
    WIREN v. SHUBERT THEATRE CORPORATION et al.
    District Court, S. D. New York.
    Aug. 24, 1933.
    Osear B. Wiren, of New York City, for complainant.
    Austin C. Keough, of New York City (by Louis Phillips, of New York City), for defendant Paramount Famous Lasky Corporation.
    William Klein, of New York City (by Milton R. Weinberger, of New York City), for defendants Shubert Theatre Corporation and others.
   GODDARD, District Judge.

This is a motion by the defendants to dismiss the bill of complaint upon the ground that it does not set forth facts sufficient to constitute a cause of action, and particularly that it affirmatively appears from a reading of the complainant’s play “Most” and the, complainant’s translation of “La Morte in Vaeanze” or “Death Takes a Holiday,” both of which are annexed to the complaint, that there is no plagiarism of the complainant’s ■work.

The suit was begun by the service of the bill of complaint upon the defendants in May, 1931. It is brought to enjoin the defendants from producing, presenting, publishing, distributing, playing in, or in any manner exhibiting the play entitled “Death Takes a Holiday,” and for an accounting. The acts complained of are the incorporation and copying in substantial entirety of complainant’s dramatic work and composition entitled “Most,” written by her prior to 1910, and copyrighted on August 11,1910. In the complaint, “Most” is described as a fictitious tragedy in three acts. The English transía^ tion of “La Morte in Vaeanze” set forth in a proposed amended bill is accepted for present purposes by all parties as being correct.

The bill alleges that in August, 1910, after advertising and announcements! in the press, there was a performance in a New York City theater of her play “Most” with a professional east, that in the previous summer, in preparation for that performance, “complainant had read said play before a gathering of prominent people who had been invited to hear it,” and that both before this performance and afterwards “the complainant submitted and left a manuscript of said dramatie work and composition ‘Most’ at the offices of and in some instances personally with a large number of theatrical managers and producers, prominent actors and others associated with the theatrical profession, teachers of dramatic literature, dramatie critics and others,” and the bill further alleges that “the defendants having had access to and opportunity to know of complainant’s dramatie work and composition and having full knowledge of the facts * * * and of the rights and privileges of the complainant and of complainant’s copyright title in and to said dramatic’work and composition.”

“Death Takes a Holiday” first appeared upon the American stage at the Ethel Barrymore Theatre in New York City on December 26, 1929, and ran until May 31, 1930. And since then has been produced at intervals. It is alleged that it was copyrighted in Italy and the rest of Europe in October, 1924, and in the United States in 1929'.

The defense is that “Death Takes a Holiday” is an adaption by Walter Ferris for American use of “La Morte in Vaeanze,” the twork of Alberto Casella, an Italian residing in Milan, Italy. The complaint appears to be based entirely on Casella’s original .Italian version of “La Morte in Vaeanze.”

Summary of “Most.”

“The Relation of Heart and Soul.”

Scene I. Most, “an immortal,” who wishes to “rehabilitate himself to his old life” upon earth, is seen descending to the\ earth accompanied by two “attendant spirits.” The talk of the two spirits establishes the paradox that underlies the action of the play — that, superlatively beautiful as Most is, “he must inspire some woman’s love,” yet, “as an immortal,” he is debarred from the experience of love. Most’s apparent purpose in coming to earth is repentance and preparation for a better spiritual life. It is his “second trial.” He approaches earth with renewed delight, guarded secretly by the two spirits, who are not visible, having “ethereal form.” In the second part of the same scene, Henry, a blacksmith, is seen teaching his child in the intervals of his work. Most approaches him, and the blacksmith refers to Hermoine, daughter of the master of the neighboring “hall,” Beshani, who lies at the point of death. Since Beshani has led an evil life, Most offers to pray for him in order he may not die without grace.

Scene II presents Beshani in his hall, dying, attended by Hermoine. Most enters, followed by the two spirits, visible to Beshani, since he is at the portals of death. Most is instantly struck by Heimoine’s beauty and innocence. In the very moment of death, Beshani is conscious of Most’s spiritual quality, and he intrusts Hermoine to him, thinking to gain grace by his compromise with heaven. Most, comforting Hermoine, feels more strongly drawn to her, and Hermoine is as instantly brought to love him.

Scene III opens in a garden with Hermoine’s recital to Most of her belief in fated affinities. Such is her love for Most, anticipated before she knew him. After Hermoine’s departure, Most, in a soliloquy, shows the quandary in which he is placed by his interdicted love for a mortal. The only course open to him is “to go.”

Act II. One year later, a fair with gypsy fortune tellers. Most entera with a friend, discoursing of his loneliness and his longing for love. Hermoine enters with her friend Helene. Dalsetti, her vicious lover, drunk, then enters and attempts to kiss her. When she screams, she is discovered by Most, who rushes to her rescue. While Dalsetti lies where he is “thrown,” Hermoine reproaches Most with leaving her; but Most explains that it was “Heaven itself that stood between us.” But not “neither Heaven nor Hell shall keep me from you.” One of the spirits in» tervenes, and a gypsy threatens hell as the punishment for them both.

Scene II. The two spirits discuss Most’s love, one regarding it as fatal, the other as a possible road to salvation. Their talk is interrupted by Dalsetti’s return with a band of ruffians to take vengeance upon Most. They accuse him of being a demon. He wards off their attack until Hermoine enters and tries to pacify them. Most drives them off, and Hermoine marvels at his power. Most is afraid, however, to communicate to 'her the seeret of it. As they exit, Dalsetti enters, followed by his abandoned mistress, Yarda. They quarrel, and go out seeking vengeance, Dalsetti upon Most; Yarda upon Hermoine. Hermoine soon enters alone, and encounters “Most’s apparition.” She is disturbed by his strangeness, and he explains that he appears now “as I was before your time.” “ ’Tis my unnatural self abides with you”; but her love has conquered him. Hermoine faints, and the “real Most” enters. He reassures her; and, when she asks him about the appearance of his “apparition,” Most recognizes it as “his old self, strong enough as to persist, and come in shape to discompose me now.”

Scene III. A feast on the evening before the wedding. Most hesitates to drink a health to their long life. Dalsetti criticizes Most’s refusal, and reproaches Hermoine for her love. Hermoine declares her confidence in Most. Dalsetti then challenges Most to a duel, and Most leaves the dance to fight with Dalsetti. Helene tells Hermoine of their purpose, and the two women try to intervene. They see Most merely parrying Dalsetti’s thrusts until the latter is tired out and retreats. Most enjoins Hermoine. Yarda meanwhile stabs Helene in mistake for Hermoine. Dalsetti discovers her mistake, and the two carry Helene off.

Act III. Scene I. One hour later. Hermoine discovers Dalsetti and Yarda digging Helene’s grave. Most enters from another quarter conversing with his two spirits. Hermoine sees him, and (not seeing the spirits) thinks he has gone mad. Most is arguing his dilemma with the spirits, pleading that love ■cannot be a sin since it is the attribute of the Infinite. He dares to renounce God and immortality, and tells one of the spirits to “bear my ultimate to great God himself.” The spirit threatens him with an intervention directed at Hermoine herself. Most cannot bear this, land makes an appointment to see the spirit later, on the cliffs at midnight. Hermoine, however, has overheard the conversation, discovers that he is “a spirit” and that he has broken the vow of an immortal for her. She makes up her mind to save him from the consequences by sacrificing herself. When Most enters again, Hermoine pleads with him to “think of Heaven first.” Most tells Hermoine he will willingly “give his soul” for her love. Hermoine resolves to be with him during his appointment with the two spirits, and to act as the occasion requires. Most refuses to take her, but she is determined; and the two plan to “risk it all, and' by the very force of our renunciation of all else win for our love the blessed way of life.” Most and Hermoine are proceeding through a severe storm toward the cliff. Hermoine becomes greatly frightened. She cannot go on. Most leaves her praying, going on to meet the spirits, who tell him that “by his honest love he has become more god-like.” Hermoine recovers courage and goes on to rejoin Most, but “there is a shock, and she falls.” Hermoine recognizes that “the wound is fatal,” and says, as Most takes her in his arms, “I think my life alone could save our souls.” Most moralizes: He had “thought a vain desire” in coming to earth a second time, “but now I see the good in life is the most human.” They will be together in heaven “as twin souls.” As she dies, Hermoine too sees the two spirits. “There is no death between us any more.”

Summary of “Death Takes a Holiday.”

Act I. The villa of Duke Lamberto at 11:30 in the evening. A gay party of young gentlemen and ladies has just returned from a motorcar trip to a nearby deserted castle, exchanging pleasantries. The absence of the heroine, Grazia, is noticed. Suddenly a shriek is heard from the garden, and Grazia enters in a state of nervous collapse. When she recovers consciousness and self-possession, she is taken to her home immediately with her family. After her departure, the women of the party leave for bed; the men remain awhile talking, then retire. The duke, who remains, is alarmed by a shadow outside the window. It enters in the guise of Death, cloaked and hooded. He convinces the duke of his power by making his gun useless, then sits down to talk with him, and announces himself as Death. He tells the duke that he is on vacation, to try life and the human emotions, which he has never known. He asks the duke to accept him as a guest; the duke, of course, accepting him under the compulsion of terror. Death assumes the name of Prince Sirki, a friend and former guest of the Duke’s. He names the condition that he shall be accepted without question or impediment. To affect his disguise, since he cannot change his form, Death borrows the Lamp of Illusion.Then he leaves by the door. He is discovered as he does so by Corrado, Grazia’s suitor, who shoots at him, ineffectually. Others of the party enter; the duke is perplexed as to how the explain Corrado’s shots. He explains incoherently, announcing that Prince Sirki is to visit him. Death returns, hands the duke the Lamp of Illusion, and, when it is hung, appears as a man of magnificent physique and handsome appearance. The party stands aside, appalled, as Prince Sirki is ushered to his room. As he goes, Duke Lamberto whispers the name “Death” to his friends.

Act II. Same scene three days later. Alda, the flirt of the party, is discussing Prince Sirki with Ardenza, a painter, conveying the impression that he exercises an extraordinary spell over her, at once of horror and allurement. Alda’s representation of the effect upon her is echoed in turn by Luciana. Prince Sirki enters, and Luciana leaves. A scene follows in which Alda exercises her arts upon Prince Sirki, but he outruns her own adventuresomeness, confronts her with an analysis of her character to the very depths of her sentimental-sophisticated nature, and, challenging her with the mystery of sex, gives her a glimpse of the mystery of death. But he has shaken her composure and conquered her spirit, only to refuse her surrender. She is after all only “a poor little romantic lady.” He asks her to play for him, and, in a spiritual ecstasy, she plays Schubert’s Funeral March with such effect that the guests stop their amusements and stand at the entrance to listen. As she finishes, Grazia enters. Sirki rises; Alda recognizes the situation— Sirki’s soul is intent upon Grazia. They address each other, not theatrically, but with inward understanding. A conversation between Sirki and the duke follows in which it is made clear that Grazia has not been told who he is. This drifts into Sirki’s communication that he is in love, with a human being, and that in his present human form he wishes to realize the experience to the full. Again he compares (as with Alda) the climax of love with the climax of death. But, when he returns to his former state, he must lose both love and the beloved; so the pressure of the moment has turned “caprice” into “passion.” He is “bound by his treacherous liberty.” Yet, as in the role of Sirki he adores love and is bound by it; as Death he laughs at it. Death then leaves the duke, other men enter, and the conversation again resumes the note of apprehension. The duke tells his friends that Death has confessed he is in love, and tells them they must watch and guard the women. Grazia alone of them is ignorant of his real identity. Shall they tell her? The princess (Grazia’s mother) enters to say Grazia and Sirki are in the garden. The men leave. The princess tries to induce Alda to reveal the mystery, but she will not. The duke and Alvaro (Grazia’s brother) re-enter. Alvaro wants the duke to reveal the truth to her, but, bound by his oath, he will not. Corrado and Alda are left alone to exchange their misgivings and confidences. Corrado expresses his concern over Grazia — her sensitiveness and volatility. After another interval of general conversation, Sirki and Grazia are alone. They become more intimate; Grazia talking ■with a mixture of timidity and devoted admiration. He declares his love, but hinting darkly and passionately at his mystery, and trying to dissuade her from her feeling for him. But he begs her to allow him to worship her for the short time he will be here. Corrado interrupts. Sirki asks her if she had loved him. “A little — maybe.” Then Sirki reveals the fact that it was he she had met in the garden. She is overcome by the revelation and her “inner torment of love.” She is drawn by an ambiguous mystery of his being and his coming. She recognizes her lover as of some other time and place. He surveys her — partly in mockery, suggests that her mystical nature is no nearer the earth than his. He can guide her, but again his real condition confronts him. He tells her that going with him will mean death — “to lose herself in that nebulous and silent country.” His eyes shine “with a maleficent light.” Grazia throws her arms about him — in tears. She is afraid; he “laughs cruelly,” attempts to kiss her; she collapses to the floor “in rebellious horror.” ' He laughs again “with a sneer” and starts to go, but she calls him back. She leaves the room in his arms as Corrado enters. Corrado cries out. The other men rush in, followed by Grazia’s mother. The men try to conceal from her Grazia’s departure.

Act III. The same scene, three nights later. Death enters in somber thought. Alda approaches him to intercede. He tells her that Grazia’s love has shaken him, destroyed his power to laugh; his personality is destroyed; his immortal function no longer possible to him. . She pleads with him to save Grazia, and tells him that there is nothing .left for herself but despair. She tells him she can accept him joyfully, as death, and love him as now throughout eternity. Death responds with elation to this idea of the continuance of love in death, but Alda sees it is Grazia, not herself, on -whom the idea is fixed. Again Alda implores him to release Grazia; he must reveal his true self to her to save her. The princess enters as Alda, almost prostrated; leaves. She too intercedes for her daughter. She has told Grazia that Death is a foreign and malevolent spirit, with whom she cannot be happy, but she admits to Death that she could not move Grazia from her love for him. As the party of men who have been searching for Grazia enters, Death leaves, after having promised that he “will help.” Death re-enters in the midst of the disturbed talk. He says he will not take Grazia, but commissions Alda, as the only one who understands, to tell her the truth. “Do not disillusion her; let her believe; it is her light; her lighted lamp” (pointing to the Lamp of Illusion). Death leaves for a moment, and returns, followed by Grazia, who goes to her mother. She rises, sees Death, and declares her love for and subjection to him. Death argues with her: “I am a malevolent destroyer. You must throw off the illusion which covered this deception.” “He pleads to depart without the pangs of knowing you are wounded.” But he must be freed from love, for his mission is hate. He pleads with Corrado to persuade her, and with her mother. Then he turns again to Grazia: “Do not smile at me any longer.” It is unavailing. Finally he prays God to visit the punishment on him and save Grazia. As he prepares to go, Grazia moves to go with him, unabashed. As a last resort, he must break the illusion. He shatters the Lamp of Hlusion and turns toward her, revealed as Death. Grazia smiles: “I see you as the first time — as always.” Death cries in despair; midnight strikes. Grazia repeats: “Like the first time, with your beautiful face of love.” Death advances to her; she places her arms about his neck; he covers her with his mantle, and supports her through the open door.

Complainant opposes motion for judgment on the pleadings and asks for a trial “in order that she may have an opportunity to explain her analysis of the two plays and to point out the identities and offer other proof to sustain her action due to the fact that the appropriator has very painstakingly endeavored to disguise the appropriation which has required a year’s work on her part and on the part of her attorney and other experts to detect the clever disguise of every instant, event, thought and idea of the entire three acts j of her play down to the most minute details.’.’

There seems to be no good reason why, where one book is claimed to be an infringement of a copyrighted book, and both books are attached to the bill of complaint and the pleadings permit it, a reading and comparison of the books themselves should not dispose of the claim of infringement when there are no questions of access, originality, or other facts requiring proof. See Nichols v. Universal Pictures Corp’n (C. C. A.) 45 F.(2d) 119; Lowenfels v. Nathan (D. C.) 2 F. Supp. 73. Such a procedure saves the litigants time and expense, and generally means an earlier determination of their rights which is particularly important in litigation of this nature. Opportunity for fully presenting to the court the similarities and the differences is afforded by way of oral arguments or briefs or both. As Judge Learned Hand of the Circuit Court says in Nichols v. Universal Pictures Corp’n, supra, at page 123 of 45 F.(2d): “ * * ’* for the more the court is led into the intricacies of dramatic craftsmanship, the less likely it is to stand upon the firmer, if more naive, ground of its considered impressions upon its own perusal.”

The character of the test of plagiarism is simple. It is not to be determined by the fine analysis or by argument and dissection of an expert, but by ordinary observations. Dymow v. Bolton et al. (C. C. A.) 11 F.(2d) 690.

The plaintiff urges that she have a trial so that she may testify as to “her interpretation” of the play; Miss Wiren and her counsel expressing serious doubt about a reading of the two plays disclosing similarity. The meaning or interpretation which the author gives to her or his literary effort cannot be accepted as the deciding test; the book or the play must be judged as it is; nothing can be read into it which is not there.

What Judge Hough, writing for the Circuit Court, said in Dymow v. Bolton, supra, at page 692 of 11 F.(2d), is particularly appropriate to the case at bar: “* * * The copyright, like all statutes, is made for plain people; and that copying which is infringement must be something ‘which ordinary observation would cause to be recognized as having been taken from’ the work of another. King Features Syndicate v. Fleischer (C. C. A.) 299 F. 533. It requires dissection rather than observation to discern any resemblance here.”

Although I have tried to read both plays understandingly and in the light of Miss Wiren’s analysis, I end with the conclusion that “Death Takes a Holiday” is not an in-, fringement of “Most.” It is apparent that the text in “Death Takes a Holiday” has not been taken from “Most,” but, although the text has not been followed, it is not enough in itself to say that there has been no appropriation, for otherwise the substantial part might have been used and the plagiarist escape by immaterial variations. Nichols v. Universal Pictures Corporation (C. C. A.) 45 F.(2d) 119. And piracy may consist in appropriating the action of a play without any of the words is well settled. Frankel v. Irwin et al. (D. C.) 34 F.(2d) 142.

The theme of Miss Wiren’s “allegorical poem” to which she gives the subtitle “The Relation of Heart and Soul” is rather vague, and permits of a wide field of imaginative interpretation. The themes present the dramatic struggle of the “immortal” against the condition of his immortality and the corresponding struggle of the mortal against the conditions of her mortality. This and the love story are ancient themes. And it is unnecessary to cite the many references which substantiate this. Both authors have drawn upon the common domain for certain effects designed to produce impressions of mystery and awe characteristic of the treatment of a subject of this nature.

The complainant has prepared an extensive list of “parallels” from which she arrives at the conclusion that many incidents, scenes, and characters have been adapted from those in “Most.” It is her interpretation and inferences which must be accepted and pieced together to find traces of similarity. After examining Miss Wiren’s “parallels” and analysis, I am impressed with her naive interpretations and she finds in her own “allegorical poem” ideas and suggestions which are perhaps too deeply hidden for the uninitiated to discover. But an allegorical poem often leaves much to the'imagination of the reader. The script of the play produced by her in 1910 is not submitted. Miss Wiren bases her opinion of similarity very largely upon interpretations of “Most” which appeal to her and upon inferences she chooses to draw from the lines; but I think it extremely doubtful if her interpretations would occur to another. While both have a limited common theme of the “other-world” lover, I do not find that the fundamental theme, action, or dialogue of “Death Takes a Holiday” has been taken from “Most.” Aside from ideas and sentiments found in these plays, and many others which have long been common property for authors and playrights to embellish, “Most” and “Death Takes a Holiday” are unlike. A plot or the mere concept of a situation around which to build and develop literary or artistic adornment is not copyrightable. Dymow v. Bolton, supra. Judging from the evidence— the books themselves — I think each is the independent work of the named authoress or author who is entitled to all the benefits which may be derived from their respective achievements.

It follows from what has been said that it appears upon the face of the bill of complaint that it does not set forth facts sufficient to constitute a cause of action. Accordingly, the motion to dismiss the bill of complaint is granted. Decree to be settled on notice.  