
    CURWOOD v. AFFILIATED DISTRIBUTORS, Inc., et al.
    (District Court, S. D. New York.
    August 29, 1922.)
    1, Copyrights <3=55 — 'Copyrighted novel not infrinqeij by motion picture film.
    A copyright covering a novel held not infringed by a motion picture film, though, the scene of each was the Canadian Northwest, and each related in part to somewhat similar incidents taking place in a “Chinese don,” the Chinese proprietor of which had conceived a passion for a white girl and was killed by the hero.
    2. Copyrights <S=55 — Mo plagiarism, though book suggested feature of film, whore samo impressions not created and same emotions excitad in the same sequence.
    Though book suggested one feature of a moving picture scenario, there was no plagiarism, where such material alterations were made that the same impressions would- not be created and the same emotions excited in the same sequence and order by a dramatic presentation of such feature.
    In Equity. Suit by James Oliver Curwood against the Affiliated Distributors, Inc., and others.
    Injunction against alleged infringement of copyright denied.
    See, also (D. C.) 283 Fed. 219, and International Film Service Co. v. Affiliated Distributors (D. C.) 283 Fed. 229.
    Nathan Burkan, of New York City, for plaintiff.
    Thomas & Friedman, of New York City, for defendants Warner.
    Neuman & Newgass, of New York City (Frederick F. Neuman, of New York City, of counsel), for Affiliated Distributors, Inc., and other defendants.
   KNOX, District Judge.

Upon the submission of the proofs in this litigation, it appeared to me that its outstanding feature was that defendants were making an improper use of plaintiff’s name in the exploitation of the motion picture film entitled “I Am the Law.” In this behalf, I expressed my views in an opinion filed herein upon or about July 22. At that time I reserved for further consideration the question of damages sought by plaintiff from defendants, together with the allegation that the aforesaid picture infringes upon his copyright of the novel known as “The River’s End.”

In the period that has since elapsed I have had an opportunity to examine the voluminous exhibits introduced upon the trial, and will now proceed to pass upon the alleged infringement. The attack in this regard is principally directed at a certain scene of the picture which depicts the imprisonment of the story’s heroine in, and her rescue from, a certain “Chinese den” located at a mythical outlying set- , tlement somewhere in the Hudson Bay country of Canada. Inasmuch as the points of alleged similarity between the picture and certain portions of plaintiff’s book are emphasized, it is, perhaps, better that I quote from the scenario upon which the picture is based. I do so:

“Stretching between ‘The Law’ and ‘The Lawless’ in the Hudson Bay-country is a vast, frozen desert of white, known as ‘Hell’s Highway,’ where men fight for their rights, where women’s cheeks have forgotten how to blush, and where only the ‘strong’ survive. At one end of this highway was the town of Paradise, the farthest outpost of law and respectability, and the headquarters of the Boyal Northwest Mounted Police. At the other end was ‘The Front Door to Hell,’ the most-notorious saloon and dance hall in the whole accursed country, * * * the haven of refuge for the lawless, the one spot where the scum and spawn of depraved civilization was welcome, and the last resort of ‘sin-driven’ women to barter their souls for the bounty of human beasts.'
“The owner and keeper of ‘The Front Door to Hell’ was a cruel and crafty Chinaman, named Hop Ling, -who owned the habitués of his den of iniquity body and soul, and who recognized no law but his own — a suave and oily individual, who dealt in every form of vice under the sun, and who represented a deadly menace -to those unfortunate enough to fall into his clutches. Yet, with all his evil qualities, Hop Ling looked with contempt upon the ‘scarlet women’ who worked for him, * * * repulsed their efforts to win his attention, calling them in irony, ‘white men’s playthings.’
“Then * * ~ Eleen Le Parge, a beautiful little French Canadian schoolteacher, fell into the clutches of Hop Ling. * * * When the wily celestial saw that she was a virgin, he * * * fell in love with her, and warned his hirelings to keep their hands off her, * * * < because he intended to make her his queen. * * * Hop Ling showered the frightened Eleen with * * * attentions, giving her the best of everything, and offering to make her his wife and queen, to share his enormous fortune in a fairy palace in far-off celestial China, where he would take her after marriage. * * The horrified Eleen repulsed Hop Ling, * * * and declared she would rather die than be anything to such a yellow devil. This drove the oriental to a fury, and he gave Eleen one hour in which to make up her mind whether she wished to become his wife or his toy, to he thrown to his hirelings when he had grown tired of her. When Eleen told him that the law would punish him if he attempted such a fiendish plan, Hop Ling laughed at her, and declared that there was no law but his in that country. When he left her, Eleen sank to her knees, and prayed to God to deliver her from the clutches of the ‘Yellow Devil.’
“Seemingly as if God had heard her prayer, a dog team and sled came out of the Arctic night and stopped outside ‘The Front Door to Hell.’ A figure muffled in furs entered the saloon and strode up to the bar. It was Sergt. Bob Fitzgerald of the Boyal Mounted, on the trail of Eleen Le Parge. It was the coming of ‘The Law.’ Sergeant Bob sought out Hop Ling, and, looking him squarely in the eyes, demanded the whereabouts of Eleen. The Chinaman never batted an eyelash, and professed surprise at the other’s demand, declaring the girl was not on his premises, and, if the other doubted it, he could look for himself. Bob was almost convinced that he was telling the truth, * * * when he chanced to look in the direction of one of the ‘scarlet women.’ It was this woman * * * who gave him the tip to search the upper gallery. :S * * Bob dashed up the stairs, and, opening one of the doors, found Eleen on her knees in prayer. * * * Explaining he was of the Royal Mounted, and would save her, * * * he helped her into her wraps and together they left the room.
“Hop Ling, fearful of losing the prize * * * and in a panic, issued orders to his hirelings, and himself took up a position on the stairway to defy the law. When he saw Sergeant Bob approaching with the girl, he raised the pistol he carried, but Bob was quicker on the trigger, and with a cry of mingled horror and amazement Hop Ling groped the air and plunged backward down the stairs.
“With his arm * * * about Eleen, and his service pistol in his other hand, Bob assisted her down the stairs and over the body of Hop Ling, where he faced the panicky hirelings, told them the law had come, * * * and would remain. Then Bob took * * * the girl out of the saloon and, placing her in his sled, drove off into the night.”

Now, in “The River’s End” the Chinaman’s name was Shan Tung, who possessed a marvelous ability to remember faces, and had been classified by McDowell, local commandant of the Royal Mounted as follows:

“Either an exiled prime minister of China or the devil in a yellow skin. Correct age unknown, and past history a mystery. Dropped into Prince Albert * * * wearing diamonds and patent leather shoes. A stranger then and a stranger now. Proprietor and owner of the Shan Tung Café. Educated, soft-spoken, womanish, but the one man on earth I’d hate to be in a dark room with, knives drawn. I use him, mistrust him, watch him, and would fear him under certain conditions. As far as we can discover he is harmless and law-abiding. But such a ferret must surely have played his game somewhere, at some time.”

The law, as represented by the police, accepted him as “a wierd and wonderful mechanism * * * possessed of an unholy power.” The quarters behind his café were a mystery; they could be entered from the café and also a little stairway at the rear.

One of the female characters in “The River’s End” is Miriam Kirk-stone, whose father, Judge Kirkstone, had been murdered by his son Peter, but suspicion for the crime rested upon John Keith, the hero of the story. Shan Tung knew the actual facts, and through a chain of circumstances, unnecessary to relate, held Peter prisoner in the rooms above the café. Shan Tung was in love with Miriam, who, also knowing the murderer of her father, wished to protect her brother. As a condition of permitting her to do this, Shan Tung was demanding that Miriam marry him. She received his calls at her home, and she, in turn, and acting under a moral compulsion, and to aid her brother, visited the quarters above the café. Upon the happening of certain events she had finally consented to wed the Chinaman. From such fate she was saved by John Keith, who, masquerading as a deceased Royal Mounted officer, named Conniston, killed Shan Tung. At this point it may be mentioned that Miriam Kirkstone is not the heroine of “The River’s End.” While an important character, her chief function, from a literary standpoint, is to provide a collateral line of interest, to give occasion for the ultimate disposal of Shan Tung, and to furnish the solution of the mystery of her father’s murder.

Under the plot of the novel, Keith, representing himself to be Con-niston, is known by Shan Tung for whom he is. The Chinaman, by the use of this knowledge, planned to utilize Keith’s aid in bringing about his marriage to Miriam. In pursuit of such purpose he invited Keith to visit him in the mysterious rooms over the café. A part of the text is:

“He came to Shan Tung’s. Beyond the softly curtained windows it was a yellow glare of light. He entered and met the flow of life, the murmur of voices and laughter, the tinkle of glasses, the scent of cigarette smoke, and the fainter perfume of incense. And where he had seen him last, as though he had not moved since that hour nine days ago, still with his cigarette, still sphinx-like, narrow-eyed, watchful, stood Li King” (the guardian.of the inner portal).

Then follows a description of the entry to Shan Tung’s quarters. It is replete with baffling Chinese screens, secret door latches, etc., and finally Keith stands in a door opening into a room 50 by 30 feet in size, and most luxuriously furnished. At a dais at one end was an altar before which Shan Tung knelt, dressed in an elaborate Chinese gown. At Keith’s entrance Shan arose, addressed him, and ordered a luncheon. • The visitor is told that he is John Keith, and there is then disclosed what the Chinaman had in mind. In the course of the interview, it develops that Shan Tung is “Prince Kao,” a deposed minor potentate of China, and a graduate of Yale. His plan contemplated that, with Keith’s assistance, Miriam should upon that night come to the apartment, give Shan her body and soul, live with him there until he was ready to return to China, where he would make her his princess. Shan acquaints Keith with the fact that he holds Peter Kirkstone prisoner, and then continues his argument to enlist Keith’s aid.

Finally, Keith’s indignation asserts itself in words, and as it does so Shan realizes that his hopes are about to be frustrated. He throws back his silken gown, jerks a derringer from his belt, and issues a call to his men. They sprang forth and were at Keith “like a pack of dogs.” He had no time to judge their number, for his brain was centered in the race with Kao’s derringer. He—

“saw its spurt of smoke and fire. But its report was drowned in the roar of his automatic. * * * He saw the derringer fall and Kao crumple up like a jackknife. His brain turned red as he swung his weapon on the others, and as he fired he backed toward the door. Then something caught him from behind, twisting his head almost from his shoulders, and he went down.”

I shall not quote the details of the fight that ensued. It is sufficient to say that it was an extremely strenuous engagement; but, as in all such cases, the hero is victorious and makes his way to the steps in the rear. Reaching them:

“He paused long enough to convince himself that his enemies were making no effort to follow him, and as he went down the steps he caught himself grimly chuckling. He had given them enough.”

From this point on the story posts hastily to a conclusion; mysteries are solved and all is well.

A perusal of the foregoing reveals certain points of similarity between the Chinese resorts described, and the men who own and operate them, but on the whole I incline to the belief that they are essentially different. In resolving this question, which is of interest, not only by reason of its importance to the parties in suit, but because it recalls a certain class of literature with which, in a bygone day, I was upon somewhat intimate acquaintance, one must remember that Chinese dens are more or less indigenous to stories of the Western and Northern frontier, and that between most of them there must necessarily be points of similarity. To establish this similarity one is not required to go outside this record.

For instance, in Charles E. Blaney’s “King of the Opium Ring,” and founded upon the melodrama of that name, it appears that the den there was an apartment—

“luxuriously furnished in the Oriental fashion and was lighted by colored lanterns. Two windows, hung with curtains, opened on the balcony outside. Georgette [the heroine] was upon her knees at one of them, peering eagerly out, and behind her stood Wah Sing.”

Taking liberties with the text, it relates how Macey burst into the room and Wah Sing gave way to a volley of oaths. The former cries out, “Give me the girl or I will kill you.” This is followed by a “terrific” struggle and “for a time it was a question as to which one of them would come out the victor, but the superior strength of the white man at last prevailed.” Seizing Wah Sing by the throat, “Macey” choked him into unconsciousness; then, snatching Georgette in his arms, he ran out with her on the balcony.

Without undertaking an analysis of “Across the Pacific,” “Chinatown Charlie,” and other “thrillers,” the foregoing adequately shows that there can be no finding that the writer of the scenario complained of infringed upon Curwood when he had his hero ascend a flight o'f steps and enter the luxuriantly furnished living room of the Chinaman, and that on making his entrance the hero noticed a kneeling figure. The den in “The River’s End” and that in “I Am the Law” are not of the same type. The latter is a dive of the worst imaginable character; the former is “high-toned.”

In “I am the Law” the heroine is actually imprisoned and within the physical power of Hop Ling, while in the Curwood novel the subjection of Miriam Kirkstone was to be accomplished through her willingness to sacrifice herself to save her brother, a murderer. Eleen, prior to the coming of Fitzgerald, had no tangible hope of escape; while Miriam had already pinned some faith upon the ability of John Keith, as Shan said, speaking to Keith:

“And then you came. * * From that moment she saw you in McDowell’s office there was a sudden ehange. w * I knew that in a few days all that hope would be centered in you, that it would live and die in you, that in the end it would be your word that would bring her to me. * * * You must tell her that no power on earth can save her, and that Kao waits to make her a princess, ° * that to-night the bargain must be closed.”

In other words, the hero of the tale, if he were to follow the solicitation of the Chinaman, would aid in an unthinkable situation. Manifestly he could not accede to the demand made upon him. This is the crux of the incident. This is what arouses the emotions of the readers, and puts them upon edge to learn how Keith will extricate himself from the dilemma in which his representations as to his identity have placed him. The relationship which Hop King and Shan Tung sustained to the officers of law and order in their respective communities differed. One “recognized no law but his own” and was a “white slaver,” while the other, apparently “harmless and law-abiding,” was in a relatively.safe position to give rein to his passion for Miriam Kirkstone.

Plaintiff attaches much importance to the manner in which the heroines came within the power of the respective Chinese. As to this, it may be said that the picture “I Am the Paw” does not follow the scenario as originally written. In the picture Eleen takes refuge from the storm, and as a practical matter that need only be considered. There is no likeness in this to the way in which the relationship between Miriam and Shan Tung came into existence. It is said, -too, that each Chinaman offered the girl of the respective stories honorable marriage, and that the plot is not as if he had decided to gain possession of the girl. I think there was no element of honorable marriage in either case. In both instances the girl was first to become a mistress to the Chinaman. Here, then, is close similarity; but the event described, finder circumstances differing as widely as those here present, cannot be the exclusive property of a particular writer. Nor do I attach much significance to the detail that the girl in each story was to be made a queen or a princess. Such promises have been the stock in trade of passion since time began.

True, the critical situation is evolved in one tale by a Royal Mounted officer, and in the other by a man representing himself to be such; and in view of my findings in the companion suit to this, viz. International Film Service Co., Inc., et al. v. Affiliated Distributers, Inc., et al. (D. C.) 283 Fed. 229, it would not be difficult to say that the incidents being discussed were taken from “The River’s End.” My opinion is, however, that, even assuming the book to have suggested the Chinese den feature to the writer of the scenario, he has brought about such a material alteration in the constituent parts of the series of events, and in the sequence of the events in the series, as to escape the charge of plagiarism with respect thereto. See Daly v. Palmer, 6 Fed. Cas. 1138, No. 3,552. To apply the reasoning of that case to the one at bar, I fail to find that the same impressions will be created, and the same emotions excited, in the same sequence and order, by a dramatic presentation of the Chinese “den” scenes of the two stories in litigation.

It follows that upon this branch of the case I can afford plaintiff no relief. As to the alleged invasion by defendants upon the copyright of the novel “The Valley of Silent Men,” it may be remarked that such situation hás been disposed of in the suit of International, etc., v. Affiliated, etc., supra, opinion on which is filed simultaneously with this.

The question of damages as to the improper use of plaintiff’s name will probably require the taking of further testimony either before the court or a master. It will therefore await a conference between the court and counsel for the parties. 
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