P.O.D. Docket No. 2/247
July 28, 1967
In the Matter of the Petition by
PUBLISHERS DEVELOPMENT CORPORATION
8150 North Central Park Avenue
Skokie, Illinois 60076
for a hearing upon the denial of its second-class mail permit for "Figure."
P.O.D. Docket No. 2/247
July 28, 1967
Gerard N. Byrne Hearing Examiner
POST OFFICE DEPARTMENT, DIVISION OF HEARING EXAMINERS,
WASHINGTON, D.C. 20260
APPEARANCES:
Charles Rowan, Esq.
324 E. Wisconsin Avenue
Milwaukee, Wisconsin
for the Petitioner
Clinton I. Newman, Esq.
Office of the General Counsel
Post Office Department
Washington, D.C.
for the Respondent
INITIAL DECISION OF HEARING EXAMINER
This action was instituted by Petitioner as an appeal from a ruling of the Director, Classification and Special Services Division, Bureau of Operations, Post Office Department. The Petitioner had applied for second-class mail rates for its publication "Figure," and the Director had denied the application as failing to meet the requirements of the law (39 U. S. Code 4351 and 39 U. S. Code 4354). 1/ In his letter of denial the Director stated that his review of the publication "Figure" resulted in the conclusion that it is a book of pictures, and not a periodical publication as required by Section 4351 of 39 U. S. Code. 2/ To the Petitioner's appeal the Director, by his attorney, filed an answer which originally set up four issues, viz.:
a. Is the publication "Figure" originated and published for dissemination of information of a public character?
b. Is the publication "Figure" devoted to a special industry, the photography industry?
c. Has the publication "Figure" a legitimate list of subscribers?
d. Is the publication "Figure" a periodical publication or a book?
The case proceeded to a hearing on these issues.
It will be observed that neither of the statutes involved in this case defines the term "periodical publication." Section 4351 merely states that second class mail "embraces newspaper and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title." And section 4354 states: "Generally a mailable periodical publication is entitled to be entered and mailed as second class mail if it--" complies with the listed requirements. It is obvious therefore, that if the publication "Figure" is not a periodical publication as used in the statutes, it is not subject to entry and mailability as second-class mail. It follows that, if the publication "Figure," here in issue, is not a periodical publication the issues in subparagraphs a., b. and c., supra, are moot, and therefore this issue (subparagraph d., supra) will first be considered.
The Petitioner then presented its first witness, Mr. Arthur Arkush, General Manager and Vice-President of the Petitioner (appellant) Publishers Development Corporation, employed by that corporation for ten and one-half years, who had worked for the Chicago Sun-Times as assistant picture editor and who operated his own publishing company for three years (Tr. 6, 7). He defined a periodical as follows:
"A periodical is a magazine generally of a paperback nature that is published at regular intervals, not less than possibly four times a year and follows a general format of magazines that are sold on the newsstands today. It has a continuity feature to it whereby the material disseminated in one issue would be carried over and again discussed in a subsequent issue.
"The general nature of the editorial follows from one issue to another."
and a book as follows:
"A book is generally hardbound and is published. It could be reprinted, but is seldom the decision to reprint a book is very seldom made before the first issue is printed. It does not have the same format as a periodical or magazine and there is obviously no consecutive flow of information because it is only published one time. And there are no subsequent issues."
The witness identified Petitioner's Exhibits numbered 1, 2, 3 and 4, as submitted to the Director, and with Exhibits 5 and 6
"These are definitely successive issues of a periodical. They have certain characteristics that are exactly the same issue to issue. They have certain columns which have been carried in each issue by the same author. The format is substantially the same. They are portfolios of photographers with explanations of how the photographers took the photographs and information of general interest to photographers and art students. And each of the four contains this type of information."
He further identified Exhibits 7, 8, 9 and 10 "Photography," an English publication, "Camera 35," "Popular Photography" and an issue of "Life" magazine as publications similar to "Figure," all of which have been granted second-class mail rates (Tr. 19-22). By way of additional testimony he stated that "Figure" is used by commercial photographers and contains discussions of new technical developments (Tr. 26); that preparation of each issue is accomplished in ninety days, whereas a book might well take years; that set fees are paid to authors of articles and pictures used (Tr. 28, 29); whereas authors of books are compensated by a fee or payment plus royalties (Tr. 29); that books are not sold on newsstands that sell periodicals or newspapers but rather in book shops and department stores (Tr. 29, 30).
Robert M. Ryan testified on behalf of Petitioner; identified himself as Vice-President of Nugent Williams Studios, Inc., Chicago, Illinois, which he stated to be the third or fourth largest commercial art studio in the world (Tr. 46); that he is a subscriber to "Figure"; that "Figure" would be of interest to photographers primarily in the "sparking of ideas," and would stimulate ideas for posing; that any technical information in the publication might be of assistance to their junior photographers but not to their master photographers (Tr. 47, 48).
Jay Robert Nash qualified as an expert in publication and writing (Tr. 52, 53) and identified Petitioner's Exhibits 1, 2, 3 and 4, as periodicals (Tr. 54) and defined the terms "periodical" and "books" as follows:
"In my opinion a periodical is any publication which has a fluid editorial state, that which changes from one edition to the next edition and also retains a consistency of publication within one given period, a year shall we say. These publications I am looking at are all dated Fall, Spring, Summer, Fall, so we have a consistency of publication; yet, the editorial nature within each publication is fluid. It has changed."
"A book is in contrast to this in a constant state. It does not change. Say, for example, a novel such as Ernest Hemingway's For Whom the Bells Toll. It is written in one way and no matter how much or how many editions are issued, it remains in the same editorial state."
He further defined modes of compensation for articles in a periodical and for a book substantially as stated by Mr. Arkush, supra.
The next witness on behalf of Petitioner, Douglas Biazek, identified Petitioner's Exhibits 1, 2, 3 and 4 as periodicals (Tr. 65); defined a periodical as a publication issued at regular intervals (Tr. 64); and restated the definitions of periodical and book substantially as described by previous witnesses.
The Petitioner thereupon rested.
No witnesses were presented by the Respondent.
Consideration of the exhibits filed on behalf of Petitioner discloses that the various issues of "Figure" are similar in all respects, i.e. they contain one page devoted to "Figure Forum" consisting of five to seven letters requesting information about various aspects of photography and answers thereto, and one page devoted to an editorial. A third page at the end of the publication is entitled "Figure Photographer's Handbook" and sets out various simple technical aspects of water photography, desert photography, etc. All of the pages (70) contain one or more photographs each of very attractive female models except the pages devoted to "Figure Forum" and "Editorial," but even these pages contain pictures of pen and ink sketches of nudes. All of the photographs are of nudes or partial nudes, with bare breasts featured. For example, the obverse and reverse covers of the publication (Petitioner's Exhibit 4) contains a semi-nude picture of Jayne Mansfield and the following legend:
PRESENTING
NUDES
BY
Keith
Bernard
OF HOLLYWOOD
MORE THAN
125 EXCITING
STUDIES
OF THE WORLD'S
MOST BEAUTIFUL
WOMEN
INCLUDING
JAYNE
MANSFIELD
And on the next to last page (the inside of the reverse cover), a picture of a nude and the following advertisement:
You asked for it--and we'll be delighted to present it: another issue of FIGURE devoted exclusively to nudes by Andre de Dienes. Yes, for the fourth time, the world's greatest lensman will fill these pages with a new gal-axy of voluptuous models, photographed with breathtaking realism against enchanting backdrops. For artistry, imagination, and sheer sensuous beauty, you won't find a better lensman than de Dienes. Nor will you find a better showcase for his newest collection of nudes than the next exciting issue of FIGURE.
Similarly, Petitioner's Exhibit 3 contains a very revealing photograph of a nude (fore and aft) and the following:
PRESENTING--A BREATH-TAKING COLLECTION OF HOLLYWOOD'S
LOVELIEST MODELS BY MASTER LENSMAN KEITH BERNARD
Many of Keith Bernard's models have been shaped like stars--Hedy Lamarr, Jane Russell, Ginger Rogers, and Marilyn Monroe, for instance. But "Bernard of Hollywood"--as Keith is known to the world--is equally famous for his peerless figure studies. Therefore, FIGURE is proud to announce an exciting collection of his best nude photos, featuring Hollywood's loveliest starlets and models. Treat yourself to 70 pages of beauty, camera tips, and other features for pro and amateur lensmen, in the next deluxe edition.
Other than such advertisements of its own publication, there are no advertisements in any of the issues of Figure. The pictures are grouped in divisions e.g. "Outdoors, Direct Sunlight, Water Sprite, Interiors, Story Telling Pictures, The Ideal Model, Open Shade Sophisticated Setting," but in all cases the background is hardly noticeable, and the nude figure with emphasis on the breasts stands out. Some short statements about how to obtain best backgrounds, and, in some cases, the camera settings are mentioned. As previously stated, however, the figure and the breasts are, in effect, the entire theme.
On the other hand Petitioner's Exhibits 7, 8 and 9 are truly technical photography magazines with a wealth of articles and advertisements of cameras, attachments, suggestions, new developments, tests, etc., as well as various types of pictures which indubitably have attractions to every type of photographer. Petitioner's Exhibit 10, a copy of "Life" magazine for January 20, 1967, contains editorials on current events, a book review, music review, letters to the editors, a guest column, a photographic and narrative study of current events in China, a similar opus on Representative Powell and his tribulations, an article on the Presidency, a graphic and narrative article on a Continental actress, a graphic and narrative article on the African lion, a fashion section, a graphic and narrative article on the great 17th Century artist Bernini, and other current items, all supplemented by attractive advertisements of modern luxuries, services and necessities.
The similarity asserted by the Petitioner between exhibits of "Figure" and Petitioner's Exhibits 7, 8, 9 and 10, as to contents is rejected. The contents of these later exhibits are current, instructive and informative to large segments of the population, whereas the contents of "Figure" are merely attractive as a collection of pictures, with some small assistance to a very limited clientele (Ryan, Tr. 47, 48).
Counsel for the Petitioner has presented various definitions of the term "periodical" from Webster's New International Dictionary (3rd Ed.), Encyclopedia Americana, Encyclopedia Brittanica and the Tariff Laws of the United States, all of which define a periodical, in effect, as a publication or serial (but not a newspaper) issued at regular intervals. These definitions are accepted for what they are worth but they must be compared with the case law governing the statutes involved in this case.
The cases decided by the Supreme Court, which are binding in this proceeding are
Houghton v. Payne , 194 U.S. 88, 97, in which the
Court said:
"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 or 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 essay upon subjects pertaining to general literature * * *.
"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."
* * * * * * *
"A periodical is defined by Webster as 'a magazine or other publication which appears at stated or regular intervals,' and by the Century Dictionary as 'a publication issued at regular intervals in successive numbers or parts, each of which (properly) contains matter on a variety of topics and no one of which is contemplated as forming a book of itself." * * *
and Bates & Guild Co. v. Payne , 194 U.S. 106:
In this case a periodical entitled "Masters of Music" was denied second class postage classification. The publication was described as a "monthly magazine" each issue of which was to be devoted to one of the world's great musicians giving thirty-two pages of engraved piano music, with editorial notes suggesting the proper interpretation, a beautiful frontispiece portrait, a life, and estimates of his genius and place in art chosen from the writings of the most eminent music critics. The application for second-class mail matter was denied on the ground that each number was complete in itself, had no connection with other numbers save in the circumstances that they all treated of masters in music, and that these issues were in fact sheet music disguised as a periodical subject to third class rules. The Supreme Court held:
"In the case of Masters in Music the question really is whether a pamphlet, complete in itself, treating of the works of a single master, with a greater part of the pamphlet devoted to specimens of his genius, shall be controlled by the cover, which declared that these numbers will be issued monthly, at a certain subscription price per year. Although a comparison of the exhibit with the statute may raise only a question of law, the action of the Postmaster General may have been, to a certain extent, guided by extraneous information obtained by him, so that the question involved would not be found merely a question of law, but a mixed question of law and fact. While, as already observed, the question is one of doubt, we think the decision of the Postmaster General, who is vested by Congress with the power to exercise his judgment and discretion in the matter, should be accepted as final."
In the case of Smith v. Hitchcock , 226 U.S. 53, 58, the Court, in approving Houghton v. Payne , supra , said:
"It must be taken as established that not every series of printed papers published at definite intervals is a periodical publication within the meaning of the law even if it satisfies the conditions for admission to the second class set forth in 14."
Petitioner argues with considerable force that the meaning of words changes through the years, and cites the changes in the definition of the term obscenity in the last fifty or sixty years. In support of this contention he cites the change in definition of the term "periodical" as exemplified in the case of Houghton v. Payne , supra , in which the Court cited the Century Dictionary definition of that term as follows:
"a publication issued at regular intervals in successive numbers or parts, each of which (properly) contains matter on a variety of topics and no one of which is contemplated as forming a book of itself."
and the fact that the definition set out in the 1927 edition of the same Dictionary dropped the words "matter on a variety of topics" and redefined the term simply as:
"Periodical I a, Periodic, esp. of magazines, etc., issued at regularly occurring intervals (of more than 1 day); of or pertaining to such publications; II n. A periodical publication."
These conclusions would be more acceptable had the Supreme Court incorporated these changes into recent cases as it has done in defining obscenity. Lacking such action by the Court, this Hearing Examiner is bound by the older decisions.
Considering the publication "Figure" there are found as matters of fact:
a. That each exhibit of Figure is a collection of pictures.
b. That the "editorial" and the questions and answers, as well as the explanatory statements respecting the pictures are inconsequential in the makeup of the publication which, as stated in a., above, is a collection of pictures.
c. That the advertisement contained in each issue concerning the next following issue makes no mention of any photographic technicalities but calls attention only to the beauty and exciting quality of the models to be pictured therein.
d. That each of the publications of Figure is complete in itself, deals with a single subject and does not indicate any need of a continuation.
e. That the publication Figure is not similar to the other exhibits submitted by Petitioner.
f. That each of the publications of Figure is a number in a series of books.
The following conclusions of law are drawn:
1. The publication Figure is not entitled to second class treatment within the provisions of Sections 4351 and 4354 of Title 39, United States Code.
2. That the decision of the Respondent Director, Classification and Special Services Division dated October 6, 1966, was correct.
Accordingly, the decision of Respondent Director is affirmed, and the Petition herein must be, and hereby is, dismissed.
/s/
Second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title.
* * * * * * * * * * *
4354. Conditions for entry of publications
(a) Generally a mailable periodical publication is entitled to be entered and mailed as second class mail if it--
(1) is regularly issued at stated intervals as frequently as four times a year and bears a date of issue and is numbered consecutively;
(2) is issued from a known office of publication;
(3) is formed of printed sheets;
(4) is originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or a special industry; and
(5) has a legitimate list of subscribers.
(b) For the purpose of this section, the word "printed" does not include reproduction by the stencil, mimeograph or hectograph processes or reproduction in imitation of typewriting.
(c) A periodical publication designed primarily for advertising purposes or for free circulation or for circulation at nominal rates is not entitled to be admitted as second class mail under this section.
2/ 39 U. S. Code, Sections 4351 and 4354.
(Footnotes consecutively numbered for ease of reading).