Key Points

  • The Seventh Circuit affirmed summary judgment for Charles Bowman and Jean-Marie Robine on the Center for Gestalt Development's copyright infringement claims over their book reprinting Frederick Perls's article "Psychopathology of Awareness."
  • Under Sections 103(b) and 201(c) of the Copyright Act, the Center's 1991 rights in a collection of Perls's unpublished manuscripts gave it no right to publish, or to sue over, the article standing alone.
  • When the Center acquired the article's copyright in a 2021 settlement with Perls's children, it took the copyright subject to an oral nonexclusive license the children had granted Bowman and Robine, which the royalty payments made irrevocable.
  • Any claim for infringement before the license issued belongs to Renate and Stephen Perls, because the 2021 settlement did not transfer their right to sue for earlier conduct.
  • The court held that Harper & Row's first-publication principle arose in a fair-use analysis and does not decide who owns a component of a compilation.

A federal appeals court ruled Monday that a gestalt therapy organization's right to publish a collection of unpublished manuscripts by Dr. Frederick Perls gave it no control over a single article from that collection, defeating the organization's copyright suit against two therapists who reprinted the article in a 2019 book.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment against the Center for Gestalt Development and in favor of Charles Bowman, an Indiana practitioner and professor of gestalt therapy, and Jean-Marie Robine, a gestalt therapist living in France. Judge Scudder wrote the opinion for a panel that also included Judges Pryor and Maldonado.

The court held that the Center's 1991 rights in the manuscript collection conferred no rights in the article, "Psychopathology of Awareness," standing alone. When the Center later acquired the article's own copyright, in a 2021 settlement with Perls's children, it took that copyright subject to an oral license the children had already granted Bowman and Robine. The court relied on Sections 103(b) and 201(c) of the Copyright Act, which separate ownership of a compilation from ownership of the works inside it.

"In many areas of the law, a greater power incorporates a lesser one," Scudder wrote. After observing that it might seem intuitive for someone with the right to publish a collection to publish any one of its writings individually, he continued: "But the Copyright Act of 1976 works differently, providing that the copyright owner of an aggregate work has no automatic right to publish any of its components standing alone."

Frederick Perls pioneered gestalt therapy, a form of psychotherapy, but never published the article. His copyright passed to his wife, Laura Perls, when he died in 1970. After she died in 1991, her estate conveyed to the Center exclusive rights to publish a collection of his unpublished manuscripts that included the article. The agreement contemplated publication within a year, but the Center did not publish the collection until 2021.

Bowman acquired a copy of the article in the mid-2010s, and he and Robine decided to publish it through a French institute Robine had founded. Because the 40-page article was too short for a standalone book, the two wrote commentary chapters and solicited contributions from nine other gestalt therapists. The institute began selling the 200-page book on its website in February 2020 and sold some 200 or 300 copies by 2022, including to buyers in the United States.

On Nov. 25, 2019, Molly Rawle, the Center's president, emailed Bowman and Robine directing them not to publish. The pair offered the Center royalties and recognition as a co-publisher in exchange for permission, and the Center refused.

Bowman and Robine then turned to Renate and Stephen Perls, the couple's children, who had inherited the article's copyright in 1995. Leslie Gold, Renate's daughter and legal representative, obtained Stephen's approval and told Bowman and Robine in 2019 or 2020, apparently by phone, that they could use the article in exchange for a modest royalty.

The Center sued the siblings in late 2020. They settled in 2021 by assigning their interest in the article's copyright to the Center until its suit against Bowman and Robine concludes. The Center had filed that suit in May 2021 in federal court in Pennsylvania, and the case later moved to the Southern District of Indiana, where Judge Richard L. Young ruled for the two therapists.

On appeal, the parties stipulated at oral argument that the 1991 agreement transferred rights only in the collection. Citing the Supreme Court's 2001 decision in New York Times Co. v. Tasini, Scudder wrote that as of 1991 the Center "had no more of a right to publish the article, except as part of the collection along with the other unpublished manuscripts, than a magazine has a right to reproduce any of its freelancers' articles in isolation." The court noted that the book shared only the article with the collection.

The Copyright Act requires a writing to transfer ownership of a copyright, but it exempts a nonexclusive license, a grant of permission to use a work, from that requirement. The court held that the royalties Bowman and Robine paid Gold for the license "made it irrevocable," so the Center "could not retroactively unwind this arrangement" when it acquired the copyright in 2021.

The Center also could not sue over any infringement that occurred before the license issued, the panel said. If the license came only in 2020, as the Center contended, Bowman's and Robine's "initial publication and sale of the book in 2019 may well have infringed the Perls siblings' copyright in the article," Scudder wrote. But the siblings, not the Center, were the proper plaintiffs for that conduct, he wrote, because the 2021 settlement did not show that they had transferred their right to sue.

The court rejected the Center's argument that factual disputes remained over whether and when Gold granted the license. It found Gold's sworn declaration, whose reliability the Center had questioned, corroborated by the royalty check she received and by a later email referring to her earlier support for the book. "A reasonable jury could conclude only that Gold in fact conveyed the oral license," Scudder wrote, and even a 2020 date preceded the Center's 2021 acquisition.

The panel also rejected the Center's reliance on Harper & Row Publishers, Inc. v. Nation Enterprises, a 1985 Supreme Court decision recognizing a copyright owner's "right to control the first public appearance" of a work. Scudder wrote that the Supreme Court made that point while analyzing a fair-use defense. On who owns a component of a compilation, he wrote, "the answer comes not from Harper & Row but from ยงยง 103(b) and 201(c) of the Copyright Act."

"By the time the Center acquired the copyright in the article itself, as opposed to the compilation, it was too late to prevent Bowman and Robine from publishing the article as part of their book," Scudder wrote.

The decision leaves Judge Young's judgment for Bowman and Robine in place. The panel said a separate default judgment the Center won against the French institute, which never appeared in the case, played no part in the appeal because it neither found Bowman and Robine liable nor ordered them to provide relief to the Center.