in January. Typical.

I'm told that I can't write about chiropractic technics taught in accredited chiropractic colleges in an ACA publication (because the ACA does not endorse any technic) and then the ACA Journal, no less, advertises a book called "Spinal Manipulation" written by two MDs.

The picture is there for those who have the eyes to see it.

I wonder if the MD technics have passed a double-blind study and if their book is "scholarly." Certainly they wouldn't be based on just empiric evidence ...like aspirin was for a few hundred years? Ever hear of a dental, obstetrical, or an invasive surgical technic that was put to research protocols, let alone a noninvasive surgical procedure (which the medical dictionaries call manual manipulation or chirurgery)? Such hypocritical tyranny by ACA appears to be no less than professional apostasy.

Excerpts from a letter to Dr. Maurer dated 3/16/92

About 15 years ago, I suggested that a small percentage of book profits be set aside to finance future books. If you look over the track record of book sales, it's apparent that book projects are self-supporting. There should be no need to tax general funds.

A little over a year ago, I asked Dave Redding, then chairman of the Board, how the current governors felt about the books I had developed. He said that they were very pleased and would desire even more than one new book a year if possible. This encouragement was typical of the feedback received from chairmen and members of the Board since 1973.

Because of this encouragement, I made a large investment in 1992 to an already sophisticated operation in computer hardware and software so that I could provided manuscripts on generic disks. This reduces ACA manufacturing costs, yet my fees were not increased.

Excerpt from a memo to Mr. Hennekes, staff employee, dated 7/26/92

I received your letter announcing the new edition of ACA's Basic Chiropractic Procedural Manual has been sent for bids. I have been wondering about its status. The manuscript was sent to headquarters last January.

[Note: It is now mid-1993, and the book still has not been published as of this writing.

EXHIBIT D-7

EXHIBIT D-8

Recent Incompetence. This ineptitude continues throughout administrative duties as demonstrated again as recent as last week in a telephone conversation received from Mr. Morgan in the afternoon of July 9, 1993:

     1. Mr. Morgan called to see how I could justify why costs were higher to revise the 4th edition of the ACA Basic Chiropractic Procedural Manual than they were to revise the 3rd edition. The answer was beyond his comprehension, and he wanted an explanation from me. This was because he failed to do his homework before asking an asinine question whose answer would be obvious to a child. Following is the publication history of this successful book. It is updated in each edition and printed on page ii of the manual:

EXHIBIT E-5

Following downloaded from the Legal Forum, CompuServe Database:

BBS opinion # 92A0137P.03

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 91-1972

___________

ED MARCO,

d/b/a/ Ed Marco Photography

vs.

ACCENT PUBLISHING CO., INC.;

SONIA GILBERT;

LEIF KLEIN;

LAPIDARY JOURNAL, INC.;

ED MARCO;

GERRY J. ELMAN;

FREDERIC M. WILF;

ELMAN & WILF, P.C.,

Defendants on Counterclaim

Ed Marco, d/b/a Ed Marco Photographer

Appellant

__________

Appeal from the United States District Court
for the Eastern District of Pennsylvania

(D.C. Civil No. 91-02057)

___________

Argued

June 10, 1992

Before: MANSMANN, SCIRICA and ROTH, Circuit Judges.

(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
uite 1006
Philadelphia, PA 19102

 

     Counsel for Appellees

Charles D. Ossola, Esquire (Argued)

Hunton & Williams
2000 Pennsylvania Avenue, N.W.
Suite 9000
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 consideration.

I.

     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 (1985).

II.

     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. 1985).

     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 magazine's masthead.

     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 models.

     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 photographic work."

      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.

III.

     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).

A.

     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 733-36.

     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 business.

B.

     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 relationship).

     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 employment relationship.

     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 district court.

     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 work.

IV.

     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 its opinion.

     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 testimony.

     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.

V.

     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 injunction).

     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 plaintiff's operations.

     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.

VI.

     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.

VII.

     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.

EXHIBIT E-6

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 publisher.

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 bound copy.

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 fulfilled.

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) immediately.

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 go unnoticed.


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]

 

Concluding Remarks

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 without negotiation.

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.

EXHIBIT F

October 7, 1981

Dr. Gerald M. Brassard
ACA Executive Vice-President
1735 De Sales Street, NW
Washington, D.C. 20036

Dear Gerry:

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 print production.

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 one location. 

 

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.

Best regards,

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     4,602

6/77 2nd edition, 1st printing ...... 2,500    75,000   22,168     52,832

2/78 2nd edition, 2nd printing ...... 2,500    75,000   16,261     58,739

9/80 3rd edition, 1st printing ...... 2,500    75,000   31,500     43,500

                                                           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   18,900   81,000

2^nd edition .....................................        5,000 200,000 $ 50,400  149,500

                                                 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 another]

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 member's concerns.

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 habitual.

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 session decide:

     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.

ADDENDUM

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.

 

EXHIBIT G-A

EXHIBIT G-B

November 20, 1981

Maureen K. Vardoulakis
WILLIAMS & WILKINS
428 East Preston Street
Baltimore, MD 21202

Dear Maureen:

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 text.

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 audience.

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 markets.

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.

Sincerely,

 

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 authors.

EXHIBIT G-C

04/23/93

Dr. Edward L. Maurer
2330 Gull Road
Kalamazoo, Michigan 49001

Dear Ed:

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 criticism.

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.

(2)

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 my intention.

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 their personal preferences. That does not make another style right or wrong.

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 course, such

(3)

"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?

Sincerely,

Dick

R. C. Schafer, DC, FICC



Note: No answer received.