NICHOLS v. UNIVERSAL PICTURES CORPORATION et al.


                                       No. 4


                     Circuit Court of Appeals, Second Circuit


                      45 F.2d 119; 1930 U.S. App. LEXIS 3587

                               November 10, 1930

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

   L. HAND, Circuit Judge.

   The plaintiff is the author of a play, "Abie's Irish Rose," which it may be
assumed was properly copyrighted under section five, subdivision (d), of the
Copyright Act, 17 USCA § 5(d).  The defendant produced publicly a motion picture
play, "The Cohens and The Kellys," which the plaintiff alleges was taken from
it.  As we think the defendant's play too unlike the plaintiff's to be an
infringement, we may assume, arguendo, that in some details the defendant used
the plaintiff's play, as will subsequently appear, though we do not so decide.
It therefore becomes necessary to give an outline of the two plays.

   "Abie's Irish Rose" presents a Jewish family living in prosperous
circumstances in New York.  The father, a widower, is in business as a merchant,
in which his son and only child helps him.  The boy has philandered with young
women, who to his father's great disgust have always been Gentiles, for he is
obsessed with a passion that his daughter-in-law shall be an orthodox Jewess.
[**2]  When the play opens the son, who has been courting a young Irish Catholic
girl, has already married her secretly before a Protestant minister, and is
concerned to soften the blow for his father, by securing a favorable impression
of his bride, while concealing her faith and race.  To accomplish this he
introduces her to his father at his home as a Jewess, and lets it appear that he
is interested in her, though he conceals the marriage. The girl somewhat
reluctantly falls in with the plan; the father takes the bait, becomes
infatuated with the girl, concludes that they must marry, and assumes that of
course they will, if he so decides.  He calls in a rabbi, and prepares for the
wedding according to the Jewish rite.

   Meanwhile the girl's father, also a widower, who lives in California, and is
as intense in his own religious antagonism as the Jew, has been called to New
York, supposing that his daughter is to marry an Irishman and a Catholic.
Accompanied by a priest, he arrives at the house at the moment when the marriage
is being celebrated, but too late to prevent it, and the two fathers, each
infuriated by the proposed union of his child to a heretic, fall into unseemly
and grotesque [**3]  antics.  The priest and the rabbi become friendly, exchange
trite sentiments about religion, and agree that the match is good.  Apparently
out of abundant caution, the priest celebrates the marriage for a third time,
while the girl's father is inveigled away.  The second act closes with each
father, still outraged, seeking to find some way by which the union, thus trebly
insured, may be dissolved.

   The last act takes place about a year later, the young couple having
meanwhile been abjured by each father, and left to their own resources.  They
have had twins, a boy and a girl, but their fathers know no more than that a
child has been born.  At Christmas each, led by his craving to see his
grandchild, goes separately to the young folks' home, where they encounter each
other, each laden with gifts, one for a boy, the other for a girl. After some
slapstick comedy, depending upon the insistence of each that he is right about
the sex of the grandchild, they become reconciled when they learn the truth, and
that each child is to bear the given name of a grandparent.  The curtain falls
as the fathers are exchanging amenities, and the Jew giving evidence of an
abatement in the strictness of [**4]  his orthodoxy.

   "The Cohens and The Kellys" presents two families, Jewish and Irish, living
side by side in the poorer quarters of New York in a state of perpetual enmity.
The wives in both cases are still living, and share in the mutual animosity, as
do two small sons, and even the respective dogs.  The Jews have a daughter, the
Irish a son; the Jewish father is in the clothing business; the Irishman is a
policeman.  The children are in love with each other, and secretly marry,
apparently after the play opens.  The Jew, being in great financial straits,
learns from a lawyer that he has fallen heir to a large fortune from a
great-aunt, and moves into a great house, fitted luxuriously.  Here he and his
family live in vulgar ostentation, and here the Irish boy seeks out his Jewish
bride, and is chased away by the angry father.  The Jew then abuses the Irishman
over the telephone, and both become hysterically excited.  The extremity of his
feelings makes the Jew sick, so that he must go to Florida for a rest, just
before which the daughter discloses her marriage to her mother.

   On his return the Jew finds that his daughter has borne a child; at first he
suspects the lawyer, but eventually [**5]  learns the truth and is overcome with
anger at such a low alliance.  Meanwhile, the Irish family who have been
forbidden to see the grandchild, go to the Jew's house, and after a violent
scene between the two fathers in which the Jew disowns his daughter, who decides
to go back with her husband, the Irishman takes her back with her baby to his
own poor lodgings.   [*121]  The lawyer, who had hoped to marry the Jew's
daughter, seeing his plan foiled, tells the Jew that his fortune really belongs
to the Irishman, who was also related to the dead woman, but offers to conceal
his knowledge, if the Jew will share the loot.  This the Jew repudiates, and,
leaving the astonished lawyer, walks through the rain to his enemy's house to
surrender the property.  He arrives in great dejection, tells the truth, and
abjectly turns to leave.  A reconciliation ensues, the Irishman agreeing to
share with him equally.  The Jew shows some interest in his grandchild, though
this is at most a minor motive in the reconciliation, and the curtain falls
while the two are in their cups, the Jew insisting that in the firm name for the
business, which they are to carry on jointly, his name shall stand first.  [**6]

   It is of course essential to any protection of literary property, whether at
common-law or under the statute, that the right cannot be limited literally to
the text, else a plagiarist would escape by immaterial variations.  That has
never been the law, but, as soon as literal appropriation ceases to be the test,
the whole matter is necessarily at large, so that, as was recently well said by
a distinguished judge, the decisions cannot help much in a new case.  Fendler v.
Morosco, 253 N.Y. 281, 292, 171 N.E. 56. When plays are concerned, the
plagiarist may excise a separate scene [Daly v. Webster, 56 F. 483 (C.C.A. 2);
Chappell v. Fields, 210 F. 864 (C.C.A. 2); Chatterton v. Cave, L.R. 3 App. Cas.
483]; or he may appropriate part of the dialogue ( Warne v. Seebohm, L.R. 39 Ch.
D. 73). Then the question is whether the part so taken is "substantial," and
therefore not a "fair use" of the copyrighted work; it is the same question as
arises in the case of any other copyrighted work.  Marks v. Feist, 290 F. 959
(C.C.A. 2); Emerson v. Davies, Fed. Cas. No. 4436, 3 Story, 768, 795-797. But
when the plagiarist does not take out a block in situ, but an abstract of the
whole, decision is more [**7]  troublesome.  Upon any work, and especially upon
a play, a great number of patterns of increasing generality will fit equally
well, as more and more of the incident is left out.  The last may perhaps be no
more than the most general statement of what the play is about, and at times
might consist only of its title; but there is a point in this series of
abstractions where they are no longer protected, since otherwise the playwright
could prevent the use of his "ideas," to which, apart from their expression, his
property is never extended.  Holmes v. Hurst, 174 U.S. 82, 86, 19 S. Ct. 606, 43
L. Ed. 904; Guthrie v. Curlett, 36 F.(2d) 694 (C.C.A. 2).  Nobody has ever been
able to fix that boundary, and nobody ever can.  In some cases the question has
been treated as though it were analogous to lifting a portion out of the
copyrighted work (Rees v. Melville, MacGillivray's Copyright Cases [1911-1916],
168); but the analogy is not a good one, because, though the skeleton is a part
of the body, it pervades and supports the whole.  In such cases we are rather
concerned with the line between expression and what is expressed.  As respects
plays, the controversy chiefly centers upon the characters [**8]  and sequence
of incident, these being the substance.

   We did not in Dymow v. Bolton, 11 F.(2d) 690, hold that a plagiarist was
never liable for stealing a plot; that would have been flatly against our
rulings in Dam v. Kirk La Shelle Co., 175 F. 902, 41 L.R.A. (N.S.) 1002, 20 Ann.
Cas. 1173, and Stodart v. Mutual Film Co., 249 F. 513, affirming my decision in
(D.C.) 249 F. 507; neither of which we meant to overrule.  We found the plot of
the second play was too different to infringe, because the most detailed
pattern, common to both, eliminated so much from each that its content went into
the public domain; and for this reason we said, "this mere subsection of a plot
was not susceptible of copyright." But we do not doubt that two plays may
correspond in plot closely enough for infringement. How far that correspondence
must go is another matter.  Nor need we hold that the same may not be true as to
the characters, quite independently of the "plot" proper, though, as far as we
know, such a case has never arisen.  If Twelfth Night were copyrighted, it is
quite possible that a second comer might so closely imitate Sir Toby Belch or
Malvolio as to infringe, but it would not be enough that [**9]  for one of his
characters he cast a riotous knight who kept wassail to the discomfort of the
household, or a vain and foppish steward who became amorous of his mistress.
These would be no more than Shakespeare's "ideas" in the play, as little capable
of monopoly as Einstein's Doctrine of Relativity, or Darwin's theory of the
Origin of Species.  It follows that the less developed the characters, the less
they can be copyrighted; that is the penalty an author must bear for marking
them too indistinctly.

   In the two plays at bar we think both as to incident and character, the
defendant took no more -- assuming that it took anything at all -- than the law
allowed.  The stories are quite different.  One is of a religious zealot  [*122]
who insists upon his child's marrying no one outside his faith; opposed by
another who is in this respect just like him, and is his foil.  Their difference
in race is merely an obbligato to the main theme, religion. They sink their
differences through grandparental pride and affection. In the other, zealotry is
wholly absent; religion does not even appear.  It is true that the parents are
hostile to each other in part because they differ in race; but [**10]  the
marriage of their son to a Jew does not apparently offend the Irish family at
all, and it exacerbates the existing animosity of the Jew, principally because
he has become rich, when he learns it.  They are reconciled through the honesty
of the Jew and the generosity of the Irishman; the grandchild has nothing
whatever to do with it.  The only matter common to the two is a quarrel between
a Jewish and an Irish father, the marriage of their children, the birth of
grandchildren and a reconciliation.

   If the defendant took so much from the plaintiff, it may well have been
because her amazing success seemed to prove that this was a subject of enduring
popularity.  Even so, granting that the plaintiff's play was wholly original,
and assuming that novelty is not essential to a copyright, there is no monopoly
in such a background.  Though the plaintiff discovered the vein, she could not
keep it to herself; so defined, the theme was too generalized an abstraction
from what she wrote.  It was only a part of her "ideas."

   Nor does she fare better as to her characters.  It is indeed scarcely
credible that she should not have been aware of those stock figures, the low
comedy Jew and Irishman.  [**11]  The defendant has not taken from her more than
their prototypes have contained for many decades.  If so, obviously so to
generalize her copyright, would allow her to cover what was not original with
her.  But we need not hold this as matter of fact, much as we might be
justified.  Even though we take it that she devised her figures out of her brain
de novo, still the defendant was within its rights.

   There are but four characters common to both plays, the lovers and the
fathers.  The lovers are so faintly indicated as to be no more than stage
properties.  They are loving and fertile; that is really all that can be said of
them, and anyone else is quite within his rights if he puts loving and fertile
lovers in a play of his own, wherever he gets the cue.  The plaintiff's Jew is
quite unlike the defendant's.  His obsession is his religion, on which depends
such racial animosity as he has.  He is affectionate, warm and patriarchal.
None of these fit the defendant's Jew, who shows affection for his daughter only
once, and who has none but the most superficial interest in his grandchild. He
is tricky, ostentatious and vulgar, only by misfortune redeemed into honesty.
Both are grotesque,  [**12]  extravagant and quarrelsome; both are fond of
display; but these common qualities make up only a small part of their simple
pictures, no more than any one might lift if he chose.  The Irish fathers are
even more unlike; the plaintiff's a mere symbol for religious fanaticism and
patriarchal pride, scarcely a character at all.  Neither quality appears in the
defendant's, for while he goes to get his grandchild, it is rather out of a
truculent determination not to be forbidden, than from pride in his progeny.
For the rest he is only a grotesque hobbledehoy, used for low comedy of the most
conventional sort, which any one might borrow, if he chanced not to know the
exemplar.

   The defendant argues that the case is controlled by my decision in Fisher v.
Dillingham (D.C.) 298 F. 145. Neither my brothers nor I wish to throw doubt upon
the doctrine of that case, but it is not applicable here.  We assume that the
plaintiff's play is altogether original, even to an extent that in fact it is
hard to believe.  We assume further that, so far as it has been anticipated by
earlier plays of which she knew nothing, that fact is immaterial. Still, as we
have already said, her copyright did not cover [**13]  everything that might be
drawn from her play; its content went to some extent into the public domain. We
have to decide how much, and while we are as aware as any one that the line,
whereever it is drawn, will seem arbitrary, that is no excuse for not drawing
it; it is a question such as courts must answer in nearly all cases.  Whatever
may be the difficulties a priori, we have no question on which side of the line
this case falls.  A comedy based upon conflicts between Irish and Jews, into
which the marriage of their children enters, is no more susceptible of copyright
than the outline of Romeo and Juliet.

   The plaintiff has prepared an elaborate analysis of the two plays, showing a
"quadrangle" of the common characters, in which each is represented by the
emotions which he discovers.  She presents the resulting parallelism as proof of
infringement, but the adjectives employed are so general as to be quite useless.
Take for example the attribute of "love" ascribed to both Jews.  The plaintiff
has depicted her father as deeply attached  [*123]  to his son, who is his hope
and joy; not so, the defendant, whose father's conduct is throughout not
actuated by any affection for his [**14]  daughter, and who is merely once
overcome for the moment by her distress when he has violently dismissed her
lover. "Anger" covers emotions aroused by quite different occasions in each
case; so do "anxiety," "despondency" and "disgust." It is unnecessary to go
through the catalogue for emotions are too much colored by their causes to be a
test when used so broadly.  This is not the proper approach to a solution; it
must be more ingenuous, more like that of a spectator, who would rely upon the
complex of his impressions of each character.

   We cannot approve the length of the record, which was due chiefly to the use
of expert witnesses.  Argument is argument whether in the box or at the bar, and
its proper place is the last.  The testimony of an expert upon such issues,
especially his cross-examination, greatly extends the trial and contributes
nothing which cannot be better heard after the evidence is all submitted.  It
ought not to be allowed at all; and while its admission is not a ground for
reversal, it cumbers the case and tends to confusion, for the more the court is
led into the intricacies of dramatic craftsmanship, the less likely it is to
stand upon the firmer, if more naive,  [**15]  ground of its considered
impressions upon its own perusal.  We hope that in this class of cases such
evidence may in the future be entirely excluded, and the case confined to the
actual issues; that is, whether the copyrighted work was original, and whether
the defendant copied it, so far as the supposed infringement is identical.

   The defendant, "the prevailing party," was entitled to a reasonable attorney
's fee (section 40 of the Copyright Act [17 USCA § 40]).

   Decree affirmed.