Appeal from the United States District Court for the Western District of Wisconsin. No. 74 C 243- James E. Doyle, Judge.
Before ESCHBACH and POSNER, Circuit Judges, and WISDOM, Senior Circuit Judge.*fn*
WISDOM, Senior Circuit Judge. This appeal presents the question, etc.
This appeal presents the question whether the district court erred in dismissing defendant Randal Alan Kirsch's counterclaim against Brown University for libel.*fn1 Brown University published a "Notice of Bookmen" in several prominent bibliographic publications stating, in effect, that Kirsch had solicited or accepted materials in the name of Brown University without Brown's authorization, and that Kirsch had not turned over this material to Brown University. On appeal, Kirsch alleges that the district judge usurped the role of the jury in determining the defamatory meaning of the Notice to Bookmen and that the district court erred in finding there was no genuine issue as to any material fact concerning the truthfulness of the Notice. We find no error in either determination and accordingly affirm.
I. FACTS AND PROCEEDINGS BELOW
Randall Kirsch collects the works, manuscripts, and letters of Howard P. Lovecraft, an early twentieth century author of science fiction and fantasy tales. In June 1978, Kirsch, then a student at U.S.L.A., visited Brown University's John Hay Library, which houses a large collection of materials relating to Mr. Lovecraft. Kirsch proposed that the library pay the rental on a tape recorder and furnish him with tapes to enable him to travel about the country to conduct taped interviews with persons who had known Lovecraft or had corresponded with him. He proposed to donate the tapes to the Lovecraft collection at the Library. The librarians accepted this offer.
Kirsch had been in communication with Wilfred B. Talman, who had known Lovecraft from the early 1920's until Lovecraft's death in March 1937. Kirsch had written four letters to Mr. Talman before finally meeting him in July 1968. In the first and second letters, Kirsch asked mainly for documentary information. In the third letter, Kirsch wrote: "I would certainly be grateful for whatever material you may be able to give me regarding yourself and HPL and the Lovecraft Circle Members."
After that request for material, Mr. Talman answered that he did indeed have some materials and had recently been sorting through "some Lovecraftiana". Mr. Talman asked, "I trust your desire for information is purely personal, and that you're not counting on me to help with information for a book or something."
Kirsch answered, saying that the research was not for a book, "but all goes to Brown University":
"My research is not for a book, but all goes to Brown University, who is sponsoring my trip around New England to tape the reminiscences [sic] of those who know HPL."
On or about July 13, 1968, Kirsch visited Talman's home in New Jersey and interviewed him there. Near the outset of the taped interview, Mr. Talman again asked about the nature of Kirsch's research:
Talman: "Tell me before we start in, or perhaps we are already started, what is the-under what section of Brown University is this being done?"
Kirsch: "Well, the special collections department. A Mrs. Hathaway is the head of it, had given me the tapes, the recorder to go and do this material gathering."
In a later, unrecorded portion of the visit Talman told Kirsch that he wished to donate some materials to the library at Brown University. Kirsch told Talman that he had no idea when he would return to Brown University, except that he had to return the tape recorder after two months. Kirsch accepted the materials, and hand wrote a receipt which he left with Talman. It read in full:
Saturday, July 13, 1968 "Received from Wilfred Blanch Talman, one box of material, including diverse letters from H.P.L. (complete), several MSS, several pulp magazines, several amateur journals, 3 books by ...