                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAR 11 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 MICHAEL FOUNDATION, INC., a
 foreign corporation,

             Plaintiff - Appellee,

   v.                                            No. 01-6347 and 01-6348
                                                (D. Ct. No. CIV-00-885-W)
 URANTIA FOUNDATION, an Illinois                        (W.D. Okla.)
 Charitable Trust,

             Defendant - Third-Party
             Plaintiff - Appellant,

   v.

 HARRY MCMULLAN, III,

              Third-Party Defendant -
              Appellee.


                          ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ALDISERT, ** and McWILLIAMS, Senior
Circuit Judges.




       This order and judgment is not binding precedent, except under the
        *

doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       The Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States
        **

Court of Appeals for the Third Circuit, sitting by designation.
      Declaratory judgment defendant, third-party and counterclaim plaintiff

Urantia Foundation appeals the district court’s denial of its renewed motion for

judgment as a matter of law and its alternative motion for a new trial. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.



                                  I. B ACKGROUND

      Urantia Foundation is a charitable trust formed under Illinois law. Michael

Foundation is a non-profit corporation organized under Oklahoma law. This

appeal arises out of the parties’ dispute as to the present validity of Urantia

Foundation’s copyright in The Urantia Book, a document comprising the

scriptural basis for the Urantia movement. The history of the composition of The

Urantia Book, or such of that history as is available, bears directly upon the

resolution of this case.

       In approximately 1900, an unknown patient (“the Conduit”) sought

psychiatric help from Dr. William Sadler. 1 The Conduit behaved strangely in his

sleep, and during sessions with the Conduit, Dr. Sadler became convinced that the


      1
         No one knows who the Conduit was, but the parties agree that he
composed the text of The Urantia Book. Throughout its briefs, Urantia
Foundation refers to him as “the subject”; Michael Foundation refers to him as
“Writer.” Given that the terms the parties have selected to refer to the composer
of The Urantia Book carry overtones suggestive of the principles of copyright law
underlying this case, and that his status as a conduit for celestial revelation is not
in dispute, we refer to him by what we hope to be a copyright-neutral term.

                                         -2-
Conduit was channeling “celestial personalities.” At some point, the Conduit

began presenting Dr. Sadler with handwritten “papers,” purportedly consisting of

the fruits of his communion with these celestial beings. Sometime later in the

course of his treatment, Dr. Sadler opened up his sessions with the Conduit to a

group of relatives that referred to itself as “The Contact Commission.” During its

sessions with the Conduit, the Contact Commission prepared stenographic notes

of the Conduit’s celestial dialogs, but it destroyed most of them. The notes

formed no part of The Urantia Book.

      In 1924, after approximately twenty years of treatment and generating

“papers,” the Conduit announced that he would compose The Urantia Book. He

solicited questions from the Contact Commission to present to the celestial beings

during his psychiatric sessions. Dr. Sadler formed a subgroup of the Contact

Commission (“the Forum”) to prepare these questions. Between 1935 and 1942,

in response to these questions, the Conduit delivered a foreword and 196

handwritten “papers” that together constitute The Urantia Book. The Contact

Commission reviewed the papers and typed them. It did not change their

arrangement or edit them in any way other than to correct spelling and

capitalization errors. It also destroyed all documents related to the questions

presented to the Conduit. The Conduit was never compensated for his efforts in

creating The Urantia Book.


                                         -3-
       In 1950, Urantia Foundation was formed in Illinois as a charitable trust. In

1955, the Conduit permitted The Urantia Book to be published, and later the same

year Urantia Foundation published The Urantia Book under notice of copyright.

Urantia Foundation registered its copyright in 1956 and currently holds the

original and the 1983 renewal certificates as The Urantia Book’s “author.” In

1999, Michael Foundation, a non-profit corporation chaired by third-party

defendant and appellee Harry McMullan III, himself a disaffected former adherent

of the Urantia movement, published      Jesus—A New Revelation , which reprints

verbatim seventy-six of the 196 papers constituting    The Urantia Book .

       This litigation commenced when Michael Foundation and McMullan filed a

declaratory judgment action seeking a declaration that Urantia Foundation’s

copyright in The Urantia Book was invalid or, in the alternative, that their book

did not infringe upon Urantia Foundation’s copyright. Urantia Foundation

asserted numerous counterclaims against Michael Foundation and third party

claims against McMullan; it moved for summary judgment as to,       inter alia , the

validity of its renewal copyright in   The Urantia Book . The district court denied

its motion, and the case proceeded to trial before a jury. At the close of evidence,

the parties moved for judgment as a matter of law. The district court denied all

such motions, and the jury returned a verdict in favor of Michael Foundation and

McMullan. Urantia Foundation renewed its motion for judgment as a matter of


                                           -4-
law under Federal Rule of Civil Procedure 50(b); it moved in the alternative for a

new trial, asserting that the district court abused its discretion in excluding certain

testimony. The district court denied both motions, and Urantia Foundation

brought this appeal.

                                      II. D ISCUSSION

       A.     The District Court’s Denial of Urantia Foundation’s Renewed Motion

              for Judgment as a Matter of Law

       1.     Classification of Works for Copyright Purposes

       Urantia Foundation first registered its copyright in       The Urantia Book in

1956. The continued validity of its copyright depends upon whether it effectively

renewed that copyright in 1983. Under the governing renewal provisions, as a

general rule, only the author or the author’s heirs could renew the copyright in a

literary work at the expiration of the initial term, regardless of whether the author

had conveyed those rights for the duration of the initial term. 17 U.S.C.

§ 304(a)(1)(C).   2
                      The parties agree that neither the Conduit nor his heirs renewed

the copyright in The Urantia Book . Urantia Foundation advances two theories to

support its claim that it holds valid renewal rights in       The Urantia Book under


       2
         While the relationship between the Conduit and the Contact Commission
is defined by provisions of the 1909 Act and relevant caselaw, renewal of
subsisting copyrights still in their first term as of 1978 (e.g., Urantia Foundation’s
copyright in The Urantia Book) is presently governed by section 304 of the 1976
Act, as amended. 17 U.S.C. § 304.

                                             -5-
exceptions to the general rule: first, that    The Urantia Book is a composite of

discrete, individual works by the Conduit, rather than a unified work, and that

Urantia Foundation, as proprietor of the copyright in that composite,        3
                                                                                 was entitled

to renew the copyright in both the compilation and in the underlying works; and

second, that The Urantia Book is a commissioned work because Urantia

Foundation’s predecessor in interest specially commissioned the Conduit to write

The Urantia Book , entitling Urantia Foundation to renew its copyright as            The

Urantia Book ’s “author” under a judicially created corollary to a statutory

exception governing works created for hire.         4
                                                        We consider each theory in turn.

       Under the governing statute,      if The Urantia Book is classified as a unified

work by a single author, then Urantia Foundation cannot currently hold a valid

renewal copyright because renewal rights in such works were not assignable until

they vested, and the Conduit was dead by 1983. Thus, if The Urantia Book is a

unified work, copyright transferred by operation of law to the Conduit’s heirs in

1983, and they are the only persons who could have renewed or assigned it to

Urantia Foundation. Because they did not renew the copyright, if The Urantia


       3
         “Proprietor” in this context refers to the entity under whose copyright the
work is published; the term is distinct from author, which refers to the actual
creator of the work.
       4
         We note that these two arguments are mutually exclusive; if the Conduit
was the author, as the first theory requires, then Urantia Foundation’s predecessor
in interest could not be the author, as the second requires.

                                              -6-
Book is a unified work, it now resides in the public domain.

      If, however, The Urantia Book is a composite work, then Urantia

Foundation’s renewal copyright in The Urantia Book is valid. Urantia Foundation

is the proprietor of the copyright in The Urantia Book and, under the governing

statute, the proprietor of a copyright in a composite work may renew its copyright

in both the compilation and the individual underlying works. 17 U.S.C.

§ 304(a)(1)(B)(i). The district court held on summary judgment that Urantia

Foundation is the proprietor of the copyright, and Michael Foundation does not

challenge that holding. Thus, if The Urantia Book is a composite work and the

Conduit is its author, Urantia Foundation owns the copyright in both the

arrangement of the works in the composite and in the underlying works

themselves, because the Conduit transferred his rights to Dr. Sadler, who then

transferred them to Urantia Foundation in a deed of trust.

      The alternative exception under which Urantia Foundation asserts the

validity of its renewal copyright in The Urantia Book invokes the “commissioned

works doctrine.” Under this judicially created doctrine, the nature of the book

itself is not at issue; the focus instead is upon the relationship between the

Contact Commission and the Conduit and the circumstances of the work’s




                                          -7-
creation. If, under the test developed by the caselaw,   5
                                                             the Contact Commission

specially commissioned      The Urantia Book from the Conduit, then Urantia

Foundation – as the Contact Commission’s successor in interest – was entitled to

renew its copyright in 1983 as its proprietor. 17 U.S.C. § 24 (repealed); 17

U.S.C. 304(a)(1)(B)(ii).

       The facts Urantia Foundation must prove to support these alternative

arguments are as follows:

       Composite work argument :

       •       The Conduit composed The Urantia Book, then assigned his

               interest in it to Urantia Foundation’s predecessor in interest

               prior to The Urantia Book’s publication in 1955, making

               Urantia Foundation the proprietor of the rights in The Urantia

               Book, and

       •       The Urantia Book is a composite work, entitling Urantia

               Foundation to renew its copyright in 1983 under the proprietor

               exception to the usual renewal provisions.

       Commissioned work argument :

       •       The Contact Commission was the “author” of The Urantia

               Book because it specially commissioned the Conduit to write


       5
           See Part II.B.4., infra.

                                           -8-
                it, making The Urantia Book a commissioned work under a

                judicially created doctrine parallel to the work for hire

                provisions of the 1909 Act, and

       •        Urantia Foundation, as the Contact Commission’s predecessor

                in interest, qualifies as the Conduit’s employer, entitling it to

                renew The Urantia Book as a work for hire in 1983. 6

Urantia Foundation secured a jury instruction in its favor as to the first

proposition (i.e., that it is the proprietor of the copyright in   The Urantia Book ).

The district court submitted the remaining three propositions to the jury, which

found against Urantia Foundation in each case.

       2.       Standard of Review

       Urantia Foundation argues, as a preliminary matter, that the question of

initial classification of works for copyright purposes is a question of law for the

court and that the district court therefore erred when it submitted the question to

the jury. Had Urantia Foundation preserved this argument for appeal, and were

the classification question actually settled in its favor, Urantia Foundation would

be entitled to a de novo review on the question of whether The Urantia Book is a

commissioned or a composite work, rather than the more deferential standard

appropriate to review of a district court’s denial of a renewed motion for


       6
            We borrow here from Appellee’s chart of these issues.

                                               -9-
judgment as a matter of law. Urantia Foundation has, however, waived any such

argument, and we therefore need not reach the unsettled question of whether

initial classification of works is, in all cases, a question of law for the court.

      In the district court, Urantia Foundation’s attorneys drafted proposed jury

instructions and participated in a conference at which the parties agreed with the

court upon—or preserved objections to—the jury instructions. They were present

when the district court read the instructions to the jury. At none of these points

did Urantia Foundation object to the submission of the classification question to

the jury. The portion of the transcript of the instructions conference relevant to

“Instruction Number 23, Work for Hire/Commissioned Work” suggests just the

opposite; Urantia Foundation’s counsel clearly contemplated submission of the

question to the jury. The same is true of portion of the transcript relevant to

“Instruction Number 26, Composite Definition.”

      Urantia Foundation’s oral Rule 50(a) motion at the close of evidence for

judgment as a matter of law did not mention the issue. 7 We find Urantia

Foundation’s only allusion to this argument below in its brief in support of its

Rule 50(b) renewed motion: a single, undeveloped sentence in the brief reads,

“Whether The Urantia Book is a commissioned work is a question of law subject


      7
         In fact, in the course of his oral motion, Urantia Foundation’s attorney
stated, “As to the unified nature of the work, I think there’s certainly a fact issue
for the jury to decide on that at a minimum.”

                                          - 10 -
to de novo review.” This sentence serves—confusingly—as the topic sentence of

a paragraph attacking the sufficiency of the evidence submitted to the jury, not

the propriety of submitting the question to the jury in the first place. Neither

Michael Foundation nor the district court appear to have responded to this

sentence, or, indeed, to have in any way discerned the question-of-law argument.

      We have consistently held that a movant’s renewed motion under Rule

50(b) may not advance new legal arguments; i.e., the renewed motion’s scope is

restricted to issues developed in the initial motion. Our decision in Vanderhurst

v. Colorado Mountain College District, 208 F.3d 908 (10th Cir. 2000), is

instructive. In that case, following a jury trial at which the movant did not object

to the submission of an issue to the jury, the movant sought on appeal to argue

that the issue was properly one of law for the court alone. We declined to

consider the argument, and stated that

      This court generally will not entertain arguments on appeal which the
      appellant failed to raise before the district court. More specifically,
      “[a Rule 50] motion for judgment as a matter of law made at the
      close of all the evidence preserves for review only those grounds
      specified at the time, and no others.” Finally, Rule 51 of the Federal
      Rules of Civil Procedure states, “No party may assign as error the
      giving or the failure to give an instruction unless that party objects
      thereto before the jury retires to consider its verdict, stating distinctly
      the matter objected to and the grounds of the objection.”

Id. at 915 (citations omitted).

      Given its failure to raise the argument at trial, Urantia Foundation’s lengthy


                                         - 11 -
briefing of the issue on appeal is unavailing. Urantia Foundation participated

below in all phases of a jury trial and never objected to the submission of the

classification question to the jury. It may not at this late date attempt to avoid the

deferential standard appropriate to our review of a district court’s denial of a jnov

motion.

      The standard of review for denial of a renewed motion for judgment as a

matter of law in a jury trial contesting the validity of a copyright is clear:

      We review the district court’s denial of a renewal motion for
      judgment as a matter of law de novo, applying the same standards as
      the district court. We must affirm if, viewing the record in the light
      most favorable to [the nonmoving party], there is evidence upon
      which the jury could properly return a verdict for [the nonmoving
      party]. We do not weigh the evidence, pass on the credibility of the
      witnesses, or substitute our conclusions for that [sic] of the jury.
      However, we must enter judgment as a matter of law in favor of the
      moving party if “there is no legally sufficient evidentiary basis . . .
      with respect to a claim or defense . . . under the controlling law.”

Harolds Stores, Inc. v. Dillard Department Stores, Inc., 82 F.3d 1553, 1546-47

(10th Cir. 1996) (citations omitted).

      3.     Composite Work

      We proceed, under the standard articulated     supra , to consider whether the

record contains evidence upon which a reasonable jury could have concluded that

The Urantia Book is not a composite work. Any such evidence terminates our

inquiry in favor of Michael Foundation, the non-moving party.

      The term “composite work” appears in, but is not defined by, the 1909 Act.

                                          - 12 -
Composites are related, however, to “compilations,” which the Act does define.

Compilations are works “formed by the collection and assembling of pre-existing

materials or of data that are selected, coordinated, or arranged in such a way that

the resulting work as a whole constitutes an original work of authorship.” 17

U.S.C. § 101. The leading treatise on copyright law defines the composite

category as a subcategory of compilations, but distinct from compilations in that

each individual work within a composite must be independently copyrightable,

whereas there is no such requirement for a compilation. Nimmer on Copyright,

§ 3.02. Individual works in a compilation need not come from the same author,

as long as they are discrete, independent works. Examples of compilations

include periodicals, catalogs, and encyclopedias. Under both the 1909 Act and

the 1976 Act, the proprietor of a “periodical, cyclopedic, or other composite

work” is entitled to renew the copyright it originally obtained in the work. 17

U.S.C. § 24 (repealed); 17 U.S.C. § 304(a)(1)(B)(i).

      Urantia Foundation advances four arguments in support of its contention

that The Urantia Book is a composite work as a matter of law: (1)   The Urantia

Book is a composite work per se because it is a collection of 196 separate,

individually titled papers on a wide variety of topics, most of which the Conduit




                                        - 13 -
wrote and delivered separately to the Contact Commission;        8
                                                                     (2) because the

question of whether    The Urantia Book is a composite work is one of law for the

court and The Urantia Book was in evidence, this court should disregard the

jury’s verdict, examine the 2097 pages of       The Urantia Book itself, and hold as a

matter of law that it is a composite work; (3) if the question of whether        The

Urantia Book is a composite work was properly one of fact for the jury,

McMullan’s testimony should not determine the outcome because he was an

accused infringer; and (4) the district court improperly instructed the jury that,

when the works of a single author are collected together, the intent of the author

determines whether a composite or a unified work results.

       In response to the first assertion, Michael Foundation argues that the

evidence indicates that   The Urantia Book is, in fact, a unified literary work by a

single author and not a compilation of works selected and arranged by a third

party. 9 For example, the jury heard evidence that the Contact Commission did not

       8
         In support of this argument, Urantia Foundation cites Urantia Foundation
v. Maaherra, 114 F.3d 955 (9th Cir. 1997), and argues that this court should, in
the interests of “principled and intelligible” development of copyright law, follow
the Ninth Circuit’s lead and hold that The Urantia Book is a composite work. We
note, however, that the Maaherra court’s focus was not on the specific question
of whether The Urantia Book was or was not a composite work; rather, it was on
whether Urantia Foundation’s erroneous description of itself as the “owner of a
work for hire” rather than the “proprietor of a composite work” on its 1983
renewal certificate automatically invalidated the renewal.
       9
           While composite works typically contain works by multiple authors, we
                                                                     (continued...)

                                            - 14 -
select or arrange the papers that comprise      The Urantia Book , but published them

precisely as the Conduit presented them. The Conduit also announced, before

writing the papers that eventually became        The Urantia Book , that he would create

a book, not a series of separate papers. The jury also heard evidence that, while

the individual papers bear separate titles, they are not distinct, unrelated works

but chapters of The Urantia Book , which the Conduit intended to constitute a

unified work. Such evidence satisfies the deferential standard of review

applicable to this argument.

       We addressed Urantia Foundation’s second argument in our discussion of

the appropriate standard of review and need not repeat that discussion here. We

disagree with Urantia Foundation’s third proposition. Its contention that the

testimony of McMullan—the person it has sued for infringement—may not be

allowed to “determine” the outcome of this case is without merit. The jury was

free to consider McMullan’s testimony and give it whatever weight it found

appropriate; that is the jury’s function. Moreover, the jury heard a great deal of

testimony, and there is no reason to believe that McMullan’s testimony

“determined” the outcome. Finally, Urantia Foundation objected to none of the


       9
        (...continued)
need not reach the parties’ debate over whether a work by a single author can be a
composite work. The record need only contain evidence sufficient to permit a
rational jury to have found that The Urantia Book was not a composite work; and,
as it does, our inquiry is complete.

                                             - 15 -
testimony below; thus, if there is an argument to be made here Urantia Foundation

has waived it. Fed. R. Evid. 103(a)(1).

       Finally, Urantia Foundation argues that the district court improperly

instructed the jury that where a single author’s works are compiled, that author’s

intent determines whether the work is unified or a composite.    10
                                                                      Urantia

Foundation properly preserved this objection below, though it failed to provide

this court with a citation to the portion of the record containing its objection. An

erroneous jury instruction mandates reversal: (1) if we have “substantial doubt

whether the instructions, considered as a whole, properly guided the jury in its

deliberations,” Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co.         , 175 F.3d

1221, 1235 (10th Cir. 1999) (quotation omitted); or (2) “when a deficient jury

instruction is prejudicial,” i.e., where the jury might have based its verdict on the

allegedly defective instruction.    Coleman v. B-G Maint. Mgmt. of Colo., Inc    , 108

F.3d 1199, 1202 (10th Cir. 1997).    11




       10
          Urantia Foundation also argues that the composite definition instruction
was “imbalanced.” Urantia Foundation claims to have raised this objection
below, but provides no supporting citation to the record. Even if properly
preserved, however, we decline to consider this argument, as Urantia Foundation
raises the issue outside of its enumerated issues on appeal and relegates
discussion of it to a footnote late in the brief. United Transp. Union v. Dole, 797
F.2d 823, 827 (10th Cir. 1986) (failure to develop arguments thoroughly in a brief
generally waives the argument).
       11
         Urantia Foundation does not request reversal; rather, it incorporates its
challenge to the jury instruction into its argument that initial classification is a
                                                                          (continued...)

                                          - 16 -
       It is not clear whether an author’s intent determines the classification of a

book comprised exclusively of his own work. The statute and the caselaw are

silent on the question. Michael Foundation argues—by analogy to the settled

distinction between joint works and collective works, which          is based upon

authorial intent—that intent is, or at least should be, the controlling factor.      12



Because the question appears to be unsettled, we cannot, without settling the

question ourselves, say that the district court’s articulation of the standard in its




       11
         (...continued)
matter of law for the court. Because we disagree with Urantia Foundation on the
classification question, we consider its challenge in the usual manner, i.e., as a
request for a reversal.
       12
          In support of its assertion that authorial intent governs, Michael
Foundation cites (1) the statute, 17 U.S.C. § 101 (defining “joint work” as one
“prepared by two or more authors with the intention that their contributions be
merged into inseparable or interdependent parts of a unitary whole”); (2)
legislative history, H.R. Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976) (“The
touchstone [for distinguishing between joint works and collective works] is the
intention, at the time the writing is done, that the parts be absorbed or combined
into an integrated unit . . . .”); and (3) Nimmer on Copyright § 6.05 (“What
distinguishes a collective work from a joint work based upon interdependent
parts? The distinction lies in the intent of each author at the time his contribution
is written.”) (emphases added). Michael Foundation insists that this question is
logically solved by analogy to the settled distinction between joint and collective
works—i.e., that it would be “perverse to allow two authors to decide for
themselves whether their separate contributions were merged into a [unified]
work . . . but deny a single author the right to make that decision.” While we
appreciate the logical appeal of this analogy, no court has so held; and as
sufficient evidence supports the jury’s conclusion that The Urantia Book is not a
composite, we need not reach the question.

                                             - 17 -
jury instruction is erroneous.   13
                                      We need not reach this question, because even if

the instruction overstated the importance of authorial intent, we find no grounds

therein for reversal. “We review jury instructions de novo, and must view the

instructions in their entirety, deciding not whether the instruction was completely

faultless, but whether the jury was misled in any way. Thus, ‘[w]here a jury

instruction is legally erroneous, we must reverse if the jury might have         based its

verdict on the erroneously given instruction.”        Coleman , 108 F.3d at 1202

(citation omitted) (emphasis added). We have reviewed the jury instructions in

their entirety and find that, taken as a whole, they properly guided the jury.         Id.;

Morrison Knudsen , 175 F.3d at 1235. Especially in light of (1) the fact that the

Conduit, being dead, did not testify as to his intentions, leaving the details of

those intentions part of the murky history of the composition of         The Urantia

Book , and (2) the fact that the book itself was, as Urantia Foundation points out,


       13
            The language to which Urantia Foundation objects is as follows:
               Keep in mind that where the works of only one author are
               involved, the intent of the author is controlling. If the subject
               authored separate and independent works, each of which was
               intended to exist on a stand alone basis, and if the Urantia
               Foundation or its predecessors then assembled those
               independent works in an order of its own choosing into one
               collective work that it published as The Urantia Book, then
               The Urantia Book can be a composite work. By contrast, if the
               subject intended to author related pieces at different times
               which the Urantia Foundation or its predecessor published
               wholesale as The Urantia Book, then The Urantia Book cannot
               be a composite work.

                                             - 18 -
in evidence, we see no reason whatsoever to believe that the jury     based its verdict

on the possibly erroneous instruction.    See Coleman , 108 F.3d at 1202.

       The dispositive fact is, simply, that ample evidence was presented to the

jury to support its determination that   The Urantia Book is not a composite work.

Viewing the evidence in the record, as we must, in the light most favorable to

Michael Foundation, we hold that the district court properly denied Urantia

Foundation’s renewed motion for judgment as a matter of law.

       4.     Commissioned Work

       Urantia Foundation alternatively argues that     The Urantia Book is a

commissioned work. If this is so, Urantia Foundation’s 1983 renewal as

proprietor of the copyright is valid. The 1909      Act did not contemplate

“commissioned works.” The Act did provide that “in the case of . . . any work

copyrighted by . . . an employer for whom such work is made for hire, the

proprietor of such copyright shall be entitled to a renewal and extension of the

copyright in such work.” 17 U.S.C. § 24 (repealed); 17 U.S.C. § 304(a)(1)(B)(ii)

(emphasis added).    Urantia Foundation does not argue that a traditional

employment relationship existed between the Contact Commission and the

Conduit; rather, it argues that the Contact Commission specially commissioned

The Urantia Book from the Conduit.

       The commissioned works doctrine began as a judicially created stopgap,


                                           - 19 -
applying the 1909 Act’s provisions regarding works created for hire in traditional

employer-employee relationships to those created on commission in independent

contractor relationships. While the 1976 Act codifies this judicially created

doctrine, 17 U.S.C. § 101, the 1909 Act applies to the relationship at issue in this

case. Thus, in order to prove a commissioning relationship existed such that

Urantia Foundation’s 1983 renewal was valid, Urantia Foundation must satisfy the

test developed by the relevant caselaw.   14



      Aside from its question-of-law argument, which we have discussed and

rejected supra , 15 Urantia Foundation advances three main arguments in support of

its contention that the district court erred when it refused to hold as a matter of

law that the Contact Commission specially commissioned       The Urantia Book from

the Conduit. We address first Urantia Foundation’s belated argument that “the

district court’s order is . . . based on the erroneous premise that a commissioning

party must establish that it had the right to control the content of a work in order

for the work to qualify as a commissioned work.” Urantia Foundation neglects to

mention that it drafted the language upon which the district court relied. For


      14
          As our discussion infra indicates, the parties disagree as to precisely
what that test is. Urantia Foundation argues that the test includes only “instance”
and “expense” prongs, while Michael Foundation argues that an additional prong
requires that the commissioning party have the right to control the content of the
work itself.
      15
           See Part II.A.2. supra.

                                          - 20 -
obvious reasons, Urantia Foundation did not object to the instruction below; it has

consequentially waived the argument on appeal. Urantia Foundation’s

disingenuous challenge to its own jury instruction is without merit.

      Urantia Foundation next argues that the evidence presented to the jury

mandates judgment as a matter of law as to the existence of a commissioning

relationship under the “instance and expense” test. We need not resolve the

parties’ dispute as to whether the proper test includes factors beyond instance and

expense. Even under the two-prong test Urantia Foundation urges us to adopt,

Urantia Foundation’s argument is without merit. Urantia Foundation argues that

the “instance” prong is met because the Contact Commission, its predecessor in

interest, “solicited, formulated, selected, and submitted questions” to the Conduit

and “supervised hundreds of sessions with” the Conduit. The Urantia Papers

arose, however, out of the Conduit’s psychiatric sessions with Dr. Sadler. The

sessions occurred at the Conduit’s instance, not Dr. Sadler’s. As Michael

Foundation correctly points out, in the doctor-patient relationship, the doctor is

the patient’s fiduciary, not the other way around. Furthermore, the Conduit began

writing the Urantia Papers on his own initiative, and “announced to the contact

group the plan to initiate the Urantia Papers” after having delivered papers of




                                        - 21 -
celestial origin to Dr. Sadler for twenty years. 16 The Conduit himself requested

the questions from the Contact Commission. The Supreme Court has indicated

that the test for whether a work is commissioned applies “at the time the

commission is accepted.” Community for Creative Care Non-Violence v. Reid,

490 U.S. 730, 741 (1989) (discussing general principles of agency law while

construing section 101 of the 1976 Act). Upon review of the record, we agree

that the Contact Commission’s role in creating The Urantia Book was “little more

than a reaction to an already ongoing process of creation.” 17

      Urantia Foundation argues that the “expense” prong is met because of costs

incurred in providing stenographic materials, typing the Conduit’s handwritten

manuscripts, correcting spelling and capitalization errors, and financing the later

publication of The Urantia Book. But the Conduit produced the papers that

comprise The Urantia Book alone, in longhand, and one witness testified that the

Contact Commission received the information at the Conduit’s home. Michael

Foundation argues that, “[d]istilled to its essence, Urantia Foundation’s argument

is that because it acted as publisher of the work and defrayed all expenses in that


      16
         The Conduit announced these plans on behalf of, or “as,” Machiventa
Melchizedek, one of the celestial personalities constituting the “Revelatory
Commission,” to whom Urantia Foundation ultimately attributes the revelations it
believes The Urantia Book to embody.
      17
        The cases upon which Urantia Foundation relies fail to support its
contention that supplying questions to the creator satisfies the “instance” test.

                                        - 22 -
capacity, the work itself is transmogrified ex ante into something produced on

commission.” We agree that such a view would render most published works

“commissioned.”

       Finally, Urantia Foundation argues that (1) its 1983 renewal certificate,

which lists The Urantia Book as a “work for hire” and Urantia Foundation as

“author,” creates a rebuttable presumption that       The Urantia Book is a

commissioned work, and (2) Michael Foundation failed to rebut the

presumption.   18
                    For several reasons, we disagree. First,   as we noted above, the

“specially commissioned work” doctrine is a creation of courts extending the

1909 Act’s “work for hire” provisions to independent contractor relationships.

Because federal courts did not apply the work for hire doctrine to commissioned

works until after 1965, Urantia Foundation cannot have claimed the work as a

commissioned work when it filed its original certificate in 1956. See Reid, 490

U.S. at 749 (citation omitted). The certificate cannot be prima facie evidence of a

relationship embodied in a common law doctrine not yet created by the courts.

Second, the jury’s determination, supported by ample evidence, that no




       18
          A filed copyright certificate “shall be admitted in any court as prima
facie evidence of the facts stated therein.” 17 U.S.C. § 209 (repealed). This
presumption is rebuttable with evidence showing affirmatively that the copyright
is invalid. Academy of Motion Picture Arts and Sciences v. Creative House
Promotions, Inc., 944 F.2d 1446, 1451 (9th Cir. 1991).

                                             - 23 -
commissioning relationship existed, does rebut the presumption.    19



      In short, under the appropriately deferential standard of review, there is

ample evidence in the record to support the jury’s determination that no

commissioning relationship existed between the Conduit and the Contact

Commission. The district court, therefore, did not commit reversible error when

it denied Urantia Foundation’s renewed motion for judgment as a matter of law on

the question of whether its predecessor in interest commissioned the Conduit to

create The Urantia Book .

      B.     Exclusion of Barbara Newsom’s Testimony on Grounds of Unfair

             Surprise

      Urantia Foundation moved below for a new trial based upon the district

court’s exclusion of Barbara Newsom’s testimony on grounds of unfair surprise.

The district court denied the motion, and Urantia Foundation on appeal asserts


      19
          Michael Foundation argues that Urantia Foundation has waived this
particular formulation of the issue by failing to request a jury instruction as to the
rebuttable presumption argument. We agree that, to the extent that a specific
instruction as to the presumption of validity would have induced the jury to
require more evidence than it otherwise would have before finding that the
Conduit did not write The Urantia Book under commission from the Contact
Commission, Urantia Foundation has obviously waived the issue. We need not
reach the details of Michael Foundation’s waiver argument, however, as the
presumption was amply rebutted by: (1) the logical impossibility of the
certificate creating a presumption in favor of a relationship not recognized by the
law when the certificate was recorded; and (2) more importantly, the jury’s
finding, supported by adequate evidence, that no commissioning relationship
existed.

                                         - 24 -
that this was error requiring us to remand the case to the district court for a new

trial. We review the denial of a motion for a new trial for a manifest abuse of

discretion. Aguinaga v. United Food & Commercial Workers Int’l Union        , 993

F.2d 1463 (10th Cir. 1993),   cert. denied , 510 U.S. 1072 (1994).

      Urantia Foundation proffered testimony from Newsom that the Conduit

“was aware of the Urantia Papers, knew of the Contact Commission’s intent to

publish them, and disclaimed any copyright in the papers.” Newsom’s testimony

would have been based upon secret journals purportedly prepared by Dr. Sadler

and kept in a locked file cabinet until their unexplained disappearance in 1979.

Newsom would have testified that she examined the journals twenty years earlier

while researching a history that she was writing about the Urantia movement.

The district court excluded the evidence on the ground that it would unfairly

surprise Michael Foundation. Michael Foundation contends that the admission of

the secret journals would have been prejudicial to it because the Joint Pre-trial

Report did not adequately prepare it for the testimony, which Urantia Foundation

offered four and one-half days into trial, after Michael Foundation had rested.

      We agree. Urantia Foundation’s contention that Michael Foundation would

not have been unfairly surprised seems disingenuous, given that Urantia

Foundation’s own counsel claimed ignorance of Newsom’s potential testimony as

to the purported secret journals until the Friday night before the Monday morning


                                         - 25 -
on which Urantia Foundation offered her testimony. Urantia Foundation points to

the Final Joint Pre-trial Report, which indicated that Newsom would testify “as to

the matter in which ‘The 50 Years’ anniversary document was prepared, matters

relating to the origin of The Urantia Book.” Urantia Foundation asserted that this

adequately prepared Michael Foundation for Newsom’s testimony. But that report

was prepared before even Urantia Foundation’s own counsel knew of the

existence of the purported secret journals; given the particular nature of the

proffered testimony, it therefore appears likely that Michael Foundation did not

receive adequate notice.

      Exclusion of evidence at trial is within the sound discretion of the trial

court; thus “an evidentiary ruling will be reversed only on a showing that the trial

court abused its discretion.” Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1456

(10th Cir. 1990) (citation omitted). Newsom’s testimony was announced well into

the trial, after Michael Foundation had rested. It concerned the contents of

purported secret journals, purportedly kept in locked filing cabinets, until their

purported mysterious disappearance over twenty years ago, and purportedly

contained evidence highly injurious to Michael Foundation’s case. Suffice it to

say that we do not find the district court’s exclusion of Newsom’s testimony to

have been an abuse of its broad discretion.




                                         - 26 -
                                    III. C ONCLUSION

       Viewing the evidence in the light most favorable to Michael Foundation,

we find that substantial evidence supports the jury’s determination that   The

Urantia Book is neither a composite nor a commissioned work. We therefore

AFFIRM the district court’s denial of Urantia Foundation’s renewed motion for

judgment as a matter of law. Because the trial court did not abuse its broad

discretion in excluding, on grounds of unfair surprise, the testimony of Barbara

Newsom as to the contents of purported secret journals, we AFFIRM the district

court’s denial of Urantia Foundation’s motion for a new trial.



                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Chief Circuit Judge




                                           - 27 -
McWILLIAMS, Senior Circuit Judge, dissenting.


      In my view, the district court erred in denying Urantia Foundation’s motion

for judgment, n.o.v. I hold that the Urantia Foundation’s renewal copyright is

valid and enforceable as a matter of law. See Urantia Foundation v. Maaherra,

114 F.3d 955 (9th Cir. 1997).
