Heim v. Universal Pictures Co.

154 F.2d 480, 68 U.S.P.Q. (BNA) 303, 1946 U.S. App. LEXIS 3890

• Court: Court of Appeals for the Second Circuit
• Decided: February 16, 1946
• Docket: 178
• Status: Published

Opinions

FRANK, Circuit Judge.

1. The Hungarian publisher, the proprietor at the time of the copyright registration on September 14, 1936, was a citizen of a foreign country with which the United States has a treaty extending copyright protection to Hungarian citizens in accord with § 8(b).¹ As publication in Hungary occurred on November 11, 1935, the registration followed publication, and therefore § 9, not § 11, applied. As on the date of publication the author was a citizen of Hungary, and the song had then been published solely in a foreign state, there was compliance with § 12, as amended in 1914, by the deposit of one complete copy.² The trial judge correctly found that “no printed copies * * * were ever distributed, offered for sale, sold or disposed of in the United States.” The letter of November 4, 1940, from Cummins to Pasternak, enclosing a copy of the song, was not a publication or offering for sale in the United States.³ Nor were the playings of the song here,⁴ nor was the filing of the copy in the copyright office.⁵ The sales of imported copies in this country were not shown to have been authorized by the then proprietor. It follows that the mistake of date in the notice of copyright was not, on any theory, a violation of §§ 9 and 18; for § 9 merely requires that the notice be affixed to each copy “published or offered for sale in the United States by authority of the copyright proprietor.” We construe the statute, as to a publication in a foreign country by a foreign author (i.e., as to a publication described in the 1914 amendment), not to require, as a condition of obtaining or maintaining a valid American copyright, that any notice be affixed to any copies whatever published in such foreign country, regardless of whether publication first occurred in that country or here, or whether it occurred before or after registration here.⁶

It seems to be suggested by some text-writers

6a that, under the 1914 amendment, where publication abroad precedes publication here, the first copy published abroad must have affixed to it the notice described in § 18. Such a requirement would achieve no practical purpose, for a notice given by a single copy would obviously give notice to virtually no one. There is no doubt textual difficulty in reconciling all the sections, as has been often observed; the most practicable and, as we think, the correct interpretation, is that publication abroad will be in all cases enough, provided that, under the laws of the country where it takes place, it does not result in putting the work into the public domain. Assuming, arguendo, that plaintiffs publication in Hungary did not do so, it could not affect the American copyright that copies of his song were at any time sold there without any notice of the kind required by our statute, and it would therefore be of no significance, in its effect on the American copyright, if copies sold in Hungary bore a notice containing the wrong publication date. On that assumption, there would be no need to consider whether, had the notice with the mistaken date been affixed to copies published or offered for sate in the United States by authority of the proprietor, that mistake would have invalidated the copyright, especially in the light of § 20. We do not know whether the publication in Hungary was such as to amount to dedication in that country, but, as we are affirming the dismissal of the complaint for other reasons, it is not necessary to decide that question.

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2. In a suit like this, plaintiff, to make out his case, must establish two separate facts: (a) that the alleged infringer copied from plaintiff’s work, and (b) that, if copying is proved, it was so “material” or “substantial” as to constitute unlawful appropriation.⁸ Plaintiff here must lose for failure to establish the first of these facts.

The evidence by no means compels the conclusion that there was access; on the other hand, it does not compel the conclusion that there was not. Consequently, copying might still be proved by showing striking similarity. Here similarity exists; indeed, a passage in Franchelti’s “verse” is identical with one in plaintiff’s “chorus.” Mere similarity is not enough; but here one finds more; both to the eye and ear, the identity is unmistakable, as defendants virtually concede. But defendants explain this fact by saying that, quite independently, both composers utilized a common source — either Dvorak’s composition or the older commonplace theme which Dvorak had adopted and adapted.

As, however, both optically⁹ and aurally, plaintiff’s treatment is distinguishable from Dvorak’s and also from the older commonplace theme, that explanation would not wash, were plaintiff’s -contribution highly original.¹⁰ In an appropriate case, copying might be demonstrated, with no proof or weak proof of access, by showing that a single brief phrase, contained in both pieces, was so idiosyncratic- in its treatment as to preclude coincidence. In such circumstances, stimulation by the same stimulus would not serve as a defense: Buchanan tells us that Kekulé’s “idea of the carbon-ring came out of the lurid imagery of a morning after a party”; ¹¹ many a chemist had had a like experience without such a fruitful result. Hamilton reported of his great mathematical discovery that “the Quaternions started into life, or. light, full grown, on the 16th day of October, as I was walking with Lady Hamilton to Dublin, and came up to Brougham Bridge”; no other mathematician who had observed a bridge when strolling with his wife in mid-October had made the same discovery.¹² Nor would it be alone enough that the passage in question is brief¹³ or that the identical matter in plaintiff’s song is found in the “chorus,” and, in Franchetti’s, in the “verse.” Nor would Franchetti’s musical reputation and achievements answer,¹⁴ for Handel ruthlessly plagiarized;¹⁵ we do not accept the aphorism, “When a great composer steals, he is ‘influenced’; when an unknown steals, he is ‘infringing.’ ”¹⁶

On the issue of copying, it was proper for the trial judge to avail himself of (although not to be bound by) expert testimony. He heard the experts of both sides. In effect, he found that plaintiff’s method of dealing with the common trite note sequence did not possess enough originality, raising it above the level of the banal,¹⁷ to preclude coincidence as an adequate explanation of the identity. We cannot say that the judge erred.¹⁸ Whether, had he reached a contrary conclusion, we would have affirmed, we do not consider. Affirmed.

1 See 17 U.S.C.A. § 8(b) and note, 37 Stat., pt. 2,1631.

2 Tbe 1914 amendment inserted the ■words “or if the work is by an author who is a citizen or subject of a foreign State or nation and has been published in a foreign country, one complete copy of the best edition then published in such foreign country.”

3 Allen v. Walt Disney Productions, Ltd., D.C., 41 F.Supp. 134, 136; cf. Gerlach-Barklow Co. v. Morris & Bendien, 2 Cir., 23 F.2d 159, 162, 163; Falk v. Gast Lithograph & Engraving Co., 2 Cir., 54 F. 890; cf. Patterson v. Century-Productions, 2 Cir., 93 F.2d 489, 492.

4 See McCarthy & Fischer, Inc. v. White, D.C., 259 F. 364; Shafter, Musical Copyright (2d ed. 1939), 130-431.

5 Cf. Osgood v. A. S. Aloe Co., C.C., 69 F. 291, 294; Patterson v. Century Productions, supra, 93 F.2d at page 493.

6 In United Dictionary Co. v. G. & C. Merriam Co., 1908, 208 U.S. 260, 28 S.Ct. 290, 52 L.Ed. 478, it was held that if a work were copyrighted here, the omission of notice of the American copyright from an edition subsequently published in England did not invalidate the copyright.

We do not read the 1914 Amendment as a mere codification of the ruling in that case, i. o., as limited t.o eases where the foreign publication occurs after an American copyright has been obtained or after publication in this country.

Universal Film Mfg. Co. v. Copperman, D.C., 212 F. 301, 303, 304, related to a copyright which ante-dated the 1914 amendment to § 12. Basevi v. Edward O’Toole Co., D.C., 26 F.Supp. 41, 46, wo think was wrongly decided on this pojnt

. Ladas, The International Protection of Literary and Artistic Property (1938) 688, says, in speaking of the 1914 amendment to § 12: “It would seem difficult to give a safe interpretation of the Act in this respect. However-, if tho role established in the first part of § 9 is to be given effect to, i. e., the rule that a person ‘may secure copyright for his work by publication thereof with the notice of copyright required by the Act;’ it would seem that no person is entitled to claim statutory copyright under the Act, unless, when first publishing tho work abroad or in the United States, he has affixed tho statutory notice. Thereafter, the notice need not appear on each copy of the work published outside the United States, since tho second part of § 9 requires this only of ‘each copy thereof published or offered for sale in the United States.’ ” See also 13 C.J. 1063, note 33.

7 Were that question here, we should have to consider whether the statement in Baker v. Taylor, Fed.Cas.No.782, and subsequent cases which cite it apply under the present liberalized Copyright Act; see Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 59 S.Ct. 397, 83 L.Ed. 470; United States v. Backer, 2 Cir., 131 F.2d 533; Shafter, loc. cit., 98.

8 See Arnstein v. Porter, 2 Cir., 1940, 154 F.2d 464.

Thus, e. g., the alleged plagiarist might openly admit that he copied, but lie could defend by showing that his copying was too insubstantial to be wrongful.

There may be wrongful copying, though small quantitatively; so if someone were to copy tho words, “Euclid alone has looked on Beauty bare,” or “Twas brillig and the slithy toves.”

9 On the issue of copying — as distinguished from the issue of illicit copying —“dissection” and optical analysis are proper aids to the trier of the facts. See Arnstein v. Porter, supra.

10 “Beethoven’s Fifth Symphony is a marvellous structure on a commonplace theme;” Shafter, loe. cit., 197.

As to the way in which Coleridge creatively employed phrases he found in tales of sea voyages, see Lowes, The Road to Xanadu, 2d Ed., 1930, 59, 434, quoted in Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 638 note 1.

11 Buchanan, Possibility (1927) 189.

12 Graves, Life of Sir William Rowan Hamilton (1882) H, 434-436, quoted in Porterfield, Creative Factors in Scientific Research (1941) 97.

Helmholz said that “his most important thoughts” came to him “during the slow ascent of hills on a sunny day” ; see Graham Wallas, The Art of Thought (1926) 80; no other hill-climbing physicist anticipated Helmholz’s works.

13 See Boosey v. Empire Music Co., D. C., 224 F. 646; Farmer v. Elstner, C.C., 33 F. 494, 496. Quantity, in some cases, where copying and misappropriation have been proved, may affect the measure of damages. Witmark & Sons v. Pastime Amusement Co., D.C., 298 F. 470, 477, affirmed 2 Cir., 2 F.2d 1020.

14 Of. Macaulay’s Essay on Robert Montgomery.

15 For a defense of Handel, by way of confession and avoidance, see Tovey’s article on Handel in 12 Encyc. Britannica, 910, 914, 915. Handel's ruthlessness in general is illustrated in the story of “his holding the great prima donna Cuzzoni at arms-length out of a window and threatening to drop her unless she consented to sing a song which she had declared unsuitable to her style”; see Tovey, loe. cit., 911. -I

16 Shafter, loe. cit., 189.

17 We do not mean that such originality is essential to the validity of a copyright. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249, 250, 23 S.Ct. 298, 47 L.Ed. 460; Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 81 F.2d 49, 53, 54; Fred Fisher, Inc. v. Dillingham, D. C., 298 F. 145, 149; cf. Hein v. Harris, C.C., 175 F. 875.

As to the needed quantum of originality, see Chamberlin v. Uris Sales Corp., 2 Cir., 150 F.2d 512, 513; Shafter, loc. cit., 223, 224.

18 Accordingly, we never reach the question whether, assuming that Francnetti copied, his copying went beyond permissible bounds.