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.                                       ) P.O.D. Docket No. 1/280
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."                             )

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

Bosone, Reva Beck

POST OFFICE DEPARTMENT Washington 25, D. C.

DEPARTMENTAL DECISION

The only issue in this case is whether or not the publications, "TV GIRLS and GAGS" and "CHICKS and CHUCKLES" are periodical publications within the meaning of Sections 4351 and 4354 of Title 39 U.S. Code (formerly codified as Sections 224 and 226 of Title 39 U.S. Code). The Respondent admitted that these publications met all the requirements of the statutes except one: 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. Whether these publications, Exhibits 6, 7, 8, 9, 10, 11 and 12 of "TV GIRLS and GAGS" and Exhibits 18, 19, 20, 21, 22, 23 and 24 of "CHICKS and CHUCKLES" are periodicals or books is the only issue.

An examination of the exhibits will show a definite similarity between the contents of "TV GIRLS and GAGS" and "CHICKS and CHUCKLES". Both contain about one hundred pages including the cover. Each has about seventeen pages of advertising and sixteen pages of pictures of girls and each has from sixty to sixty-nine pages of cartoons and one page showing the Table of Contents.

The Respondent maintains that the material used in each set of publications is interchangeable as admitted by Mr. Jules Warshaw, President of the Publication Management Corporation who is the Petitioner in this appeal. Tr. 65. While there are certain headings for blocks of cartoons they fail to have any impact upon the character of the publications. The several numbers of the publications have no relationship with their immediate successors or immediate predecessors. Tr. 65-66. The published material could have been published years and years ago or published at the present time; any literary continuity is minuscule. The publications are of the page and size type as characterized in small books. This, however, is only important when it is considered in relationship to the other elements set out above.

The Petitioner maintains that the publications in question consist principally of humorous cartoons:

"These cartoons are based upon the common everyday situations which occur in the various strata of our society. It is the Petitioner's contention that the subject material of these cartoons represents a commentary on our times, our mores, our social customs and on the current relationship between sexes and various newsworthy subjects." .....that "since this is an era of visual and pictorial representation of events," ..... and since "a cartoon is a pungent representation of our whole point of view;" .....and that "the era of motion pictures, television, electronic devices, printing, and magnificent reproduction of works of art and even instantaneous photography and recording; the visual, rather than the literary representation of ideas has come to be more and more important to the culture of our day."

Certainly it is true that these modern visual devices are making a powerful impact upon the culture of today. But is that to say publications like these involved here are periodicals -- that these cartoons are considered articles? In Houghton v. Payne, 194 U.S. 88, the Supreme Court held that:

"Periodical publications as defined in the Post Office bill of March 3, 1879, do not include books complete in themselves and which have no connection with each other, simply because they are serially issued at stated intervals more than four times a year, bound in paper, bear dates of issue and numbered consecutively;" ....."'periodical' and 'periodical publication' as used in the act of March 3, 1879 are used in their obvious and natural sense, and denote the well-recognized and generally understood class of publications commonly called by the name of 'periodical.'"

and further in the same opinion a publication is described as a periodical when:

"each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series." ..... and that "a book is readily distinguishable from a periodical, not only because it usually has a more substantial binding (although this is by no means essential) but in the fact that it ordinarily contains a story, essay or poem, or a collection of such, by the same author, although even this is by no means universal, as books frequently contain articles by different authors. Books are not often issued periodically, and, if so, their periodicity is not an element of their character."

And again in 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 Phrases (Perm Ed.) 397 quoting from Keene v. Wheatley, 14 Fed. Cas. 180, 192."

Observing the above it is apparent that the cartoons in "TV GIRLS and GAGS" and "CHICKS and CHUCKLES" are not articles and I cannot believe they would be considered articles in the common usage of the English language of today. A review of the Table of Contents of the publications in question will show how inconsequential it is. I cannot agree with the Petitioner that the cartoons in these publications constitute articles as we usually refer to "articles" in magazines. Neither can I agree with the Petitioner that there is a continuity of literary character maintained through all of the issues. Therefore, I must find that each publication of "TV GIRLS and GAGS" and "CHICKS and CHUCKLES" is a book of cartoons, each issue complete in itself.

I agree with the Initial Decision of the Hearing Examiner that "these publications are similar in practically all respects to those which were considered in Candar Publishing Company, Inc., P.O.D. Docket No. 1/44, a Departmental Decision dated December 4, 1958 and in the case of Candar Publishing Company, 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 mailing privileges was sustained by the Court. These decisions are controlling in the instant case."

For the reasons set out above the Initial Decision of the Hearing Examiner is hereby affirmed and the order revoking second-class mailing privileges of the publications "TV GIRLS and GAGS" and "CHICKS and CHUCKLES" is hereby sustained.