Funkhouser v. Loew's, Inc.

108 F. Supp. 476, 96 U.S.P.Q. (BNA) 115, 1952 U.S. Dist. LEXIS 2299

• Court: District Court, W.D. Missouri
• Decided: July 30, 1952
• Docket: No. 5713
• Status: Published

Opinion

DUNCAN, District Judge.

This is an action between plaintiff, a resident of the State of Kansas, and Loew’s, Incorporated, a Maryland corporation, licensed to do business in the State of Missouri, in which the plaintiff seeks to recover damages from the defendant in the amount of approximately $2,000,000 for alleged violation of his copyright interest in and to a literary composition entitled “Cupid Rides the Rails” and by infringement of his common-law literary rights in and to a literary composition and play in manuscript form entitled “Old John Santa Fe” which it is alleged 'is a dramatization of the original literary composition. entitled “Cupid Rides the Rails.”

The petition is in three counts. The first count claims damages for infringing his rights in and to the literary composition “Cupid Rides the Rails” in the sum of $500,000; the second count as to “Old John Santa Fe” in the sum of $300,000 actual damages, and in the sum of $200,000 punitive damages, alleging that the violation was wilful and malicious; and the third count seeks damages in the sum of $100 for the first infringing performance, and $50 for each subsequent infringing performance, amounting to $1,000,000.

It is alleged that the infringement resulted from the dramatization of the screen play “The Harvey Girls” which was produced and released by the defendant in 1945. Defendant denies that any part of plaintiff’s composition was copied, pirated, appropriated, embodied in or incorporated as part of the novelization of the picture “The Harvey Girls,” and that the dramatization of said picture was an original literary work from the material owned by the defendant.

There is an enormous mass of material before the court which has been reviewed, much of it carefully studied for the purpose of attempting to arrive at a clear understanding of the factual situation raised by the evidence and the claims of the plaintiff. It is estimated that 500,000 words are in evidence in the form of testimony, depositions, manuscripts, novels, etc.

At the time of'the trial of the case, plaintiff was employed by the Missouri-Kansas-Texas Railroad Company as a conductor. He came from a family of railroad people, his father having 'been an -early day employee of the Santa Fe. Plaintiff also became an employee of the .Santa Fe, and claims that he came within the definition of a “boomer.” A “boomer” apparently was an itinerant early day railroad employee who shifted from place to place and followed the movement of freight upon a seasonal basis; he was unattached, worked when he liked, and roamed when he liked. In “Old John Santa Fe” plaintiff describes him thus:

“His impulses were elementary. Quick to fight, generous to a fault, he’d sob in his beer on hearing a ‘Mother’ song and next instant knock your ears off if you laughed at him about it. He would hand you the shirt off his back— and ‘borrow’ yours just as quickly if he needed it. He took pride in ‘belonging to the human race,’ which to him meant being a regular guy. Financially, it was easy come, easy go with the boomer. But his care-free attitude often served to hide deep inner feelings beneath a cloak of laughing cynicism. Beset by plenty of faults and continually urged on to greener fields by an innate wanderlust, he was, nevertheless, a glamorous character on whom the early railroads reluctantly had to depend to keep the wheels rolling.”

The story “Cupid Rides the Rails” written by Clifford Funkhouser and Lyman Anson was first published by the American Mercury in its September 1940 edition. It was copyrighted, and the copyrights assigned to Funkhouser and Anson.

This is a story of the early development of the Santa Fe Railroad Company west of the Missouri River, and from a reading of it, one would infer that it is based on historical data. It described the boomer, the Santa Fe Railroad, the Fred Harvey system of eating places, and how Fred Harvey “launched a ‘matrimonial bureau.’ ” Its romantic side is largely built around the places along the railroad, and the “Harvey Girls” who were waitresses in the Fred Harvey eating houses.

I cannot escape the conclusion that there was uppermost in the minds of the authors the intent to dramatize the railroad and its employees, rather than the “Harvey Girls.” Their part is fitted into the story largely because they were considered the only decent unattached women in this great undeveloped territorial area. Several places throughout his writing, the plaintiff quotes the “popular boomer slogan” — “No ladies west of Dodge City — No women west of Albuquerque.”

The story “Cupid Rides the Rails” was condensed and published in the November 1940 issue of the Reader’s Digest under the title “Fred Harvey Girls — Civilizers of the Southwest.” Plaintiff claims to have suggested the title, which was adopted by the publishers. The condensed story as published in the Digest is less than two pages, and approximately one-fourth of that space is devoted to a historical description of Fred Harvey as taken from Erna Fergus-son’s “Our Southwest.”

The story as condensed and published in the Digest entitled “Fred Harvey Girls— Civilizers of the Southwest” was largely about the Harvey Girls and the Harvey System, and that portion which was deleted from the story “Cupid Rides the Rails” as published in the American Mercury was largely about the railroad and boomer. As condensed, it contained less than half as many words as the original story “Cupid Rides the Rails.”

“Old John iSanta Fe” also written by Funkhouser and Anson, which plaintiff claims to be a dramatization of “Cupid Rides the Rails” and “The Harvey Girls— Civilizers of the Southwest’’ is also a story dealing very largely with the development of the railroad, and the boomers are the principal characters. It is a typical western story as stated by the defendant’s reader who reviewed it, characterizing boomers instead of cowboys; the usual background of western stories is apparent throughout.

The story begins, as the author says “with the turn of the century” and with the end of the first phase of railroading. He describes the engines of the period, and—

“ * * * the itinerant trainmen who shifted as they followed the crops and other bulges in traffic. It was the era of the short-waisted, long-skirted Gibson girl; of hat pins, first Kodaks, scratchy Edi'son phonographs with their ‘morning glory’ horns. It was-the period when nostalgic boomers wept in their beer over ‘After the Ball’, ‘The Baggage Coach Ahead’, and ‘Hello, Central, Give Me Heaven’; when they laughed and sang ‘There’s A Hot Time in the Old Town Tonight’, ‘In the Shade of the Old Apple Tree’, ‘School Days’, etc.”

The period was the beginning of a modern phase of the “dramatic rise of palatial Fred Harvey eating houses,” the boomer slogan “No ladies west of Dodge City, No women west of Albuquerque,” — “the new type waitress imported by Fred Harvey, mostly from the east, had such a revolutionary effect on the lonesome, homesick boomer. To him they looked like angels.” He described them as:

“ * * * very decent young women — • intelligent, good looking and eager for a touch of normal romance if it came their way.”

how they were chaperoned by “house mothers” in charge of each group; “* * Harvey girls were ‘ladies’ indeed.” How they found romance and established an empire; How you saw—

“ * * * this reflected in the modern bungalows, flowers, lawns and similar adjuncts to civilization, all set in an endless, broiling desert. You see it, too, in the crack Santa Fe streamliners invariably manned by staid, substantial ex-boomers who have been anchored or ‘homesteaded’ by one-time Harvey girls.”

The author then describes his family connections with the railroad, his father was in its employ from 1877 to 1933. The author’s own connection with the railroad was long after the period of his story.

The principal character and hero in “Old John Santa Fe” is Dave McKee, a green young boomer who came out from the east to a lonely place on the Santa Fe called “LaNada.” Mary Evans, a Harvey Girl who was born on a farm in Illinois, and a school teacher in a small rural school, discouraged with her outlook, answers a Fred Harvey ad for waitresses, she was employed, and along with numerous other girls, was sent to LaNada, a desolate spot on the desert of New Mexico where Fred Harvey was preparing to open a new eating house. Blondy, also a Harvey Girl, described as the “Mae West type”—

“Breezy, pleasingly plump, she effects a brittle, gold-toothed smile. Once she had stage ambitions. * * she’s a natural ‘man trap,’ and eager to attract the opposite sex.”

“Gert”, a tall experienced railroad waitress. “Heavy”, a typical hardlboiled boomer of 35, large, physically hard; a tough enemy and a loyal friend. “Ace,” a typical polished, well-educated proprietor of a saloon and dance hall in the town of La-Nada. “Hardnose Harrigan”, trainmaster at LaNada, whose responsibility it is to man the trains from among the boomers along the line. In the prolog the author states:

“Desert setting, suggesting the one spot God didn’t finish by 'Saturday night. Stretching from you to the horizon is a single-track railway. In the immediate foreground a rattle snake lies coiled in the blazing sun. A Gila monster is visible nearby; also several horned toads. All about are cactus, Joshua trees, wild growths of desert plants. Off to one side in the far distance the faint outlines of mesas are visible. Not far from the rattle snake an Indian stands scowling at the only other sign of human beings in that vast monotonous region — an approaching train.

“As train draws nearer, the rattle snake, Gila monster and horned toads all slither away. The Indian follows them, his eyes still glued to train. There is a flash showing engine 'filling entire frame of picture, then (Fadeout).”

The story begins with the approach of a train to the desert town of LaNada. The smoking car is occupied by a typical assortment of old time boomers, cowboys, commercial travelers, and a pair of pipe-smoking English tourists. Our hero, Dave-McKee, occupies one of these seats, reviewing the “desolate landscape.” Immediately ¡behind him sits “Heavy” and four or five other boomers. He and Dave engage in conversation and Dave is beginning to regret quitting his job and “shipping out to this God-forsaken country.” Heavy advises him to go on to Los Angeles for a “grand blow-out,” and tells him that is “the only way a guy can stand it out here ‘where there ain’t no ladies west of Dodge City, no women west of Albuquerque.’ ”

The author then describes the arrival of the train at the station and the “palatial new Harvey Hotel — the El Navajo— which bears a sign, ‘Open Tomorrow.’ ” He then describes the town, the

“ * * * Main street, a river of blistering sand, is bordered by 8 or 10 false-front wood structures hearing such names as ‘Jake’s Dump’ — ‘The Grease-trough’ — ‘Jawbone Restaurant’ etc. Every other building is a saloon and ‘dance-hall.’ The others house a general store, beanery, barber shop and the like. A sign on one of them reads, ‘Indian Curios, Hoss Shoeing and Justice of the Peace.’ ”

The description is that of a typical early day western town, “A few Indians loafing about Main Street” horses tied to hitching posts, a burro driven by a Mexican carrying a load of firewood faggots. Boomers lolling in the shade of the beanery while awaiting the call boy to notify them of their assignment.

In the midst of this barren and desolate scene suddenly appears “Hardnose Har-rigan” the trainmaster, as he comes down the aisle in 'his desperate quest for boomers to run his trains. His offers of employment are rudely rejected. Then there comes to the ears of the occupants of the smoking car, the sound of women’s voices, one Iboomer discovers a bevy of “Harvey Girls” descending from the rear car. They are the girls who are to open the Harvey House on the following day.

The white women so impress the rugged boomers that they immediately change their minds and decide to stay. He then describes the girls; also “the lantern-jawed chaperone” who-has “succeeded in getting ¡her charges safely off the train and herding them in the direction of the big dormitory” where they are to stay.

“In (.lift barber shop a ‘gent,’ half-shav- . ed, boils out of the chair and gives the barber a close race to where the excited, chattering girls are fast becoming the center of a group of whooping citizens.”

The next day the “Grand Opening” takes place, and all the citizens are in a state of excitement, never having viewed so much luxury in such palatial surroundings.

“Dave” and “Heavy” who in the meantime have become fast friends, muster up enough courage to enter the lunch counter. However, finding it not yet open for business, they are invited by the manager to enter the dining room, but nearly back out again when he hands each of them a black alpaca coat, “explaining that a new Harvey rule requires all gentlemen to wear coats while dining.”.

They are seated at a table and waited upon by “pert ‘biscuit trundlers’ ” — Mary and Blondy. Blondy -is immediately attracted to Dave, but in the excitement, Mary spills a cup of coffee on him and his interest in her is immediately manifested, and throughout the whole story the principal source of love interest is inspired by them.

“Gert” then enters the scene and it is discovered that she and “Heavy” have had an old affair — at least they are old pals. They engage in some racy, spicy conversation, and thereafter their interest in each other is renewed. Gert invites Heavy to the Harvey Girls’ dance that night and admonishes him — “But mind you wear a white shirt.” Because of the attraction of the girls, Dave and Heavy decide to take a job, and Hardnose greets them with satisfaction.

After the lunch counter is open, Mary is placed in charge of it and there the real romance between her and Dave begins, but Blondy still has her eye on Dave. Ace, the proprietor of the saloon and dance hall, suave, polished, educated, unscrupulous, and who knows women, also has his eye on Mary.

Mary and Dave engage in what starts out to be an innocent discussion, but ends in a misunderstanding. About this time Ace comes into the lunchroom, and to show her independence, Mary starts kidding with Ace, and Dave leaves the place and joins a group of boomers for a game of cards.

Shortly thereafter, Ace, hoping to rid himself of Dave’s competition for the affections of Mary, picks a quarrel with him, and Dave knocks him down. Dave’s friends are fearful for his life because of his quarrel with Ace, and attempt to get him to leave town. He refuses to do so, and he and Mary make up and she invites him to their next dance.

About this time an old squaw appears upon the scene, selling Indian curios. Mary and Blondy, attracted by the papoose carried by the squaw, invite her into the dining room for a drink of water. Suddenly she grabs her papoose and madly rushes out of the building as though mad, the girls entirely ignorant of the reason for such peculiar unprovoked conduct.

Thereafter a group of Indians return and violently protest about something. Just what it is is not entirely clear from the script. It develops that “The White 'Chief of the Cook Pot” — the title they have bestowed upon Fred Harvey, — has painted the walls of his new hotel with the Indians’ most sacred religious symbols, and that as a result, the white people must die in order to insure the Indians against drouth, crop failure, livestock death, and the perishing of the Indians themselves.

Based upon this imaginary wrong, the Indians go on the war path, they tie up a visiting Indian agent who tries in vain to explain the situation, and well armed, they march upon LaNada. In the nick of time, the Indian agent struggles free of his bonds and rushes into LaNada to notify the people of the approaching Indians. The boomers are at the dormitory to escort the Harvey Girls to the dance. Just as Dave and Mary are ready to depart, Dave is called to duty with a wrecking crew. Mary decides to go alone.

“Meantime, the typical Harvey girls’ dance goes on full swing, to the scratchy tunes of an Edison ‘morning glory’ phonograph. The lantern jawed chaperon is in evidence watching over her ‘chickens’ like a hen. * * * A boomer calling off a square dance — ”

Mary is not dancing, but waiting for Dave. Ace is present. Likewise no one dances with him. Mary decides to dance with Ace, thinking she can probably smooth out the difference between him and Dave. Dave enters, and finding Mary dancing with his enemy, thinks she is as fickle as the other women are; he has had enough of the country, he is going back home.

He again goes, to the cheap dance hall down the street; a few men and girls are there—

“ * * * a .piano is being wearily banged by a ‘professor’ with hanging cigarette who plays with one.hand and sips from a beer glass held in the other. A dozen empty beer glasses decorate the top of the piano.”

A drunken brawl takes place, amidst which the Indian agent rushes in with the cry — - “They’re a ‘coming’ ! The Indians! ” Dave’s first thoughts are of Mary. Outside Dave finds everything in disorder, “men are running around getting guns, brake clubs, anything” that may be used for weapons. “Harvey girls are rushing from their dormitory half-clothed.”

The mob • being leaderless, Dave takes command. He directs Mary “to get the women and kids into a couple of box cars attached to a switch engine on the station siding,” where they will be taken to the stone roundhouse a short distance away, which is to be utilized as a natural fort. As the.engineer starts to comply with the command to move the engine and cars, a volley from the Indians lays him low — he plunges from his cab — dead.

As Dave springs aboard the engine, Ace approaches from the opposite side where he has been hiding, and aims a pistol at Dave. Whereupon Heavy, close behind, “brains Ace with a brake club,’’ and he thus, considering the spirit of the times, comes to an early and disgraceful death. The engine and the box cars are safely piloted by Dave to the roundhouse, while the rear guard keeps the Indians back.

Dave 'calls Heavy to the cab to handle the throttle while ¡he scrambles through the front window of the cab, down over the running board and dashes for the switch, throws it, turns and makes a “footboard.” Others open the roundhouse door through which Heavy drives the engine and cars loaded with women, and children. The siege is on! The ammunition is low!

Mary takes command of the women and they and the children are placed in the track pits for shelter from stray bullets. Mary demonstrates her ¡courage. She is not a cringing member of the weaker sex. Their love and admiration for each other increases.

Help must be summoned from Albuquerque. The line of communication has been cut off. Dave conceives the idea of tapping the telegraph line outside the fortification, the engine is run outside the roundhouse door, a rope is thrown over the top of the telegraph pole and attached to the engine; the engine is run back into the roundhouse, thus pulling the pole with it, and the message is tapped out to the soldiers at Albuquerque.

■During this operation, a new and deadly weapon of warfare was discovered and put into use — the engine’s “squirt hose” through which live and deadly steam was squirted upon the Indians, driving them back, and it was this deadly weapon, more than any other, that saved them from destruction, until the arrival of the soldiers in the nick of time.

The fuel for the engine became low during the course of the siege, and in order that steam might be maintained to keep the “squirt hose” in operation, Heavy volunteers to run the engine out of the roundhouse and couple onto a load of fuel, while holding the enemy at bay with the “squirt hose.” As Heavy swings off to make a coupling, an enemy bullet kills him.

Dave takes his place at the throttle, but a bullet likewise strikes him, but his courage enables him to carry on and he is able to run the engine bade into the roundhouse with a load of fuel, so that the steam may be kept up and the “squirt hose” performing. Dave then becomes helpless and Mary soothes him; with his head in her lap, she talks to him about the years to come—

“ * * * civilizing the desert— homes — green lawns — children— * * She mentions the fact that this is their country now — his and hers. She tells, with a strange, prophetic vision, of the wonderful new kind of trains that will run through LaNada some day, more luxurious than they ever dreamed about. She assures him that he is the kind of man who will run them.

“Only half-understanding her, due to to' his daze, Dave yields to the peaceful spell her words cast over him. His fragmentary replies show clearly that he is madly in love with her.”

During this love scene, the Indians gather for a 'final assault. With a superhuman effort—

“Dave struggles out of the pit with ¡Mary’s aid. He takes a squirt hose, stands ready; Mary right behind. As the little band steels itself for a final effort, the tension seems to tighten all around. They have given up the thought of aid from Albuquerque.

“The assault begins. Everyone 'fighting desperately to prevent the Indians from breaking in. Things are going badly. Several dead and many wounded are sprawled about. The women, their petty jealousies forgotten, behave like heroines, loading guns, nursing wounded, etc. Splinters are flying. One of the heavy doors begins to give way.”

The “squirt hose” — the father of the flame-thrower, cannot hold bade the oncoming attackers. The sound of a screeching locomotive comes through to their weary ears.

“As the Indians’ yells grow dimmer, several o'f the girls go into hysterics. A train stops not far away.”

and the troops pile off. The day is saved— the battle is won! The Indians retreat with great haste, with the soldiers after them.

Upon this scene enters Fred Harvey, who has come with the troops. He insists upon a pow-wow with the Indians. He approaches with a white flag. He promises the Indians to have the offending structure torn down. “His sincerity impresses the Indians.” The pipe of peace is smoked. The Indians bless the building, thus making it a holy shrine where every one may eat food in peace.

Within a few days Dave is offered a promotion to become a conductor, and after considerable rough badinage between him and Hardnose, he accepts upon condition that he be given two passes to Los Angeles and return, for his honeymoon. He and Mary are married and live happily ever after.

At the end of the manuscript there is prepared a “A Few Samples to Indicate Type of Dialog” and 6 or 7 pages are devoted to the dialog suggested by the author for the moving picture. Clearly the story is one of early day western romance, constructed around the boomers, the Harvey girls and the early development of the Harvey eating system, and the Sante Fe Railroad.

A manuscript of “Old John Santa Fe” was submitted to the defendant through plaintiff’s agent in new York. After its consideration, it was rejected as not suitable for a moving picture. The defendant says the manuscript was returned to the agent. The plaintiff contends that It was not — that it was retained in the files of the defendant.

During the course of preparation of the manuscript “Old John Santa Fe” the plaintiff had several conferences with representatives of the Sante Fe Railroad, and with representatives of the Harvey system. Some difficulty was encountered in getting the respective parties to agree. The representatives of the Harvey system and the railroads apparently gave the plaintiff encouragement in making his research to obtain the material used in the writing of his story. He made extensive journeys over the route, visited various places and talked to numerous people. The Harveys furnished him information, the photographs of some of the old Harvey ghis and other photographs which might be used, and apparently collaborated -fully with him in obtaining such information as he desired in the development of the story, no doubt seeing in it a source of advertisement for their respective enterprises.

Naturally the Railroad and the Harveys each wanted the spotlight in the story!

As heretofore stated, the offending vehicle was the musical motion picture Academy award winner for 1945 — “The Harvey Girls” in which Judy Garland was the star. It is the defendant’s contention that it was adapted from the novel — “The Harvey Girls” written by the well-known author Samuel Hopkins Adams, under circumstances which will hereafter be described.

Some time prior to 1936 William Rankin wrote a short story entitled “Parade to Empire” and submitted it to the defendant. It is the story of Susannah Clark, a school girl employed in the home of Mrs. Forbes (a well-to-do Kansas City woman), apparently for her board and room and a few dollars a week. She is gifted with some musical ability and the story starts with her preparation for a recital at the High School Auditorium.

She is in love with Rudie Amberton, a well-to-do young man of Kansas City but who' apparently does not return her affection. On the night of the recital, Rudie elopes with Isabel, Mrs. Forbes’ sister. Su-sannah is crushed and makes a dismal failure of her recital, and instead of receiving the applause which she had hoped to receive, the audien'ce makes fun of her, she runs from- the stage, wanders aimlessly about the city until she comes across a sign in a railroad office window Vhich says:

“Young Ladies Wanted — Respectable and of Good Family.

“The sign goes on to say that Mr. Fred Harvey will select several young women to go West and man his eating houses, next day. * * * The girls are very carefully chosen. They must be of age, their morals above reproach ; their health perfect; and they must sign a contract not to marry for six months. Susannah is the first girl chosen.”

For six days and nights she and her pet dog “Johnny” ride the train to Flagstone, “a wild and wide-open spot.” Upon her arrival she is in the custody of a

“formidable matron supplied by the company. Every man she sees is armed. Cowboys on wild ponies dash up and down. Painted ladies stroll in and out of stores, indifferent to- the scandalized glances of anxious housewives. Bad men, cattle thieves, stage robbers and gamblers brush elbows with wealthy mine owners, merchants and men of the professions. Almost every doorway is the entrance to a saloon. At the end of the street rises the unpainted steeple of the church.”

The author describes the Harvey House, the service, to some extent, the food, and the effect upon the community, and how Harvey encouraged the people to grow vegetables and raise poultry, and discusses the—

“'Chinese gong beaten by the negro in a white coat who met all trains in the name of Fred Harvey. * * * In a region where women are scarce, these wholesome and respectable girls are very desirable.”

“Justice Phipps, florid of face and with an extremely large stomach” is described as the “law of the community.” He takes a great liking to our heroine, as does Evan, Richards, a graduate of Harvard Law School, an idealist, in the rough surroundings of Flagstone.

On one occasion a group of actors and actresses arrive upon the Los Angeles Express, and during the course of their meal, “they do bits from their acts and offer some' gay, extemporaneous entertainment.” Susannah joins in one of the songs and sings another alone. After this—

“Kurt Wesseling, once a famous choirmaster and voice teacher, in Vienna, whom ill health forces to live in this dry Western desert”

is attracted to Susannah, and she tells him - of her ambition to sing, and as a result, they become fast friends and she agrees to sing in his choir in exchange for daily singing lessons.

While Susannah is singing in the choir, there enters Wells Fargo Jones, who later becomes the hero, and who likewise has ambitions to be a bad man, as 'bad men in those days went; also a singer.

All the painted ladies of the town are envious of Susannah’s dog “Johnny” and many offers are made to her by the admirers of these ladies of easy virtue, but she “indignantly spurns them all.” Finally the gambling house keeper steals the dog and gives him into the possession of his lady love. Susannah immediately goes to Evan Richards for help, and he attempts to swear out a warrant for the thief. While this is going on, “Wells Fargo Jones his singing preceding him through the night” quietly returns the dog. She questions the cowboy “about his evil ways.”

The young lawyer calls on Susannah in the little parlor over the restaurant and they discuss this new country, “the satisfaction of founding a family out here” during which Wells Fargo serenades Susan-nah from outside in a drunken state, and is driven away by the matron. However, Wells Fargo is persistent in his attentions to Susannah, and the next day he runs the tourists out of the eating 'house because of their rudeness to the girls.

Later Wells Fargo is arrested and charged with threatening the Overland and its passengers the night he drove the guests out of the eating house. His trial results in a suspended fine, but he makes the threat that “he could hold up the entire train with nothing more deadly in his hand than a pipe.” He decides to enter legitimate business, he borrows some money, and opens the—

“Wells Fargo’s ‘International Bar* right across the tracks from the Harvey- House. When the white coated negro welcomes the tourists with his ■Chinese gong, Wells Fargo’s three piece band parades up and down drowning him out, and inviting patronage to his place. The ‘International’ becomes a phenomenal success.”

Through extensive advertising— “Tourists look forward to eating there because it has real local color. Fred Harvey announces the building of a new and bigger Harvey House.”

Susannah sees little of Wells Fargo and is devoting her time to music. Wells Fargo finally fails, dining cars have been put on, and as a result, his bar gets little trade from the tourists. He renews his pleasant relations with Susannah, and she agrees to meet him in the cabin of one of his friends, so that he may tell her of his plans.

Later that night, as the new Harvey House is to be opened, upon the arrival of the special train carrying Fred Harvey and his guests, the town and the station are packed with people. On the same night the train is held up and robbed by a bandit who had a pipe instead of a gun in his hand. The crime is pinned on Wells Fargo and he is threatened with being lynched. Susannah insists that she was with him in the cabin at the time of the alleged train robbery, and thus saves his life, but her reputation is gone, and she is required to resign as a Harvey girl.

She opens a little house on the edge of town where she advertises or holds herself out as a dressmaker or “modiste.” Business is slow until finally a lady from the red light district orders a gown. She tells her friends and soon Susannah prospers, but is still shunned by respectable women; her suitors have offered her their hand in marriage, but she refuses.

Finally Wells Fargo gets .a job as a brakeman on the railroad and orders some silk shirts from Susannah, and she is engaged by a rancher to make a trousseau for his daughter — “her first respectable order;” her compensation therefor is paid by the delivery of 100 head of cattle, instead of cash.

Wells Fargo appears upon the scene as the cattle are delivered, and instead of having his wages paid in money, he has received 1,000 acres of land from the railroad. He cannot pay for the shirts. They combine their resources and drive Susan-nah’s cattle to Wells Fargo’s ranch; they build a house and prove it up. Susan-nah gives a recital. The passengers from the Western Limited are rounded up by Wells Fargo and “Dinty” his friend and herded into the Opera House at the point of a gun. “Susannah is magnificent!” Her recital is a great success.

On their wedding day, President Cleveland is passing through the town and dining at the Harvey House. Wells Fargo takes the entire wedding party there, so that the wedding may take place in the presence of the President. All ends well.

On April 13, 1936 the manuscript entitled “Susannah Was a Lady” was submitted to the defendant, but not accepted. Later the story was re-written by Eleanor Griffin and William Rankin under the title “Susannah Was a Lady.” This was on May 26, 1936. In re-writing the story, the same characters are used throughout, but to some extent, elaborated upon. The only name changed is that of “Johnny” the pug dog; his name is appropriately changed to “Toto.” The story is elaborated upon in various places, but the theme is not changed and the characters and the parts they play, except for the elaboration, remain unchanged in “Susannah Was a Lady.” In this manuscript the author uses the words:

“Wells Fargo’s eyes roam over the acres with weary satisfaction, and he observes that there’s plenty of room for more steers * *' * and cows. Susannah nods.

“Suddenly ‘he turns on her half savagely. ‘You’re always talkin’ about growin’, bein’ part of the country and havin’ grandchildren * * * Well, it strikes me that you’d be havin’ them grandchildren a lot better ‘n’ quicker if you was married and buildin’ that house over there by the spring and gettin’ some more steers, than by sewin’ dresses for them floosies in town!’ ”

This story was presented to the defendant in 1937 and a report was made by M. P. LeVino, reader. It reviews the story, mentions the Harvey House system and the fact that the heroine is a waitress

of that system, how they were chosen from respectable families, traveled, under chaperonage of a matron, describes the town of Flagstone, and the characters were • mentioned in the manuscript. The reader summarizes the article in the following words:

“The author has touched upon one of the figures in our history that should hold the greatest possibilities for color and charm. But because the Harvey waitresses were honest, capable and decent, their lives were not often wrecked with drama. The author has done extremely well to get so much into the life of Susannah, but it is extremely difficult to make the action do anything but revolve around her. I feel that not enough has been done with the excitement of the background, though the incidental characters are ■well sketched. Compared to other western adventures these seem tame.”

The defendant purchased copyrights in these manuscripts and thereafter employed Samuel Hopkins Adams to write a story or novel using the Harvey waitresses as his theme.

On November 7, 1941 Loew’s, Inc., purchased from Eleanor Griffin and William Rankin, all of the literary material which they had submitted with respect to “Parade to Empire” — “Susannah Was a Lady” and “The Harvey Girls.”

On December 30; 1941 Loew’s employed Samuel Hopkins Adams to write a novelization of 60,000 words , or more, on its behalf, based upon the literary material found in the manuscripts heretofore mentioned, with such changes as the general development and treatment of that literary material should require, and to procure publication thereof in book form by a first class publisher under the title “The Harvey Girls.”

Adams completed the novelization of the story and procured the publication thereof by Random House, a first class publisher. “The Harvey Girls” was printed and published in the United States in October 1942 and copyrighted by Samuel Hopkins Adams in that year. All requirements of the copyright law were complied with, and on December 5, 1942 were assigned to this defendant.

Although the book was written in 1942, the moving picture was not produced until 1945 — war had intervened, and, according to the testimony, the story was almost forgotten until one of the producers picked up “The Harvey Girls” in 1943 in a book store while en route from the East to the West. He recommended to his employer that it was material for a moving picture and advised them to acquire the rights to it. He was advised the defendant had long owned the rights thereto. Thereafter numerous writers were employed and spent a great amount of time attempting to adapt the novel to a musical motion picture. There is a great deal of difference between the musical moving picture as produced, and the novel itself.

The story is a delightfully romantic one of the early days of the Harvey system and of the Harvey girls, punctuated throughout with historical facts; mid-western scenes; love, violence, tragedy and death. Most of the principals are typical of the period and the territory where the plot is laid. There are cowboys, dance halls, dance hall proprietors, gambling houses, gamblers, political bosses, railroad men, miners, prospectors and others typical of the era. Most of the principals love, marry and prosper, the villain dies a timely death — those who transgress God’s and nature’s law come to a tragic death, and intrigue weaves its slimy thread through the story.

In writing his book, Adams, in utilizing the material turned over to him by his employer, chooses for himself almost an entirely new cast of characters and a new name for the town, in much the same location in the desert as that around which the other writers had plotted their stories. The Adams 'book clearly shows it is the work of a trained and experienced writer. He has stretched the plot of former writers from a mere manuscript of 30 or 40 pages, to a full length book of more than 300 pages. That has meant the elaboration of all the doings of all the characters. After all it is' very much a typical western story glorifying the Harvey girls as the principal characters, and making them the heroines in every scene.

Where the plaintiff in “Old John Santa Fe” has a conflict between the Harveys and the Indians, who resent the eating house because their sacred symbols have been used in its decorations, in the Adams book the rivalry and hatred is between the boss of the town who owns the principal saloon and gambling house, the “Alhambra” and the Harvey eating house.

Adams chooses for his principal characters among the Harvey girls, three likely young ladies of widely divergent temperament, from Ohio and Illinois, who possess various degrees of family background, some education and considerable refinement, who find themselves dissatisfied with their family surroundings. Two of them, finding themselves dissatisfied for reasons, answer advertisements which have been called to their attention concerning the Harvey system of eating ■houses along the Santa Fe Railroad. One is Alma Seelye, a former school teacher, who became dissatisfied with life in her brother’s home and answered an ad in the Toledo Blade which stated:

“Wanted — Young women, 18 to 30 years of age, of good character, attractive and intelligent, as waitresses in Harvey Eating Houses on the Santa Fe Railroad in the West. Good wages, with room and meals furnished. Experience not necessary. Write Fred Harvey, Union Depot, Kansas City, Missouri.”

The other was Hazel Biggs, also of Ohio, whose grandfather operated a tug boat on the Ohio River. He was wise in the ways of the world and read in the eyes of his restless granddaughter the desire to better her condition, and recalling the admonition of Horace Greeley — “Go West, folks; go West”, he answered an ad in “The Beacon of Happiness for Lonely Hearts” and accepted an offer of marriage on ‘behalf of his granddaughter from W. H. Hartsey, Esquire, of Sandrock.

The other was Deborah Rapalje of Illinois. Her father was a vegetarian and limited his family’s diet to his own narrow views as to food. Deborah, a slight, wistful sort of girl, rebelled against this sort of treatment, and likewise answered an ad of Fred Harvey. Coincidence brought the three girls together as they journeyed from Kansas City to the desert town of Sandrock.

Upon their arrival there, Hazel made inquiry concerning W. H. Hartsey, Esquire, and to her great horror and consternation, found that he was locally known as “Hardluck Hartsey”, a prospector whose only discovery had netted him none of the world’s goods. He was a worthless, irresponsible, luckless individual.

The letter, in fact, had not been written by Hartsey at all, but by a charming, fun-loving young man named “Clay Thurston.” Hazel and Hartsey immediately determine that neither is suited to the other. It was considered more or less of a joke by both, and Hazel accepted employment as a Harvey girl, and thus our three principal heroines embark upon the same common employment.

The Harvey System is thoroughly explained in detail, how the girls are employed, how they are cared for, chaperoned, in this case, by Miss Bliss, a woman nearly to middle life, imbued with New England theories of morality and conduct.

Another of the characters is “Sonora Cassidy”, an old-timer, who has worked as waitress in other places than Sandrock for Fred Harvey, wise in the ways of the West and the ways of the Harvey System. She is mostly Irish but with a strain of Mexican blood flowing in her veins.

Then there is “Judge Purvis,” who is the local political boss; he has his hand in everything in the town. Nothing can be conducted successfully, particularly if it is prosperous, without him having a “piece of it.” He owns the Alhambra, the glittering dance hall and saloon, the kind we find in almost every western story, and in every western scene where “all that glitters and looks like gold was not made of precious metal.”

Ned Trent, employed by Judge Purvis to operate his gambling tables, known locally as “Faro Ned” — good looking, polished, well-mannered and suave, particularly attractive to the women. His part is not that of the villian.

Terry Kelsey is the railroad telegrapher, and the only railroader in the story who plays any particular part romantically or otherwise. He does marry one of the girls, not one. of the principals however, and advances to be superintendent of the division.

Chris Maulé who' is discovered in a box car standing on a siding on a dark night by Hazel and Alma, almost dead fr8m thirst and hunger, and rescued by them. Upon his recovery it is discovered that he is an Englishman, and doesn’t know how he got in the box car or where he came from. Apparently he was the victim of alcoholic amnesia. -He and Hazel immediately form. a great attachment which rapidly ripens into love, but the way is not .smooth — it develops that he is a nobleman and that finally the scandal which drove him from England, has been cleared up and he returns home, where he becomes the Earl of Mauldernay. He later returns and marries Hazel. Many amusing incidents occur during the course of their courtship, particularly while she is attempting to teach him the proper use of the English language — he, an Oxford man.

Judge Purvis attempts to make a good impression upon all of the Harvey girls, but particularly upon little “Deb” who seems to be less worldly than the others, and who has ambitions to become a singer. He encourages her and even offers to pay for the cultivation of -her voice. Ned Trent likewise is attracted to her. They soon fall in love, and a rather desperate affair exists between them. In fact they attain a status of intimacy that 'becomes tragic, in view of the fact that Trent has an undissolved marriage.

Judge Purvis grows in political power and finally becomes a judge of the territory. He uses his power and authority to acquire greater wealth and power by taking mineral- claims and water rights that do not rightfully belong to him. He seeks to drive the Harvey House out of existence, and forms a conspiracy with others, particularly Trent, to that end. Pie attempts to and does create a rivalry between the Harvey girls and the ladies of easy virtue, who are in his employ in • the Alhambra dancehall and saloon.

He and Clay Thurston are bitter enemies. Thurston’s father, a college professor, had come to the country in search of health, had acquired property and water rights, and had been driven out' and to an untimély death by Judge Purvis. . The son was made of sterner stuff and had battled for his rights, which resulted in his being shot by the Purvis gang. He had been cared for and treated by “Doc Gibson” who had acquired an unustíal ■ knowledge of the treatment of gunshot, wounds — particularly those through the abdomen — and for this, he had been expelled from the- society of ■his profession in the East, and had sought solace in the West, where he administered to all with great skill.

Thurston, cynical and suspicious of all women, looked upon the Harvey girls the same as all other women of the city, and his conduct toward them clearly indicated the nature of his feeling. ■ He and Alma entertain a mutual dislike for each other from' the very beginning — a dislike which was inevitably to turn to deep love!

The rivalry 'between the Harvey Girls and the inmates of the Alhambra was the natural result of the different types of women. The Alhambra girls attempted to invade the dance of the Harvey girls, and of course, this was resented. Some of the Harvey girls, including Hazel and Alma, and one other, went to a 'Christmas show at the Alhambra, without the knowledge of their supervisor, and against the advice of their friends.

A suggestive song was sung by the Alhambra girls, and it resulted in a fight among the partisans of the Plarvey girls and the followers of the Alhambra girls. This condition, which was encouraged by Judge Purvis, had almost resulted in the town people, with the exception of the railroad people, completely ostracizing the Harvey system.

A serious explosion occurs in a coal mine some miles from Sandrock; an appeal for aid was sent out and many responded, including the Harvey girls and the girls from the Alhambra. One of the Alhambra girls had at one time been a nurse in a hospital in the East; had been wronged by a young physician and became a dope addict and later became an inmate of the Alhambra. While others of lesser courage were shocked by the sight of the wounded and dying, she took full and complete command of the situation; she brought in her own kind, who were accustomed to violence, it being a part of their everyday life. Alma and some of the others were her assistants.

After this tragedy, the, rivalry and enmity between the girls ceased to exist, although the- town crowd continued in its efforts to close the Harvey House for competitive reasons.

' Throughout the entire story, the Fred Harvey girls exercise an influence over the citizens of the community that - is beyond understanding on the part of the old-timers.

Judge Purvis rapidly rises to political prominence and through the influence of ' certain corrupt employees in the Interior Department of the Government, was destined to become Governor of the territory, but he never relented in his hatred of those whom he sought to destroy, or acquire their property.

One night during a dance given by the Harvey girls, and these were frequent and the source of great influence in the town, Judge Purvis and a Government surveyor were seen to ride from the town. Suspecting their motive, Clay. Thurston quietly left the dance and the company of Alma and followed them into the desert. Later Judge Purvis is shot through the abdomen and returned to town, where he is cared for by “Doc Gibson.” The Judge accuses Thurs-ton of shooting him and he is arrested and committed to jail. Judge Purvis is being cared for by “Doc” Gibson and his recovery is practically assured, which would have lessened the offense against Thurston, who is released from jail on bond.

During this period Thurston drove a herd of cattle into the city to be shipped to Kansas City. One of his cowhands was bribed by the henchmen of Purvis, taken to the Alhambra and plied with liquor, during which time he had left the cattle unguarded while another Purvis henchman took down the bars and permitted the cattle to leave the corral and stampede through the streets of the city.

Deborah owned a small pug dog, and, attracted by the stampeding cattle, it ran into the street where Deborah, in her attempt to recover it, was trampled to death by them. Thurston observing the danger, attempted to save Delb, was badly trampled and seriously injured.

While Judge Purvis was on the road to recovery, his co-conspirators in Washington became impatient at the delay in having him appointed Governor, so they might get control of certain properties, sent fin a famous specialist., Being dissatisfied with “Doc” Gibson’s treatment, he took over the case, substituted his own methods, and in a few days, Purvis was dead.

Ned Trent, broken-hearted over the death of his sweetheart “Deb” called upon Thurs-ton, confined to his bed as' a result of his injuries, and explained to him how the cattle had been released, and asked him to convey to Alma, whose nickname was “Cricket” that everything was tp be all right between, them, although he refused to elaborate upon the statement.

Later he called upon “Doc” Gibson and in the presence of witnesses, gave a sworn statement that he had killed Purvis because he was attempting to steal some claims in which he (Trent) had an interest. A promise was exacted of “Doc” Gibson not to release the sworn statement until his consent was given. Trent immediately left the doctor’s office, sent word to the Purvis henchmen who had released the cattle from the corral, that he expected to kill them, and in typical western fashion, they meet upon the street, and in the exchange of shots, all three were killed.

Thurston was advised of the confession, which had the effect of course, of clearing him of the murder charge. Alma however, refused to accept it; she refused to see Thurston until forced to do so by the doctor who thought it essential to Thurston’s recovery.

As a result of the visit however, all apparently was broken off between Thurston and Alma. She threatened to leave and seek another assignment. He prevailed upon her not to do so under promise that he was soon to leave Sandrock to accept an assignment from the Interior Department in an effort to clear up the rather unwholesome conditions existing in the territory, and that he would probably be gone for a considerable period of time, and would no longer interfere with her.

“Deb” had confessed to Alma that on the night of the murder, she had been with Trent in a room in the Alhambra from 11:00 until 5 :00 o’clock in the morning, and although Trent and Deb were both dead, she. knew that Trent could not have committed the murder, and although she continued to be in love with Thurston, she could no longer respect a man who would permit another to take the blame for a murder which she knew he had not committed. Thurston refused to make any explanation about it other than to imply that if she felt that he was the type man who would shoot another 'under circumstances under which Purvis was shot, she would have to believe it. Under such circumstances, she considered him to be dishonest and unworthy of her love. ■

“Hardluck” Hartsey had staked a claim not far from Sandrock and his luck evidently had ‘ changed. Through efforts of the Government to bring rain to the desert, a terrific explosion had taken place on top of the knob where this claim was located, and exposed a large vein of copper. On the night of the murder, it was this claim that Judge Purvis was attempting to obtain by means of relocating the survey marks.

Sonora, although outwardly as hard as the country in which she lived, had a heart equally as large. She had reformed Hard-luck and married him while she was still employed as a Harvey girl, and was soon to give birth to a child.

On the night Purvis is shot, while she lay awake in the cabin thinking of the event to come, she saw Purvis and his assistant in the act of moving the survey marks, she aroused her husband, who immediately seized his rifle and stalked the thief and shot him. Thurston knew this. Sonora had assisted him upon many other occasions, she had been his sincere friend. He refused to reveal the identity of Purvis’ murderer.

Sonora, for reasons which were sufficient unto herself, likewise refused to say anything about it until after her child was born. She then called Alma 'to her cabin and revealed to her for the first time, the events as heretofore described, and her reason for refusing to reveal it earlier, and of the refusal of Thurston to reveal it even to Alma. The reason for the latter being that Alma was given to talking in her sleep, and it was felt' that she might, under the tremendous strain she was then living under, reveal the fact. Thurston finally returned to Sandrock, they made up and all was forgiven, and, as usual, they were married and the romance ended as all romances should — happily.

The story has a delightful finale. San-dro via now a thriving city of a quarter million — the successor to the little town of Sandrock — celebrates its 50th anniversary. Fred Harvey opens headquarters to welcome all their former employes, and their host is Byron Harvey, Jr., a grandson, representing the management. Most of our principals return — Sonora who had two husbands before Hardluck, who was killed 25 years before in a landslide in his mine, and two since, and her son, now a prominent citizen, and president of the Chamber of Commerce of Los Angeles. Tim, the counterman and numerous others, and the most important of all, Governor and Mrs. Clay Thurston, and the Earl of Maulder-nay and his wife, the Marchioness, the former Hazel Biggs, Harvey Girl. Time has dealt kindly with most of them, they reminisce and discuss the old days of the Harvey Girls. Thus ends the Adams story.

As heretofore stated, some time early in 1943 Arthur Freid,. producer of musical photoplays, bought a copy of Adams’ novel while en route, to Los Angeles by train. It is said-that he became interested in the possibilities of producing a musical comedy comparable to “Oklahoma.”

The Adams book was entirely too long and complicated in its literary construction to be reproduced either as a grade “A” western picture or as a musical comedy, and with the thought of adapting it to a musical moving picture, Roger Edens, assistant to Freid, was delegated the responsibility of adapting the story to a picture.

According to the testimony of the defendant, it presented many complications and problems,' and it became necessary to re-'arrange the entire story to 'a considerable extent, both as to characters and as to plot. Many outstanding writers were employed in this task. There was cooperation between the writers, producers and the representatives of the Harvey System and the Santa Fe- Railroad, both in the adaptation of the story and the production of the picture.

Unquestionably Harveys and the Santa Fe Railroad furnished such information and factual data as they had from whatever source it had been obtained in the adaptation of the story' and the production of the picture. However, with respect to the cooperation on behalf of the Harvey System, it was not until they had been convinced through the presentation of the songs to be used, that- they finally gave their consent to the production of the musical show built around the Harvey System.

In the adaptation the writers and all the parties had in mind the personalities of the artists who were to take the various roles, and to adapt such roles and the music to fit their talents — such artists as Judy Garland, Ray Bolger, Virginia O’Brien, Cyd Charis'se and others. With all these problems in mind the adaptation was finally accomplished in a manner satisfactory to all.

The names of the characters in, the pror duction, with the' exception of the principal role, taken by Judy -Garland, were the samé as in the Adams 'book, although'the parts they were to take were radically changed. For example, in the Adams book, Alma Seelye was the heroine, whereas in the production a new character is introduced in Susan Bradley, who takes the part of Alma in the -book. Alma in the picture takes the part of Hazel in the Adams story. Deborah takes the part of still another character.

The roles played by the male cast are almost completely changed. In the Adams book, Clay Thurston, a rancher, is our hero, p-laying opposite Alma; Ned Trent is the employee of Judge Purvis,- in charge of the gambling tables at the Alhambra. He and Deborah fall' in love; he is one of the early villains in the play, but láter turns out to he a hero. Whereas in the production, Trent is the leading male character instead of Thúrston, and hé and Susan Bradley take the leading roles.

In the book, Judge Purvis is the owner of the Alhambra, the political boss of the town, an aspirant to become Governor. His part in the production is that of a villain largely. Sonora has an important part in both book and -picture, but in an entirely different way.

In the Adams story, Terry Kelsey is the railroad telegrapher, whereas in the production, Terry O’Hallo-ran is the piano player in the Alhambra, and the whole plot is very materially changed in the production from that found in the book.

Throughout the dialogue the production is delightfully punctuated with catchy musical productions, such as “On The Atchison, Topeka and the Santa Fe” — “Swing Your Partners Round and Round” — “In the Valley Where the Evening Sun Goes Down” “Wait and See” — “Oh You Kid” — “Its a Great Big World” — “The Wild Wild West.”

The character of “H. H. Hartsey” parallels-‘that of the story very closely, - although his description is vastly changed. In the story the letters are written for Hartsey to Alma Seelye by Clay Thurs-ton; in the production are written by Ned Trent. The name of the manager of the eating house, which of course, is not important, was changed from “Bell” in the story, to Adams in the production.

The opening scene of the picture shows the rear end of an old-fashioned or 1890 passenger coach as it proceeds slowly across the desert. As the train approaches the town of Sandrock, Susan Bradley is shown on the rear of the train singing “In the Valley Where the Evening Sun Goes Down.” She has answered a proposal of marriage by H. H. Hartsey, whom she believes to be a rich and prosperous miner, and is on her way from her home in Ohio to Sandrock to marry him.

Inside the coach are a large number of Harvey girls on their way to Sandrock to open a new Harvey restaurant; they relate their experiences and the reasons why they,are on the way; they engage.in a lot of .small talk. Susan is unacquainted with them; her food supply has, become exhausted, and Alma, conscious of this, asks her to sample a new type sandwich, so that her pride will not -be wounded through the offer of food. This she accepts, and because of it, becomes acquainted with the other girls; she tells them why she is on the train; she never heard of the Harvey girls or the Harvey system; she shows them her wedding gown. Before the train reaches Sandrock, the manager is putting up the sign advertising the opening of the Harvey House.

Judge Purvis, heretofore designated as the political boss of the town, and one of his henchmen are riding along the street. In. the production the judge is described as a tall, handsome, well-built man of forty, as contrasted to a rather florid-faced rotund individual described in the book. He makes threats against the eating house even before its opening and says that it will not be permitted to operate in the community.

As the train whistles for the stop, large numbers of men in the town start for the depot; the girls leave the train under strict supervision of Miss Bliss, who will be their chaperon and constant governess in their new environment, and employment. In the picture a great display is made, many songs are sung at the depot before they enter their quarters. “H. H. Hartsey” is there, to receive his bride. In the production, he mistakes Sonora, a middle-aged woman, who is hard-boiled, familiar with the ways of the West, and who has been a cook for Harveys for 14 years, for his fiancé, and he proceeds to implant a kiss upon her lips, which causes her to fly into a fit of rage, and she attacks Hartsey with great fury.

Later he discovers that Susan Bradley is his real fiancé, and both she and Hartsey are shocked to discover the situation — the contrast between the two as to age, appearance and station in life, but after many amusing attempts to accept the situation as it is, they agree that a wedding would be impossible, and during this amusing episode, Hartsey reveals that Trent was,the author of the .letters, he being a man of pplish, education and a broad knowledge of the ways of the world and of people.

In great fury Susan grabs her old-fashioned traveling case and beards the lion in his den — Trent sitting at the gambling table — and after, considerable effort, she attracts his attention and bitterly berates him in a manner that is entirely'foreign to him in the surroundings in which he lives. Trent, finally impressed by her righteous wrath, offers her the money for her return fare to Ohio. She scornfully refuses it, with the statement that if any one leaves Sandrock, it will be he, and not she. She then crosses to the Harvey House and says to Miss Bliss, “you have a new Harvey Girl.”

Judge Purvis convinces Trent that the Harvey girls and the Harvey House are a menace to the community, that good and bad cannot exist side by side, that the fine influence of these good women will destroy the community, and they conspire to get rid of the girls. Many incidents arise during the course of the attempt to drive them out, but during all of this period, Susan and Trent, although bitterly fighting each other, are gradually attracted, and the sparks of love have begun to grow.

Deborah’s love of music attracts her to Terry, the dance hall pianist. One of the amusing incidents in the production and in the book is where Trent calmly enters the Harvey Eating House, and calmly orders a rare steak. When Susan requests the order, it is reported that all of the meat in the place has been stolen. Susan can tell from the expression on Trent’s face that ■he is attempting to embarrass her. She therefore borrows a couple guns that have been parked by two of the guests and goes across the street to the Alhambra, and in a very amusing and comical way, forces the return of the meat. While there it is found that the manager of the eating house has been kidnapped and tied up in the kitchen of the Alhambra. Some of the hard-bitten guests in the Alhambra, sensing the comedy of the situation, assist Susan in her attempt to recover the stolen food; she returns and delivers to Trent a very, very rare steak. All in due time.

In the book, Chris Maulé is a titled Englishman, a remittance man, whereas in the production, Chris Maulé arrives on the train with the Harvey girls, and is a spectacle salesman; he later becomes the town blacksmith, and his part bears no similarity whatsoever to that played by Chris Maulé in the Adams story.

In the Adams story, some of the Harvey girls attend a Christmas party at the Alhambra, and as a result, a fight takes place-between the male partisans of the Alhambra and of the Harvey House. In the production, Deborah goes to the Alhambra to sing a song with Terry, and Susan Bradley discovers her there and goes into the place to bring her out, as a result of which .■she and “Em”, the “boss lady” of the Alhambra girls, engage in a fight, which •ends in a free-for-all between the Alhambra girls and the Harvey girls.

Throughout the whole production the thread of intrigue on the part of the partisans of the Alhambra, led by Trent and Purvis, continues as it does in the story, .although in a different way. On one occa•sion shots are fired into the dormitory where the Harvey girls are sleeping; they become greatly frightened and several of them leave the town, which of course, was the hope which inspired the act. This ■causes a break between Trent and Purvis, and while Trent does not lessen his desire to relieve himself of the competition of the Harvey girls, he does not approve of the methods used by Purvis, and bitterness arises between them.

Later Susan and Trent have been out on the desert riding in the moonlight in Trent’s buckboard; they return and hear screams in the dormitory. Trent rushes to the second floor where he finds that someone has placed a rattlesnake in the closet of Deborah. He shoots the snake, and bitter words ensue between him and Susan. She compares Trent’s friends to the snake which 'he has just killed, and charges that he hasn’t the courage to kill those snakes as he has the one in the closet. This further widens the breach between Trent and Judge Purvis.

Thus the story carries on until finally Judge Purvis and one of his henchmen saturate portions of the eating house with coal oil. Trent discovers them in their act and enters the place, and a terrific fight ensues between Trent on the one hand, and Purvis and his, henchmen on the other. The town gathers about, the city pump is manned, the bucket brigade starts its work, and during most of the period, Trent and Purvis are engaged in physical combat. Naturally the hero is Trent, but the Harvey House is destroyed. Trent decides to leave and move to Albuquerque, some miles away.

The next morning “Em” leads the Alhambra girls with all of their belongings to the depot; she is accompanied by “Gold Dust”, an admirer who has long sought to take her out of the Alhambra, but she is still in love with Trent. He accompanies them to the train; as the train is pulling out he changes his mind and drops off at the depot.

Without the knowledge of the others, Susan decides to cast her lot with Trent, whatever it may be, even to becoming as other women in the Alhambra. She boards the train, “Em” discovers her and finally “Em”, realizing that she has lost Trent, pulls the bell cord, stops the train and pushes Susan off. It is then discovered that Trent is following the train in an attempt to overtake it in order that he may be united with Susan. They are married. Thus ends the picture.

Throughout the book and throughout the production, the Harvey Girls’ dances and entertainments are outstanding features, tragic as well as many amusing incidents occur at those entertainments and dances.

There is little similarity between the story written by the plaintiff and the story of “The Harvey Girls” as written by Samuel Hopkins Adams, except that the locale is a desert town along the Santa Fe Railroad, the principal characters are the Harvey girls, and the other characters, that ordinarily go to make up a romantic story of the old West.

Admittedly the moving picture does not too closely parallel the Adams story from which it is supposed to have been taken. Plaintiff does not charge the Adams book with copying his own story or of violating any of his copyrights. The charge is directed against the moving picture. There are parallels, between plaintiff’s story “Old John Santa Fe” and some scenes in the moving picture production. I think it is reasonable to assume that any story of the Harvey girls> or of the Harvey system, or of the Santa Fe Railroad would necessarily have many parallels and many similar characters. The first is the approaching train across the desert and the arrival of the Harvey Girls at Saridrock.

In the writing of the. Adams story it is admitted that he was supplied with such information as the Harveys and the Santa Fe had in their files, and unquestionably they had all of the information upon which .the Funkhouser stories were based. As heretofore stated, . they , cooperated with him up to a certain point, obtaining much tactual information.

Certainly the stories of “The Harvey Girls” have so long been in the public domain that no one can claim they have exclusive privilege in writing about them; they have long been the subject of many stories of fact and fiction.

The principal parallel between the mov- • ing ■ picture production and the plaintiff’s story “Old John Santa Fe” is in the early part of the moving picture production where the Harvey Girls are transported from Kansas City to the place where the new Harvey House is to be opened; a description of the recruiting method; the type of girls; the method of their training, and the things that were required of them are very much the same. Certainly a description of those things by any two writers would, of necessity, bear a similarity, and probably many of the same words were necessarily used in such description.

Plaintiff says he first wrote the story about the Harvey Girls in 1934, and one version was published in the “Railroad” magazine in 1939 under the title “Boomer Meets Girl” — supposed to be the experiences of a boomer as he roamed around the country, and of his determined efforts to avoid the pitfalls of matrimony. As he says in one place:

“On each occasion I was saved by the bell at the count of eight and I came back strong in the next round.”

The Harvey House as well as the Harvey Girls are mentioned many times in that story, and a considerable part of the story is devoted to a description of the Harvey system and of the Harvey Girls, and their influence upon the community; how they married the conductors and other employees of the railroad company and caused them to .be cemented to their jobs. The story of these girls is largely descriptive. Long before this story had been written, many others -had been written concerning the Harvey Girls.

As a matter of fact, on July 27, 1924, the Kansas City Star published a story entitled “Our Very Best People” by Edna Ferber. It was a copyrighted story and described a young woman from Kansas City whose family had been well-to-do, but suddenly lost their fortune. This young lady became a Harvey Girl at one of the desert places in which a Harvey House was located. She married a little Irishman named “Dan Yard” who was a substitute brakeman on a branch line of the Santa Fe out of San Querto, and who later became its general superintendent. (It will be' remembered that plaintiff’s hero and principal character in “Old John Santa Fe” was named Dan, who was also a brakeman). At one place in the story this language is used:

“You know, don’t you, that Harvey’s never hire girls that are awfully pretty. They found they couldn’t keep them out West. They just melted away into marriage with some rancher or railroad man or mining — ”

There are many descriptions of this kind throughout the story, descriptions of the community, and the jealousies among the people of the community. This story was reproduced in the Kansas City Star on June 6, 1943 and a portion of the editor’s note stated:

“A good story is worth rereading and why this one has escaped Hollywood passes our understanding.”

This story was written and published many years before the plaintiff had ever written anything about the Harvey Girls. He testified, and there isn’t anything to indicate the contrary, that he had never seen this story; also that he never saw and knew nothing of the stories written by Griffin and Rankin.

In “Our Southwest” by Erna Fergusson, published by Alfred Knopf in April 1940, seven months before the choice of the title “Fred Harvey Girls — Civilizers of the Southwest” published in the Reader’s Digest in November, 1940, there is a ■chapter devoted to “Fred Harvey — Civil-izer.” In this book the Harvey Eating Houses are fully described, where started, the early life of Fred Harvey, and the Harvey Girls are described in great detail, the kind of clothes they wore, the method of serving the food; how particular Fred Harvey was concerning the tableware, the linens and everything incident to the serving of food; how he might unexpectedly ■come into the restaurant, and in a fit of rage, destroy chipped cups and dishes that did not conform to his rules and regulations; she quotes “Tom Gable” whom she describes as one of the Harvey managers, and how he agreed to take the management of a certain place if he might have women waitresses instead of Negro men, who had been used in the far West in many of the Harvey Eating Houses. She says:

"Those waitresses were the first respectable women the cowboys and miners had ever seen — that is, outside of their own wives and mothers. Those roughnecks learned manners.” This. story likewise was written and published before the stories of the plaintiff were written.

In making this statement, I do not mean to imply that the plaintiff in the writing of his stories used the information in these publications, although he would have had a perfect legal right to do so. These stories clearly indicate that the Harvey Girls had been used as a source of material for writers for a long period of time before plaintiff chose them as a subject for his own writing, and that fact would very materially narrow the question of plagiarism or infringement of his copyright.

In his brief, plaintiff seeks to compare the character in his stories, particularly “Old John Santa Fe” with those in the moving picture production. He apparently contends that a description of the dances held by the Harvey Girls is indicative of the copying of his stories. He compares the description of the location as comparable to his own. In this connection, in practically all stories descriptive of the old West, we find the same type of town, same type of characters; in almost every moving picture of the old West we see that the building^ depicted may well have been used in every other picture of like type. This was necessarily so, because they were all practically the same.

Plaintiff contends that there is a very close similarity between Dave the boomer, and Trent the dance hall owner and gambler. I think it is fair to say that there is a similarity between the types of characters of Mary Evans, the heroine in plaintiff’s “Old John Santa Fe” and Susan Bradley in the moving picture, although the part they take in the story and in the moving picture is entirely different, except that each of them is the heroine, and plays opposite the hero.

He seeks to compare “Em”, the “Boss lady” of the Alhambra girls, and “Blondy”, one of his principal characters as a Harvey Girl; he says “Em” and “Sonora” are comparable characters, and to some extent, they are; he seeks to compare “Hard-nose Harrigan”, the division superintendent, with, the manager of the Harvey House, and to compare “Heavy”, the boomer in the Funkhouser story, with “Hartsey” in the moving picture. About the only similarity of these two persons that I can see is in their physical makeup.

I am unable to agree with plaintiff in his comparison of the characters, except in a remote way. I think there can be no reasonable doubt but that in the adaptation of the story the writers used all of the information available with respect to the Harvey System, the Harvey Girls and other matters pertaining to their subject. I think there is no question but that all of the information that plaintiff had in the writing of his stories was available to the writers in the adaptation of their stories. I have little doubt that representatives of the Harveys, and the Santa Fe Railroad Company gave them the very same information which they had given to the plaintiff when he wrote his stories, and that they probably utilized some of his thoughts in adapting the story.

.1 do not understand that the, use of the ideas of others in writing stories, or in producing pictures, renders such person liable for infringement. Most stories are based upon knowledge of facts about people, places and things, and knowledge is acquired largely by learning what others have learned. , There are few geniuses out of whose very souls and minds come original works. If use of the thoughts of others was denied to the literary and musical world, there would be few writings and little music in this modern age.

I think the defendant had access to the writings of the plaintiff. Such writings had been submitted to the defendant; they were at least in the possession of the Har-veys and of the Santa Fe Railroad who collaborated in adapting the story and in the production of the picture. I think it cannot be denied therefore, that the' defendant had access to them.

It is my understanding of the law that:

“In order to prove infringement there must have been copying of a substantial portion of the copyrighted work. Such copying is essential to recovery in an action for infringement of a copyright.” Kustoff v. Chaplin, 9 Cir., 120 F.2d 551, 560.

“Of course, with a common source, two dramatizations must have much in common.” Klein v. Beach, D.C., 232 F. 240-47; Id., 2 Cir., 239 F. 108.

Much that has been written about the Harvey Girls is pure fiction, but much of it also is founded in fact. In the stories before us here, much has been made of the incidents relative to requiring the wearing of coats in the Harvey Dining Room and how the manager in the Funkhouser stories refused to admit two boomers without coats, and how the coats were supplied for the occasion by Harvey. An incident is depicted in the production with cowboys as the characters.

There is no question but that there was such a rule invoked in all of the Harvey Blouses. In fact, there is a court decision upholding the validity of the rule. In view of the many stories about the Harvey Girls, of necessity there is much, in common. As was said in Caruthers v-R. K. O. Radio Pictures, Inc., D.C., 20 F„ Supp. 906, 907:

“The incidents mentioned in ‘The Sooners’ and shown in ‘Cimmaron’ are certainly, with one exception, familiar to all readers of stories of the western frontier and the rough life led thereon by its early settlers.”

The Harvey System, the Harvey Girls, the. method of operating, how they were selected, the type of persons they were, the relationship between the Blarvey System and the Santa Fe Railroad System are all matters of historical knowledge.

The existence of boomers in the early days of railroad, their method of living, thinking and operating are likewise matters of historical fact, and stories with respect to them are in the public domain and no one person has any legal right to» the exclusive use concerning them.

“There is no property right in mere ideas. * * * Such a right can only exist in the arrangement and combination of the ideas, i. e., in the form, sequence, and manner in which the composition expresses the ideas, not the ideas themselves.” Bowen v. Yankee Network, Inc., D.C., 46 F.Supp. 62, 63.

“A person may take the same fundamental idea as that of another work, and if in developing it the incidents in which it is developed are substantially different, if the idea is worked out on different lines, so that the two works bear no real resemblance to each other, there will be no infringement”. Eche-varria v. Warner Bros. Pictures, D.C., 12 F.Supp. 632, 635.

While there are similar incidents in the plaintiff’s works and in the musical moving picture production, it seems to me . that the incidents have been so materially changed and varied, that it cannot be said that they are so similar as to result in in- . fringement. : . ;

It is therefore my conclusion that- there has -been no infringement, and the finding and judgment will be for the defendant.

The parties may submit findings of fact and conclusions within ten days after the filing of this memorandum.