In the Matter of the Petition by ) October 9, 1967 ) PUBLISHERS DEVELOPMENT CORPORATION ) 8150 North Central Park Avenue ) Skokie, Illinois 60076 ) P.O.D. Docket No. 2/247 ) for a hearing upon the denial of ) its second-class mail permit for ) "Figure". ) 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 Bosone, Reva Beck POST OFFICE DEPARTMENT WASHINGTON, D.C. 20260
Is the publication "Figure," the subject of the above named case, a periodical or a book? The Director of the Classification and Special Services Division of the Bureau of Operations of the Post Office Department denied the Petitioner's application for second-class mailing privileges because he thought it was a book of pictures and not a periodical that met the requirements of section 4351 and section 4354, 39 U. S. Code. 1/ The Petitioner appealed the decision of the Director.
What constitutes a periodical and a book is not a simple matter. The definition of "periodical" and that of "book" must be taken from cases as they are not defined in the statute. In the briefs of both parties and at the hearing the definitions of these two words as given in Webster's Dictionary were discussed. The definitions, however, do not take precedence over those given in the pertinent cases. One cannot ignore the prevailing law that is set out in Houghton v. Payne, 194 U. S. 88, 98. 2/
The Petitioner argues that since the publication "Figure" is regularly issued at stated intervals and as frequently as four times a year, bears a date of issue and is numbered consecutively, and since it is issued from a known office of publication, and is formed of printed sheets, has a list of subscribers, and is devoted to the art of photography that all of the requirements of the statute are met and "Figure" should be designated a periodical and have the privilege of second-class mailing rates.
The Post Office Department maintains that "Figure" is a book; that each number (Petitioner's Exhibits 1, 2, 3, 4) "is complete in itself and entirely disconnected with every other number."--Houghton v. Payne, 194 U. S. 95.
Petitioner called Arthur Arkush who is the general manager and vice president of Publishers Development Corporation in Skokie, Illinois--the Petitioner in the above matter. Mr. Arkush who has a Bachelor of Arts Degree from De Paul University in Chicago has had experience in reporting for the Chicago Sun-Times and in being an assistant picture editor. He described a "periodical" as "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 newstands 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."--Tr. 7. He defined a "book" as "A book is generally hardbound and is published. It could be reprinted, but *** 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."--Tr. 8. He went on to say that a book deals with "one subject or with at least a series of short stories all that would be inclusive in and of themselves"; and in further describing the periodical he added, "The very nature of the thing calls for it to be published again. It is not self-contained in another self, or as we say in the magazine business, it is not a one-shot, but in a strict sense a definition of a periodical would be one which would be issued periodically."--Tr. 8.
Mr. Robert M. Ryan was called by the Petitioner. He has been for 15 years a vice president in charge of sales of an art and photographic studio which he said is about the fourth largest studio in the world. He said that Petitioner's Exhibits 1, 2, 3, and 4 would be of interest to persons employed as photographers or other persons interested in photography in that these would spark ideas--would "stimulate ideas for posing the models and looking for new lighting techniques that someone else has used. We steal ideas from the magazine."--Tr. 48.
Mr. Jay Robert Nash was called next by the Petitioner who said he published a newspaper, "Literary Times," in Chicago, Illinois. He has a degree from the Sorbonne University in Paris and is a writer and literary critic. He said, "..... 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."--Tr. 53-54. Mr. Ryan described a book as being in "a constant state. It does not change. * * * It is written in one way and no matter how much or how many editions are issued, it remains in the same editorial state."--Tr. 54.
Mr. Douglas Blazek was the last witness for the Petitioner. He said he is an inspector and has been a publisher since he was fifteen years of age. He is associate editor of the "Literary Times" which is published by the preceding witness, Mr. Nash. He said that "a periodical is nothing more than a publication issued at regular intervals" and that "A book, on the other hand, consists of printed sheets permanently bound and it is this permanency which distinguishes it from a periodical." Mr. Blazek along with the preceding witness for the Petitioner maintained that the publication "Figure" is a periodical.
In this case there has been some discussion as to how a magazine is put together and the time it takes, and how a book is
put together and the time it takes. It isn't the preparation that makes a book or a magazine, it is the result of that preparation that is finally published which determines whether it is a periodical or a book. The procedure may indicate what the publisher had in mind, but what one had in mind and what one produced may be two different things.
Let's examine Petitioner's Exhibits 1, 2, 3, and 4 and see what we find. There are no advertisements except those which advertise "Figure" itself and there are no advertisements in books. Is each exhibit a book of pictures? Exhibit No. 1 announces on the cover "70 Pages of Exciting Studies by Hollywood's Husband-Wife Photography Team"; Exhibit No. 2 announces on the outside cover, "70 Sensational Pages of Glamourous New Models"; Exhibit No. 3 announces on the outside cover "Exciting Portfolio of Nude Studies by America's Foremost Female Camera Artist Bunny Yeager and introducing 'The Nudes of Rayment Kirby Britain's Newest Figure Photographer'"; and Exhibit No. 4 announces on the outside cover "More Than 125 Exciting Studies of the World's Most Beautiful Women including Jayne Mansfield." Each exhibit contains 70 pages including the front and back covers. When one turns the pages of each edition he sees nude models taken in various poses. The poses in each issue resemble the poses in the other issues--there is a sameness. There was discussion by counsel describing the importance and variation of background in each picture. I agree with the Hearing Examiner when he said in his Decision, "but in all cases the background is hardly noticeable, and the nude figure with emphasis on the breasts stands out." "..... the figure and the breasts are, in effect, the entire theme."--Initial Decision, pp. 8, 9. And I would add that they are the dominating theme--that what little bit is written in the publication is completely dominated by the nude figure with the emphasis on the breasts. There is no comparison of the publication "Figure" with the Petitioner's Exhibit 10, "Life" magazine, and with the other Petitioner's Exhibits 7, 8, and 9. I agree with the Hearing Examiner when he says, "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)." Not even with a stretch of the imagination can one compare Petitioner's Exhibits 7, 8, 9, and 10 with the publication "Figure" which if you have seen Petitioner's Exhibit 1, you have also seen Exhibits 2, 3, and 4. "Figure" meets the definition of a book as given by Petitioner's first witness, Mr. Arkush, supra.
The publisher's own announcements on the front covers of "Figure" in Petitioner's Exhibits 1, 2, 3, and 4 admit that each is a book of pictures. Mr. Arkush said, "I would suppose that depending upon the variety of ideas that might be forthcoming, it could be used yes several times over a period of time. .....that
the practice is to file these copies in studios and that when a certain situation presents itself, a modelling assignment, and they are looking for ideas in posing and lighting, they can go back to this as a reference book."--Tr. 30.
While the witnesses for the Petitioner describe why "Figure" in their opinion is a periodical, their testimony conflicts with what one sees and reads in this publication. There is some written material and some background for the model in "Figure"--but both are inconsequential when one turns the pages of "Figure" and is impressed with only the models and their breasts which are practically the same in each of the Petitioner's Exhibits 1, 2, 3, and 4.
The Petitioner cites P.O.D. Docket No. 2/86, Little, Brown and Company, and P.O.D. Docket No. 2/144, Civic Education Service, Inc., in support of his position but they are not analogous any more than "Life" magazine is analogous.
The exceptions of the Petitioner are denied and the Initial Decision is hereby affirmed.
1/ Sec. 4351. Definition
Second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title.
* * * * * * *
Sec. 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/ Houghton v. Payne, 194 U. S. 98: "It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical. Were it not for the fact that they are so issued in consecutive numbers, no one would imagine for a moment that these publications were periodicals and not books. While this fact may be entitled to weight in determining the character of the publication, it is by no means conclusive, when all their other characteristics are those of books rather than those of magazines."