U.S.A., 2000 WL 1028634, at *16 (citing Procter and Gamble Co., 1998 WL 788802, at *38 (S.D.N.Y.1998); Nimmer § 4104 at 4-20 (3d ed.1997)).
A distribution of a work to one person constitutes a publication. Kakizaki v. Riedel, 811 F.Supp. 129, 131 (S.D.N.Y.1992); Burke v. Nat’l Broad. Co., Inc., 598 F.2d 688, 691 (1st Cir.1979).
As found above, A Course in Miracles was published without notice of copyright prior to copyright registration i.e. was “published.” Once a distribution or publication without notice of copyright prior to copyright registration has been established, the burden of proof shifts to the plaintiff, the holder of the copyright, to show that the publication or distribution of the work was for a limited purpose; and as such was legally insufficient to place the work into the public domain. Kepner–Tregoe, 186 F.3d at 287–88; Acad. of Motion Picture Arts and Sciences, 944 F.2d at 1451; Procter & Gamble Co., 1998 WL 788802, at *38.
A publication that is not limited is general. White, 193 F.2d at 747; Kakizaki, 811 F.Supp. at 131. Specifically, to satisfy that a distribution qualifies as a limited publication, the plaintiffs must sustain their burden of proof to put forth evidence that the publication was (1) to a definitely select group, (2) for a limited purpose, and (3) without the right of diffusion, reproduction, distribution or sale. White, 193 F.2d at 746–47; Continental Casualty Co., 253 F.2d at 706–07; Procter & Gamble Co., 1998 WL 788802, at *38.
The plaintiffs must prove all three of the enumerated elements exist or else the distribution may not be deemed limited and the copyright will not be valid. H.W. Wilson Co., 402 F.Supp. at 458; Kakizaki, 811 F.Supp. at 131.
- C. The Group To Which Distribution Was Made Was Not Select
A select group cannot be created by an author’s “subjective ‘test of cordiality.’” Thus, when works are given or sold to persons deemed “worthy” a select call is not created and the publication is not limited. When plaintiffs sell or give the Work to “congenial strangers” the Court is “unable to see in this picture any definitely selected individuals or any limited, ascertained group or class to whom the communication was restricted.” Schatt v. Curtis Mgmt. Group, Inc., 764 F.Supp. 902, 911 (S.D.N.Y.1991) (quoting White, 193 F.2d at 747). The process by which Schucman and Thetford decided whether an individual should receive the Course was completely subjective and done through a test of cordiality as to whether a particular person was worthy or ready for the Course. The decision that someone was ready to receive the work lacked objective qualification and was based on the anticipated interest in or effect of the Course on the recipient. It is not possible to ascertain what individuals were or would be part of a select or restricted class. An interest in spiritual experience fails to define a class adequately.
The common interest in the subject matter of a work, that is, in this case spiritual revelation, will not render the publication limited. RPM Mgmt., Inc. v. Apple, 943 F.Supp. 837, 842 (S.D.Ohio 1996); 1 M.Nimmer and D.Nimmer, Nimmer on Copyright, Sec. 413[A][1] (1996).
As found above, a number of unknown people received the uncopyrighted manuscript prior to publication without notice. The admitted recipients of the Course include Skutch Whitson, Wapnick, Hatcher, Hugh Lynn Cayce, his son, Herbert Puryear, Jampolsky, Bolen, Erickson, John Mundy, Dean, Father Groeschel, Ham-
