Page:Michael Foundation, Inc. v. Urantia Foundation v. McMullan.pdf/10

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).^[1]

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 centrolling factor.^[2] 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 jury instruction is erroneous.^[3] 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

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).

1. Urantia Foundation does not request reversal; rather, it incorporates its challenge to the jury instruction into its argument that initial classification is a 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.
2. 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.
3. 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 these 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.