Harold Lloyd Corporation v. Witwer
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Opinions
WILBUR, Circuit Judge.
Plaintiff appellee sought to. enjoin the exhibition of a silent photoplay filmed in 1924, entitled “The Freshman,” and to recover all profits therefor derived from its exhibition upon the ground that “The Freshman” infringed the copyright of a story written by H. C. Witwer entitled “The Emancipation of Rodney.” The trial court held that there was infringement, enjoined the further production of the play and ordered an accounting to determine the profits derived from the exhibition of the play alleged by the plaintiff appellee to be $2,300,009, and admitted by the defendants appellants to he over $1,000,000.
The story was sold by the author to the publishers of the Popular Magazine for $75 and copyrighted by them in 1915. In 1929 an assignment of the copyright was made to the author, the sufficiency of which is attacked by the appellants, and this action was brought. This appeal is from the interlocutory decree.
Before entering upon the legal questions involved, and a comparison of the story and the play for the purposes of determining whether the play infringed the copyright, a general statement of the situation will be of assistance.
The thread upon which the story of Rodney is strung, whether we call it plot, sequence of events, or theme, is as follows:
A young man goes to college as a freshman, aspires to be popular, meets a girl, falls in love, wins a football game and the approval of the girl. Rodney, the hero, is a young man of mediocre scholastic ability, but so extremely industrious in his studies that [3]*3he cannot even forget the cube of 206. He achieves great success in his studies at college by reason of his extreme industry and not at all by reason of intellectual brilliancy. He reads Latin and Greek for the pleasure of reading about Julius Gasser’s fights and Hercules’ prowess. His fellow students, however, believe him to be brilliant. They accept him as such. He evokes their respect as well as their scorn. The students stand somewhat in awe of him so that he is not given a nickname. He is not hazed. He stands apart. He feels himself isolated from his fel'low students. However, he despises his intellectual accomplishments, such as they are, and his success as a scholar, and wishes to be thought a dub. He apparently is unable to understand that he could readily achieve this result by ceasing to study so hard. He has to study all night to pass the simplest examination. At the same time he has an intense ambition to be an athlete. In order to achieve success in athletics he purchases text books on athletics, studies them, practices in accordance with their directions; and purchases the uniforms used in different types of sports. Nevertheless he is conscious of his lack of ability.
Rodney meets the heroine under most embarrassing circumstances. He is in the woods, believes himself to be alone, has taken off all his elothes except his underclothes, and in accordance with the instructions contained in his text-book on boxing is sparring at a tree, when he is surprised by the heroine. He is, of course, terribly embarrassed, attempts to get into his clothes hastily, and, in his confusion, make's mistakes. Meanwhile the young lady looks on complacently, not at all embarrassed. Rodney, however, in spite of the situation, conceives a liking for the heroine. He later meets her on numerous occasions and endeavors to impress her with stories, of his marvelous athletic prowess. These stories she believes for a time but finally, ascertaining that he is misrepresenting his physical condition as resulting from injuries received in a football game, thus excusing himself from athletics by false pretenses, she cuts his acquaintance.
Apparently Rodney’s desire for athletics is for athletics’ sake, or at least for his own sake, until he puts himself in position, by his falsehoods and braggadocio, where he feels he has to make good in the eyes of the heroine by actually playing in a football game in order to regain her interest.
The climax of the Rodney story is in the football game in which he earns fame with his schoolmates and becomes a football hero in the annals of the college. Moved by a desperate desire to redeem himself with the heroine Rodney argues for a right to go on the field in the last five minutes of the game when his college is losing, takes advantage of the silence and uneertainy of the coach and rushes on the field to take the place of a disabled player. In his excitement he forgets the signals, although he claimed to the coach to know them. The ball is thrown to him and without passing it, as the signals require, he runs down the length of the field and makes a touchdown, which not only wins the game but the plaudits of his classmates as well.
In the play the principal character is Harold Lamb, impersonated by Harold Lloyd, who also goes to college as a freshman, aspires to be popular, plays football, and in the last five minutes of a big football game is sent on the field by the coach and wins the game. There are some marked differences between the story and the play which we will note at the outset, and others which will be discussed later.
In the play Harold Lamb, the hero, on his way to college, goes into the diner on the train and is seated next to the heroine, Peggy. She is attempting to solve a cross-word puzzle and Harold helps her. They are interested in trying to find “a name for one you love,” and in his enthusiasm Harold repeats several endearing terms such as “sweetheart, darling,” etc., entirely without reference to the girl and wholly by reason of his absorption in the puzzle. The heroine, equally absorbed, ignores the forwardness of Harold and considers his suggestion. Neither one looks at the other. An old lady passenger, hearing the terms of endearment, makes an audible comment concerning the beauty of love between young people which Harold overhears, and becoming very much embarrassed he rushes frantically from the ear. Later, he rents a room in a cheap rooming house, only to discover that the heroine is the daughter of the landlady.
The hero of “The Freshman” presents a different type from Rodney. The play is entirely silent as to Harold Lamb’s mental equipment and his success or lack of it in his studies. It may be inferred from his evident stupidity that he would not be a success in his studies and that his desire for scholastic success would depend upon whether or not in his opinion it would add to his popularity. Harold Lamb does not study the subject of athletics, but does have overpower[4]*4ing confidence in Hs abiEty to achieve success as an athlete. Harold desires to be popular and has ascertained to his satisfaction that one method to achieve popularity is by playing football. He therefore decides to play football. He works hard and suffers much in order to get on the team. He believes himself to have accomplished this. The coach, however, and aU members of the football team, consider him a nuisance and believe that he has no talent whatever in that Ene, but they deceive him by giving him the impression that he has made the team as a substitute, whereas, it is intended that he should serve as a water tender and for that reason is allowed to sit on the seat with the players. The heroine ascertains that Harold, whom she apparently loves from first sight, is being made a butt of and determines to inform him of this, but refrains from doing so for fear of hurting his feelings. Harold Lamb also goes upon the field in the last five minutes of play when the score is against his team.
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WILBUR, Circuit Judge.
Plaintiff appellee sought to. enjoin the exhibition of a silent photoplay filmed in 1924, entitled “The Freshman,” and to recover all profits therefor derived from its exhibition upon the ground that “The Freshman” infringed the copyright of a story written by H. C. Witwer entitled “The Emancipation of Rodney.” The trial court held that there was infringement, enjoined the further production of the play and ordered an accounting to determine the profits derived from the exhibition of the play alleged by the plaintiff appellee to be $2,300,009, and admitted by the defendants appellants to he over $1,000,000.
The story was sold by the author to the publishers of the Popular Magazine for $75 and copyrighted by them in 1915. In 1929 an assignment of the copyright was made to the author, the sufficiency of which is attacked by the appellants, and this action was brought. This appeal is from the interlocutory decree.
Before entering upon the legal questions involved, and a comparison of the story and the play for the purposes of determining whether the play infringed the copyright, a general statement of the situation will be of assistance.
The thread upon which the story of Rodney is strung, whether we call it plot, sequence of events, or theme, is as follows:
A young man goes to college as a freshman, aspires to be popular, meets a girl, falls in love, wins a football game and the approval of the girl. Rodney, the hero, is a young man of mediocre scholastic ability, but so extremely industrious in his studies that [3]*3he cannot even forget the cube of 206. He achieves great success in his studies at college by reason of his extreme industry and not at all by reason of intellectual brilliancy. He reads Latin and Greek for the pleasure of reading about Julius Gasser’s fights and Hercules’ prowess. His fellow students, however, believe him to be brilliant. They accept him as such. He evokes their respect as well as their scorn. The students stand somewhat in awe of him so that he is not given a nickname. He is not hazed. He stands apart. He feels himself isolated from his fel'low students. However, he despises his intellectual accomplishments, such as they are, and his success as a scholar, and wishes to be thought a dub. He apparently is unable to understand that he could readily achieve this result by ceasing to study so hard. He has to study all night to pass the simplest examination. At the same time he has an intense ambition to be an athlete. In order to achieve success in athletics he purchases text books on athletics, studies them, practices in accordance with their directions; and purchases the uniforms used in different types of sports. Nevertheless he is conscious of his lack of ability.
Rodney meets the heroine under most embarrassing circumstances. He is in the woods, believes himself to be alone, has taken off all his elothes except his underclothes, and in accordance with the instructions contained in his text-book on boxing is sparring at a tree, when he is surprised by the heroine. He is, of course, terribly embarrassed, attempts to get into his clothes hastily, and, in his confusion, make's mistakes. Meanwhile the young lady looks on complacently, not at all embarrassed. Rodney, however, in spite of the situation, conceives a liking for the heroine. He later meets her on numerous occasions and endeavors to impress her with stories, of his marvelous athletic prowess. These stories she believes for a time but finally, ascertaining that he is misrepresenting his physical condition as resulting from injuries received in a football game, thus excusing himself from athletics by false pretenses, she cuts his acquaintance.
Apparently Rodney’s desire for athletics is for athletics’ sake, or at least for his own sake, until he puts himself in position, by his falsehoods and braggadocio, where he feels he has to make good in the eyes of the heroine by actually playing in a football game in order to regain her interest.
The climax of the Rodney story is in the football game in which he earns fame with his schoolmates and becomes a football hero in the annals of the college. Moved by a desperate desire to redeem himself with the heroine Rodney argues for a right to go on the field in the last five minutes of the game when his college is losing, takes advantage of the silence and uneertainy of the coach and rushes on the field to take the place of a disabled player. In his excitement he forgets the signals, although he claimed to the coach to know them. The ball is thrown to him and without passing it, as the signals require, he runs down the length of the field and makes a touchdown, which not only wins the game but the plaudits of his classmates as well.
In the play the principal character is Harold Lamb, impersonated by Harold Lloyd, who also goes to college as a freshman, aspires to be popular, plays football, and in the last five minutes of a big football game is sent on the field by the coach and wins the game. There are some marked differences between the story and the play which we will note at the outset, and others which will be discussed later.
In the play Harold Lamb, the hero, on his way to college, goes into the diner on the train and is seated next to the heroine, Peggy. She is attempting to solve a cross-word puzzle and Harold helps her. They are interested in trying to find “a name for one you love,” and in his enthusiasm Harold repeats several endearing terms such as “sweetheart, darling,” etc., entirely without reference to the girl and wholly by reason of his absorption in the puzzle. The heroine, equally absorbed, ignores the forwardness of Harold and considers his suggestion. Neither one looks at the other. An old lady passenger, hearing the terms of endearment, makes an audible comment concerning the beauty of love between young people which Harold overhears, and becoming very much embarrassed he rushes frantically from the ear. Later, he rents a room in a cheap rooming house, only to discover that the heroine is the daughter of the landlady.
The hero of “The Freshman” presents a different type from Rodney. The play is entirely silent as to Harold Lamb’s mental equipment and his success or lack of it in his studies. It may be inferred from his evident stupidity that he would not be a success in his studies and that his desire for scholastic success would depend upon whether or not in his opinion it would add to his popularity. Harold Lamb does not study the subject of athletics, but does have overpower[4]*4ing confidence in Hs abiEty to achieve success as an athlete. Harold desires to be popular and has ascertained to his satisfaction that one method to achieve popularity is by playing football. He therefore decides to play football. He works hard and suffers much in order to get on the team. He believes himself to have accomplished this. The coach, however, and aU members of the football team, consider him a nuisance and believe that he has no talent whatever in that Ene, but they deceive him by giving him the impression that he has made the team as a substitute, whereas, it is intended that he should serve as a water tender and for that reason is allowed to sit on the seat with the players. The heroine ascertains that Harold, whom she apparently loves from first sight, is being made a butt of and determines to inform him of this, but refrains from doing so for fear of hurting his feelings. Harold Lamb also goes upon the field in the last five minutes of play when the score is against his team. He makes a touchdown, but instead of one successful play there are eight different plays, in each of which Harold demonstrates to the audience that he is a complete ignoramus and knows nothing about the game. On one play, although unopposed, he puts the ball down within two feet of the goal line on hearing a locomotive whistle, because the referee has told him on a previous play that when the whistle blows he must “down the ball.” Harold Lamb believes in himself, takes his efforts with the utmost seriousness, has no doubt of his abiEty to participate in the game and win it, and actually does win it, but by a fluke, as was obvious to all concerned. Instead of becoming a football hero he is considered a boob and ridiculed as such. Harold’s athletic attempts were predicated entirely upon his desire to be popular and not at all upon a desire to be an athletic success. Whether he knew it or not he had the affection of the girl from the start and there was no reason to believe that his efforts in foot-baU had anything to do with his desire to win or hold the affection of the heroine. Harold got into the game because he beEeved in himself, and Rodney to make good with the girl if it were possible to do so.
That there are similarities between the play and the story is manifest and we proceed to consider the legal significance of such similarities. The primary question is whether these similarities resulted from copying the story; if not, the similarities are without legal significance. The secondary question is whether the similarities are themselves so marked as to prove by such circumstantial evidence the fact of copying, in the teeth of a denial thereof by those who produced the play.
“There can be no infringement unless there has been a copying either in whole or in part of the copyrighted work. Some copying is necessary to constitute infringement.” 13 C. J. § 277, note 41, and eases.
“Since there can be no infringement of copyright without some copying the mere fact of similarity or even identity between two works does not of itself make one an infringement of the other.” 13 C. J. § 278.
The rule is well stated by Judge Learned Hand in the case of Fisher, Inc., v. Dillingham (D. C.) 298 F. 145, 147: “To sustain it [an infringement suit], however, more must appear than the mere similarity or even identity, of the supposed infringement with the part in question. In this Ees one distinction between a patent and a copyright. One may infringe a patent by the innocent reproduction of the machine patented, but the law imposes no prohibition upon those who, without copying, independently arrive at the precise combination of words or notes which have been copyrighted.”
Judge Hand quotes with approval from a text-book by Drone on Copyright, page 205, which was also cited with approval by the Circuit Court of Appeals-of the Seeond Circuit in Chautauqua School v. National School, 238 F. 151, 153, as follows: “Works alike may be original. — It is not essential that any production, to be original or new within the meaning of the law of copyright, shall be different from another. Whether the composition for which copyright is claimed is the same as or different from, or whether it is like or unHke, an existing one, are matters of which the law takes no cognizance, except to determine whether the production is the result of independent labor or of copying. * * * Two or more authors may write on the same subject, treat it similarly, and use the same common materials in like manner or for one purpose. Their productions may contain the same thoughts, sentiments, ideas; they may be identical. Such resemblance or identity is material only as showing whether there has been unlawful copying. In many cases, the natural or necessary resemblance between two productions, which are the result of independent labor, wiU amount to substantial identity. * * * But, notwithstanding their Ekeness to one another, any number of productions of the same kind may be original within the meaning of the law; and no conditions as to originaEty are impqsed on the [5]*5makers, except that each shall be the producer of that for which he claims protections.”
In an effort to prove copying the plaintiff called as witnesses the following officers and agents of the appellant corporations: William R. Fraser, secretary and general manager of the Harold Lloyd Corporation; Harold Lloyd, president, in charge of the production department, and star actor of the corporation and of the play; John L. Murphy, production manager; Sam Taylor, one of the directors of “The Freshman,” the other being Fred Newmeyer, who was called by the defendants. It is stated in the bill of exceptions that these witnesses were called under section 2055 of the Code of Civil Procedure of California, which permits such witnesses to be called and examined “as if under cross-examination.” “The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence.” Cal. Code Civ. Proe. § 2055. This statute has no application to a suit in equity in the federal courts. In Dravo v. Fabel, 132 U. S. 487, 10 S. Ct. 170, 171, 33 L. Ed. 421, it is stated: “While the plaintiffs were not concluded by their evidence, and might show they • were mistaken, it could not be properly contended by the plaintiffs that they were unworthy of credit. The evidence must be given such weight as, under all the circumstances, it is fairly entitled to receive.”
The federal rule is different in actions at law. Ward v. Morrow (C. C. A.) 15 F.(2d) 660. If we accept as true the testimony of the witnesses thus called by the appellee, there was no copying and no infringement. While ordinarily in an appeal from a decree in equity the Appellate Court does not disturb the conclusions of the trial court as to the credibility of witnesses appearing before him except for manifest error, this rule must be relaxed, if not altogether abandoned, where the party is estopped to claim that the witnesses are unworthy of credit by reason of having called them as his own witnesses. We cannot, therefore, assume on this appeal, as we otherwise might, that the trial court rejected the testimony of these witnesses as unworthy of credit, especially as there is nothing inherently improbable in their testimony. The fact that the appellee may have called these witnesses under a mistaken belief as to the applicability of section 2055, Cal. Code Civ. Proc., cannot change the rule that appellee thereby vouched for their credibility. We will proceed to weigh this evidence with the other evidence adduced by the parties to determine the question of infringement. While it was admitted by Harold Lloyd that the magazine containing the story was in his possession, he and all his office force called by the appellee as her witnesses, including those who worked on the scenario or the picture, denied that they saw or read or heard the story. They all testified it was not used at any time in the production of the play. Harold Lloyd testified that Witwer, entirely from memory, gave him the outline of the story which Witwer then stated he did not clearly remember, and that he would furnish'them a copy of the magazine in order that they might determine whether they would use the story, and that he did so. The gist of this testimony offered by the appellee and corroborated by other witnesses called by the appellants, then, is that none of the people connected with the production of “The Freshman,” and particularly none of the scenario staff, ever read or heard the Rodney story other than as told them by Witwer. The only direet evidence opposed to this is the testimony of Mrs. Witwer that one of the writers told her over the telephone, when she inquired about the copy of the magazine which had been left by her husband with Harold Lloyd, that Lloyd had read it. This was hearsay, but admissible as such because it constituted an admission. It appears from the testimony of William R. Fraser, general manager of Lloyd's studios, called by appellee, that he introduced Mr. Witwer to Mr. Lloyd. His testimony in regard to the story as told at that time by Witwer is as follows:
“I had known of Mr. Witwer as a writer of clever literature, for perhaps ten years having read quite a number of his stories.
“I personally introduced Mr. Witwer to Harold Lloyd, on the same day that Harold and Mr. Witwer and I went to lunch at the Armstrong Cafe on Hollywood Boulevard. I understood Mr. Witwer and Mr. Lloyd had met slightly before that. As nearly as I cam remember the entire talk that we three had at the luncheon consisted of a general conver-., sation, largely about the motion picture industry, current events, and Mr. Lloyd’s pictures. I think there were comments on Mr. Witweris work which led up to Mr. Witwer stating that quite a number of years ago he had written a story which might interest Mr. Lloyd. It had been so long ago that he could not remember all of the details, but he could give us some of the high lights, and he proceeded to describe this young student type who excelled in all of his studies, was just an [6]*6outstanding marvel, the envy of all his class mates because of the fact that he answered every question correctly, and was particularly proficient in mathematics and history. There was no date in history which he couldn’t recall readily. He could correct his teachers or his professors and excelled in every way in his studies. He, however, had an ambition to be recognized as an athlete but was, however, physically unfit. The conversation was broken at times when Mr. Witwer was trying to recall it, and I don’t recall all of the sequences that followed, except I remember distinctly of his saying that he found one avenue of becoming an athlete or being recognized as such by having developed a formula for winning a football game. And he attempted to convince the coach that this formula would accomplish that. The coach, however, disregarded it. He respected him as a student, but didn’t encourage him in the use of the formula for the team. However, in the final football game of the season with the rival college, when everything looked as though this particular college was about to lose the game, as a last resort the coach in desperation thought of this young student, who was up on the grandstand. They called him into the game and there it developed that he either forgot his formula or didn’t have it, but by a fluke won the game.”
Harold Lloyd, as a witness for appellee, testified similarly to the same conversation with Witwer, as follows:
“Give us as nearly as you can the statement he made as to a football story that he had written. A. Yes, sir. He had an idea of a very studious youth who was very proficient in his studies, mathematics and history. He was very good on dates, as I remember, this boy being very proficient in that particular branch, but really he longed for other things. He was very desirous of being an athlete, and he took no pride in being able to get up in the class room and answer any question the professors might put to him, which he could answer.- It seems that he couldn’t get on the team, so he devised — he had in his mind a system, and he told the coach he had, whereby he could win football games. -It was a system he had worked out. The coach paid no attention to him at the present time. Later on in one of the large games, when they were losing — I don’t recall whether he went to the coach or just what the circumstances were, but anyway the idea of his system came up, and in desperation they decided to give the boy a chance, thinking that there might be something in this system. When the boy went in to play he didn’t have a system at all; he played merely straight football. That, to the best of my recollection, is the idea Mr. Witwer told me.
“Q. Did the boy win or lose the game? A. He must have won the game. That is a point I am not absolutely sure upon. All heroes win the game.”
Sam Taylor, one of the directors in the production of “The Freshman,” called as a witness by the appellee, testified that he had never seen the story “The Emancipation of Rodney,” and that all he knew about it was what Mr. Lloyd had told him that Mr. Wit-wer had told him about it. He testified as follows:
“Q. What was it that Mr. Lloyd told you about that story? A. Mr. Lloyd told me that Harry Witwer had an idea for a college story. I was interested, because wo were going to make a college story. He said it was the story of a young mathematical genius, a great student, who didn’t want to be a student, who wanted to be a great athlete. So far it appeared very interesting to me. Then he said that he went to college and tried to' become an athlete and tried to malee the football team and was a failure, but that he tried to persuade the coach that ho had a formula to win football games. This he built up to some extent. They all ridiculed it at first but finally on the day of the big game, when the home team was losing, the coach, in desperation, decided to take a chance on this mysterious student who had a marvelous formula for winning football games. Up to this point I thought the story or the idea was very intriguing. So I asked Mr. Lloyd what the formula was. So he'said the boy finally got in the game and his formula was to play straight, football as hard as he could. My idea of that was that it was very poor construction because you were building up something and then didn’t complete it. You were leading the audience to expect some marvelous formula and you gave them nothing. And I discarded it as absolutely impossible and never gave any further thought to any story by Mr. Witwer.”
As to the actual use of the Rodney story Mr. Lloyd testified ■ as follows: “Q. Mr. Lloyd, you state, do you, on your oath that you have never read the story of 'The Emancipation of Rodney’ even up to the present moment? A. I positively have never read the story, 'The Emancipation of Rodney’, then or even now, and I would like to state further that a story — a magazine with a story written by Mr. Witwer, or written matter from a magazine in which there is a story [7]*7by Mr. Witwer, has never been used before or during the making of ‘The Freshman.’ That I am positive of.”
The trial court accepted this testimony and found it to be a fact that Harold Lloyd had never read the story, but by implication found that the other members of the organization had done so and copied it.
William R. Fraser testified further that it was not the practice of the Lloyd organization to use a seript, and that none was used in the production of “The Freshman.” He stated: “I have absolutely no knowledge of the script. I hardly ever visit the scenario department during the time that stories are being discussed or prepared, and I did not at the time this story was being handled. I am the general manager and handle the financial end and the investment end and the distribution of the picture. I have never, either as to the picture ‘The Freshman’, or as to any other of Mr. Lloyd’s pictures, seen such a thing as a written synopsis, script, scenario or built-up written story,' and there is no file at the studio or elsewhere containing any such papers to my knowledge, nor has there ever been, to my knowledge. I never knew of any seript of ‘The Freshman’. In the scenario department, or group of gag-men, including Mr. Lloyd, there were Mr. Sam Taylor, Mr. Ted Wild, Mr. Fred Newmeyer, Mr. Tim Whalen, Mr. J. L. Murphy and Mr. John Grey, who were recognized by me when ‘The Freshman’ was being made, as the gag men or story builders.”
The actual method of making the picture was testified to by Mr. Fred Newmeyer, the codirector with Mr. Sam Taylor of “The Freshman,” when called as a witness by the defendants, as follows:
“I am engaged as a motion picture director by the Paramount-Famous-Laskey Corporation. I became connected first with Harold Lloyd in 1913, and continued with him or the Harold Lloyd Corporation till July of ’27 or ’28. I was with Harold Lloyd and the Harold Lloyd Corporation during the period when the motion picture called ‘The Freshman’ was made, as a co-director. The other director was Sam Taylor.
“Before ‘The Freshman’ was made I had acted as director for Harold Lloyd in other pictures, ‘Grandma’s Boy,’ ‘The Sailor Made Man,’ ‘Now or Never,’ ‘Never Weaken,’ ‘Safety First,’ ‘Dr. Jack’; I can’t remember all of them. I directed him all the way up from ‘Number, Please,’ but I can’t remember the routine -of them, in fact, all his pictures for close to ten years. Referring to ‘The Freshman’ in particular, the other men engaged beside Sam Taylor and myself in the preparation of the motion picture, were Johnny Grey, Timothy Whalen, Teddy Wild. Harold Lloyd, Sam Taylor and I participated in preparing the story of ‘The Freshman.’ Harold Lloyd was, of course, the star of the picture, and Sam Taylor and I the directors. The other three men, Ted Wild, Timothy Whalen and Johnny Grey, were what we called gag men. That is a name or term for scenario writers, story construction and putting in the business, like their gags. Usually they would sit in and work in the office all day long, and while they were preparing a sequence we would be shooting one. We would be shooting this sequence while they were preparing the next one; and then we would hold a conference after we were through shooting that sequence, and then go out and make the next one. In making ‘The Freshman’ we did not at any time work on a written scenario. Never in the history of Harold Lloyd pictures has there ever been a scenario since I have been with him.
“Q. How was the story imparted to the crew that did the shooting of the scenes? A. Well, after we .would get through with a sequence, then we would sit in with them, and then Harold would have the last word. There was no script to shoot from. We would probably put down notes, you know, of this gag or that gag, and then shoot right from them. We have never had a scene number. We always had on our slates ‘O. K.’ or ‘N. G.,’ but no scene numbers at all. It was what we called ‘shooting from the cuff.’ We had a scenario room where this group that I have mentioned would meet and discuss a story, and particularly with reference to ‘The Freshman,’ that is the way we built the story of ‘The Freshman.’ To describe how the story was made, so far as I observed it, Harold’s office is right around the corner from what we call the gag room. We had a long table, and we had chairs around this table, and nothing but scratch ¿pads. We would diagram our football sequence, with our teams lined up, on a big paper. Everything we ever did do — like for instance, if we would go out with an automobile chase, we would put our great big piece of paper out here, and then we would show our automobiles and so on, where they would miss collisions and so on. And that is the way we would do with our football. We would all get together and pick out the formation, like, for instance, the gag of going down the field with a shoestring, we would all diagram that on a big piece of paper, and that would be verified. And when [8]*8we went out there, we never looked at the piece of paper; we would just go ahead and shoot. A lot of the stuff was ad lib when we were on the sets. I don’t know how to explain anything more, only the boys would work, and we would come in at night and we wouldn’t even see them, they would be gone home, and when we would finish that sequence we would get in a huddle on the next sequence. By getting into a huddle, I mean into conference and talk about what to do next.
“I was present when the framework of the story of ‘The Freshman’ was worked up or talked out. That is a long time ago. We decided to make a football picture a long time ago, and we put it off. We went out and made a lot of stock stuff out at Pasadena at a game, and we put it away. And then all of a sudden Harold said, ‘Let’s make a football picture,’ and the first thing we did, we tried to find a gag; and a gag Harold likes, we build from that gag mostly. We get the premise of a boy who wanted to be a hero, wanted to follow the idol of last year — well, a kid that worked his way to popularity in the school by being captain of the football team. We got a very good piece of business, and Harold liked it, and we went on from there. We got the idea that to be a hero— Let’s see, when he got off the train, we figured if we could put — he cut out his picture and put his picture up alongside of him, and then put it under him, and put it over him, and then the wind came in and blew it in the waste-paper basket. So he figured the first thing to do was to pave his way in college by buying ice cream cones, and we built an ice cream set, I mean a parlor, an ice cream parlor, and we threw it out; we made it and threw it out. Now, let’s see, then we had the football practice, and he came with a helmet and he rapped at the door; and we had a bulldog in it, and the bulldog chased him. And we used him for a tackle, because they had broken a leg off of the dummy. And then I can remember he picked up all the paraphernalia — there was a funny gag there, where he thought he had lost his leg — he picked up all the paraphernalia and walked in to the coach and said, ‘We had a great day, Coach,’ and he thinks he is on the ball club, and he isn’t; and the little girl tries to help him.
“Q. Now, how did you develop those various ideas? A. Through the boys working them out in the room.
“Q. Were they the suggestions of any one particular member? A. No, no. Here is the way you do; one man will get an idea, and if it is good, then somebody else will elaborate on it, and he will say something, and pretty soon maybe it is thrown out altogether, and another germ comes; so finally all those boys agree, and believe it is 0. K. and then they 0. K. it, and then finally call Harold in at the finish of that. Practically at all times he would say, ‘don’t like it,’ or ‘I like it,’ and maybe he will elaborate on it; and if he 0. K.’s it, then we go out and shoot it. But the germs are all formed right in that gag room with those boys.
“Q. During the formation of those ideas, did anyone ever mention in the gag room, or anywhere in your hearing, that Mr. Witwer, H. C. Witwer, had written a story on football? A. Not to my knowledge.
“Q. Did you ever see in the gag room or on the shooting stage, or anywhere else, while ‘The Freshman’ was being made, a magazine similar to the one I now show you, being a copy of Popular Magazine of November 20, 1915, which is, I believe, a duplicate of the one Mr. Fendler has filed in the Clerk’s office; ' did you ever see this? A. No.
“Mr. Fendler. We will stipulate that Complainant’s Exhibit 1 is the magazine, or a copy of the magazine, shown to the witness at that time.
“Q. This contains a story at page 120 called ‘The Emancipation of Rodney,’ by H. C. Witwer. Did you ever see that before this very minute, Mr. Newmeyer? A. No, I never saw it; no, sir, I did not.
“Q. Did you ever hear Mr. Lloyd or Mr. Taylor or any of the other men whom you have mentioned as connected with ‘The Freshman,’ did you ever hear any one of them mention this story by Mr. Witwer? A. No, I did not. In directing the making of the various scenes, no one had any such magazine on the stage or on the set, that I know of.
“Q. As a co-director, you were not then guided in any way by any story such as ‘The Emancipation of Rodney,’ which I have just shown you? A. No, I don’t know a thing about it.
“Q. During the production of the picture called ‘The Freshman,’ did you at any time change and abandon any sequences of actions and start on a new line of story? A. Sure.
“Q. You mentioned — A. The ice cream sequence was thrown out; and there was another sequence thrown out, and I can’t remember what it was.
“Mr. Gortner. I know what it was, and [9]*9I can suggest it to you, if there is no objection.
“Mr. Fendler. That is all right.
“A. Just give me a line, and I will tell it to you.
“Q. By Mir. Gortner. Well, was there a sequence that you will perhaps recognize as the Lester Laurel sequence? A. Oh, yes. I will tell you what it is. He was following an actor and went into a motion picture theater to see this most popular picture actor, and he came out and got into an automobile and went down the' street, and as he came out of the automobile he asked him to show him that step, a jig step, and that is where he got.the step. We were over footage. It was a good gag, a good plan to show where he got that step, but we couldn’t use it because we were away over footage.
“As to what portion of the dory of ‘The Freshman’ was made first, — we went up to Berkeley to shoot some stoek stuff, and took Harold clean down the field with his shoe off; and I don’t know whether we started that football with the practice first; I am not sure. I don’t know where we did start that thing. We used to jump, you know. I swear I couldn’t tell you. At Berkeley, we took Harold up, and just before the game we ran him down the field, and we had the men tackle him, and the only thing he had left was his shoe — I mean he took one shoe off and went on down for a touchdown. I think that was taken out; I am not positive of that. I think that was the Berkeley and Stanford game.
“Q. Shooting, according to the records, started October 13,1924.
“Mr. Fendler. If it will be of any assistance, the big game was played about the 20th of November.
“A. Then I guess we started the football action first; I don’t remember; I couldn’t tell you to save my soul. We did a lot of jumping around, I know.
“The titles to ‘The Freshman’ were made up after the picture was finished. That was always the custom with a Lloyd picture. I had nothing to do with writing the titles. The titles include both the written explanatory matter and the dialogue that is thrown in.
“Sam Taylor participated in the huddles or conferences among the gag men in making up the story and the various gags more so than I. He was the head of the gag department. I remember that Walter Lundeen and Henry Kohler went out to Pasadena at the time I spoke of to take some football pictures years ago for Harold; they were cameramen. It was before we made ‘Why Worry/ and that' was out on the Roach lot, while Harold Lloyd still worked on the Hal Roach lot in Culver City. At that time I had a conversation with Harold about making a football story. We just said, ‘What will we do next? Have you got any ideas ?’ I don’t know who brought up the subject, but it sounded very good to him, and he smiled. So he said there was a game on out there, and he said, ‘Let’s go out and get stock stuff, because if we do decide to do it, we have got that stoek stuff.’ And then for some reason they changed to ‘Why Worry/ because they had a chance to get this great big giant, and the stock stuff was put away. I don’t know whether it is here, or whether it was burned up; that is a long time ago; but the boys went out and shot an awful lot of that film.
“This method of preparation of the story and shooting it ‘from the cuff/ was typical of all of Lloyd’s stories up to that time. No schedule. Harold surrounded himself from the beginning of ‘Grandma’s Boy’ with the best available gag men. He never believed in a scenario; in fact, if he did have a scenario, he would never follow it. He said to me when I came back on my last trip, he wanted to know if I had finished a picture yet. I said. ‘I have finished three of them/ since I had seen him last. He said to me, ‘Do you think 1 would gain anything by shooting from a scenario?’ I said, ‘No, you would just waste your time and throw it away/ because he won’t follow one of those things; if he did go out there, he would change it on you; he couldn’t do it, it is impossible.
“Q. Did he keep this staff of gag men year after year? A. Yes.”
Cross-examination by Mr. Fendler: “Mr. Lloyd made plenty of suggestions. I really couldn’t tell you anything that he suggested in connection with ‘The Freshman/ That is a long time ago. Mr. Murphy would sit in and listen, but he never opened his mouth. He never contributed anything. Mr. Taylor was the head of the gag department; that corresponds to the scenario department in other studios. , I never knew of a story that ever got to the gag department.”
It appears from the evidence that after the scenario writers in the Lloyd organization had formulated the general story, or sequence, upon which they were to proceed in making the moving picture, Harold Lloyd and Sam Taylor again got in contact with Witwer. Lloyd was interested in ascertaining more about the football incident in the [10]*10story with a view of determining whether it could be used, he having conferred with Taylor on that subject, and the magazine containing the story having been misplaced. In this conversation with Witwer which occurred in October, 1924, before production had started, Harold Lloyd did not get more details of the magazine story from Mr. Witwer. Taylor was present at a later interview with Mir. Witwer. He was more interested in the question of copyright infringement than in Wit-wer’s story, for he knew, as he testified, that the Rodney story was a college story, and a college story was already developed in the outline of the play “The Freshman.” He testified that at the time of his second interview with Witwer some of the details of the play had been developed. We quote his testimony in that regard:
“A. We had decided that Harold was to be a small town boy. And the first sequence was to be — none of the gags were in this, you understand; they were all, or mostly all, interpolated later — Harold was to be a small town boy who was graduating from high school and was all wrapped up in the idea of going to college. He was to have read books, all about the college, read all of the college magazines and the college annual.' He was to have met and followed up the career of a moving picture hero called Lester —I forget the name. He was to have met this moving picture actor at a public appearance of the actor and have asked him to advise him on how to become a great college hero, such as he was in the films. The actor, realizing the boy was an unsophisticated youth, showed him a funny little step which he did in the films when he was introduced to anyone and shook hands with them. This funny little step was part of the picture in which this college hero appeared. And under this picture on the posters was the caption ‘Step right up and call me Speedy/ In other words, this moving picture actor was called Speedy in the films. Then the boy was to set out for college. That was the first sequence, you understand, and gags were to be hung on that. We did photograph that sequence and eliminated it later and it is not now in the picture. The next sequence was to show the boy’s arrival at college, all bedecked in gay paraphernalia, with a college letter on his sweater, a guitar and all that sort of thing; and there was to be a routine of gags at the station, showing the college atmosphere, such as slapping the dean of the college on the back and riding off in his car by mistake and -such things as that. The next sequence upon which gags were to be hung, which we had at that time, was with reference to the address of the dean in the college hall, in which Harold stumbled onto the stage by mistake and generally made a fool of himself, at which time he did his funny little step and said, ‘Call me Speedy/ That sequence was to finish with the suggestion that the boy had become in a way the'college boob.
“Q. This was all before you started photographing, Mr. Taylor? A. This outline was, but none of the gags.
“The next sequence was to show the boy’s next step toward fame and college and that was trying for the football team. The actual physical action of the sequence was to be football training. We had a few of the gags, although most of them were put in later, where he was used as a tackling dummy, and so forth, who displayed marvelous stamina and drew the admiration, and also the pity, of the coach. There was to be a dialogue between the captain and the coach to the effect that he had tried so hard and it was a shame to tell him he couldn’t make the team; the captain was to suggest to let him think he had made the team and use him as a water boy. The boy was then to go home and tell the girl that he had made the football team. The next step as an advance toward fame in college was to be the final one. As I told you before, all we knew about that was there was to be one grand splurge, in which he was to make a tremendous effort to appear the most popular man in college, which was his one ideal. And in the middle of this he was to realize they were making a fool out of him and he was to crash to earth which, as you know, is the usual dramatic construction, to build them up to their greatest heights and then knock them down. This was accomplished when the heavy, or villain, another college boy, told him that they were only making a fool of him. And he there had a scene with the girl in which he broke down' and cried and realized he was a failure and they had made a fool of him. And she said, ‘You should only be yourself and you would accomplish what you want.’ He said, ‘There is one chance left— the big game tomorrow. And, if I can get in that, I will show you.’ And the girl looked at him in sympathy. Then we show the big game. Naturally, it was going against the home team and all the substitutes were hurt. And, finally, there was no alternative and they had to send this boy in. And, with a series of comedy gags, he won the game. And at the finish of the game he was really proclaimed the hero and the whole college took [11]*11up his funny little jig step which they had ridiculed earlier in the picture. That was the general outline we started on.
“ * * * I subsequently saw Mr. Wit-wer; I don’t remember the exact date but it was at the time we had completed our rough outline such as I told you, and were getting ready for production — before production started. Mr. Murphy, Mr. Witwer and myself were present, and at that time I told Mr.-Witwer the story we had outlined up to that point. * * *
“Q. Did you ever have a discussion, Mr. Taylor, with Mr. Lloyd or Mr. Murphy with reference to having Mr. Witwer come out to the studio for the purpose of avoiding an infringement action which Mr. Witwer might bring against the Lloyd Corporation for unauthorized use of his material in the picture ‘The Freshman’ 9 A. I believe that was the idea of the second conference. To be more explicit, we realized that Mr. Witwer had told Mr. Lloyd an idea for a college story and that we had ourselves written a college story. The very fact that he had told him a college story we knew was a dangerous proposition; and decided to get Mr. Witwer out to the studio and lay our story before him exactly as we had it lined up and let him judge whether it was in any degree similar to his story. This we did. * * *
“A. After I outlined to Mr. Witwer the story of ‘The Freshman’ as we had it at the time, he said that it was nothing like his story; in fact, to his mind it was much better than his; and that if we wanted to use any of the gags in his story, we were perfectly welcome to do so. This conversation was prior to the commencement of any actual photographing of ‘The Freshman.’
“Q. State whether or not at that time it was possible to change ‘The Freshman’ story as you had it outlined. A. It is possible to change the story at any time.
“Q. Did you rely on the entire statement he had made to you that there was no similarity, and if you wanted to, you could use any of his gags? A. No, sir. When that conference with Mr. Witwer was completed he dropped completely out of my mind, and I never gave him or his story any thought until this case came up. * * * ”
Cross-examination by Mr. Fendler:
“I have a most vivid recollection of that conference, especially of Mr. Witwer’s words, ‘you can use any gags in my story if you see fit,’ because to my mind it clearly indicated what was in Mr. Witwer’s mind at the time, which later events proved to be true. I mean by that that I was very fully convinced that Mr. Witwer intended to do exactly what he did do at that time; that is, to allow us to produce the story of ‘The Freshman’ and later sue for plagiarism.
“I was convinced when he made that statement that was what he had in mind. I believe the purpose of asking Mr. Witwer to come to the studio was to avert infringement. I was convinced at the time he made that statement that he was going to sue for infringement. I did not communicate that conviction to Mr. Lloyd. I didn’t say I kept it a secret, I may have discussed it with a few outsiders. I don’t remember whether I discussed it with anyone at the studio.
“Q. At the time, as you say, you told the story of ‘The Freshman’ to Mr. Witwer, the details of that story hadn’t been worked out, had they? A. What do you mean by ‘details’?
“Q. Exactly what you meant when -you testified a few days ago. A. If you mean ‘gags,’ no they had not. v
“Q. I call your attention to your testimony on page 74 of your deposition, Kne 3: ‘Q. When you started the production of the picture in October, 1924, were all the details of the picture then completed? A. Certainly not. If I gave you that impression, I certainly did not word my statement very well.’ Did you so testify? A. Yes. I just repeated it.
“The Court. What is the precise date? Has it been fixed in the testimony? I mean the date of this interview.
“Mr. Gortner. I think it is stated as about ten days or something like that before actual photographing started, and that started on October 13, 1924.'-
“The Court. About the first part of October, 1924?
“Mr. Gortner. It would be about the first part of October. At this conversation I described especially the outline and as many of the gags as had then been worked out. When I finished telling him what I did he said in substance or effect: ‘That is nothing like my story; it is much better than my story. If you want to use any gags out of my story, you are perfectly welcome to them.’ Mr. Murphy was present at that conversation. He told Mr. Witwer that I would tell him the story, as I was possibly more familiar with it than Mr. Murphy was. That was the extent to which he took part in the conversation.”
As to the same conversation, John L. Mur[12]*12phy, appellant's production manager, testified as follows:
“I am production manager of the defendant Harold Lloyd Corporation and have been such about seven years. * * * Mr. Witwer was asked to come to the studio on that occasion by me. The purpose of his being asked to come over to the studio at that time was to tell him our story. Mr. Taylor was correct in testifying yesterday that the purpose of that meeting was so that Mr. Taylor should be told Mr. Witwer’s story. Mr. Lloyd wanted Mr. Taylor to hear Mr. Witwer’s story from Mr. Witwer himself; but the purpose I had in getting Mr. Witwer out was to let him also hear our story. I wanted Mr. Witwer to hear our story because the magazine had been lost and all those months had intervened, and we were much concerned over the loss of it; and being that many other producers had been worked into very embarrassing situations innocently, we wanted Mr. Wit-wer to hear our story, and if by any chance we had unconsciously paralleled his material, we wanted him to state so and to change it then and there. My purpose was not to avert an action for infringement by Mr. Wit-wer. It was to la.y our cards right on the table and let Mr. Witwer know what our story was before we started photographing, and if he felt there had been any similarities or any parallels, we were ready to change it. As I remember, this was in the early part of the month, and it was before the photographing of ‘The Freshman’ commenced, and after we had completed an outline of the story. We had the story substantially set when I sent for Mr. Witwer. By the story being ‘set’ I mean after these various story conferences between Mr. Taylor and Mr. Lloyd and Mr. Grey, myself, Mr. Newmeyer, Mr. Whalen and Mr. Wild, and after they had agreed upon a story. We had been working on it six or eight weeks, I believe. The story was in the form of little scratch notes that Mr. Taylor used to keep, and I believe, a typewritten outline of about two pages which Mr. Taylor made up for his own personal guidance. I did not nor did the other gag men have a copy of that outline. Mr. Taylor used to keep those notes for himself.
“Q. I call your attention now to that portion of your deposition which was taken in my office in Hollywood on March 12, 1929, and ask you to read that portion of your deposition commencing about page 42, line 3, and reading as follows: ‘When we got our story lined up we thought it was a good idea to have Mr. Witwer come out and listen to our story and let him see that we had in no way used his material. Q. What made you think of that? A. For the simple reason we had a case simmering for a couple of years against us by Owen Dams in regard to “The Nervous Wreck,” and we didn’t want to have any repetition; and we had Mr. Witwer come out. Q. Had you used Owen Davis’ material ?’ Then there is an objection by your counsel and your answer: ‘A. I can answer that, anyway. At that time I was not connected directly with Mr. Lloyd. I was connected with Hal Roach, so I know nothing about it, anyway. Q. Whose idea was it that you might be using some of Mr. Witwer’s material in “The Freshman”? A. It was nobody’s idea in particular, but owing to the fact that we had one question with Davis, we thought the fair and upright thing would be to come out in the open and lay our cards on the table, and if we had in some way unconsciously used any of his material, why, we would change it.’ Did you so testify? A. Yes, sir. I don’t know the date, but Mr. Fraser spoke to me about making search for the magazine, Plaintiff’s Exhibit 1, and said that they had looked over Mr. Lloyd’s home and hadn’t been able to find it; and we just thought possibly in some way it might have found its way into Mr. Lloyd’s dressing room; and as a last resort, because Mr. Fraser and Mr. Lloyd were very much put out, I had his dressing room looked over. I did it myself, alone. To the best of my memory, no one else made the search with me in the dressing room at the studio.
“Q. I call your attention to the portion of your deposition taken at my office last year. ‘We were just about ready to start “The Freshman” and previous to that there had been two or three calls I believe from Mrs. Witwer and Mr. Witwer regarding the loss of the magazine and Mr. Lloyd tried to find it and Mr. Fraser spoke to ine about it. We hunted all over Lloyd’s dressing room for it.’ To whom did you refer when you said ‘We hunted all over Mr. Lloyd’s dressing room’ immediately following your statement that Mr. Fraser spoke to you about it? A. Possibly one of the boys, — maybe Mr. Lloyd’s personal secretary, or any one of the boys— helped me move the furniture in case it had -dropped behind something.”
Cross-examination by Mr. Seligsberg:
“Mr. Fendler asked you whether Mr. Wit-wer told you or attempted to tell you the story of ‘The Emancipation of Rodney’? A. Yes, sir.
“Q. There was a story he told you, but do you know whether it was the story of ‘The [13]*13Emancipation of Rodney’ or not? A. No, I do not.
“Q. Have you ever read ‘The Emancipation of Rodney’ ? A. No, sir.
“Q. By the Court. Did you say that Mr. Witwer did attempt to tell the story at this meeting in October of 1924? A. Yes, your Honor. I was the one who asked Mr. Witwer to come to the meeting, and 'my purpose was so that the Harold Lloyd story might be told to him.
“Q. Who else were parties to that intention? That is, did you and Mr. Lloyd and Mr. Taylor agree that that was the purpose of having Mr. Witwer come there? A. That was, I believe, my idea, your Honor. * » •»
Mr. Murphy recalled. Direct examination:
“I have been on the stand before and was present in court several days ago when Sam Taylor, as a witness called by Mr. Fend-ler, detailed a conversation at the studio of the Harold Lloyd Corporation between Mr. Taylor, myself and Mr. Witwer, in which Taylor stated that he outlined to Witwer quite at length the story of ‘The Freshman’ as it was then prepared. I was present at that conversation. It was early in October, 1924, in the afternoon. We had Mr. Witwer come out, and explained to him his purpose in coming out, and Mr. Taylor started to tell the story, which was the story that he repeated here on the witness stand the other day. He outlined to him a story of a small-town boy who was getting ready to go to college and got off on the wrong foot by virtue at following the antics of a motion picture actor, from whom he got the idea that.he wanted to be the most popular man in college. On his way to college he met the girl. Then he, on being taken out to the assembly hall where the student body was waiting for the dean to make the opening address, the upper classmen framed him so that he made a fool of himself in front of the entire student body. Then they told him, as one of the ways to become popular, that he would have to be a good fellow, whereupon they all lined him up to go over to the ice cream parlor where they made a fool out of him, spending his money. Later on he read where the previous popular fellow in college had been the captain of the football team, and he decided to go out for the football team, where he was rousted about and made a fool of. He was so sincere, however, that they decided not to tell him. Believing that he was on the squad by virtue of his ability, he told the girl o£ his success. Later he decided to throw the junior prom or the party of the year, which he did. At the end of the party the realization was brought home to him by the girl that he was j'ust making a fool of himself and that, if he wanted to attain his aim, he should just be himself, and be natural. This dropped him away down, broken hearted. His one remaining chance to make good was in the big game, which, of course, he did.
“In addition Taylor told Witwer possibly two or three gags in,the big football game and that Mr. Lloyd won the game, thereby achieving his aims.
“When Taylor got through telling him that story, Witwer said that it was a very good story, in fact that it was better than his, and mentioned that, if there were any gags he had told us that we wanted to use, it was perfectly okay. We replied that we didn’t need any of his gags and that we carried a staff of our own gagmen throughout the picture. With that Witwer shook hands, wished us good luck and left.
“Q. Did you report that conversation and what Mr. Witwer had said to Harold Lloyd ? A. Yes, sir.
“Q. Did you believe that Mr. Witwer was in earnest? A. Absolutely.
“Q. Did you go ahead in reliance on Mr. Witwer being in earnest and produce ‘The Freshman’? A. Yes, sir. Actual photographing started, to the best of my knowledge, about a week after that conversation, and continued, I believe, until about March, 1925.
“Q. If Mr. Witwer had said to you and Taylor that your story was like his in any respect, would you have gone ahead and made the picture regardless of that?
“Mr. Fendler. That is objected to as calling for a conclusion of the witness and suggestive and leading and outside of any issue in the case.
“The Court. I think that objection should be sustained.
“Mr. Gortner. May we have an exception to this ruling, your Honor, and to the previous one on the same line?
“The Court. Yes, sir.
“Referring to the testimony of Mrs. Wit-wer that she had a conversation with me by telephone some time in November, 1928, and that in that conversation I said ‘to tell Mr. Witwer to come to the studio to meet Sam Taylor because he was the man who was going to direct the picture,’ I did not say that to Mrs. Witwer. Also it is not true as testified by Mrs. Witwer that in a conversation [14]*14■with me in November or December, 1923, I said I wanted Mr. Witwer to come to the studio to discuss changes in the story. The only recollection I have of a conversation with Mrs. Witwer over the telephone was after Mr. Fraser spoke to me about looking, as a last resort, in Mr. Lloyd’s dressing room to see if the magazine might have found its way out there. And at that time I remember calling up Mrs. Witwer and telling her that we had been unable to locate it. But at no time did I ever have, any conversation with Mrs. Witwer on either the subject of having Witwer meet the man who was going to direct the picture or having him come to the studio to discuss changes in the story.
“Referring to the time that Mr. Witwer came to the studio in October of 1924, just before production started, and to Mrs. Wit-wer’s testimony in which she said that I either called at her home, or called her home and said to tell Mr. Witwer that I wanted him to come to the studio and that they wanted to read him their story, this testimony is correct in so far as calling him is concerned, but I don’t think I used the word ‘read.’ I think I said ‘tell him our story. * * * ’
“Yes, I testified to an outline which Mr. Taylor gave to Mr. Witwer upon a subsequent occasion. * * * My recollection as to what Mr. Taylor said upon that occasion is just about as I repeated here a few minutes ago. It is pretty hard to remember that far back just the exact gags that he was told, but that was the general outline of the story that Mr. Taylor told Mr. Witwer. To the best of my knowledge everything I have outlined here, Mr. Taylor did tell Mr. Witwer upon that occasion.
“Mr. Witwer said to Mr. Taylor and me when Mr. Taylor had completed this outline, that he liked the story very much, that he thought it was even better than his, and that if we wanted to use some of his gags, it was okay with him.
“Q. Was that all he said upon that occasion? A. I am just giving you the speech as I remember it. Then we replied to that that we had our own staff of gagmen which we carried throughout the picture to supply all the material we needed in the form of gags. The gags referred to were those which he told in a very sketchy manner the previous Saturday' afternoon in a very haphazard, incoherent manner. And about the only thing that I can remember that he told was about the boy out practicing hurdling, and I believe he was practicing in his B. V. D.’s, and the girl came up and caught him doing it. That is the only thing by Mr. Witwer that I remember. As I say, he told it in a very, very slipshod manner. That is the only gag I remember. He possibly told about three or four. As I say, it was hard to follow him in his manner of speech. I don’t remember the other gags he told us about that afternoon. He did not mention the title of the story ‘The Emancipation of Rodney’ upon that Saturday afternoon that I remember, nor did he mention the title of any story on that Saturday afternoon to my knowledge; no, sir. “Q. Did you or did Mr. Lloyd or did Mr. Taylor upon that occasion ask him to tell any story to you? * * * A. I believe having Witwer come to the studio for the purpose of hearing our story was my idea and I think Mr. Lloyd also wanted Mr. Taylor to hear Mr. Witwer’s story from Mr. Witwer direct. I believe I first suggested Mr. Witwer coming to the studio on that occasion. I wouldn’t say it wasn’t Lloyd’s idea as it has been quite a while. But to the best of my recollection it was my idea. I had no discussion with Taylor before Witwer came to the studio upon that occasion, other than I think I told him I was having Mr. Witwer out that afternoon, and to regulate his time so he would be sure and be there. Taylor did not tell me at that time, that I remember, that Uoyd had previously told him the Witwer story or something about the Witwer story and that he didn’t like the idea. * * *
“Mr. Witwer told me in substance at that time, immediately after Mr. Taylor had completed his outline, that the story which Mr. Taylor had told him was nothing like his story. But what left a memory on my mind was his statement that it was a better story than his story. I don’t remember just his exact words, but the general impression was conveyed that there was no similarity, and he thought our story was better adapted to Mr. Lloyd than his. It is very possible that he said in words, substance or effect when Mr. Taylor completed his outline: ‘That is nothing like my story.’ I just can’t remember the words, but I remember the general spirit of the conversation and he said that in substance, to the best of my recollection.”
With reference to the conversation of October 4, 1924, concerning the disclosure by Taylor and Murphy to Witwer of the nature of the play proposed to be produced by the appellants, the finding of the trial court is as follows:
“That on or about the 4th day of October, 1924, H. C. Witwer was requested by said John L. Murphy, production manager em[15]*15ployed by defendant Harold Lloyd Corporation, to come to the studio of said defendant corporation for the purpose of averting and avoiding any action for infringement which might subsequently be commenced by said Witwer against said defendant corporation based upon the use of said story ‘The Emancipation of Rodney’ in said motion picture photoplay ‘The Freshman’ and on said date said Taylor, in the presence of said Murphy, related to said Witwer some parts of said motion picture photoplay ‘The Freshman,’ but did not then, or at all, fully state or describe to Witwer said photoplay or the form or content thereof, and said motion picture photoplay was not completed in form or content or incident until on or about the 30th day of March, 1925.
“That defendants and each of them would have proceeded with the production of said motion picture photoplay and would have-produced the same and done each and every other act done by them, or either of them, in connection with the production, release, sale and distribution of said motion picture photo-play ‘The Freshman’ regardless of each and every consent to the use of said story ‘The Emancipation of Rodney’ asserted to have been given by said Witwer to said Taylor or said Murphy and regardless of any remarks made by Witwer at any time to Taylor and Murphy, or either of them.
“That none of the defendants herein re* lied wholly or in part or at all upon any statement by Witwer to said Taylor or said Murphy, nor did Witwer at any time mislead the defendants or any of them, in any respect whatever in connection with the production of said motion picture photoplay ‘The Freshman’ or in connection with any purported authorization to use episodes or ‘gags’ or fea-, tures or any part or portion of said story ‘The Emancipation of Rodney.’
It is not clear from this finding whether or not the trial court accepted the testimony of Taylor and Murphy as to the disclosures made by them to Witwer at that time and concluded that in so doing they did not disclose the nature and character of the play as thereafter developed. If this was the intent of the finding, it is in strict accord with the testimony given by Taylor and Murphy. On the other hand, the court may have been influenced by the fact that the testimony was given some seven years after the transaction in question and related to a conversation between the decedent Witwer and the. two witnesses who were engaged in the production of the play, and for that reason discounted to some extent the accuracy of their recollection and of their testimony. In that view of the ease, a critical analysis of the testimony is unnecessary, and for that reason we do not now critically examine the testimony of these witnesses. It should be stated, however, that, if accepted as true, this evidence almost completely covers the similarities between the story and the play as found by the court in the finding herein-before quoted, and also almost completely covered the plot and the sequence of events relied upon by the appellee as proof of an infringement as hereinafter set forth.
With reference to the question of whether or not the appellants relied upon the statement of Witwer, it is true that Taylor stated specifically that he did not rely upon the statement of W'itwer, but it is obvious that in making this statement he intends to emphasize the fact that he did not then, and never did, consider that there was any chance for an infringement. If the transaction occurred as testified to by the witnesses and as found by the court, then it is obvious that the appellants did rely upon Witwer’s statement because they paid no further attention to him, made no attempt to secure the moving picture rights in the copyright of the story either from Witwer or from its then owner, the publishers of the magazine, and acted then upon the theory upon which they have ever since acted, namely, that there was no infringement of the copyright in the story. The trial court found as a fact that they would have produced the play regardless of whether or not Witwer consented thereto. This is no doubt true, but Murphy testified that they would have eliminated any features that Wit-wer claimed a copyright on, and we see no reason to doubt this testimony, for it is obvious from a consideration of the play and the story that many, if not all, the similarities could have been readily eliminated without serious effect on the play.
The theme was fully disclosed at that time, if it is “be yourself,” as both parties have stated it to be.
Whether or not this statement by Witwer at that time could be regarded as a parol license authorizing production of the play is a question that is not pressed in the briefs and which we may not consider. It is sufficient to say that the statement by Witwer with reference to the dissimilarity between the play and the story is to be considered as an admission and as persuasive evidence that on October 4,- 1924, the play, as then developed and as stated to Witwer at that time, did not infringe the copyright,' and this, as [16]*16we have said, covers the theme, and, in large measure, the plot and the sequence of events relied upon by the appellee to show infringement. It is persuasive evidence that at that time there had been no copying, plagiarism, or piracy, and, if accepted, would limit our inquiry with reference to similarities to those portions of the play developed subsequent to the 4th of October, 1924.
The evidence of all who participated in the construction of the play, as gag or scenario writers, is that none of them at any time thereafter had a copy of the magazine containing the story or used it in making the play. If this is true, we have the judgment of the author of the story that the framework of the play did not copy his story and the testimony of all the producers of the play that they did not copy it. The admission of Witwer is particularly important, in view of the fact that at the time it was made the appellants knew of the general outline of the story, and Witwer knew of the general outline of the play. All the witnesses testify in effect that the producers of the play never had a more detailed knowledge of the story.
The situation thus presented by the evidence is that Harold Uoyd had planned for some years to make a college story in whieh the hero should participate in a football game. To that end for over a period of three or four years and-long before he saw Witwer, a large number of football scenes had been photographed, that is to say, different scenes at different major games of football had been photographed with the idea that they could be utilized in connection with a college football play when it was filmed. This inchoate plan, antedating all contact with Witwer or his story, necessarily involved the use of Harold Lloyd as the hero of the play and the experiences whieh he would have in attending college, and numerous gags in accordance with the general set-up of all the Lloyd plays.
If all this be true, then the question of infringement is narrowed to whether or not in the subsequent development of the play there was an intentional or unintentional appropriation of incidents and sequences and scenes of the story not yet developed at the time of the conference between Witwer and Harold Lloyd in October, 1924, above referred to.' This inquiry, however, involves a rejection of the testimony that these witnesses never knew or read the story, for without such knowledge there could be no. copying and their production would have been original no matter how closely it resembled the story. If, however, they had read the story or knew of its contents, and if there was a subconscious memory of the story derived from such knowledge, and if the evidence was such that some unconscious and unintentional copying was disclosed by the play when produced, there might be an infringement, notwithstanding the intentions of the parties to avoid infringement. There are inherent difficulties in the application of this proposition of subconscious memory to the facts in the case at bar. The production of “The Freshman,” as is indicated by the testimony of all those who participated in it, was in the main extemporaneous, that is to say, with the general background in mind each scene was developed by the very process of producing. The testimony is that over 100,000 feet of film were taken in connection with the play, only 7,000 feet of whieh was actually used. It is obvious from such a process that the purpose is not merely to duplicate scenes in the story or to reproduce them; indeed the story is too general in its descriptions for that, but to develop and produce scenes whieh would carry to the audience the general plan they had in mind. In the production of the gags there was evidently much rephotographing to get the exact sequence essential to create a laugh in the' audience. None of these gags and no such sequence is in the story. Consequently there was no effort to reproduce some such humorous situation in the story, but the purpose was to create a separate distinct sequence in the case of each gag to produce laughter on the part of the audience. It is not contended that these matters were copied from the story; on the contrary, it is admitted that there is a large amount of original material in the play. There is nowhere any slavish copying of anything in the story of Rodney. Indeed, the character of Rodney is so vitally different from that of Harold Lamb that the portrayal of the character of Lamb in action must necessarily be different.
We now come to a more detailed examination of the question of the similarities between the play and the story as bearing upon the question of copying and hence of infringement. The rule in that regard is thus stated in Corpus Juris:
“Since one work may be similar to another without having been derived from, or based on, it, mere resemblance between two works does not necessarily show that the one is a piracy of the other. It is merely evidence of copying and is more or' less strong according to circumstances. In the case of works of imaginative literature, or of a strikingly original character, any considerable amount of [17]*17dose similarity raises a strong inference of copying. * * * In all eases, the weight of mere similarity or identity as evidence of copying depends on the likelihood of its existing in the absence of copying. * * * ” 13 C. J. § 423, p. 1213.
“Mere priority in time does not confer a monopoly, there being a sharp distinction in this respect between copyrights and patents. Both works may be entitled to copyright, although identical, if each is an original and independent production. Such similarity or identity is merely evidence of copying — more or less strong according to circumstances and the explanations which may be. made of it. It is only where the similarity or identity is due to copying from the copyrighted work that the later work may be deemed an infringement. Note 47. Thus, if a person, without making any use of a prior copyrighted work, by his own independent labor produces something similar, there is no infringement. So one work does not violate the copyright in another simply because there is a similarity between the two, if the similarity results from the fact that both works deal with the same subject, or have made use of common sources.” § 278, p. 1114, 13 C. J.
Justice Story stated the rule for determining piracy in Emerson v. Davies, 8 Fed. Cas. 615, 624, No. 4,436, 3 Story, 768, as follows: “The true test of piracy or not is ter ascertain whether the defendant has, in fact, used the plan, arrangements, and illustrations of the plaintiff, as the model of his own book, with colorable alterations and variations only to disguise the use thereof; or whether his work is the result of his own labor, skill, and use of common materials, and common sources of knowledge, open to all men, and the resemblances are either accidental or arising from the nature of the subject. In other words, whether the defendant’s book is, quoad hoc, a servile or evasive imitation of the plaintiff’s work, or a bona fide original compilation from other common or independent sources.” 13 C. J. “Copyright,” § 307, note 91.
In West Pub. Co. v. Edward Thompson (C. C.) 169 F. 833, 834, the court said: “Actionable infringement of copyright may consist of mere paraphrasing or avoidance of the appearance of copying while still appropriating the subject-matter, may be proved either by internal evidence, depending on the sequence of ideas and language in such numbers as inevitably compels the conclusion that the copyrighted work was the source of the infringing publication, or by direct testimony as to the manner in which the work has been done.”
In considering the weight of the circumstantial evidence of copying derived from an analysis of similarities between the play and the story, the question of intent to copy is an important factor, although, as has been stated, an intentional copying is not a necessary element in the problem if there has been a subconscious but actual copying. The appellee relies upon deliberate and intentional copying, and not upon inadvertent or unintentional copying. While this contention is not necessarily decisive, it emphasizes the importance of the question of an intent to evasively copy the story. Did the appellants intend to use the story and to evasively copy it? Where a play or a novel has had enormous popularity so that its unprecedented success may justly be attributed to some unique quality therein, it might be assumed that some literary pirate would endeavor to discover the secret of such popularity and embody it in his own work, discarding as much of the story or drama as was believed not to be essential to the success of the story. Thus, in the case of the play “Abie’s Irish Rose,” with its remarkable success, it was to be expected that efforts would be made to achieve a similar success by utilizing the same popular appeal if it could be discovered and detached from the unessential in the play and given a new dress in the new play. Consequently, we would suspect that in a play dealing with an Irish Catholie family and a Jewish family and an intermarriage between them there would be an attempt to make the same appeal which popularized “Abie’s Irish Rose,” so that others might thus realize some of the enormous profits derived from that popular appeal. We have such a case in a moving picture play, “The Cohens and the Kellys,” which was advertised as having the same appeal in moving pictures as “Abie’s Irish Rose” on the stage. Notwithstanding this temptation to piracy and the similarity of the play and the moving picture drama, the latter was held recently not to be an infringement of the former. Nichols v. Universal Pictures Corp. (C. C. A.) 45 F.(2d) 119. We have here the exact reverse of that situation. The story of the “Emancipation of Rodney” was sold by its author for $75. It was copyrighted only because it was a part of a magazine which was copyrighted as a whole. After the initial sale to the magazine in 1915 the story was allowed to lie dormant. It was not separately published, it was not dramatized, there was no indication that it had any special popular appeal^ and [18]*18nothing tb indicate that there was any value in the moving picture rights of the copyright of the story which any one would desire to appropriate with or without compensation. It had accomplished its initial purpose as a magazine story. In this situation Harold Lloyd, an actor of international reputation, and his producing company, determined to make a silent motion picture dealing with college life and college football upon which they expected to spend large sums of money before they eould get any return therefor, and upon which they actually expended about $330,000 before getting a dollar of return. They learned of the story before they began actual production, with its attendant expense. They testified- that they rejected the story without reading it because of its incongruous football climax, an incongruity patent to all who read the story or noted the author’s statement as to the climax thereof as he told it to Harold Lloyd as above quoted. We are expected to believe, not only that this testimony is deliberately false, but also that in the development of this moving picture play there was a deliberate and evasive attempt to appropriate the story, the “Emancipation of Rodney,” without compensation to the owner of the copyright. We are to believe that Harold Lloyd, having made .up his mind to produce a college play involving a football game, believing that Witwer eould be of substantial assistance in writing a scenario for such a play, sent for him with the purpose of utilizing his talent in connection with the production of the moving picture play without paying him therefor, and that Witwer’s statement that the play did not copy the story was procured from him by fraudulent and deliberate concealment of the real scope and character of the moving picture play. All this with the knowledge on the part of those who made this great investment that the whole thing was a colorable effort to appropriate this story which had been sold for $75 and which had remained dormant for so many years, and with the implied knowledge of the law, as ap-pellee claims it to be, that, if the picture was a success, all the profits, and none of the hazards, would go to the owner of the copyrighted story. The evidence is that Witwer sold the moving picture rights in many of his later stories for about an average of $1,000 each. Why should Lloyd pay out over $40,-000 to his literary staff for work on his play if that work had already been done and could be readily purchased and copied for a much smaller sum, as was no doubt the case ? Such a contention on its face taxes our credulity. Men must be judged as reasonable beings in appraising their conduct. It is reasonable to believe that, if Harold Lloyd and his producing company desired to utilize the copyrighted story, the “Emancipation of Rodney,” they eould have procured the copyright for a comparatively small sum from the publishers who purchased it for $75, and also to believe that it eould have been procured by some other organization or individual who was not so well known as Harold Lloyd at a merely nominal figure. At the outset of this consideration, then, we are asked to believe that to avoid this small payment the appellants took the hazard of expending over $330,000 with the knowledge that, if their literary theft was .discovered, as it must be when the play is publicly exhibited, they eould not hope to profit from the investment if an infringement suit was brought. We are assuming in making this statement that the copyright owner is entitled to all the profits derived from the infringing play. We do not wish to be understood as approving that doctrine which is one of the main issues in the case at bar, if infringement is found.
The finding of the trial court, in which we concur, that Lloyd never read the magazine story, is entirely inconsistent with an intent on his part to copy it. The presumption of law against wrongdoing and the evidence lead to the conclusion that there was no intentional piracy.
We now turn, to a comparison of the story and the play with a view to ascertaining what circumstantial, evidence there is to overcome the direct evidence that there was no copying and the inferences and presumption in favor of good faith. The rule for determining copying by comparison is succinctly and accurately stated in Corpus Juris, quoting from White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 17, 28 S. Ct. 319, 52 L. Ed. 655, 14 Ann. Cas. 628, as follows: “A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original.” 13 C. J. 1113, § 276, note 30. The question really involved in such comparison is to ascertain the effect of the alleged infringing play upon the public, that is, upon the average reasonable man. If an ordinary person who has recently read the story sits through the presentation of the picture, if there had been literary piracy of the story, he should detect that fact without any aid or suggestion or critical analysis by others. The reaction of the public to the matter should be spontaneous and immediate. This view is sustained in part at least by the decision of the Circuit Court of [19]*19Appeals for the Second Circuit in dealing with a plaster cast figure “Spark Plug,” as an infringement of a copyrighted cartoon of such a horse (King Features Syndicate v. Fleischer, 299 F. 533, 535), where the court said:
“The question presented to us is whether manufacturing and duplicating the horse as a figure doll is a copy of the copyrighted idea of the appellant’s. The Copyright Act (Comp. St. § 9517 [17 USCA § 1]) provides that any person, having complied with the provisions of the act, shall have exclusive right ‘to print, reprint, publish, copy, and vend the copyrighted work.’ A copy is that which ordinary observation would cause to be recognized as having been taken from or the reproduction of another. In White-Smith Co. v. Apollo Co., 209 U. S. 17, 28 S. Ct. [319], 323, 52 L. Ed. 655, 14 Ann. Cas. 628, the court said:
“ ‘What is meant by a copy ? We have already referred to the common understanding of it as a reproduction or duplication of a thing. A definition was given by Bailey, J., in West v. Francis, 5 Bam. & Aid. 743, quoted with approval in Boosey v. Whight, 80 L. T. R. 561. He said: “A copy is that which comes so near to the original as to give to every 'person seeing it the idea created by the original.” ’ * * *
“The protection accorded the owner of the copyright is of the intellectual product of the author. It is intended to protect any species of publication which the author selects to embody his literary product.” (Italics ours.)
The same test was stated by Judge Sawtelle, while sitting as a District Judge in the Southern District of California, where he adopted the language of Judge James in the earlier case of Roe-Lawton v. Hal E. Roach Studios (D. C.) 18 F.(2d) 126, 128 [Barbadillo v. Goldwyn (D. C.) 42 F.(2d) 881, 885], as follows: “Unless the public is deceived by the pictures, and led to believe that the films are a pieturization of plaintiff’s literary work (the standard of the ordinary observer being applied) then no infringement is shown.” Roe-Lawton v. Hal E. Roach Studios (D. C.) 18 F.(2d) 126, 128; Frankel v. Irwin (D. C.) 34 F.(2d) 142; Nichols v. Universal Pictures Corp. (D. C.) 34 F.(2d) 145; King Features Syndicate v. Fleischer (C. C. A.) 299 F. 533. (Italics ours.)
In Frankel v. Irwin (D. C.) 34 F.(2d) 142, 144, supra, Circuit Judge Hough stated the problem in this fashion: “Counsel have 'furnished labored analyses of each play; the work on both sides is excellent, but is to me illustrative of the classic difficulty of not being able to see the forest for the trees. Infringement of a work of imagination is determined by the result of comparative reading on the imagination of the reader, not by a dissection of sentences and incidents, suitable for the study of a digest or textbook, but inherently unnatural for any man who has the kind of brains that make him able to adapt a work of fiction.” (Italics ours.)
We have only to consider the dramatization of the book .“Ben Hur,” discussed in Harper & Bros. v. Kalem Co. (C. C. A.) 169 F. 61, affirmed 222 U. S. 55, 32 S. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285, to under-. stand that any spectator who had read the story “Ben Hur” would at once recognize the dramatization thereof as a deliberable attempt to reproduce the book in the form of a moving picture. There would be no question about it on the part of the spectator. With this rule in mind we take up a more detailed consideration of the points of similarity between the play and the story tending to show copying, and some of the dissimilarities tending to show an original production of the play as advanced by the respective parties.
Appellee adopts the finding of the trial court as to infringement as her statement of the similarity of the story and play. We quote from her brief as follows:
“The trial Court has found as a fact that ‘substantial parts and portions of the Witwer story have been used, copied and appropriated by appellants including story structure, plot, gags, sequences of incident, event and situation, including the following plot and sequence of incident,’ to-wit:
“‘A country boy of non-athletie type 'is ambitious to be a popular athletic college hero; he practices yells before a mirror in the privacy of his room; he is photographed wearing an unearned college letter inscribed upon his clothing, admires this photograph in secret; he meets a girl to whom he tells exaggerated stories of his athletic prowess and who is sympathetic; he longs to be called by a familiar name; he studies the literature of athletics; in his actual athletic work he is pitifully weak; he inspires in the students feelings ranging from contempt to grudging toleration; he is permitted to think himself a member of a college athletic team, when in reality he is not a part of it; he enjoys the bliss of this deception for a brief period; finally realizing that he is an object of ridicule and contempt, he resolves to throw away pretense and be his real self; his photograph picturing himself as an athletic hero is de[20]*20stroyed; he decided that his only hope for athletie eminence and consequent popularity is to take part in the football game with his college’s traditional rival; the game is going badly against the home team; the team is reduced to substantially the last available man; he grasps the coach in appeal and argument to be allowed to enter the play; he forces his way into the game, much to the team’s disgust ; by an extremely unusual and ridiculous play he wins for the home team; the girl justifies her faith in him; he is the hero of the hour and attains the coveted nickname.’ ”
The plaintiff does not state what is new or novel about this plot or sequence of events found by the trial court, or about the matter claimed to have been copied or appropriated from the story. There is nothing abnormal about a college freshman desiring to succeed in athletics or desiring to be popular or to be called by a nickname. Rodney was abnormal, because, although an exceptionally fine scholar, he desired to be considered an ignoramus. We quote from the story as follows: “Rodney’s being burned with the desire to attain — illiteracy! He longed to overnight forget the cube root of two hundred and six and the age of Alexander the Great’s triumphs.”
The story states it thus: “This, then, was Rodney Hateh Benham, who, if some one had hailed him as ‘Rod,’ instead of the inevitable ‘Mister,’ would have given that individual his earthly possessions cheerfully. But calling this solemn-visaged- ¡Esthetic ‘Rod’ appealed to his fellow students about as much as addressing the president of the college as ‘Doe’ would — so Rodney missed the thrill the nickname would have brought, and his soul became more bitter toward the unfeeling world in general.”
Rodney was neither abnormal nor unusual in that, although having developed no athletic ability, he desires to become an athlete. Harold Lamb was abnormal only in that, in his desire to be popular and to do what he thought was the popular thing to do, he committed absurdities so enormous as to immediately attract the attention of his prospective schoolmates, so that in the very first contact with him they play a number of pranks on him and take advantage of his ignorance and desire to please.' With reference to the proposition that both plots involved a person who was scorned by the entire student body there is notable difference. Rodney was ignored because the student body believed him to be an extraordinary student, a bookworm whom they respected for his scholastic accomplishments, but “scorned” as a “dig,” and hence refused or failed to associate with him. Harold Lamb was at once accepted by the student body for what he appeared to bé and was, namely, a foil for their ridicule and pranks, a small-town boy entirely unfamiliar with student life and making most egregious blunders in his approach to it. As to creating a “make-believe world” in which the hero of the story and play is an “imaginary hero,” this is a generality difficult to consider as copyrightable because it is a very general belief that we all live in a make-believe world, that is to say, most people believe that the world, so far as we are concerned, is a good deal what we make of it or think it to be. It is a question also whether most boys and men do not secretly regard themselves as heroes in the world as they have made it. Certainly the idea that an individual is a hero in the world as he understands it is not novel. As to the “accomplishments existing purely in the imagination of the hero,” as we understand the story, Rodney did not really believe that he had athletie accomplishment. He knew he was lying to the girl about it, and it was because of his disbelief in his ability that he avoided participating in college athletics until he felt he must do so in order to impress the heroine that he was not quite so accomplished a liar as Baron Munchausen. On the other hand, it is not clear that Harold Lamb believed that he had any accomplishments. He was determined to make good, to win popularity, to get into the football game, and he endured great hardship in order to succeed, but it is not clear that he believed that he would be successful. While appellee relies upon the synopsis of the story and play made by the trial judge in the findings as showing the elements or features in the story that are contained in the play, the appellants’ brief contains 30 pages of analysis of these findings for the purpose of pointing out dissimilarities in the various items contained in the summary. In the main this analysis is correct, but we can only indicate in this opinion some of the dissimilarities between the play and the story involved in the summary by taking up some of the similarities stated by the trial court. (1) Harold was not a “country boy” but lived in a small town. Rodney’s origin is not indicated. (2) Rodney’s desire was to be a “successful athlete.” Harold’s desire was to be popular; his ambition to be an athlete was entirely subsidiary. (3) Harold was not a “nonathletic” type in the sense of being a weak physical freak. On the contrary, he is a boy of remarkable strength, which, notwithstanding his ignor-[21]*21anee and awkwardness, evokes admiration. Rodney is a physical paradox. He appears in the introduction, which is the basis for telling the story, as having been the greatest football player the college has ever produced. He substitutes in the big game and makes a spectacular run which convinces the spectators and the track captain that he was a speed ¡marvel. Contradietorally, Bodney is also described as having the frame of a scholar, bent shoulders, six feet one inch in height, weighing 150 pounds, but appearing to weigh much less. He is unable to run for more than half a mile because of his interior mechanism. (4) Harold “practices college yells before the mirror in the privacy of his room.” Rodney passed up and down before the mirror in his room “spouting such expressions as die is a bonehead,’ ‘knock him out kid,’ and others equally comprehensive, until the surrounding welkin rang merrily in his ears.” Harold was practicing before the mirror in order to perfect himself as a college hero in imitation of a moving picture actor whose example he emulates. In Rodney’s performance before the mirror he apparently imagines himself a spectator at a prize fight. (5) “Each has a college letter inscribed upon his sweater and admires it in secrecy.” Harold has a block letter sewed upon his sweater in the usual fashion authorized in the ease of a college athlete who has participated in an intercollegiate game. He does not admire this in secret, but openly displays it, wearing it when he leaves the train to enter college, apparently in ignorance of its significance. Rodney, on the other hand, inks the letter on his underclothes and admires the letter in secrecy because he realized it is unearned and that his act in appropriating it is reprehensible. (6) Rodney “had himself photographed” in his underclothes and keeps the photograph buried in his trunk to be admired secretly each night before retiring. Harold had no photograph taken. (7) “Each hero meets the girl,” but the method of meeting is entirely different. Rodney met his heroine Alice while he was stripped to his underclothes in what he supposed to be a secluded place and while he was performing athletic feats sparring with a tree and jumping over a fence. Harold’s meeting with Peggy will be described later. (8) As to the “stories of athletic prowess” Rodney did tell his heroine of deeds of prowess “on fields of sport that made Hercules seem like an awkward weakling by comparison”; he told how he saved the day in the eleventh inning of a baseball game; how he shattered records at putting shot, throwing the discus, etc. Harold, on the other hand, made no statements concerning his prowess to his heroine Peggy. He did tell her that he had made the football team and he believed that he had done so, and his belief was based upon the fact that he had been told by the coach that he had made the team when as a matter of fact it was only intended that he should act as a water boy occupying the substitute’s bench in uniform for that purpose. He believed he was a real substitute. The heroine, instead of believing this story, knows the real fact and refrains from telling Harold in order to avoid hurting his feelings. Harold told what he thought to be true; Rodney told what he knew to be false. (9) As to the point that the “heroine is sympathetic,” appellants call attention to the dissimilarity in the conduct of the two girls, although the matter is quite unimportant. Alice “cut” Rodney when she believed he was fabricating a story of athletic prowess, while Peggy, knowing Harold had been deceived by his schoolmates into believing he had made the team, refrained from embarrassing him by revealing that fact to him, although her impulse was to do so. (10) With reference to the “nickname,” one of the basic factors in the Rodney story is his desire for contact with his schoolmates. He wanted to be hazed instead of being let alone and was delighted, at the end of the story, when he was called “Rod.” Harold, however, was hazed from the very moment he landed on the depot grounds, and before the day was over he was nicknamed “Speedy,” because when called upon to make a speech he had nothing to say and in his confusion read from some notes he had taken from a talk made by his moving picture hero, “Step right up and call me Speedy.” In one case the nickname was derisive, in the other affectionate. There is no indication that Harold wished to be called “Speedy” as Rodney desired to be called “Rod.” (11) With reference to the “study of the literature of athletics,” Rodney is specifically described as a devoted and successful student of books of instruction on athletics. “If there had been a college in this fair land that gave diplomas for dissertations on the manly art of self-defense, football, baseball, and other pastimes — where the textbooks were written by James J. Corbett and Christy Mathewson —Rodney would have been the joy of that institution’s faculty.” When Rodney is found boxing with the tree he is stated to be following the rules contained in chapter 6 of the book on boxing. Harold’s ideals are a moving picture actor, and Chet Trask, the captain of the football team. He seeks to join the football team to attain popularity. In [22]*22one of the scenes in the picture of his room a book is shown entitled “How to Play Football,” but Harold knows nothing about the game while Rodney knows all about it and has developed a formula for success. Referring to an account in'the sporting section of a newspaper of a prize fight and baseball game, the story says: “This, thought Rodney, was real literature, and he disgustedly hurled away a colored magazine section telling of the wonderful archeological discoveries along the Upper Nile by Professor Boniface Pindor.” With reference to a glimpse of Harold in possession of a text-book, “How to Play Football,” appellants state that by measurement this passage takes up nine inches of a picture of 7,000 feet of film while Rodney’s devotion to athletic literature is one of the most distinguishing and dominating characteristics of the story and occupies several pages therein. Referring to the statement, “The coach in one case, and the upper class bully in another, is compared unfavorably with Simon Legree.” Of course no great significance can be attached to the use of the name “Simon Legree,” the name is synonymous with cruelty and is of general usage. In the silent drama the words “Simon Legree” appear in connection with an upper classman, and the title is: “An upper class bully who made Simon Legree look like a good Samaritan.” Title writer John Gray testified he had used that title before in his business of title writing. The event is wholly dissimilar from the incident in the Rodney story where the conduct of the coach upon the football field is characterized as “like Simon Legree.” (12) “He inspires in the students feelings ranging from contempt to grudging toleration.” According to the story and apparently based entirely upon his appearance, Rodney was at once hailed by the faculty with a delight that caused the “scorn” of the student body. The faculty saw “a shining light that would startle the world with its intellectual brilliance.” Students saw “another grind who would come up to the expectations of the faculty and tell if they hazed him.” On the other hand, there is no account whatever of Harold’s capacity as a student. He is not a “grind” and is not despised as such. He is an object of ridicule because of his effort to imitate his moving picture hero, and his general blundering. (13) “He is generally led to think himself a member of the college athletic team when in reality he is not a part of it.” This is true of Harold, who, because of his pluck in practice, was allowed to think himself a substitute while actually serving as a water boy. As appellant correctly states: “Rodney is not rewarded but is disposed of as a nuisance. Harold is purposely and finally given a reward of merit.” (14) “A photograph picturing himself as an athletic hero is 'discarded.” This is true of Rodney only. He does tear up and burn up the photograph of himself with the black letter inked on-his underwear. This was burned with his other athletic paraphernalia. Harold’s picture is blown by the breeze into the wastebasket from the wall where he had placed it above that of his football hero, Chet, after he made the team.
Without further analysis of the similarities found by the court to' exist between the story and the play, we will consider what is copyrightable in plot, scene, or sequence of events in the story.
The dramatic and moving picture rights of a copyrighted story do not cover words (Lowenfels v. Nathan, 2 F. Supp. 73, by Judge Woolsey, U. S. District Court of New York, December 28, 1932), voice, motions, or postures of actors [Bloom & Hamlin v. Nixon (C. C.) 125 F. 977; Savage v. Hoffmann (C. C.) 159 F. 584; Chappell & Co. v. Fields (C. C. A.) 210 F. 864, supra, citing Daly v. Palmer, 6 Blatchf. 264, Fed. Cas. No. 3552; Daly v. Webster (C. C. A.) 56 F. 483; Brady v. Daly (C. C. A.) 83 F. 1007], or a plot [Dam v. Kirk La Shelle Co. (C. C. A.) 175 F. 902, 41 L. R. A. (N. S.) 1002, 20 Ann. Cas. 1173; Stodart v. Mutual Film Corp. (C. C. A.) 249 F. 513; Nichols v. Universal Pictures Corp. (C. C. A.) 45 F. (2d) 119, 121; Frankel v. Irwin (D. C.) 34 F.(2d) 142, 143], but an original novel treatment of a theme [Nutt v. Nat. Institute Inc. (C. C. A. 2) 31 F.(2d) 236, 237, citing with approval Roe-Lawton v. Hal E. Roach Studios (D. C. S. D. Cal.) 18 F.(2d) 126, supra].
The plaintiff and appellee should be expected to state to us what it is in the story that is copyrightable as new and novel and what part of such material, if any, has been misappropriated by the appellant. Her claim may be thus stated in the language of - her bill of complaint: “ * * * Said motion picture photoplay entitled ‘The Freshman’ ■embodies all of the essential elements of complainant’s said literary composition and story entitled ‘The Emancipation of Rodney,’ in substantial parts and portions thereof, including the theme, plot, story, primary, secondary, and subordinate characters and characterizations, motivation, treatment, climaxes, and sequences of incidents and situations mentioned or described in complainant’s said [23]*23literary composition and story entitled ‘The Emancipation of Rodney’ and all of which are inextricably intermingled by defendants with other matter and material not found in complainant’s said literary composition and story, in defendants’ said motion picture pho-toplay entitled ‘The Freshman.’ ”
In her brief her claim as to the plot is more definite and limited. She says: “Appellants deliberately copied a particular and detailed portion of the plot and sequence of incident contained in appellee’s story.” And there follows the plot of “The Freshman” as summarized by her, as follows: “The plot * * * is constructed around an abnormal college freshman who is scorned by the entire student body; but who creates a ‘make-believe’ world in which he is the imaginary hero and in which his accomplishments ‘exist purely in his imagination.’ ”
Appellee states in her brief the “sequence of incident contained in appellee’s story” which she considers to have been copied in the play, and under the general sequence thus stated compares incidents in her story with those in the play. Her general statement follows:
“The freshman is not physically adapted for athletics; and his sole knowledge of them appears to be derived from reading sport manuals; yet he seems possessed by a peculiar athletic complex.
“One of the freshman’s ‘most cherished possessions’ is a photograph of himself which symbolizes his imaginary conquests.
“The freshman is lonely and unhappy, scorned or derided by the entire student body; he is willing to sacrifice everything in order to become popular and to be called by a nickname of his own choice.
“The unsophisticated freshman is greatly embarrassed at his first meeting with a girl who proves to be the only person who is sympathetic and encourages him (although she is not at all deceived by the untrue story of his athletic success).
“The freshman attempts to live up to his own mental image of himself by trying to win a place on a college athletic team. He is hopelessly incompetent and inexperienced, however, and his persistence results in arousing anger, amusement, and exasperation in the athletic coaches. Finally he is disposed of by the unique device of being told he has made an athletic team, although he is not even a legitimate substitute.
“Eventually the freshman realizes the futility of all his vain pretences. The destruction of his imaginary world is symbolized by the destruction of his dearly cherished photograph.
“Paradoxically, the freshman immediately determines to redeem himself in the big football game of the year; although he is not a member of the team nor a legitimate substitute and has apparently never played in a football game previously.
“Injuries to his college team in the big game give the freshman an opportunity to anxiously appeal to the coach for a chance to play; but the coach impatiently refuses to have anything to do with him.
“The freshman is not cowed or awed; but instantaneously changes from humble suppliant to determined master of the situation.
“As soon as the freshman gets out on the playing field, however, he is completely bewildered with no idea, of how to proceed and his teammates berate him.
“Suddenly and paradoxically the freshman changes from a totally inexperienced and incompetent ‘Dub’ into a marvelous superhuman player, who, without aid from his own team, easily runs through the entire opposing team (which has successfully blocked and consistently outplayed the freshman’s team for the whole game).
“This single illogical and ridiculous play —probably impossible of execution by even the most highly trained and skillful football player — is seriously received by the coach, students and players who immediately regard the freshman as ‘the greatest football player the college ever produced.’
“Even the sweetheart of the freshman who has always realized his shortcomings and his total lack of real athletic ability assumes the inconsistent attitude that she always expected him to win the big football game.”
In the case at bar, if it be assumed that there are such similarities between the story and the play as to provoke in the casual observer the consciousness that there is such a similarity between them, and that copying may be inferred therefrom, we are still confronted with the fact that mere similarity does not necessarily involve literary piracy or an infringement of a copyright. Such similarities then as exist would require further analysis to determine whether or not they are novel in the story and thus copyrightable. The copyright of a story only covers what is new and novel in it, so that the question of infringement involves a consideration of what is new and novel in the story to wMch the [24]*24author has acquired a monopoly which has been misappropriated by another. Upon this subject Judge Mayer states, in Stevenson v. Harris (D. C.) 238 F. 432, 436: “Of necessity, certain kinds of incidents must be found in many books and plays, and originality, when dealing with incidents familiar in life or fiction, lies in the association and grouping of those incidents in such a manner that the work under consideration presents a new conception or a novel arrangement of events.”
The Circuit Court of Appeals of the Second Circuit, in dealing with the alleged infringement of Jack London’s story, “Just Meat,” by the motion picture play, “Love of Gold” (London v. Biograph Co. [C. C. A. 2, 1916], 231 P. 696, 697), said: “The plot of both the story and the picture play is this: Two thieves commit a burglary * * * and discuss, not harmoniously, the division of the plunder. Each of them succeeds, unknown to the other, in putting poison in something which the other is about to swallow. * * * The fundamental idea, common to both story and picture play, is the mutual poisoning of the criminals, who thus die by their own hands. * * * The plot is highly dramatic. * * * But it is an old one [citing Chaucer’s Pardoner’s Tale and other examples]. The plot is common property; no one by presenting it with modern incidents can appropriate it by copyrighting.” (Italics ours.)
In Dam v. Kirk La Shelle Co. (C. C. A. 2) 175 P. 902, 997, 41 L. R. A. (N. S.) 1002, 20 Arm. Cas. 1173, cited by plaintiff, the court stated the following rule as to copyright of a plot: In an action for infringement of copyright, this court recognized the obligation to protect one who prepared the framework of a play and said: “The story was but a framework * * * but the right given to an author to dramatize his work includes the right to adopt it for representation upon the stage which must necessarily involve changes, additions, and omissions. It is impossible to make a play out of a story — to represent a narrative by dialogue and action — without making changes, and a playwright who appropriates the theme [plot] of another’s story cannot, in our opinion, escape the charge of infringement by adding to or slightly varying his incidents.”
The rule is well settled that matters in the public domain are not copyrightable, and we understand that the appellee concedes this and limits her contentions to what she considers the novel features of the story appropriated in the play. On this subject, Weil in his work on the “Law of Copyright,” states the law as follows:
Section 983: “It should also be borne steadfastly in mind, that if a work is not entirely original, there is no copyright in the unoriginal part, which will prevent its use, separately, or in combination, with matter not covered by copyright. Hence, of course, any inquiry as to infringement must exclude permissible reproduction of such non-original matter.”
Section 984: “If, on the other hand, there are truly original thoughts embodied in the work,. — not merely in the expression of thought, but in the thought so expressed, then copyright exists in such intellectual creation throughout. The scope of copyright is, then, always measured by the extent of, and, nature of, the original work embodied in a creation.’' (Italics ours.)
There are other definite and well-determined limitations upon the eopyrightability of a plot, or sequence of events, or theme, as it is variously called. As stated by the Circuit Court of Appeals of the Second Circuit in Daly v. Webster, 56 F. 483, 487: “It is plain that the author of such a work [a play], where various incidents, in themselves common literary property, are grouped to ■ form a particular story, must be confined, in his claim to copyright, closely to the story he has thus composed, and that another author, who, by materially varying the incidents, materially changes the story, should not be held to be an infringer.”
Weil (sections 185,186) deals with the effect of a copyright upon dramatization rights, and particularly as to the right to the plot, as follows: “It is essential to a ‘dramatic composition,’” said Laeombe, J., in the Puller Case (C. C.), 59 P. 926, “that it should tell some story. The plot may be simple. It may be but the narration or representation of a single transaction, but it must repeat or mimic some action, speech, emotion, passion, or character, real or imaginary. When it does, it is the ideas thus expressed, which become the subject of copyright. * * * The merely mechanical movements by which effects are produced on the stage are not subjects of copyright where they convey no ideas whose arrangement makes up a dramatic composition.”
The following is quoted from Weil on Copyright Law, § 187:
“ * * * A combination or series of dramatic events, apart from the dialogue, may be protected by copyright. * * * (§ 188) [25]*25Daly v. Webster [C. C. A.] 56 F. 483, contains a dictum that the mere exhibition of mechanical appliances to represent incidents would not be protected but that there must be a series of events dramatically presented by actors, in a certain sequence or order, for the doctrine to apply. This decision was rendered before the days of moving picture films and is not law, in that it does not apply to such motion picture ‘writings/ or plays. On the other hand, except as to motion pictures, the dictum still probably represents the law.
“It should be noted that while the cases (Daly v. Palmer, 6 Blatch, 256; Daly v. Webster, 56 F. 483) cited purport to establish the doctrine that a combination, or series, of events may be copyrighted, apart from the dialogue in which they occur, and that this is probably true, in a sense, care must be taken not to confuse the copyright in the language in which such events are described, or reflected, with the protection against the copying of the events so described or reflected, which protection results from the copyright. * * * To constitute a dramatic composition, a work must tell a connected story or ■series of events” — citing O’Neill v. General Film Co., 171 App. Div. 854, 157 N. Y. S. 1028.
The Circuit Court of Appeals of the Second Circuit discusses the question of novelty in a play as follows (Dymow v. Bolton, 11 F.(2d) 690, 691):
“One of the entities or things which every author tries to insert in his copyrighted work is a set of ideas; yet ideas as such are not protected. Holmes v. Hurst, 19 S. Ct. 606, 174 U. S. 82, 43 L. Ed. 904; Kalem Co. v. Harper Bros., 32 S. Ct. 20, 222 U. S. 55, 56 L. Ed. 92, Ann. Cas. 1913A, 1285.
“Just as a patent affords protection only to the means of reducing an inventive idea to practice, so the copyright law protects the means of expressing an idea; and it is as near the whole truth as generalization can usually reach that, if the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result, and no infringement will exist.
“If one compares two dramatic compositions, whether in forms suitable for the stage or for the library, what has been called the ‘fundamental plot/ the ‘same old plot/ or an "'old story/ can assume any author’s dressing or adornment; that author can devise and use his own way of expressing that plot, and he will not infringe. This general proposition is illustrated in London v. Biograph Co., 231 F. 696, 145 C. C. A. 582; Eichel v. Marcin (D. C.) 241 F. 404; Stodart v. Mutual Corp. (D. C.) 249 F. 507.
“The theory is (however difficult may be its application at times) ‘that the protection accorded the owner of copyright is of the intellectual product of the author.’ King, etc., Syndicate v. Fleischer (C. C. A.) 299 F. 533, 536. * * *
“What, then, is the extent of similarity existing between these two plays? In each is presented an ambitious girl of at least potential charm; who is willing to have her ambition served by an ingenious young man, in financial straits. In each the man, though by wholly different means, sails very close to the winds of finance and veracity in exploiting the girl as a mold of fashion (Dymow) or a ‘movie star’ (Bolton). Result — gratification of ambition by girl, and requited affection on the man’s part.
“This incomplete skeleton the two plays have in common, but it is -with real difficulty that the flesh and blood, the incidental, yet essential, adornment and trimming, of the plays can be cut away to show similarity between a few bones. * * *
“It requires dissection rather than observation to discern any resemblance here. If there was copying (which we do not believe), it was permissible, because this mere subsection of a plot was not susceptible of copyright.”
The same court later in comparing the play, “Abie’s Irish Rose,” and the photo drama, “The Kellys and the Cohens,” above referred to, again dealt with the appropriation of the commonplace. Nichols v. Universal Pictures Corp., supra. We quote from the opinion of the court in that regard as follows : “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).”
After stating the similarities between the play and the photo drama, the court said:
“If the defendant took so much from the plaintiff, it may well have been because her amazing success seemed to prove that this was [26]*26a 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. 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 any one 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. * * * Both are grotesque, 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. Eor the rest he is only a grotesque hobbledehoy, used for low comedy of the most conventional sort, which any one might borrow, if he ehaneed not to know the exemplar.
“The defendant argues that the ease is controlled by my decision in Fisher, Inc., v. Dillingham (D. C.) 298 F. 145. Neither my brothers nor I wish to throw doubt upon the doctrine of that ease, 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 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, wherever 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 ease 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 theme, lesson, or moral of the Rodney story, is indicated in the title, “The Emancipation of Rodney.” After some of his experiences he decided to “be himself.” In carrying out that idea he destroys his athletic text-books and paraphernalia and is thus emancipated. His good resolution, however, was of short duration, because, although he knew he was’ incompetent in football, he at once rushed off to endeavor to force himself into a football squad and into a game in order that he might make good with the heroine. His resolution to “be himself” of course also involved a rejection of the absurd idea that he desired to be known as a poor student. This implied resolution was also abandoned, because after his football triumph, when asked in the recitation room to answer a question with which he was entirely familiar, he replied with an impudent answer, “ ‘Search me,’ he drawled, and his cycle was complete.” The only thing novel about this situation is the unconscious incongruity of the author who apparently made no effort to be consistent or to teach the moral lesson implied in the-title.
On the other hand, Harold Lamb’s determination to “be himself,” if he made such a determination, came not from his own cogitation but was suggested to him by the heroine after he had been told the humiliating truth, which he was unable-to observe himself, that his apparent popularity with his schoolmates was not fame, and that they accepted his hospitality in a spirit of derision and regarded him with contempt.
As to this theme, there is nothing novel in the idea of achieving success or popularity by being true to oneself and avoiding the temptation to imitate others who have achieved fame and popularity. Bishop, in his advice to law students (First Book of the Law, § 375, p. 2¡43, published in 1867), states [27]*27the same proposition in his usual pungent style: “If, then, a young law student says, ‘I will be a second Rufus Choate/ he exhibits herein a folly which argues an incapacity to be a second anything; his place on the scale is, at least, as low as two hundred. Or, if he draws an ideal pattern of a lawyer, and says, ‘I will fill myself up and cut myself down to it/ he commits an equal folly.”
This theme is more fully developed by Bishop in sections 374, 377, and 378:
Ҥ 374: Before we enter upon the consideration of particular processes of legal education, let us refresh our recollections by a few further statements of what is, and what is not, the object to be accomplished. In the first place, mind, like a tree, grows from a little germ to the perfected trunk, limbs, and overshadowing boughs. And, as there are great varieties of trees, so there are of minds. We do not plant an acorn and say we prefer a cedar, and mean to educate the little thing to be one. We may help the acorn to become a beautiful and well-proportioned oak; but we can never make a cedar of it, even a poor cedar. So education can assist the growing mind to perfect its own particular nature, but it cannot create for it a new nature, different from what it received from God.
X- *
Ҥ 377: * * * In other words, the wise young man will cultivate the capacity which God has given him, instead of attempting to create what is not given; thus, walking in the path of obedience to the law of nature, he will receive the reward of well-doing, in success and happiness attendant on his professional career.
“§ 378: If a young man is ambitious for a particular land of fame, it may be mortifying to him that he cannot get it; but he had better take his mortification in advance, by turning from a path of disobedience to the law of nature, into the path of obedience, than to drink it in during a storm of scorn following an actual public failure. It is presumed, therefore, that the readers of this chapter have resolved to make most prominent those studies for which they are best adapted.”
It will be seen that, considered as a theme, the story of Lloyd follows the picture thus presented by Bishop much more closely than that presented by the story of Rodney, because Harold suffered mortification and pub-lie scorn following what was an actual public failure, although it seemed to be a public success and Rodney did not. To Harold’s way of thinking his touchdown and his party for his schoolmates were successes, but both were really failures, and he was told by a fellow student that what he thought was approval was really ridicule and scorn.
There is still another question to be considered in dealing with the subject of copying a story in a play where the form of expressing ideas is not by repeating the words and forms of expression contained in the story, but where the expression of ideas is in the form of theme, scenes, and sequence of events shown by silent moving pictures.
The only thing in the play approximating a duplication of a scene in the story is that in which the hero argues with the coach in reference to participating in the final plays of the football game. In each ease there is an argument, but the scene, considered independently from the story and the play’merely as a scene or a subordinate sequence of events, is utterly commonplace and incapable of copyright monopoly. It is immaterial, therefore, whether or not there is copying.
Each ease must be determined on its own facts, and much that has been said in the discussion with reference to similarities of theme, ideas, scenes, sequence of events, etc., is said with a view of laying a foundation for weighing the circumstantial evidence of copying derived from comparison. The difficulty of determining in this manner whether there has been copying when there is no copying of the text of a story or play is very great and is adverted to by the Circuit Court of Appeals of the Second Circuit in Nichols v. Universal Film Corp., 45 F.(2d) 119, 121, 123, supra, as follows: “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 tó be thg 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.” (Italics ours.)
After having read the critical analysis of the story and the play contained in the briefs and argument it is not easy to place oneself in the attitude of a fairly indifferent and disinterested spectator of the moving picture play, “The Freshman,” but we think it is fairly clear that, given an interval of two or three weeks between a casual reading of the story and a similar uncritical view of “The Freshman,” it would not occur to such a [28]*28spectator, in the absence of suggestion to that effeet, that he was seeing in moving picture form the story or any part of the story of the “Emancipation of Rodney,” this because of differences in the appearance, name, and character of Rodney and Harold and in the football scene. If this is true, there is no copying and no infringement. If we can see at first blush that there is no such similarity as would impress the ordinary observer, it is unnecessary to.consider the question of novelty or copyrightability of such similarities as exist. We are of opinion that such similarities as exist between the play and the story, and there are many, are such as require analysis and critical comparison in order to manifest themselves. The outstanding feature, the climax of both story and play, is the football game, with necessarily some similarity, but there is nothing new and novel in that other than the unusual participation of the heroes in their respective games, and on analysis these are neither identical nor similar in scene nor in conception of the two productions, but, if this be doubted, as was done by the trial court, then it is clear that there is no such similarity as overcomes the positive testimony that there was in fact no copying. The circumstantial evidence derived from comparison of the two productions is not forceful or weighty enough to overcome the direct and positive and persuasive evidence to the contrary offered by the plaintiff herself.
“Ünless the public is deceived by the pictures, and led to believe that the films are a pieturization of plaintiff’s literary work (the standard of the ordinary observer being applied) then no infringement is shown.” Roe-Lawton v. Hal E. Roach Studios (D. C.) 18 F. (2d) 126, 128.
Deeree and findings reversed, with instructions to allow the defendants proper attorneys’ fees and to enter a deeree holding that there is no infringement of the copyright of the story by the play.
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Cite This Page — Counsel Stack
65 F.2d 1, 1933 U.S. App. LEXIS 2914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harold-lloyd-corporation-v-witwer-ca9-1933.