Thing 001558 (The Ultimate Weapon match books)

From 1957 through 1959, Steven Goodman and Stuart Scherr made the statue The Ultimate Weapon during their military service. As they were educated in the fine arts, both were classified as illustrators and were assigned to the preparation of visual training aids at Fort Dix in New Jersey. During their leisure hours the two made a small clay model of an infantryman, in full battle dress, with rifle thrust forward, with a field pack on his back, and with a bayonet, sheath, a shovel, canteen, hand grenades, and other implements attached to a cartridge belt supported by suspenders. The commander suggested the construction of a larger, life-size statue of an infantryman which would serve as a symbol of Fort Dix. Goodman and Scherr agreed to undertake the project. In 1957, Command Sgt. Maj. Billy Wright, assigned Goodman and Scherr the creation of the monument. For a period of nine months they devoted all of their regular duty hours, and some of their free time, to the work. During the course of the project Goodman and Scherr prepared and submitted progress reports to their superiors. On March 17, 1959 the statue was completed. The monument is installed at Infantry Park, Fort Dix, New Jersey. Scherr, unknown to his superiors, placed a notice of copyright to the uppermost panel of the pack. In June 1959 Goodman and Scherr registered the copyright in their names.

Universal made, with the authorization of the Army, books of matches bearing on the cover a picture of the statue and the legend: “Home of the Ultimate Weapon Fort Dix N.J.”

Goodman and Scherr brought a copyright infringement action against Universal in connection with the sale of matchbooks bearing a picture of The Ultimate Weapon. Universal stated that a statue made at government expense by soldiers assigned to do so while on active military duty, is a publication of the United States Government. On September 18, 1967, the court case Stuart Scherr and Steven Goodman v. Universal Match Corporation took place at United States District Court in New York. Judge McGohey held:

[Universal]’sprimary contention is that the statue is a publication of the Government within the meaning of 17 U.S.C. section 8 and is, therefore, not copyrightable. That section provides in pertinent part: “No copyright shall subsist in any publication of the United States Government, or in any reprint, in whole or in part, thereof.” The precise scope of the phrase “publication of the United States Government”, has long been a source of conflict and concern, as a result of which many definitions and criteria have been suggested for categorizing various works as within or without the prohibition of the section. [...] Because the statue was displayed without restriction as to either persons or purpose and without adequate notice, it is concluded that there was a divestive publication under an invalid copyright such as to place The Ultimate Weapon in the public domain. [...] [I]t appears that the statue was a work made for hire. [Goodman and Scherr] were relieved of their regular duties and assigned to designing and constructing what eventually became The Ultimate Weapon. During this period they were under military supervision, receiving their pay and their instructions from the Government, and, further, being supplied by the Government with all the equipment and materials necessary to complete their work.

The court held that Universal who used a picture of the statue which was at army base and which had been created by two soldiers who were relieved from duty for purpose of creating this monument and in whose name copyright was registered was not guilty of copyright infringement. Goodman and Scherr appealed. On October 15, 1969, the court case Stuart Scherr and Steven Goodman v. Universal Match Corporation took place at United States Court of Appeals. Judge Waterman held:

The essential factor in determining whether an employee created his work of art within the scope of his employment as part of his employment duties is whether the employer possessed the right to direct and to supervise the manner in which the work was being performed. [...] Under the foregoing test it is strikingly obvious that if an employer-employee relationship between the Government and [Goodman and Scherr] actually existed, any ownership in the work designed by [Goodman and Scherr] necessarily belongs to the Government. The army’s power to supervise; its exercise, though a limited one, of that power; and the overwhelming appropriation of government funds, time and facilities to the project, are all undisputed.

The court concluded that the ownership in the statute necessarily belonged to the government, particularly since the army was entitled to supervise the manner in which the work was performed and devoted considerable funds, time and facilities to it.