MAYER, District Judge.
[1] On August 1, 1914, Germany declared war against Russia. Other events preceded and succeeded this declaration until as of midnight, August 4th, Great Britain declared war against Germany.
The world then knew that a conflict of extraordinary proportions was under way. Whatever else may have happened or may hereafter take place, it soon became evident that the war was to be a prolific source of literary and dramatic effort. Of course, the spy was much in evidence in the newspaper accounts of the late summer and early fall of 1914. Stage and story male spies are always very villainous persons. When they are humble men, they usually have very heavy eyebrows, a stoop or slouch, and a .sinister look. When they are higher up in spydom, they are well groomed and have an erect beáring, but they must also have a sinister look. Female spies usually must [433]*433be handsome, or at least attractive. Sometimes they have flashing jewels, although occasionally a minor female spy, who, say, is the landlady of an inn, is permitted to be afflicted with embonpoint instead of jewels. 'Chis war added a new class of spies to fiction, and some say to real life. Persons supposed to have been kindly and inoffensive, it seems, are spies. Most of tírese, it appears, are in some way connected with inns. It is a sad revelation. Can it be that the kindly Teuton at the Hof in Berlin, who saw that your trunks reached America safely, was a -French spy? • Is it possible that the solicitous and delightful host at Dijon who recommended the juicy Chateaubriand was a German spy? Is it true that the genial head of that charming half villa and half inn with the little garden covered with vines at Rudesheim, who claimed that his ancestors for more than a century had lived and died there, was in reality a Russian spy? And, finally, must we believe that the accomplished proprietor of that home-like abode in Biarritz. where you are told you will be more comfortable than at the Palais, because with him you are a name and there you are a number, was not, in fact, loyal to France, but was a member of the German secret service ? There was also a temporary vogue in a new kind of spy in the early days of the war.
There was a .congress of surgeons at Vienna attended by professional men from all over the world. Among others were some young American physicians and surgeons who affected foreign trimmed beards and flowing ties, as do some American ex-patriates who are pleased to be taken for foreigners. Some of the latter had their wish gratified; some of the former have dispensed with the beards and wear ordinary scarves now, since they were examined and, in some instances, temporarily detained by the military and police authorities of the continental countries.
However, with the many incidents exploited by the press and those conjured up by the imagination of the author and the playwright, it has so happened that every well-regulated novel and war play must have a spy/ Plaving acquired a spy, the novel and the play require that the spy must get somebody into trouble. Dost or stolen passports have long been a source of much difficulty and embarrassment. Then, of course, there must be a love affair, which, preferably, should end happily. American readers and audiences like manly American men who court danger for the sake of chivalry, and they like the courageous American girl who, by her quick wit, never fails to extricate everybody from complications after having herself created them; or there may be the charming foreign young woman whose patriotic devotion makes her insensible to danger and excites sympathy and admiration. Then, there must always be at least one gruff general who orders waiters about in a deep bass voice.
There are a few more canons to be observed. The hero must not be named John or James. He must have- the kind of name which annoys him through life while, fortunately, the heroine must have a simple name of biblical or historic origin. If possible, there must be an inn, for that makes a good setting, and even war figures must [434]*434eat and, besides, there must be waiters or waitresses who hear or impart state and military secrets, as it is quite customary to discuss such matters in a loud voice in restaurants and inns. There are other well-known incidents and expedients, common to all, and as old, at least, as when Virgil sang of arms and the man.
With these well-known ingredients available to those who cared to use them, the plaintiff wrote a novel in the fall of 1914 called “Little Comrade,” which was published in,the January, 1915, issue of Munsey’s magazine. The defendants Stewart and Baker likewise, in the fall of 1914, were collaborating in the writing of a comedy, and in the course of their collaboration it occurred to them that a seasonable play would be one based on the war, and they finally wrote the play which it is now sought to enjoin, to which they gave the title of “Arms and the Girl.” The defendant Stewart is an actor and playwright, and defendant Baker is an author and dramatist. They each assert in their affidavits that they did not read “Little Comrade” and did not have any information in respect of the same.
It is not possible, within the limits of an opinion, to give the full details of the novel and the play; but a sufficient outline will disclose the essential features.
“Little Comrade”: Bradford Stewart, an American surgeon, returning from the congress at Vienna, stops at the Koelner Hof at Aix la Chappelle (Aachen) on his /way to Brussels. After being assigned to his room, he leaves the hotel to visit the Cathedral, and, on hi» return, he is told by the landlady of the Hof that the police came to question him and would return presently. The landlady is a Trench spy, although her waiter is a German spy. Stew,art finds his baggage disarranged, and in one of the bags discovers a pair of satin ball slipper» and other apparel of a woman. In due course, there is a knock on his door, and a young woman appears who immediately embraces him. The young woman turns out to be an Alsatian who is a French spy and who is seeking to reach France to deliver important information to the French officials. Stewart, through a desire for adventure, agrees to pose as the husband of the young woman, and she induces him to add to his passport the. forged words “accompanied by his wife.”
There are a good many adventures and difficulties from that time on, until finally the pair reaches Belgium and, in a fight between the Germans and the Belgians, in a German village, both are wounded. She is taken to a German hospital, her identity being unknown, and he escapes with the documents and finally delivers them to General Joffre and enters the French military service. Meanwhile, of course, Stewart has fallen in love with the girl, and there is a fair assumption that some time or another he will find her again and that the romance will end satisfactorily, although whether he ultimately discovers where she is, is left to speculation.
In the course of their plans to leave the inn at Aachen, their shadows are thrown on the window of the room in the inn, but that is a mere incident which has no relation to the plot or fundamental theory of ¡the story. The tale is well written and affords pleasant reading, fits [435]
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MAYER, District Judge.
[1] On August 1, 1914, Germany declared war against Russia. Other events preceded and succeeded this declaration until as of midnight, August 4th, Great Britain declared war against Germany.
The world then knew that a conflict of extraordinary proportions was under way. Whatever else may have happened or may hereafter take place, it soon became evident that the war was to be a prolific source of literary and dramatic effort. Of course, the spy was much in evidence in the newspaper accounts of the late summer and early fall of 1914. Stage and story male spies are always very villainous persons. When they are humble men, they usually have very heavy eyebrows, a stoop or slouch, and a .sinister look. When they are higher up in spydom, they are well groomed and have an erect beáring, but they must also have a sinister look. Female spies usually must [433]*433be handsome, or at least attractive. Sometimes they have flashing jewels, although occasionally a minor female spy, who, say, is the landlady of an inn, is permitted to be afflicted with embonpoint instead of jewels. 'Chis war added a new class of spies to fiction, and some say to real life. Persons supposed to have been kindly and inoffensive, it seems, are spies. Most of tírese, it appears, are in some way connected with inns. It is a sad revelation. Can it be that the kindly Teuton at the Hof in Berlin, who saw that your trunks reached America safely, was a -French spy? • Is it possible that the solicitous and delightful host at Dijon who recommended the juicy Chateaubriand was a German spy? Is it true that the genial head of that charming half villa and half inn with the little garden covered with vines at Rudesheim, who claimed that his ancestors for more than a century had lived and died there, was in reality a Russian spy? And, finally, must we believe that the accomplished proprietor of that home-like abode in Biarritz. where you are told you will be more comfortable than at the Palais, because with him you are a name and there you are a number, was not, in fact, loyal to France, but was a member of the German secret service ? There was also a temporary vogue in a new kind of spy in the early days of the war.
There was a .congress of surgeons at Vienna attended by professional men from all over the world. Among others were some young American physicians and surgeons who affected foreign trimmed beards and flowing ties, as do some American ex-patriates who are pleased to be taken for foreigners. Some of the latter had their wish gratified; some of the former have dispensed with the beards and wear ordinary scarves now, since they were examined and, in some instances, temporarily detained by the military and police authorities of the continental countries.
However, with the many incidents exploited by the press and those conjured up by the imagination of the author and the playwright, it has so happened that every well-regulated novel and war play must have a spy/ Plaving acquired a spy, the novel and the play require that the spy must get somebody into trouble. Dost or stolen passports have long been a source of much difficulty and embarrassment. Then, of course, there must be a love affair, which, preferably, should end happily. American readers and audiences like manly American men who court danger for the sake of chivalry, and they like the courageous American girl who, by her quick wit, never fails to extricate everybody from complications after having herself created them; or there may be the charming foreign young woman whose patriotic devotion makes her insensible to danger and excites sympathy and admiration. Then, there must always be at least one gruff general who orders waiters about in a deep bass voice.
There are a few more canons to be observed. The hero must not be named John or James. He must have- the kind of name which annoys him through life while, fortunately, the heroine must have a simple name of biblical or historic origin. If possible, there must be an inn, for that makes a good setting, and even war figures must [434]*434eat and, besides, there must be waiters or waitresses who hear or impart state and military secrets, as it is quite customary to discuss such matters in a loud voice in restaurants and inns. There are other well-known incidents and expedients, common to all, and as old, at least, as when Virgil sang of arms and the man.
With these well-known ingredients available to those who cared to use them, the plaintiff wrote a novel in the fall of 1914 called “Little Comrade,” which was published in,the January, 1915, issue of Munsey’s magazine. The defendants Stewart and Baker likewise, in the fall of 1914, were collaborating in the writing of a comedy, and in the course of their collaboration it occurred to them that a seasonable play would be one based on the war, and they finally wrote the play which it is now sought to enjoin, to which they gave the title of “Arms and the Girl.” The defendant Stewart is an actor and playwright, and defendant Baker is an author and dramatist. They each assert in their affidavits that they did not read “Little Comrade” and did not have any information in respect of the same.
It is not possible, within the limits of an opinion, to give the full details of the novel and the play; but a sufficient outline will disclose the essential features.
“Little Comrade”: Bradford Stewart, an American surgeon, returning from the congress at Vienna, stops at the Koelner Hof at Aix la Chappelle (Aachen) on his /way to Brussels. After being assigned to his room, he leaves the hotel to visit the Cathedral, and, on hi» return, he is told by the landlady of the Hof that the police came to question him and would return presently. The landlady is a Trench spy, although her waiter is a German spy. Stew,art finds his baggage disarranged, and in one of the bags discovers a pair of satin ball slipper» and other apparel of a woman. In due course, there is a knock on his door, and a young woman appears who immediately embraces him. The young woman turns out to be an Alsatian who is a French spy and who is seeking to reach France to deliver important information to the French officials. Stewart, through a desire for adventure, agrees to pose as the husband of the young woman, and she induces him to add to his passport the. forged words “accompanied by his wife.”
There are a good many adventures and difficulties from that time on, until finally the pair reaches Belgium and, in a fight between the Germans and the Belgians, in a German village, both are wounded. She is taken to a German hospital, her identity being unknown, and he escapes with the documents and finally delivers them to General Joffre and enters the French military service. Meanwhile, of course, Stewart has fallen in love with the girl, and there is a fair assumption that some time or another he will find her again and that the romance will end satisfactorily, although whether he ultimately discovers where she is, is left to speculation.
In the course of their plans to leave the inn at Aachen, their shadows are thrown on the window of the room in the inn, but that is a mere incident which has no relation to the plot or fundamental theory of ¡the story. The tale is well written and affords pleasant reading, fits [435]*435central thought being the complications which necessarily result from Stewart pretending to be the husband of the girl who has been thrown, in his path in an unexpected way so far as he is concerned, but in a manner carefully planned by the girl spy (who is suspected by the German authorities) and her associates, in order to enable her to reach France.
The unexpected acquisition of a wife, it seems, is not new in novel writing, and it is enough to refer to the story of Richard Henry Savage called “My Official Wife,” published in 1891, which was later dramatized. That story, briefly stated, concerns an American who' becomes possessed, for the time being, of a wife in the form of a Russian nihilist, and who, as a result, has quite a troublesome time. In that story the nihilist has planned to attach .herself to the American for the purpose of carrying out her designs in Russia, and he is the innocent victim of the situation thus cátefully planned.
In “Arms and the Girl,” Wilfred Ferrers, a young American mining engineer, is stopping at a small hotel in Beaupre, Belgium. Ruth Sherwood, an American girl traveling with her aunt and uncle, has become separated from them and goes to the same inn. Olga Karno-vitch, a Russian woman spy, who has been a guest at the hotel, is apprehensive of the advance of the German army. She exchanges passports with Ruth without the latter’s knowledge and escapes in Fer-rers’ motorcar. When the Germans arrive, the General is suspicious that Ferrers is a spy and an accomplice of Olga. Having discovered that Ruth’s passport has been substituted for the passport of the Russian woman, Ferrers advises Ruth of that fact and destroys the Russian passport. Thereupon Ferrers and Ruth are arrested by the German officers, and Ferrers is accused of being a spy. Ruth, in order to- save Ferrers, claims to be his flaneé and the German General, to test the truth of the story, orders that the Burgomaster of the town marry Ferrers and Ruth at once. That being done, the curtain falls on act I.
It turns out that Ruth is engaged to an inconsequential young man named Martin, who is trying to reach her by motorcar, but is held up by the German occupation. The General orders the newly made Mr. and Mrs. Ferrers to their room,-and when Martin arrives he .is passed off by Ruth and Ferrers as their chauffeur, much to his disgust and bewilderment. He is considerably annoyed at discovering that his flaneé has a newly found husband, and the problem then is how to make it appear to the German officers that Ruth and Ferrers are occupying the same room, when in point of fact, as agreed with Martin, they are not. It is then that the waitress in the hotel enters Ruth’s room dressed as Ferrers. The room is lighted, their shadows are shown upon the curtain, and the officers in the courtyard are deceived by the shadows into believing that the two are Ferrers and Ruth and thus are satisfied that the story told to them was true. Ferrers, disguised ás the landlady, passes the sentry at the courtyard gate and escapes. End of act II.
In the third and last act, it seems that Ferrers was injured in a street fight between the Belgians and the German soldiers, and there[436]*436fore returns to tbe inn, as was perfectly certain be would, in view of the fact that he has fallen in love with Ruth. Everything comes out all right, for Martin is dismissed, and Ferrers and Ruth, having already been married by the Burgomaster, agree to make the status permanent.
Of course, the incidents in both the novel and tire play take place at the beginning of the war, and, combined, they have enough spys to have discovered'all of the secrets of Europe. The theory of the play is distinctly different from that of the novel. In the play there is mixed with the romance a considerable amount of polite comedy revolving around the complication created by the military-made marriage, and the idea is: How an American girl and an American man can escape and ultimately reach America? In the novel the foundation purpose is the reaching of the French officials by a French spy.
In view of the plot in “My Official Wife,” there is no novelty in using as an incident, or as a part of a plot, the idea of an unexpected marriage such as is disclosed either in the novel or in the play, and there is certainly no novelty in a stolen or forged passport. The only other similarity is the throwing of the shadows on the screen, but that is a very old device which has been used a number of times, and it is sufficient to refer to “The Professor’s Rove Story” played by the accomplished English actor, E. S. Willard, in New York in December, 1894, and, curiously enough, the defendant Stewart is now acting in a revival of this very play. Stewart says he took the idea of the courtyard of the inn, which is the setting of “Arms and the Girl,” from the courtyard at the Hotel dú Savage in Calais; but he need not be concerned because he has adopted such a setting, for there are a thousand courtyards on the Continent of the same type as that at the Hotel du Savage and some a good deal more attractive.
[2] There is really no merit in this effort to enjoin the production of the play written by defendants Stewart and Baker and now being produced by defendant Harris. 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.
It will never do.to hold that, because an incident here or there is used in the later production which was used in another relation and situation in the former copyrighted book or play, therefore the later production infringes the copyright of the former.
It is rarely difficult to determine when there is an infringement, and, when such occurs, the courts are alert to protect the copyright against disingenuous efforts to destroy its value. On thé other hand, the courts are equally alert to protect authors and managers against untenable attacks.
This motion could readily be disposed of on the ground that the plaintiff has not made that clear and convincing showing which is required'in this circuit in order to justify the granting of an order for a preliminary injunction; but I prefer to place my conclusion on the [437]*437broader ground, and to state that, in my opinion, I am satisfied affirmatively that the defendants do not infringe. “Little Comrade” and “Arms and the Girl” each has its place and, as the one is an agreeable novel, and the other an entertaining play, they will doubtless afford the opportunity to many to pass a pleasant evening. In any event, “Arms and the Girl” can proceed on its way with its delightful heroine and its manly hero, its standard spy, its good-hearted gruff general, and all the rest, free from fear of a court order and concerned only with the net result after the box office receipts shall have been counted.
Motion denied.