Justice Story further said:

... the author of any letter or letters, (and his representatives,) whether they are literary compositions, or familiar letters, or letters of business, possess the sole and exclusive copyright therein; and that no persons, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same on their own account, or for their own benefit. But, consistently with this right, the persons to whom they are addressed, may have, nay, must, by implication, possess, the right to publish any letter or letters, addressed to them, upon such occasions, as require, or justify the publication or public use of them; but this right is strictly limited to such occasions.

The copyright mentioned here would today cover both the right of first publication of unpublished letters as well as statutory copyright if the letters have been published with notice of copyright. Quoting further from Justice Story:

...third persons standing in no privity with either party, are not entitled to publish such letters to subserve their own private purposes of interest, or curiosity, or passion.

It is not only quantity of appropriation but also value that is looked to. It is useless to refer to particular cases as to quantity.

If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanta. The words "fair" and "unfair" seem to be the key words in many copyright decisions. Cases in which copyright infringement has been found have brought the copyright law close to the law of unfair competition. The directory, map, and dictionary cases are prime examples wherein literary effort is secondary to the fact of unfair saving of labor and expense. If a person preparing a new map should go out through a district and make original surveys and jot down his results, using the old map as a check or convenient memorandum tablet, or if in preparing a directory a canvasser should go to all addresses to be in

cluded and use the old directory as a pad or tablet rather than write out the names in longhand, no literary work would be saved, no literary property would be taken away, and no injury inflicted, except in saving a certain amount of copying and thus making the new work cheaper and easier to accomplish. In such cases infringement of copyright may depend more upon the idea of unfair competition and the unlawful saving of labor in order to avoid the necessary original research than upon the appropriation of any literary ideas or arrangement, based upon literary ability and studied plan.33

A paraphrase, parody, or burlesque of a copyrighted work is treated no differently from any other appropriation.3+ An extensive review of the "fair use" doctrine, its origin and application, is considered in the cases holding that Jack Benny's television show burlesquing the motion picture “Gaslight” could not be defended as fair use.

The law may permit those working in a field or science or art to make use of ideas, opinions, or theories and in certain cases even the exact words contained in a copyrighted book in that field. In such cases the law implies the consent of the copyright owner to a fair use of his publication for the advancement of the science or art.36 However, when the copying of scientific information is used for a purely commercial purpose, the mere copying of three sentences from a book has been found to constitute infringement, even when the infringer acknowledged the source of the information.37 It was argued in this instance that the sale of the plaintiff's book, which was of a scientific character, was retarded by the commercialization of a part thereof in a cigarette advertisement. The commercialization cast reflection on the author's professional ethics. Although the official works of military authors would not be of a commercial nature, they should not use copyrighted material in any way that would reflect improperly on the copyright owner, for such use can clearly defeat a defense based upon the "fair use" doc

trine.

A New York court stated that the doctrine

of fair use "permits a writer of scientific, legal, medical and similar books or articles of learning to use even the identical words of earlier books or writings, dealing with the same subject matter."38 What constitutes a scientific document was questioned by the judge in this case. He referred to what he loosely labeled a "Sex Science Magazine-Illustrated" and said: "It is hard for me to perceive how the defendant's magazine could by the remotest possibility come within the classification of a scientific document. For instance, the article dealing with the sex problems of Mongoloid prostitutes, despite its rather imposing title, would, in my opinion, hardly aid the defendant's magazine in attaining classification as a work of science."

military regulations

At the present time the respective military regulations of the Air Force, Army, and Navy contain essentially the same recognition of proprietary interests of copyright owners. Each includes an admonition similar to that in Air Force Regulation 110-8, stating:

Copyrighted matter will not knowingly be incorporated in publications prepared by or for the Air Force, except with the written consent of the copyright owner, or upon the approval of the Secretary of the Air Force or his duly authorized representative.

The unequivocal nature of such a regulation may raise some question as to its current practical application in view of the fact that it was drafted at a time when the personal liability of authors for the military was at stake, the Government not having consented to be sued for copyright infringement and instead exercising sovereign immunity. The cited 1960 amendment to 28 U.S. Code 1498 may ultimately be reflected in a change in regulations relating to copyright matters. Because this new law is in the nature of “eminent domain,” some have urged that the policy be effected like that with respect to patent infringement wherein the exclusive remedy is also in the US. Court of Claims under 28 U.S. Code

1498. The Air Force does not have any prohibitory regulations regarding patent infringement but does respect any well-founded claims for patent infringement, such claims being usually handled administratively.

It is the view of this writer that the present military regulations might well be relaxed to prescribe more practical restraints for the military author, to merely preclude his use of copyrighted material except with approval of the copyright proprietor or proper military authority, whenever risk of copyright infringement is foreseen or where there is any doubt as to whether the "fair use" doctrine is applicable. Because of the "eminent domain" aspects of the law and because of the possible defense of the "fair use" doctrine to negate infringement, it can be argued that much of the red tape required by literally following present regulations might be avoided. It is understood of course that no military department can be absolved of liability for claims of copyright infringement, but such a change in regulations would take cognizance of the different status under the present law of the individual and the Government and would probably reduce the number of instances where copyright releases need be obtained.

Even the present military regulations offer no guide as to what is "copyrighted matter." It is probably imprudent, however, for any military author to assume without advice of legal counsel that any part of any work bearing proper copyright notice is not copyrighted matter, since this is a question of law rather than one of fact.

Office of the Judge Advocate General, Hq USAF

3. Victor Herbert et al. v. The Shanley Co. (1917), 37 S. Ct. 232, 242 U.S. 591.

4. Piracy in High Places, Maurice B. Stiefel, 24 Geo. Wash. L. R. 448.

5. Buck v. Jewell-LaSalle Realty Co. (1931), 51 S. Ct. 410, 283 U.S. 191, 9 U.S.P.Q. 17.

6. Banks v. Manchester, 128 U.S. 244, 9 S. Ct. 36.
7. 17 U.S. Code, Sect. 12.

8. Universal Film Co. v. Copperman, 218 Fed. 582 (2nd Cir. 1914); Photo-Drama Motion Picture Co. v. Social Uplift Film Corp., 220 Fed. 448 (2nd Cir. 1915).

9. 28 U.S. Code, Sect. 1498.

13. Study #33, Copyright in Government Publications, by Caruthers Berger, October 1959, prepared for Senate Committee on the Judiciary, 86th Cong. 2d Sess.

14. Public Affairs Associates, Inc., v. Rickover, 284 F. 2d 262, 127 U.S.P.Q. 231 (1960), later vacated by the Supreme Court and remanded, 365 U.S. 841, 132 U.S.P.Q. 535 (1962). 15. Sherrill v. Grieves (S. Ct., D.C.), 57 Wash. L. R. 286 (1929).

16. United States v. First Trust Co. of St. Paul, C.A. 8 (1958), 251 F. 2d 686, 116 U.S.P.Q. 172.

17. Sawyer v. Crowell Publishing Co., D.C. S.D.N.Y. (1942), 46 F. Supp. 471, 54 U.S.P.Q. 225.

18. Baker v. Selden, 101 U.S. 99 (1879).

19. Emphasis added in Harold Lloyd Corp. et al. v. Witwer, C.C.A. 9 (1933), 65 F. 2d 1, Cert. dismissed 54 S. Ct. 94, 296 U.S. 669.

20. Dorsey v. Old Surety Life Insurance Co., C.C.A. 10 (1938), 98 F. 2d 872, 39 U.S.P.Q. 92.

21. Consumers Union v. Hobart Mfg. Co., D.C. S.D.N.Y. (1961), 199 F. Supp. 860, 131 U.S.P.Q. 438.

22. Jewelers' Circular Pub. Co. v. Keystone Pub. Co., C.C.A. 2 (1922), 281 F. 83, affirming 274 F. 932, Cert. denied 259 U.S. 581, 42 S. Ct. 464.

23. Oxford Book Co. v. College Entrance Book Co., C.C.A. 2 (1938), 39 U.S.P.Q. 7.

24. International News Service v. Associated Press (1918), 248 U.S. 215.

25. Chicago Record-Herald v. Tribune Assn., C.A. 7 (1921), 275 F. 797.

26. Richardson v. Miller, C.C. Mass. (1877), Fed. Case No. 11791, 20 Fed. Case 722.

27. 18 U.S. Code, Sect. 334.

28. Cain v. Universal Pictures Co., D.C. S.D. Calif. (1942), 47 F. Supp. 1013, 56 U.S.P.Q. 8.

29. Baker v. Selden, 101 U.S. 99, 25 L. Ed. 841; Brown Instrument Co. v. Warner Register of Copyrights (1947), 161 F.2d 910, 73 U.S.P.Q. 427

30. Brown Instrument v. Warner supra; Supreme Records v. Decca Records, D.C. S.D. Calif. (1950), 90 F. Supp. 904, 85 U.S.P.Q. 405.

31. Lawrence v. Dana, C.C. Mass. (1869), Fed. Case No. 8, 136, 15 Fed. Case 26, 4 Cliff 1.

32. Circuit Court, Dist. of Mass., Fed. Case No. 4901, 9 Fed. Case 342.

33. West Publishing Co. v. Edward Thompson Co., C.C. E.D.N.Y. (1909), 169 Fed. 833 (843).

34. West Pub. Co. v. Edward Thompson Co., supra; Loew's Inc. v. Columbia Broadcasting Co., D.C. S.D. Calif. (1955), 131 F. Supp. 165, 105 U.S.P.Q. 302; affirmed C.A. 9 (1956), 239 F. 2d 532, 112 U.S.P.Q. 11; affirmed Columbia Broadcasting System Inc. v. Loew's Inc. (1958), 356 U.S. 43, 78 S. Ct. 667, 2 L. Ed. 2d 583; rehearing denied 356 U.S. 934, 78 S. Ct. 770, 2 L. Ed. 2d 764.

35. Loew's v. C.B.S., supra.

36. Holt and Co., Inc., et al., v. Liggett and Myers Tobacco Co. (1938), 23 F. Supp. 302, 37 U.S.P.Q. 449. 37. Holt & Co., supra.

38. Thompson v. Gernsback, D.C. S.D.N.Y. (1950), 94 F. Supp. 453, 87 U.S.P.Q. 238.

T

HE MISSION assigned to the Air War 'College at its founding in 1946 was "To prepare selected officers for the employment of large Air Force units to insure the most effective development of the Army Air Force as a whole and to consider the broad aspects of air power."

On the same day that Air University activated and established the new senior school for USAF and other service officers, 15 March 1946, Major General Orvil A. Anderson was assigned as its Commandant.

When the first class of the Air War College began on 4 September 1946, vacancies in the membership of staff and faculty were filled from the student body. Additional students were drafted into service on the faculty as the course progressed, so that instructors and students graduated together at the end of the first class.

The members of the first class to attend the Air War College were, almost to a man, distinguished combat veterans newly returned from the various theaters of war where they had held critical positions of responsibility. They knew intimately the problems and strains that needed resolution in the conduct of the air war, and they were chosen to attend the new school to broaden their horizons and enhance their potential for future high command and staff assignments. The war-expanded facilities of Maxwell Field made it possible

for families to join the students in residence as they pursued ten months of education relatively free from the extra duties, rank-inherent harassments, and tight schedules associated with previous assignments. The entire program of the Air War College was designed to produce an atmosphere conducive "to expanding man's comprehension and enlarging his thinking powers," in the words of the first Commandant.

"General Andy," as he was called, adopted the seminar system of instruction and instituted the principle of academic freedom, both of which are vital concepts still valid and practiced by today's Air War College. Guest lecturers, outstanding in their individual fields, were utilized almost exclusively to present the various subject areas of the curriculum. General Anderson on occasion mounted the rostrum to emphasize an idea or to analyze a concept, so that the students had the benefit of his thinking and comprehension. One graduate of that first class claims that "General Andy practically dared you not to think.” This unique combination of talented headmaster, imported subject specialists, and a highly select student body gave the Air War College a distinguished inaugural.

During the ensuing three years of operation, the Air War College faculty undertook refinement and improvement of its programs. A thesis program was introduced, a reading

improvement course made its appearance, the Extension Course Division was created, and a civilian educational adviser became a member of the Commandant's staff.

Initially it was expected that the Air War College would be concerned primarily with military problems directly related to the employment of large air units. National and international affairs were not to be neglected but rather were to be accorded a supporting role. However, over the relatively few years the college has been in existence, there has been a continuous reinterpretation of the school's mission and how it should be accomplished. Particularly after 1947 it became increasingly apparent that the traditional relative isolation of military officers from domestic and international policy matters had to be discarded. The complex interservice relationships which developed, the realities of a prolonged cold war with the Soviet Union, the continued utilization of Air Force officers in nonmilitary Governmental agencies following World War II, all tended to change the emphasis on the qualifications required of senior officers for high command and staff positions. Without diminishing the requirement for instruction in pure military art, the need for raising the study of national and international affairs by senior officers from a supporting role to something approaching coequal status became evident. The task of developing sound concepts for the employment of aerospace power could be carried out only if those conducting the study had a proper awareness of the influence of political, economic, and psychosocial factors on national objectives and resultant national and military strategies.

Plans to revise the curriculum along these guidelines were well established by the end of the 1949-50 school year. Before the revision had progressed meaningfully, however, the Korean conflict suddenly emerged, necessitating the revision of all USAF peacetime schedules. On 20 June 1950 a teletype message from the Pentagon suspended Air War College student operations indefinitely.

During the period which followed this abrupt cessation of instruction, revision of the

Major General Orvil A. Anderson addressing the first Air War College class in September 1946.

curriculum was carried forward, accounting for the shifts from its original concepts. This planning activity was accelerated when subsequent orders from Headquarters USAF directed the preparation of a plan for continuing Air War College instruction through the establishment of a correspondence-type course to replace the regular resident course. Somewhat later the Pentagon's indication that the resident program might be reinstituted early in January 1951, on an accelerated basis, provid