
    ORNSTEIN v. PARAMOUNT PRODUCTIONS, Inc., et al.
    District Court, S. D. New York.
    Feb. 19,1935.
    Israel G. Ornstein, of New York City, for complainant.
    Austin C. Keough, of New York City (Louis Phillips, of New York City, of counsel), for defendants.
   GODDARD, District Judge.

This is a motion by the defendants to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The bill of complaint alleges infringement of the complainant’s copyrighted play entitled “Woman” by the defendants’ motion picture photo-play “Blonde Venus.” The bill asks for the usual relief of an injunction and damages.

By stipulation entered into by the attorney for the complainant and the attorneys for the defendants, a copy of the complainant’s play “Woman” and a print of defendants’ photoplay “Blonde Venus” are deemed annexed to the bill of complaint with the same force and effect as though they were made a part thereof. Paragraphs “fourteenth” and “fifteenth” of the bill of complaint are also conceded, wherein it is alleged that a copy of complainant’s play “Woman” was delivered to the defendants or their representatives in the autumn of 1931, and that the script was never returned by them to the complainant, and still remains in the defendants’ possession.

The bill alleges that the complainant prior to April 21, 1931, was the author, inventor, *and proprietor of a certain new original dramatic work or play of novel and artistic value which had never been published, entitled “Woman,” and that he duly properly registered it for copyright in the copyright office in the United States on or about April 22, 1931; that the defendants produced and have been distributing since on or about September 23, 1932, the photoplay entitled “Blonde Venus,” in which the defendants are charged with having copied and appropriated “complainant’s original and unique dramaturgical conception and expression embodied in the play entitled ‘Woman’ including basic emotions originally conceived by the plaintiff, the characterizations therein and the sequential development of the plot originated by the complainant.”

The answers of the defendants deny the allegations of plagiarism, and, as a separate and distinct defense, allege that the complainant’s play was not novel or original with the complainant, and, as a further separate defense, allege that the basic plot, theme, ideas, sequences, events, and episodes in the plaintiff’s work are not novel or original with the plaintiff, but constitute common property residing in the public domain and are not properly the subject of copyright under the copyright laws of the United States (17 USCA § 1 et seq.).

The court understands from the briefs that the purpose of the stipulation entered into by counsel under which the complainant’s play and defendants’ photoplay are deemed to be attached to the bill was to permit' the court to examine them and to decide from them whether defendants had copied complainant’s play in accordance with the procedure in Wiren v. Shubert (D. C.) 5 F. Supp. 358, affirmed (C. C. A.) 70 F.(2d) 1023; Lowenfels v. Nathan (D. C. ) 2 F. Supp. 73; Albert Small v. Metro-Goldwyn-Mayer Distributing Corp., as yet unreported decision of the Supreme Court, District of Columbia, 1933, Docket No. Equity 55493; Child v. Paramount, as yet unreported decision of District Court, Southern District, 1934, Docket No. E-77/174; Carr v. National Capital Press, Inc. (App. D. C.) 71 F.(2d) 220; Park v. Warner Bros. (D. C.) 8 F. Supp. 37, and which procedure seems to be approved by the Circuit Court of Appeals of this Circuit in its opinion in Nichols v. Universal (D. C.) 34 F.(2d) 145, affirmed (C. C. A.) 45 F.(2d) 119, and in which certiorari was denied, 282 U. S. 902, 51 S. Ct. 216, 75 L. Ed. 795.

If it appears from the examination of the play and the photoplay that the photo-play does not infringe, there is no reason for having a trial or passing upon the other issues.

Synopsis of “Woman.”

The play opens in a living room in a west side apartment in New York City. Mary Smith, an attractive young woman, who is employed as a model in the show room of a dress manufacturer at $30 per week, enters upon her return from business. Her young daughter, Betsy, has just been put to bed by Mary’s mother, Mrs. Chase, who is living with them temporarily while her daughter is working. Mary goes to her child to whom she is deeply devoted. From the conversation it appears that Mrs. Chase is displeased with her son-in-law because of his meager earnings and wasting his time and money on a worthless invention. She says Mary could have married a far wealthier man who could have given her all the luxuries of life. Mary is satisfied, however, and loves her husband, John, who is an engineer and is employed by a corporation at $60 a week, part of which he is using to carry on experiments to perfect an invention for a new radio, which is his hobby. One night John comes home from work weeping and tells Mary that he has had a coughing spell at the office and coughed up blood, and he informs Mary that he had been examined by a doctor who has told him that he has tuberculosis and would have to go to a hospital. The wife is deeply disturbed.

We next find John in a ward of a city hospital for the care of the tubercular. The patients who are of different races complain about the service, the food, and the lack of care which they receive. Mary visits her husband at the hospital and he cries and pleads with her to take him out of the hospital. He cannot stay there and begs her to take him home. He does not seem to be concerned with the welfare of his child, despite the warning of Dr. Gilbert that John’s presence at home with the child might affect the child.

Mary, deeply affected by the entreaties of her husband to have him taken out of the hospital, visits Dr. Gilbert to obtain his advice about his removal and Dr. Gilbert suggests that he be sent to a sanitarium for the cure of tuberculosis. But that, Dr. Gilbert, explains, would require about $20 a week, which Mary cannot afford. Mary is determined to help her husband and to have him sent to a private sanitarium and she intimates to Dr. Gilbert that she will obtain the money by sacrificing her virtue. Dr. Gilbert insists that she must not; that there must be some other way out of it. He gives her a letter to a charitable association.

Apparently Mary had very little success in obtaining aid from the charitable association. She continues her employment at the dress establishment as a model, but determines that she must get the money somehow to send her husband to a sanitarium. She needs at least $25 a week to take care of- him there, and it is evident that to take care of herself, her mother, and her child she must earn more than $30 a week.

Her employer, Mr. Bernstein, becomes infatuated with her and covets her, but he is at first repulsed. He believes that she is virtuous and remarks this to a buyer from Texas, Mr. Brown. He succeeds in getting Mary to accept an invitation to go out with him and informs Bernstein about it. Bernstein then arranges for a foursome, with Mary as his partner, and June, one of the other models, for Mr. Brown. .

All of the girls in the establishment are girls of easy virtue and obtain money and gifts by entertaining buyers. The atmosphere in the dress shop is filled with sex, and the experiences of the models with the men they meet in business. As is customary among such girls, they do not hesitate to discuss freely their own experiences, and speculate as to the experiences of the other girls.

When the models learn that Mary has accepted an invitation from Mr. Bernstein, it is synonymous to them with Mary’s becoming his mistress. The next morning, the girls eagerly await the arrival in the establishment of Bernstein and Mary and they make suggestive remarks when they do not appear at the usual time. Mr. Bernstein finally arrives around noon and informs them that Mary will not be in that day. The girls have, of course, surmised correctly. Mary is established as Bernstein’s mistress.

Two years pass and we find John at Saranac Lake where he has regained his health. He is packing his clothes since he has received word from the electric company that they had bought his radio invention and he is leaving to sign the contract and surprise Mary by his homecoming. Upon straightening his account with Mrs. Clark, the housekeeper there, he discovered that Mary has been paying $45 a week instead of $20 a week, as he had supposed. He is greatly surprised, but attributes Mary’s ability to pay so large an amount to her success in business, as he considers her extremely intelligent and clever.

Mary and Bernstein are in Bernstein’s apartment, and Mary is telling him how worried she is about her husband’s homecoming and Bernstein is annoyed that she should worry about her husband. He does not care whether her husband knows about the fact that she is his mistress; in fact, he does not believe that her husband did not know this, since otherwise how could Mary have obtained the money which she did to take care of him. Mary continually cries and broods, causing Bernstein annoyance by her lack of affection for him since he had done so much for her in a financial way. Just then the bell rings and Bernstein, thinking it is the maid, ushers in John. John looks from Mary to Bernstein, gasps, sizes up the situation, turns, and rushes out of the room. Mary swoons.

We next find Mary in Dr. Gilbert’s office to whom she relates the whole story of her relationship with John and Bernstein, as well as the discovery by John of her relationship with Bernstein. She also informs the doctor that John had run away and that she could not locate him, and that a few weeks thereafter she was served with papers in a divorce action. John obtained the divorce and the custody of the child. Her husband’s attorney informed her that John was now rich since he had sold his radio invention for a large sum of money. Mary, aware that her child will have a better opportunity in life with John, surrenders the child to him.

Bernstein was named as the corespondent and had obtained a large amount of unfavorable publicity in the tabloid papers, which threatened to ruin his business.

In order not to drag him down, Mary left Bernstein. She also explains to Dr. Gilbert that she had taken to drink, had! gone from bad to worse, and had finally contracted syphilis. She had undergone treatment for an extended period and Bernstein, during all of this time, had provided for her treatment and maintenance. She had come to Dr. Gilbert to ascertain if she had been cured and find out what her future chances in life were.

Dr. Gilbert examines Mary and finds that he cannot tell her whether she is cured ;. that examinations over a period of time would determine whether a thorough cure had been effected. However, an examination of her mouth enables Dr. Gilbert to tell Mary that there are no lesions and that it is safe for her to kiss her child, whom she is anxious to see.

She leaves the doctor’s office and shoots herself outside his door. Dr. Gilbert is summoned and he recognizes Mary has but a short time to live. He telephones her husband and tells him Mary has just shot herself and is dying and that her husband is responsible for this. He says that Mary’s dying wish is to see her child and for him to bring the child over immediately. The husband at first says he is not interested in Mary, but upon the insistence of Dr. Gilbert that it is his duty to come to the hospital with the child immediately, the husband consents, but the wife dies.

Synopsis of “Blonde Venus.”

The opening scene is the Black Forest in Germany. A group of students on a walking tour through the country come upon a small lake where a number of girls are bathing. One of the students, Ned Farraday, an American, approaches one of the girls, Helen, who is particularly attractive. She begs him to go away, tells him that she is an actress, and will be late for her performance if he does not leave and allow her to dress herself. Upon her promising to meet him after the theater, he and his friends continue their walk. Farraday and the girl meet later; fall in love; eventually they are married, and go to America to live. They have a child who develops into an attractive boy to whom they are both devoted.

Farraday is a commercial chemist and is working on a formula specializing in radium emanations in which radium is used, from which he hopes to realize a large sum of money and to enable him to properly maintain his wife and son, which he is now unable to do. While engaged in this work, he contracted an occupational disease — radium poisoning. His doctor informs him that the disease is incurable and tells him that he has but six to eight months to live.

In desperation he visits a prominent physician, tells him his story, and offers to sell his body to medical science in order to provide for his wife and child after he is gone. The doctor tells him his body would bring but $50 and he advises him to go to Germany and consult an eminent specialist who has discovered a cure for his malady. When the doctor names the specialist, the husband realizes it is one of his professors under whom he studied in Germany. The doctor tells him it will require about $1,500 for his cure and it will take about six months. He does not have the necessary money and goes home troubled and dis-tressed.

Upon Helen, his wife, urging him to tell her what is troubling him, he relates his visit to the doctor. Realizing the dire need for money, she decides to return to her former work as an actress. She procures a position as a singer in a cabaret. Her purpose in obtaining employment is to provide passage for her husband to Germany and to pay for his cure during his stay there, and also to support herself and her child when he is away.

Upon the occasion of her first performance in the cabaret, Nick Townsend, one of the guests, a rich and handsome young man, goes to her dressing room after the performance to make her acquaintance. He has been the lover of one of the other performers in the night club. Townsend soon becomes enamoured of this beautiful “Blonde Venus” — the stage name given to Helen. She has already learned from Townsend’s former favorite of the expensive bracelets and other splendid gifts which Townsend had given her, and of his promiscuous generosity towards his “lady friends.” At a subsequent meeting, Townsend offers the “Blonde Venus” a bracelet, but she refuses, confessing that it is not her custom to accept bracelets from strangers. He suggests that they become better acquainted, and insists upon escorting her home.

Sadly aware that she must, without delay, procure funds for her husband’s passage to Germany, Helen overcomes her qualms and reluctantly accepts a $300 check from Townsend in place of a piece of jewelry. She explains to her husband that this sum represents an advance on her sal-, ary.

Her husband leaves for Germany. During his absence, Townsend presses his attentions upon her and falls madly in love with her. Fie is generous and considerate of her and her child to whom he becomes greatly attached. As a result of his kindness and his personal charm, she becomes infatuated with him. He provides a fine home for her and her boy, but she maintains her old home and returns there occasionally to collect her mail.

One day Flelen receives a cablegram from her husband to the effect that he will return in four weeks; that he has perfected his formula; and that better times are ahead of them. She is not overjoyed about it because she has fallen deeply in love with Townsend.

When she tells Townsend of her husband’s impending return, he persuades her to spend the remainder of the time before her husband’s return with him and to enjoy this last period of- their happiness together. They go away on a trip, and, as the time draws near for her husband’s return, Townsend urges her to remain with him always. She is tempted, but she informs him that her duty is to her husband who needs her and whom she pities. She tells Townsend he is strong and can forget her, but that her husband needs her care and help in recuperating from his serious illness.

Farraday returns from Europe two weeks earlier than expected. He goes to their apartment and learns that his wife has not been there in weeks. He finds his second cablegram to his wife, which he had sent to hér advising her of his earlier return, unopened, stuck under the door. This arouses his deep anxiety as to the whereabouts of his wife and boy whom he is most anxious to see.

He remains at his home for several days, not knowing what has become of his wife and boy. His wife returns from the trip for her mail and much to her amazement finds her husband there. He asks for an explanation as to her absence from home and is most concerned as to what has become of their child. She confesses that she has allowed Townsend to provide the money for his cure and for the support of herself and child and admits her infidelity.

He orders her from his home, but insists upon having custody of the child since she is an unfit mother in his opinion. Helen promises that she will bring the child to him at once. She leaves, but instead of returning the child to her husband, she takes the boy, her dearest possession, boards a train going south, and flees the city without even informing Townsend.

Her husband, after making futile search for the child, reports the matter to the bureau of missing persons. Detectives are assigned to find the fleeing mother and the child.

Helen obtains employment as an actress in night clubs in various cities, but cannot remain long in one place because she is pursued by the detectives. By her cunning, she is able to evade the police and always seems to be a town or two ahead of them.' She roams from place to place, each one more notorious in reputation than the other, to New Orleans, then to Texas and a border town, always clinging to her child. The pursuit becomes so close that she finally is unable to stay in any place long enough to earn sufficient to keep body and soul together and we last see her in a border town dive. There she finally surrenders to a dull-witted detective whom she could have evaded but does not since she realizes she is at the end of her rope and ,it is best for her boy to be with his father who can provide for him decently. The detective communicates with his headquarters; they notify the father, and he immediately proceeds to that place to get his child.

The mother is at the railroad station' with her child, ready to part with him and give him up to the father. Her husband’s only interest in speaking to her is to give her back the $1,500 which she obtained from Townsend for his cure. He hands her the money in an envelope, takes the boy in his arms, and boards the train.

She is heartbroken and now feels she has nothing more to live for. She takes to drink, and we find her next in a 15-cent' women’s bed house where she comes in contact with women who have sunk to the lowest depths humanly possible. She sees an old drunken hag, sitting at a table, moping and dejected and talks to her. The old woman says she is going to end it all because she is old and has no money. Helen thereupon throws her the envelope containing the $1,500, drunkenly swaggers out of the place, saying, “I am going to make a hole in the water.” At this point in the-picture, a scene of murky water is shown. She changes her mind and determines to conquer by returning to the-stage and making a name for herself. She goes to South America and finally to Paris where, as-Helen Jones, a star of a popular revue, she wins great acclaim.

One night at the revue, Townsend, a visitor in Paris, sees her. He goes to her dressing room and pleads with her to return to America with him the next day, as he wishes to marry her. She refuses at first, but upon his reminding her that this will be a means of reuniting her with her. child, she consents and sails with him the following day.

Upon the husband’s refusal to permit her to see the child, Townsend offers the husband $1,000 for this privilege and raises it to $2,000, but the husband, his pride hurt at such a suggestion, throws open the door so that his wife may see the child. Townsend departs. The mother bathes the child and prepares it for bed.

The boy then asks the mother to relate the old story which she and the father had told the child so many times in the past when he was being put to bed. She says she does not remember it and the child asks the father to tell it, but he also pretends to have forgotten about it. The child then prompts both parents and they together haltingly relate the old story of their love affair and their first meeting and then their marriage.

The mother and father look at each other, the mother then plays a little lullaby on the child’s tiny musical carousal, just as she used to do, and the child falls asleep. The father and mother are overcome with sentiment and realize that they are both devoted to their child and to each other. In their love for their child all is forgiven and they are again united.

The main plot or theme in “Woman” and in “Blonde Venus” is similar. It consists of a husband with a wife and young child. The husband contracts a disease which requires his going away for a long course of treatment. To obtain the money necessary and to pay for it, the wife sacrifices her honor. Eventually the husband returns and discovers his wife’s infidelity. In the “Woman” the husband refuses to be reconciled and the wife kills herself. In the “Blonde Venus,” after the wife has many adventures, the husband and wife are united through love for their child. The plot itself is not new. Both authors have drawn upon the common stock or source for their theme or plot.

Complainant concedes that the plot and theme are in the public domain and that he has no proprietary rights in them, but contends “that sequential development of his plot belongs to him.”

It is true that an author has an exclusive right to his own treatment of an idea, subject, or plot.

“ * * * The copyright law protects the means of expressing an idea; * * * 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.” Dymow v. Bolton, 11 F.(2d) 690, at page 691 (C. C. A. 2).

Given the idea or plot described, the cast of characters necessarily include a husband, a wife, and the wife’s benefactor. Both casts include a young child. In the play the child, a girl, is not a necessary character, and is merely a part of the background. In the photoplay the child, a son, plays an important role, for he is the means of reuniting his father and mother.

It is almost inevitable that in the variations in the treatment and development of the plot the principal events giving rise to similar emotions will occur with more or less like sequences; so that an author’s exclusive rights are largely confined to the details in the manner and method of his own particular presentation of it.

From the synopsis of the play and of the photoplay, it is evident that while both authors make use of a common fundamental plot, the stories told are not the same. There is a material difference in the characters of the principals and the episodes, although there is bound to be a resemblance in the basic narrative. The scenes, locale, and action differ. The dialogue also is materially different and naturally the stories are not the same.

As stated in Daly v. Webster (C. C. A.) 56 F. 483, page 487 (C. C. A. 2): “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.” See, also, London v. Biograph Co. (C. C. A.) 231 F. 696.

The pleadings admit that defendants had access to complainant’s play, and no proof to the contrary having been received, it seems quite likely that some of the ideas found in defendants’ photoplay were suggested by complainant’s play and other older books and plays. However, in my judgment, defendants have taken nothing from any of them that was not in the public domain or public property.

Although the rules for determining infringement are fairly well established, the determination in each instance depends so largely upon its own particular group of facts that other- ca'ses are not. much of a guide. But I think that the conclusion that there was no infringement of complainant’s ' copyright is consistent with the decisions in the following cases: Nichols v. Universal Pictures Corporation, 45 F.(2d) 119 (C. C. A. 2), certiorari denied, 282 U. S. 902, 51 S. Ct. 216, 75 L. Ed. 795; Frankel v. Irwin (D. C.) 34 F.(2d) 142; Harold Lloyd Corporation v. Witwer, 65 F.(2d) 1 (C. C. A. 9), certiorari denied, 54 S. Ct. 94, 78 L. Ed. 1507; London v. Biograph Co. (C. C. A.) 231 F. 696; Sheldon v. Metro-Goldwyn Pictures Corp. (D. C.) 7 F. Supp. 837; Fendler v. Morosco, 253 N. Y. 281, 171 N. E. 56.

Accordingly, the defendants’ motion to dismiss the complaint is granted, but without costs. 
      
       No written opinion filed.
     