
    SOLOMON v. R.K.O. RADIO PICTURES, Inc., et al.
    District Court, S. D. New York.
    May 29, 1941.
    Gustave B. Garfield, of New York City, for complainant.
    Gordon E. Youngman, of New York City (Albert R. Connelly, of New York City, of counsel), for respondent R. K. O. Radio Pictures, Inc.
   MANDELBAUM, District Judge.

The defendants, R. K. O. Radio Pictures, Inc. and Eddie Davis, move for summary judgment.

The suit is one for infringment by defendants of plaintiff’s play, “It Goes Through Here”, by its motion picture film, “Radio City Revels”.

The court has before it both the play and the “cutting continuity” of the motion picture. The defendants have suggested that the court view the film after reading the plaintiff’s play, but I find this is unnecessary since no claim is made by the plaintiff that the “cutting continuity” does not correctly represent the motion picture film. Dellar v. Samuel Goldwyn, Inc., 2 Cir., 104 F.2d 661. For the purposes of this motion, the court will deem the “cutting continuity” to correctly represent the film.

On a motion such as this, access to and use of the work claimed to be plagiarized is admitted. Shipman v. R. K. O., 2 Cir., 100 F.2d 533. The issue therefore is whether a comparison of the two works in issue establishes as a matter of law that the defendants have not made unfair use of a sufficient amount of plaintiff’s copyrightable matter to justify a holding of infringement.

From my study of all the material at hand, I feel obliged to deny the defendants’ motion. I find enough similarity between both works in theme, characters, locale and incidents to preclude me from holding that there is no infringement as a matter of law. Let this disposition be no indication of how the court feels with respect to the ultimate outcome of this suit. I am presently only concerned with whether a triable issue has been presented. I so find and must accordingly deny defendants’ motion for summary judgment.  