By Jerald and Sandra Tanner

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As we have indicated in previous issues of the Messenger, on April 28, 1983, the Mormon scholar Andrew Ehat filed a lawsuit against us (Jerald and Sandra Tanner) in an attempt to stop publication of some extracts from the diaries of Joseph Smith’s private secretary, William Clayton. Because these diaries contain embarrassing material on the origin of polygamy and other matters, they have been suppressed in the vault of the First Presidency of the Mormon Church. In 1979-80 Mr. Ehat gained access to a copy of the diaries and made the revealing extracts. Ehat tried very hard to keep the material from falling into the hands of critics of the Mormon Church, but a member of a bishopric in Provo duplicated the material and it was widely circulated by Mormon scholars at Brigham Young University. These extracts subsequently found their way into our hands and we printed them in the book Clayton’s Secret Writings Uncovered.

We feel that the copyright laws do not support Ehat’s contention and believe the suit is doomed to failure. The following is plainly stated in Section 103(b) of Title 17, United States Code: “The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.”

Since Ehat’s notes are composed of extracts from “preexisting” material (i.e., the diaries of William Clayton), he cannot claim copyright protection.

False Testimony

In the Messenger for November 1983 we indicated that “it seems very likely that Ehat is claiming a copyright on some material he derived from other scholars. In order to get to the bottom of this matter, we are going to subpoena Ehat, Cook, Allen and possibly other Mormon scholars to testify concerning the matter.” We have now taken the depositions of a number of Mormon scholars. These depositions clearly show that Mr. Ehat covered up the truth concerning how he obtained his material.

In his complaint against us, Mr. Ehat indicated that he “was given permissive access to the private, heretofore unpublished Nauvoo Journals of one William Clayton then deposited with the Office of the First Presidency . . . from which he permissively extracted certain notes, quotes and extracts. . . . From said notes plaintiff, in collaboration with one Lyndon W. Cook, produced a book titled The Words of Joseph Smith, the proprietory interest and copyright interest of which was assigned . . . to the Religious Studies Center, an agency of Brigham Young University, . . . At no time has the plaintiff given the defendants, or either of them, any permission to publish or print any notes taken by him from the William Clayton Journal.”

We have always felt that Ehat had an extremely weak case. The depositions tend to support our position. Before citing these depositions we should say that they were provided by the Certified Shorthand Reporters and are subject to corrections before being filed with the court. In his deposition, James B. Allen, formerly Assistant Church Historian, revealed that the material which Ehat printed in The Words of Joseph Smith came directly from him. This amounted to 12 of the 88 pages we published in Clayton’s Secret Writings Uncovered. Allen made it very clear that he had personally typed these pages and claimed that “I had kind of a moral obligation not to indiscriminately let my notes out. . . . I asked Mr. Ehat specifically . . . that when you put this in your book, The Words of Joseph Smith, please cite me as the source because I don’t want any questions about anything. . . . I said, cite me as the source because I’ve had legitimate access and everyone knows I’ve had legitimate access to the diaries” (Deposition of James B. Allen, Civil No. C-83-1593C, page 29).

As we indicated in a previous issue of the Messenger, Ehat did include a footnote thanking Allen for the material. In his deposition he admitted that the pages were actually typed by James B. Allen. While this seems to destroy his copyright claim on the quotations in The Words of Joseph Smith, he still maintains that he has a copyright on the other 76 pages. When we questioned Ehat as to how he got these pages, he replied:

In doing research in early LDS history in 1979 plaintiff approached Don Schmidt, Church Archivist, and inquired about some entries in William Clayton’s Journal in which he was interested. He ultimately received permission to read all three of the journals noted above. While reading he made notes of the dates of the journal entries in which he was primarily concerned. In 1979 and 1980 he was given permission to type out from a complete reproduction (a typescript) of those three diaries the extracts that he had earlier noted. (Andrew Ehat’s Answers to Interrogatories, November 21, 1983, pages 3-4)

It is plain from this that Mr. Ehat’s extracts came from a typed copy rather than the original diaries. In taking Ehat’s deposition, our lawyer, Brian Bernard, asked him who had given him permission to see the typescript. Ehat replied that it was Donald Schmidt (mistakenly recorded as Smith), the Church Archivist:

Q. Who gave you the permission to see that typescript copy? Did Don Smith do that?

A. Yes.

Q. Okay. Was anybody else involved in giving you permission to see that typescript that you’re aware of?

A. No, not that I’m aware of. (Deposition of Andrew Ehat, page 43)

After this testimony was given, we subpoenaed Donald Schmidt. The Church’s lawyers fought the matter and filed a motion to quash the subpoena. They apparently realized, however, that we would win and withdrew their objection. In his testimony, Schmidt not only denied that he had given Ehat access to a typescript, but he claimed that he was not even aware of a typescript of the Clayton diaries:

Q. He’s indicated in his deposition that after that time he had access to a type script of the Clayton Journals and that he acquired access to that type script from you.

A. From me? . . . .

MR. BARNARD. Okay. Prior to 1979, had you heard that there was a type script of those volumes of the Clayton Journals?

A. No.

Q. The deposition of Andrew Ehat, page 43, indicates that Andrew Ehat was given permission by you to see a type script copy. You have no recollection of that?

A. Not of those diaries. It is possible that he is confused with some type script which we have of other Clayton material.

Q. And to your knowledge there is no type script of those three volumes?

A. I’m not aware of any type script other than very recently. (Deposition of Donald Schmidt, pages 20-23)

The Church’s lawyer Bruce Findley indicated that he was the first one to tell Mr. Schmidt about the typescript: “I might interject I think he heard it from me in connection with this case” (Ibid., page 21).

We took the deposition of Professor Richard L. Anderson of Brigham Young University. Anderson had examined the original diaries, but was also unaware of a typescript. The truth about the typescript finally came out when we were taking the testimony of James B. Allen:

Q. Okay. Are you aware of any type script of those journals?

A. Well—.

Q. A verbatim type script of those three journals?

A. Yes, I’m aware of a verbatim type script of the journals.

Q. Okay. And when was the first time you were aware of that?

A. When I made one.

Q. The type script that Andy Ehat had access to he described as being approximately 300 pages long of double-spaced typing.

A. Mine could possibly fit into that category, yes.

. . . .

MR. BARNARD. [Utah Lighthouse Ministry lawyer] Did Andy Ehat ever have access to that type script?

A. Andy Ehat did not have access to that type script and I do not think Andy Ehat knew I was preparing the type script. . . . and certainly he did not have access to it. . . . when I left at night I locked the material I was making in my own desk and put the key in my pocket and went home. So I don’t know of any way that Andy could have had access to my type script.

. . . .

MR. BARNARD. Did you tell Don Schmidt?

A. I did not tell Don Schmidt although I’m sure Don Schmidt was aware that I was taking very extensive notes but I considered what I was taking to be my own particular scholarly property and that is the way it remained. (Deposition of James B. Allen, pages 20, 22, 24 and 25)

Dr. Allen admitted that there was one other person who had helped prepare the transcript and had a copy of it, but he did not want to reveal the name. The lawyer from Brigham Young University, in fact, instructed him not to tell who the other person was:

MR. BARNARD. Well I’m going to flat out ask you who that person was.

MISS PARK. I’ll instruct him not to answer.

MR. BARNARD. Okay. You’re going to take your attorney’s advice and not answer that question?

A. Yes.

Q. Do you know if that person has made any distribution of copies of those, copies of the copy that you gave to that person?

A. To my knowledge he has not and my firm assumption is that he is the kind of person that would not have but I do not have personal knowledge. That is a strong assumption on my part.

Q. Do you know if that person has let anybody else see your type script?

A. I do not believe he has but again, I do not have sure knowledge of it. (Ibid., pages 27-28)

We already suspected that the person who had the other copy was Dean Jessee, a noted Mormon scholar. In Scott Faulring’s deposition, he testified that when Ehat first found that his notes had been duplicated he went into “a rage” and mentioned the names of different people who would get in trouble if the notes fell into the hands of critics of the Church:

A. I don’t recall his exact words, whether he said it could destroy the Church; but the essence of what he was saying was that. That, “Oh, if the antis get hold of this ‘X,’ ‘X,’ and all those guys are going to be shot,” or something.

Q. Who was it that he mentioned. . . .

A. He mentioned James Allen and Lyndon Cook, and I think I even heard Dean Jessee’s name. (Deposition of Scott Faulring, page 70)

When James B. Allen was asked if he had any reason to know why Dean Jessee would be in trouble if the Clayton extracts were distributed, he replied:

Only if Dean Jessee were the person I refused to name a little while ago and that would only be for the same reason that I said in terms of his own feelings. (Deposition of James B. Allen, page 46)

Finally, after a great deal of discussion, Dr. Allen was backed into a corner and had to identify “Dean Jessee” as the man. He went on to state: “. . . Dean is a good friend I didn’t want him being identified without my having told him . . . but I also, am not going to perjure myself in any way . . .” (Ibid., page 64). We were sorry to see Allen in such a difficult predicament, and we must say that we were very impressed with the honesty of his answers and the way he handled himself during his testimony.

As a result of Allen’s testimony we found it necessary to subpoena Dean Jessee. Mr. Jessee testified that Ehat wanted access to the typescript “to check some dates on some information that he didn’t have and wanted to double-check or whatever. And so he used it in that setting” (Deposition of Dean Jessee, page 26). On the same page, Jessee stated: “I don’t know what all his eyes looked at because I wasn’t right there with him.” Mr. Ehat now finds himself in a real dilemma. In his Answers to Interrogatories, he has sworn that he did not use material from Jessee: “9. In preparing your notes . . . did you use or have access to any notes or other writings regarding or taken from the William Clayton diaries by (a) Lyndon Cook, (b) Dean Jessee, . . . ANSWER: (a) no, (b) no, . . .”

If Mr. Ehat did not copy the material from Jessee’s copy of the transcript, then the only other alternative would be that it was purloined from Allen.

The reader will remember that in his deposition, Ehat testified he got permission from Donald Schmidt to use the typescript, and when he was asked if anyone else was involved in giving him permission, he replied: “No.” One can only speculate as to why Ehat would go to such lengths to cover up the involvement of Jessee. Since Jessee was not the Archivist and had no real authority to show him Church documents, it is obvious that it would be better to say that Schmidt gave him permission.

However this may be, James B. Allen claimed on page 25 of his deposition that the typescript was “my own particular scholarly property.” Although he apparently made the typescript on his own authority, he claims that he was given special permission by the First Presidency of the Mormon Church to use the diaries for a biography of William Clayton and that it was his understanding that other scholars were not allowed to use them. He claimed, in fact, that he was “miffed” when he learned Ehat had material beyond the 12 pages he had supplied him with:

A. . . . I do remember asking Don questions like where did he get it . . . I remember my concerns at the time as I talked with other people was where did Andy that get access to this material. . . . I remember talking with several people, Don Schmidt and other people up in the Historical Department and people at BYU like Noel Reynolds and others and I was miffed. I didn’t know where he got access to it and that was the nature of the conversations I had with anyone. . . .

Q. After the notes were taken from Cook and distributed and you described yourself as being miffed, were you miffed because you discovered the extent of Ehat’s notes?

A. Yes, I think so. It was a surprise to me to know that he had that much verbatim material from the Clayton Diaries. I knew he had what I gave him and I, of course, knew he had things from here and there but I was not aware that he had that much from the Clayton Journals and that is why I was miffed, if that is the proper word. Surprised.

Q. And I take it from your previous testimony that the reason you were surprised or miffed was because you thought you had been given some sort of special permission or exclusive permission to have access to those diaries?

A. That’s correct.

Q. Have you ever told anybody that the Clayton Diaries were not available for others to do research in?

A. I assume that I have because that was my understanding. (Deposition of Allen, pages 79-82)

After the Ehat notes got out, the President of Brigham Young University appointed Noel Reynolds to investigate the situation. One of Reynold’s concerns was whether Ehat had obtained the material surreptitiously. When Allen was asked if anyone had inquired how Ehat procured the material, he said: “. . . I believe that Noel Reynolds asked me specifically as part of his efforts to find out.” In compliance with a subpoena, Noel Reynolds turned over to us a note he had written concerning a conversation he had with a BYU professor who had obtained a copy of Ehat’s notes. We find the following in this note: “I began by explaining . . . the nature of the charge made against him by Andy Ehat, that is, that he had received and retained research materials which were stolen from a doctoral candidate. He indicated immediately 1) the concern that Andy may not have acquired the materials legitimately himself, . . .” When we questioned this professor concerning the matter, he said that it was his understanding that Ehat would not tell BYU officials where he had obtained the Clayton material.

While we feel that Ehat never had a case to begin with, the cover-up and false statements made concerning the way he obtained the Clayton material tend to make the whole matter absolutely ridiculous. Ehat accused us of causing him “irreparable damage” because we used his scholarly work product.

The truth of the matter, however, is that he never even made the transcription from the handwritten diaries. Instead, he relied upon the Allen-Jessee transcript which Dr. Allen calls “my own particular scholarly property.” This, of course, was done without Allen’s permission or knowledge.

Fortunately, the fact that the material which Ehat obtained did not come directly from the diaries does not invalidate its authenticity. Former Assistant Church Historian James B. Allen has checked our publication, Clayton’s Secret Writings Uncovered, and found that it is an accurate reproduction of the original diaries:

I can stipulate this: That whatever I have obviously, in the copy that I made, and the material that the Tanners published is just almost verbatim. There is little, tiny differences here and there but almost verbatim of that . . . (Deposition of James B. Allen, page 27)

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