Monday, December 8, 2014

Chapter 32 - Trial-By-Headline: Part 5 - Vindication

Korzybski: A Biography (Free Online Edition)
Copyright © 2014 (2011) by Bruce I. Kodish 
All rights reserved. Copyright material may be quoted verbatim without need for permission from or payment to the copyright holder, provided that attribution is clearly given and that the material quoted is reasonably brief in extent.

Soon after arriving in Brooklyn, Alfred went to meet Harold de Wolf Fuller, the journalism professor who edited New York University’s weekly journal, New York. Fuller wanted to write a more extensive article on the ethical issues related to the newspaper coverage of the Houck case. He also wanted to have it signed by as many as possible of the scientists and other figures who had sent supporting letters to Korzybski. Fuller had taken up Korzybski’s grievance as part of his own crusade to raise up the level of American journalism. As he wrote in the introduction to the article, finally published in the July 23 issue of New York, Fuller wanted not only to “clear one individual of outrageous charges”, but also to make an issue of the “widespread abuse” by the press in “sensationalizing scientific investigations”. Korzybski gladly helped Fuller by proofing the article and providing the names of friends and associates who might agree to sign it and have their names published. 

Twenty-five individuals—representing mathematics, biology, neurology, and psychiatry, among other fields—were able to respond in time and affirm Korzybski as a legitimate scientific worker who had been misrepresented by irresponsible journalists. The list included: E.T. Bell, C.B. Bridges, Charles Watts Burr, R.D. Carmichael, Ross McC.Chapman, Stanwood Cobb, David Fairchild, Philip Graven, H. L. Haywood, C. Judson Herrick, L.O. Howard, Smith Ely Jeliffe, Jeremiah W. Jenks, David Starr Jordan, Keyser, John T. Madden, Basil Manly, Thomas J. McCormack, William Allen Neilson, Alexander Petrunkevitch, Polakov, G. Y. Rainich, William E. Ritter, William Morton Wheeler, and Cora Williams. Alfred expressed deep gratitude to Fuller for his efforts.(43)

Although the article probably did not get seen much outside the New York City area, it had some impact and even engendered a little controversy. Editor and Publisher, a trade paper for the publishing industry in New York City, reprinted the text of the 
New York article in its July 23 edition under the bold headline: “Many CHARGE PRESS FAKED IN DR. HOUCK CASE”. The subheading read: “Distinguished Scientists and Educators Issue Remarkable Statement to Clear Individual of ‘Outrageous Charges’ and Awaken Press to Abuses in Sensationalized Science”. The article also got attention from a few New York City newspapers. A July 25 editorial in The New York Sun rightly took credit for its early defense of Korzybski and his work. Meanwhile, an editorial in the July 26 edition of the New York Herald Tribune criticized the Fuller article for painting newspapers with too broad a brush (although the New York article had not said that all newspapers were at fault) and took credit for not having been among those papers that had repeated rumors about Korzybski. Reading this, Fuller couldn’t resist taking the Herald Tribune to task in the next issue of New York for its “calm misstatement of facts” in some of its earlier coverage about Korzybski in relation to the Houck affair.

A veteran reporter named Silas Bent also paid attention. Bent had become at least as bothered by the irresponsibilities of the press as Fuller had. He was writing a book to be published later in 1927, Ballyhoo: The Voice of The Press. The slang term “ballyhoo”—synonymous with “exaggerated talk”, also referred to as ‘baloney’—had once referred to the lurid, attention-getting claims of sideshow barkers at carnivals trying to lure gullible customers.(44) Bent’s book, brimming with case examples of journalistic ballyhoo and still worth reading, provides one of the earliest examples of mass media criticism in the 20th Century. Bent devoted about a page of the book to the Houck case, summarizing Fuller’s July 23 
New York piece with little comment. Korzybski, who had had no contact with Bent, took note of the book when it appeared. For some time afterwards, Alfred was intent on referring to his newspaper ‘trial’ in his book to illustrate faulty abstracting and abuse of the time-binding mechanism. Friends like Haywood and William Morton Wheeler convinced him to leave it out. Korzybski likely was referring to his ‘trial-by-headline’, however, when he wrote his brief comments on newspapers and “other public prints” and media “stimulating morbid inclinations of the mob.”(45) He made sure to include Bent’s book in his bibliography.

Korzybski still wasn’t satisfied. He believed various irresponsible newspapers had ‘done him wrong’—having both libeled him and violated his copyright, thus threatening his future livelihood. His dueling days long over, he hoped instead to get satisfaction (significant monetary compensation from the guilty parties) by means of lawsuits against the offenders. In February 1928, he retained the law firm of Denman, Bevier & Scotti “to represent me in my intended actions to recover damages arising out of infringement of my copyright on the model Anthropometer and to recover damages for libel in articles relating thereto.”(46) One of the firm’s partners, Louis Bevier, personally took care of the case. Eventually Alfred accepted that, given the prevailing environment of journalistic ballyhoo, winning any libel case against the offending newspapers had too many difficulties. His best chance seemed to entail going after Underwood & Underwood, the press photo agency, for copyright violation; they had syndicated the photographs of the Anthropometer as ‘thought machine’ that were used to accompany many of the offending articles.

Bevier filed a bill of complaint on behalf of Korzybski against Underwood & Underwood, Inc. in the Federal District Court in New York City on April 30, 1928. A copy of the complaint with a subpoena was served against Underwood & Underwood on May 1. Although they had only 30 days to respond, their attorney didn’t file their answer, a motion to dismiss the complaint, until June 29. The district judge, Julian W. Mack considered the motion on November 21 (the ‘mills’ of the court moved slowly), and on November 30 dismissed the complaint on the grounds that Korzybski and his attorney had failed “to state a cause of action against the defendant.” Remarkable. Korzybski’s attorney filed an appeal to the U.S. Circuit Court (also in New York) and, as these things go, the Circuit Court did not hear the appeal until late in the following year.(47) 

The three presiding judges—Augustus Hand, Learned Hand, and Judge Swan gave their ruling on December 18, 1929: they affirmed the decision of the District Court and dismissed Korzybski’s case. According to their joint opinion, the fact that Korzybski had patented the Anthropometer invalidated his claim of copyright infringement. They determined that the written material and drawings of the Anthropometer had become part of the public domain when first published by the patent office. Accordingly, they did not consider it protected by copyright. Anyone could photograph or copy the drawings and description of the Anthropometer as long as they didn’t make a three-dimensional model of one.

The nature of the Anthropometer as an educational diagram illustrating a scientific formulation reduced the sharpness of the distinction the judges seemed to be making between a drawing and 3-D model. But with its dual patent and copyright, the Anthropometer sat in the rather murky legal waters between these two areas of intellectual property.(48)

The next step in the appeals process would be the Supreme Court. After consulting another lawyer, Alfred and Mira decided not to pursue the case any further. Alfred had been away from New York City from the spring of 1928 until mid-1929 and had been communicating with the lawyers by mail for much of the almost two years of litigation. He had pored over the copyright and patent laws. He probably felt tired of the business. And besides, with the recent stock market crash and declining economy, it was not a good time to be spending more money on retainer fees to lawyers for a still rather questionable outcome. Alfred tried to put a good face on things even though he also had to pay $25 in hearing costs to Underwood & Underwood. He wrote to Mira, working in Florida, that he was satisfied with the outcome: because the lawsuit was dismissed, not lost on merits, they might be able to take further action in the future. And for now they were saving bundles of money.(49)

The circuit court dismissal in Korzybski v. Underwood & Underwood made it a landmark case in intellectual property law for the next six decades, “cited over eleven hundred times in various court opinions” up until the early 1990s.(50) It exemplified the so-called “election doctrine” whereby having a patent precluded the ability to copyright a scientific illustration. This remained a mainstay of U.S. Copyright Office Policy until the mid-1990s. By that time, various court decisions since the 1950s had begun to reshape attitudes towards the protection of designs and illustrations. By 1995, the Copyright Office was able to reverse its previous policy and declared, “The availability of protection or grant of protection under the law for a utility or design patent will not affect the registrability of a claim in an original work of pictorial, graphic, or sculptural authorship.”(51) Korzybski would have had a much better chance of winning his case in this environment—more than sixty years after he had his case dismissed.

You may download a pdf of all of the book's reference notes (including a note on primary source material and abbreviations used) from the link labeled Notes on the Contents page. The pdf of the Bibliography, linked on the Contents page contains full information on referenced books and articles. 
43. AK to Fuller, 6/29/1927. AKDA 19.354. 

44. Wentworth and Flexner, Dictionary of American Slang, p. 17. 

45. Korzybski 1994 (1933), p. 556-557. 

46. Copy of AK Contract with Denman, Bevier, & Scotti, 2/15/1928. AKDA 36.271. 

47. “United States Circuit Court of Appeal for the Second Circuit [-] Alfred Korzybski, Complainant-Appelant, against Underwood & Underwood, Inc., Defendent-Respondent [-] Transcript of Record”. AKDA 36.225-236. 

48. Appelate Decision in AK v U & U in Report of U.S. Circuit Court of Appeals for Second Circuit, affirming decree dismissing bill of complaint for failure to state cause of action. AKDA 36.220-223; See also AKDA 36.237-238. 

49. AK to MEK., 1/30/30. AKDA 22.468. 

50. Pressman and Klein, p. 63. 

51. “Registrability of Pictorial, Graphic, or Sculptural Works Where a Design Patent Has Been Issued...Policy Decision and Amendment of Regulations”. U. S. Copyright Office, Docket No. 95-3, Federal Register, March 24, 1995 (Volume 60, Number 57). (accessed 1/24/2011). 

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