No time to tell a story today folks, so I'm going to let you create your own. Here is the source document...the day Uncle Sam (in the person of the post office) denied Chicks and Chuckles their second-class postal privileges. A landmark decision in the history of Freedom of the Press! Squint!
In the Matter of the Petition by
PUBLICATION MANAGEMENT CORP., 11 East 17th Street, New York, New York, and 30-40 Hilliard Street, S.E., Atlanta 2, Georgia for a hearing upon the revocation of its second-class mail permit for its publications "TV GIRLS AND GAGS" and "CHICKS AND CHUCKLES." P.O.D. Docket No. 1/280 January 23, 1961 Gerard N. Byrne Hearing Examiner POST OFFICE DEPARTMENT, WASHINGTON 25, D. C. APPEARANCES: Joseph Tiefenbrun, Esq. 342 Madison Avenue New York, New York for the Petitioner Jack T. DiLorenzo, Esq. Eugene P. White, Esq. Office of the General Counsel Post Office Department for the Respondent
At the outset of the hearing it was agreed between the parties that the issues in this proceeding would be as follows:
a. Whether the publications are periodicals as defined in the case law and regulations.
b. Whether the publications have the lists of subscribers as required by Section 132.225 of the Regulations of the Post Office Department.
c. Whether these publications are designed primarily for free circulation as stated in Section 132.227 of the Regulation of the Post Office Department, and are, consequently, not qualified for second-class privileges.
The issue relating to subscribers as stated in subparagraph b. above was, in effect, abandoned at the hearing and in Respondent's brief, and the issue relating to free circulation, mentioned in subparagraph c. above is found in favor of Petitioner in view of the Departmental Decision in the case of Great American Publications, Inc., P.O.D. Docket No. 1/220, dated January 9, 1961.
In explanation of this finding it may be said that the issues in that case relating to free circulation were similar in all respects to the facts of the instant case. In the Great American case there were 161,850 copies of the publication consigned to news agents with return privileges. Some 56,897 of these copies were sold by news agents and 104,953 were returned. In the instant case a similar situation existed, in that, of all issues of both publications submitted in evidence, none sold as much as 50% of the printed copies distributed to news agents. It was the contention of the Respondent in each of these cases that the Regulation (see 132.227) requires that a publication be "circulated principally" (more than 50%) to a list of subscribers in order to qualify for the second-class privileges. And the Respondent claims that, in determining this figure all copies shipped to news agents whether sold or returned to the wholesaler or distributor must be counted.
As stated, the Great American case, supra, rejected this interpretation and held that the word "circulated" meant, in effect, distribution to the reading public, and not to news agents or others within the distribution system. Since, in the instant case, practically all of the copies disposed of (other than those returned by news agents) were so "circulated" it follows that this issue must be ruled in favor of the Petitioner.
Next, consideration must be given to the only remaining issue, that is, whether or not the publications concerned in this case are periodicals within the meaning of the statutes. (Formerly 39 U.S.C. 224, 226, now 39 U.S.C. 4351, 4354) Here again the issues were narrowed when the Respondent conceded that these publications met all the requirements of the statutes except one, viz. that the bi-monthly issues of these publications were each complete in themselves and that they were books concerned with one subject as opposed to periodicals as defined by the courts. In this connection the Respondent placed in evidence seven copies of each of the publications (Exhibits 6, 7, 8, 9, 10, 11 and 12, "TV Girls and Gags" and Exhibits 18, 19, 20, 21, 22, 23 and 24 "Chicks and Chuckles") and rested his case.
In support of his petition Mr. Jules Warshaw, President of the Petitioner took the stand and testified substantially as follows: That the editorial policy, reflected in both publications, is to give readers in cartoon form the happenings of our times; that material is selected from the current happenings of our day, covering all phases of life and the interests that people have in them; that these matters are presented primarily from a humorous viewpoint with one illustration and a slight supplement of words; that the publications are indexed indicating groupings of cartoons under different headings and ideas; that the cartoons are a variety of original cartoons by different artists; that relationship between issues is maintained by using many of the same cartoonists from issue to issue; that a cartoon is in effect an essay, and that no issue of either of these publications has ever been limited to one subject such as medicine, law, music, religion or painting. On cross-examination Mr. Warshaw stated that the material selected for these two publications could be matters of current events or any events within the past twenty years; that there is a time value to each of these issues but that the matter contained in these publications could be interchangeable and that, in fact, such matter is interchangeable within different issues of the same publication.
Mr. Warshaw also testified extensively on the subject of the circulation procedures for these publications, which testimony will not be reviewed here in view of the ruling on this point in favor of the Petitioner.
At this point it is appropriate to consider the exhibits in this case. For the sake of brevity a careful review of one exhibit will be presented since it appears to be fairly representative of all. Exhibit 19, "Chicks and Chuckles" for the month of February 1960 consists of a publication measuring approximately 4 inches by 5 3/4 inches, and of 100 pages counting the front and back covers. It contains no index, but on page 3 sets out a table of contents showing the purported departments or divisions of the magazine. These are stated as follows:
Girls Will Be (Page) 12 Legal Eagles 24 Show Biz Whizzes 46 Kid Cut Ups 70 Office Pips 86 Here Come The Tigers 91The first eleven pages are not contained in the table of contents and consist of advertising and general cartoons.
The first item "Girls Will Be" consists of four pages of "girl" cartoons, 1 1/3 pages of photographs of girls and the balance of 6 2/3 pages in general cartoons and advertising.
The second item "Legal Eagles" consists of three pages of cartoons based on court scenes, and the remaining 19 2/3 pages are devoted to general cartoons and advertisements.
The third item "Show Biz Whizzes" contains 3 1/3 pages of cartoons based on theatre scenes, and the remaining 20 pages consist of general cartoons, advertising, and photographs of girls.
The fourth item "Kid Cut Ups" devotes 3 1/3 pages to cartoons based on children and the remaining 12 2/3 pages to general cartoons, advertisements and a photograph of a girl.
The next item "Office Pips" consists of four pages of cartoons with a business office background and one page of advertising.
The last item in the table of contents "Here Come The Tigers" is a narrative take-off of a radio announcer broadcasting a ball game. It is four pages in length. The last six pages of the magazine consist of one cartoon and advertisements.
Some twenty-nine cartoonists are represented by cartoons in this issue, most of whom contributed single cartoons, but one in particular was named on nineteen different drawings.
It may be said, parenthetically, that later issues of this magazine contained another item in the table of contents termed "The Art Gallery" which lists photographs of girls by pages. The departments or divisions mentioned in the above table of contents were followed in part and in part deleted with others substituted, in subsequent issues. Similar statements are relevant to "TV Girls and Gags," and it is not considered necessary to set forth a separate analysis of that magazine. In the light of the foregoing, are the publications "TV Girls and Gags" and "Chicks and Chuckles" periodicals within the meaning of the decided cases on this subject?
In the case of Houghton v. Payne , 194 U.S. 88 the Supreme Court said, inter alia:
"A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature." (Emphasis supplied)
The term "article" as used in the opinion of the court appears to be controlling. It has been defined as:
"* * * a literary composition on a specific topic forming an independent portion of a book or literary publication, especially of a newspaper, magazine, review or other periodical." Miller v. State , 81 Ark 359, 99 SW 533.
And a "literary composition" as stated in the above definition has been defined for the purposes of copyright as:
"* * * an original result of mental production developed in a series of written or printed words arranged for an intelligent purpose in an orderly succession of expressive combinations". 25 Words and PhrasesKeene v. Wheatley , 14 Fed. Cas. 180, 192. (Perm Ed.) 397 Quoting from
Measured by these standards are the publications in question in the instant case to be considered periodicals? It is obvious, in the first place, that the various cartoons are not "articles" as defined in the cases available, nor would they be considered to be such in the ordinary usage of the English language. Secondly, the departments or divisions of the publications as set forth in the table of contents and in the contents of the publications themselves, are not truly departments, for the reason that such titles are submerged in the far larger proportions of general type cartoons. Further the backgrounds of the asserted "departments" are only incidental to the cartoons and do not indicate a complete type in any case. Again, there is a lack of continuity of literary character in that so-called departments are not maintained throughout all issues, so that, taken all-in-all, there is no connection between the different numbers in the series. It follows that these publications must be considered as agglomerations of similar types of jokes or cartoons, each issue complete in itself, and I so find. I also conclude that they are not periodicals as defined above.
These publications are similar in practically all respects to those which were considered in the matter of Candar Publishing Co., Inc., P.O.D. Docket No. 1/44, Departmental Decision dated December 4, 1958, and in the case of Candar Publishing Co., Inc. v. Summerfield , (U.S.D.C., D.C.) Civil Action No. 3227-58. The Departmental Decision that the publications were not eligible for second-class mail privileges was sustained by the court. These decisions are controlling in the instant case.For the foregoing reasons the actions of the Director, Division of Postal Services, Post Office Department, in revoking the second-class privileges of the publications herein considered are affirmed.Proposed findings of fact and conclusions of law, or the substance of them, submitted by the Respondent have been fully considered, and are adopted to the extent herein indicated. Otherwise such proposals are denied for the reasons stated or for immateriality.
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