Nightmare Ends at the Supreme Court (Clayton Diaries copyright suit)

By Jerald and Sandra Tanner

In the April 1986 issue of the Salt Lake City Messenger we printed an article entitled, “LAW SUIT OVER—UNFAIR VERDICT IS OVERTURNED.” In this article we told how a man by the name of Andrew Ehat, with the help of a lawyer who represents Brigham Young University’s Religious Studies Center, brought a lawsuit against us in 1983 alleging that we had violated his copyright in printing extracts from Joseph Smith’s private secretary’s diaries which he had typed. Since these diaries contained information which was very embarrassing to the Mormon leaders, they had been suppressed in the First Presidency’s vault for many years. We were brought before a Mormon judge who seems to have been swayed by the plaintiffs’ arguments that we had printed a great deal of sensitive material from the Mormon Church’s archives.

Although the judge had to admit that Mr. Ehat did not really have a copyright interest in the material, he nevertheless awarded Ehat $16,000 for what he called “unfair competition” and damage to his reputation! We knew that there was absolutely no basis in law for this unjust verdict and appealed to the U. S. Court of Appeals For The Tenth Circuit. A panel of three judges examined the case and ruled in our favor:

Andrew Ehat brought this action against Gerald and Sandra Tanner . . . Judgment was entered against the Tanners, and they appeal. We reverse. . . .

Ehat “cannot achieve by an unfair competition claim what [he] failed to achieve under [his] copyright claim,” . . . The case is reversed and remanded for further proceedings consistent with this opinion.¹

While we firmly believed that this would end the whole matter, we were soon astounded to learn that the case had been appealed to the Supreme Court of the United States. We had previously told Mr. Ehat’s lawyer that we would go to the Supreme Court if necessary to obtain justice, but in view of the weakness of his case, we never expected that he would make such a foolish move. Finally, on October 6, 1986, Joseph F. Spaniol, Jr., Clerk of the Supreme Court of the United States, wrote us a letter stating that Ehat’s “petition for a writ of certiorari is denied.” This, of course, meant that our victory in the U.S. Court of Appeals For The Tenth Circuit was absolutely final. The costs in fighting this suit over a period of three years had mounted to between thirty and forty thousand dollars. In the “Stipulation For Settlement,” pages 1-2, Mr. Ehat acknowledged an obligation to reimburse us for some of the expenses:

1. The plaintiff ANDREW EHAT hereby acknowledges that as a result of the resolution of this action by the United States Court of Appeals for the Tenth Circuit, the ruling of this Court after the appeal and the denial of the plaintiffs’ petition for writ of certiorari to the United States Supreme Court, the defendants have the right to seek against the plaintiff an award from the Trial Court, of the attorneys fees incurred by defendants in this matter.

2. The plaintiff hereby acknowledges that as a result of the resolution of this action by the United States Court of Appeals . . . the plaintiff has an obligation to pay to the defendants the court costs (in an amount to be determined by the Court) that the defendants incurred in this matter.

Although we felt that there was a possibility of forcing Mr. Ehat into bankruptcy, we did not feel that this was the right course to pursue. Mr. Ehat paid us a very modest sum (only a fraction of the costs we had encountered) and we agreed to accept this “in full settlement of any potential obligations.” The final paper was signed October 17, 1986. We just feel thankful to God that the long nightmare is now finally and forever ended, and want to express our appreciation to the people who stood with us through this terrible ordeal. The prayers and financial help were a great encouragement, and we are happy to announce that all the bills are now paid.