
    BOBBS-MERRILL CO. v. EQUITABLE MOTION PICTURES CORP. et al.
    (District Court, S. D. New York.
    May 17, 1916.)
    GopyRIghts <&wkey;85 — Infringement—Preliminary Injunction.
    ■Where neither complainants’ novel nor defendant’s photo play was strikingly original, and, although they each dealt with circus life, the themes were differently treated, and there was sufficient (inference between defendant’s photo play and complainant’s novel to make it doubtful whether there had been a piracy, a preliminary injunction restraining a production of the photo play will not bo granted; a dramatization of the novel not being produced.
    [Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 78; Dec. Dig. <&wkey;>85.]
    In Equity. Suit by the Bobbs-Merrill Company against the Equitable Motion Pictures Corporation and another. On motion for preliminary injunction to restrain defendants from producing a motion picture photo-play.
    Motion denied.
    John E. Lockwood, of New York City, for the motion.
    Nathan Vidaver, of New York City, opposed.
   MAYER, District Judge.

Plaintiff has the exclusive publication and dramatic rights of a novel called “Eran.” The novel and the dramatization, for the purposes of this discussion, are practically the same. The plot of the novel is banal, as is that of the photo-play, and both can be recommended as soporifics.

Fran, a whimsical, shrewd girl, suddenly appears at Littleburg and insists that Hamilton Gregory, church leader and philanthropist, shall take her in his home. , She' frightens Gregory into believing that she knows the hidden tale of his past life. That tale is the usual secret marriage of a millionaire’s son, the desertion of the young wife, and the ignorance of the birth'of a child.

Fran, of course, is Gregory’s daughter; but this fact is not known until later on. With an ease customary in novels, Gregory represents Fran as the’daughter of a friend of his youth, and unwillingly takes her into his household, now adorned by Mrs. Gregory No. 2, a sweet, patient woman, her mother, an invalid wheeled about in a chair, and Grace Noir, a designing secretary, with whom Gregory is in love, to add to his troubles.

Ashton, the young, colorless school superintendent, and Fran fall in love with each other in a perfectly routine way; it being necessary, for fiction purposes, that Fran fall in love with somebody.

Fran becomes devoted to Mrs. Gregory No. 2 and determines to drive Grace Noir out of. the household. A stupid person named Clinton is in love with Grace, and when she thinks she is losing Gregory she dispatches Clinton off to look up Gregory’s history, as the result of suspicions to which her keen and calculating mind has been directed.

Clinton returns with the secret, and it is so maneuvered, with the aid of Ashton, who is trying to save the situation from scandal, that Gregory, for fear of exposure, promises to dismiss and does dismiss Grace, so that Clinton can marry her."

Now, Fran was a circus girl, having been thus, brought up because her deserted and now deceased mother was compelled to resort to the circus for her livelihood as a lion tamer, and Fran, in due course, became known as Fran Nonpareil, the famous child animal tamer. Therefore the circus opportunely arrives in Littleburg for purposes of the plot infra. ■

Just about this time Gregory finds that life without Grace Noir would be a wretched blank, wherefore they conclude to elope. This man of large affairs, with the best standing in town as a highly respected religious citizen, concludes to give up everything which, men hold dear, to run away with his former secretary, being argued into that conclusion by Grace, who points out to him, inter alia, that because he married Mrs. Gregory No. 2 when Mrs. Gregory (of the circus) No. 1 was alive, therefore he really is not married to Mrs. Gregory No. 2 and is free to depart.

Having made this decision, they find that the train will not go for an hour, and therefore, in order thoroughly to conceal themselves, proceed to the circus, where the whole town is gathered.

Fran has -been to see her old friends at the circus, and, finding that one of them has been injured, determines to fill her old role in the lions’ cage and do a little lion taming. The lions, however, are very much annoyed, due probably to the fact that Fran wears a mask in order to keep her identity from the populace of IJttleburg. The lions behave so badly that they are disposed to eat up Fran; but, throwing off her mask, she, by her skill and will power, forces the lions into submission, much to the gratification of Littleburg, including father and Ashton.

While Fran was in her greatest danger, Grace Noir expresses her satisfaction to Gregory at Fran’s impending destruction (for Fran had always .been her bóte noir), and thus Gregory sees Grace in her true light, declines to dope any further, has done with her, and is quite overjoyed that his daughter is alive and well.

Gregory presumably thereafter becomes a model husband, Grace and Clinton leave Eittleburg to be married and live in Chicago, and Fran, of course, marries Ashton, remarking, with striking originality, after looking at the moon, at page 380, “The world is good enough for me.” Finis.

There are, of course, some minor characters and numerous dialogues, which neither add to nor detract from this absorbing story.

In the photo play, Babette is the circus girl. She loves Pete, the acrobat, who dreams of the day when he will marry Babette and have a farm with chickens. She also had a deserted mother, a fortune teller in the- circus, who had been secretly married, and, like Fran’s mother, driven from home. The next stop of the circus is to be Mid-dleboro, where Ezra Butterworth, president of the bank, is a pillar of the church, a leading citizen, and wears very good clothes. His wife is also a sweet, patient woman, as was .Gregory’s; but she, and not the mother-in-law, as in “Fran,” is the invalid in the wheeled chair, for Butterworth has no visible mother-in-law.

The religious people of the town are opposed to the circus, but the mayor stands his ground and determines to let the circus go on.

Babette and her fortune-telling mother have an affectionate scene in the fortune teller’s tent, wherein the mother makes the extraordinary observation, “This is the key to the box bidden in my trunk.” Then, after Babette goes out, mother dreams the scenes of her past, thus giving opportunity for what I am told is called in the language of the photo-play a “throw back.”

Mother now dies, Pete sees her marriage certificate, and so, of course, does Babette, and thereon it appears that Butterworth is the other contracting party. The circus reaches Middleboro. Babette reads Butterworth’s name in a newspaper as the donor of $5,000 for the home for widows.and orphans.

In due course Babette introduces herself to Butterworth as his daughter. Butterworth is a person good to his wife and not possessed of a female secretary. His main concern is not to' shock his wife. Fie is kind to his daughter and installs her in his home. Babette is not popular with some of the church attendants, when it is discovered that she is a circus girl. Butterworth, toward the end of the fourth reel, tells his wife about his early marriage, and she, being a most agreeable person, immediately forgives him. Babette, however, yearns for the circus and Pete, and, leaving an affectionate note for Mrs. Butterworth, Arab-like silently steals away and returns to the circus.

As Babette, however, was not a lion tamer, she does not have Fran's exciting experience. Of course, father hunts her up, gives his approval to her marriage with Pete, and, taking out his check book, remarks “I’ll give you the farm for a wedding present,” thus enabling Pete to realize his dream. Then, as is customary with bank presidents, Butterworth permits and, participates in a public wedding ceremony in the circus tent of Pete and his daughter.

The final scene is the chicken farm, with the new-born baby surrounded by Pete, Babette, and father, and inviting their affectionate and admiring observation. Thereupon the spectator looks at his watch and finds that he has spent about 1% hours viewing this stirring picture drama. As is usual in so-called feature films, there are adjunctive characters, such as a very manly young preacher and the well-worn hypocritical stage deacon.

It will be noted that the novel and the photo-play are similar in the deserted wife theme and the circus girl as the daughter of the marriage. They are dissimilar in the portrayal of the characters of Gregory and Butterworth, although these two worthies are of the same kind, so far as concerns their past history and present standing in the same kind of a community. Further, the secretary love affair is absent in the photo-play. If there is any originality in Fran, it is in using a circus girl as the heroine and in the lion-taming incident.

If “Fran” was copied or pirated, the elimination of the Grace Noir theme would be unimportant; for it would then be evident that the valuable creation availed of by the moving picture was the circus idea. That idea would give defendants an opportunity to show circus scenes, as they did, and to use the story as the vehicle on which to carry the kind of pictorial representation which always amuses the young and has not failed to afford enjoyment to many older folks, who recall with pleasure the reminiscences of 'youthful days at the circus or the street fair.

But defendants vigorously insist that there is not originality in the novel, that the scenario and,the final presentation of the picture were independent creations, and that the lion-taming scene is based upon a previous play.

The various persons having to do with the development and production of the picture have, by affidavit, denied copying or pirating. The details of these denials need not here be set forth, beyond what is related by Bettie T. Fitzgerald of Gadsden, Etowah county, Ala. Miss Fitzgerald confesses that she is the author of the scenario of the picture, and her affidavit is by far1 the most refreshing document in this controversy. t, .

It seems that the play was originally called “Eunette of the Carnival,” then “Babette of the Balley-hoo,” and finally “A Circus Romance.” Nearly all the characters were found in and the ideas based on life in Gadsden.

“Lunette,” says Miss Fitzgerald, “was taken from a street fair which showed in this town. Lunette was a dancer — a butterfly dancer. The girl wore a full skirt with sticks in each side, and with these held out she simulated the motion of a butterfly. That is where X got the name Lunette and the heroine. Petey was the famous high diver traveling with the same street fair. Aiinee (as I wrote it) was the flying girl — who flew with wires in the upper part of the tent. Zaid.ee was the fortune teller, who told my fortune with cards in a tent at a small table. Ezra Butterworth — the name Ezra was used by chance; Butterfield was tile first name used, but knowing some people by that name, and having heard of a Butterworth who writes poetry, I changed it to Butterworth instead. Naturally his wife would be Mrs. But-terworth. Ezra Butterworth I made senior warden in Christ Church, Episcopal. I am afraid we have him, here — not by that name — however a banker. I was afraid, if the picture was produced in Gadsden, others would recognize him. The name Amos Grimes was given at the studio. I only called him the junior warden and a hypocrite. He is not a rare specimen, I now have two in mind — if people can be believed. Rev. Albert Martin, a name given at the studio — he was rector of Christ Church, unmarried; hence the ‘sought for’ by all women of marriageable age and some past. We had an unmarried rector recently. I knew how he was sought, and how many became ardent church workers. * * * The name Middleboro to me represented a small town— this was a small town story. In Alabama we have a number of small towns ending in ‘boro,’ such as Greensboro, Scottsboro, Hurtsboro, etc. The opposition to street fairs is constantly shown in this town. The mayor does not object, and the church people and merchants always enter a protest by petition or otherwise; however, the show exhibits. Secret marriages are constantly occurring here and in neighboring towns. One occurred here last fall between well-connected families under similar circumstances as this in Lunette of the Carnival. The reception of the little dancer in the small town was taken from the real instance of a little vaudeville dancer who married and came here to live. She had been hounded unmercifully by the church people of this town until her life has been torment. I knew how she was treated and felt for her. She has wanted to go back, and has at last left the town. Gypsy caravans are very common in this part of the country. Telling fortune by cards is the trade of the women folks. Town peqple flock to the tents to have their fortune told in cards. I myself know each card, and its meaning. * * * I used Petey’s dream of a chicken farm, because every boy or man I know of here dreams of quitting his business and going to farm or raising chickens. Mrs. Butterworth was made an invalid to appeal to the better side of her husband, and to show that he was not all bad, and also that she might exert an influence over Lunette, who was so rebellious at Ms denial. * * * The incident of the girl finding her father I did get from a newspaper — some child in Pennsylvania had lost her mother, tho father having deserted mother and baby. Another woman, at the mother’s death, adopted the child, moved to Kansas. The child grew up, known by her foster parent’s name. On her deathbed the foster parent told the girl her real name. A few months later she saw in a paper the name of her father in some town in Illinois. She wrote to him, and they were united. lie had repented and tried to find her, but had, failed. Instances like that in tho South have been frequent, due to the failure of the men in the war being unable to find their families when released. Zaidee misunderstood, keeping silent and driven from home — nothing now in that. Nothing new in church workers trying to drive dancers (especially girls) from her home town. One man here defended the dancer. A minister in one of the churches befriended the unfortunate girl in town, tried to hold her up, and the whole town turned against them. I was asked to write something for Muriel Ostriche. I knew her capabilities, and knew that she was bright and could dance.”

Miss Fitzgerald then points out that this is not the first time that her plot and that of somebody else coincided, and observes that, if “Lu-nette” is similar to any other book or play, it is a “happen so.” She gives further instances from real life and concludes:

“As I view it, there is nothing new in the Circus Romance except' the street fair atmosphere — everything is old stuff:, done over in various forms dozen of times. I have for four years read in the moving picture world the synopsis of all the motion picture plays released by the different companies, and I am constantly seeing the old stuff that is in the Circus Romance. I hav* many synopses, having sold New York Motion Picture Corporation, Majestic, Thanhouser, Famous Players, American, and others. This is the first time that it has ever been hinted to me that I had used another’s materials, books, or plays in the construction of my work. The Dramatic Mirror critic, January 29, 1916, accuses me of stealing from ‘Polly of the Circus’ and notes the great similarity in ‘A Romance of the Circus’ and ‘Polly of the Circus.’ Mr. Herbert S. Baker in his affidavit accuses me of stealing from ‘Fran.’ I could not take from ‘Polly of the Circus’ and the book or play ‘Fran,’ as described by Herbert S. Baker in his affidavit, and have ‘A Circus Romance’ similar to ‘Polly of the Circus’ and the book or play ‘Fran,’ without accusing the author of the one with having stolen from the other, and this I would not do. If there be any similarity in ‘A Circus Romance’ and the book or play called ‘Fran,’ it is only due to the fact that two minds far removed from, each other, and vñthout any lemd of communication, thought as one.”

“Polly of the Circus,” copyrighted in Í906, referred to in Miss Fitzgerald’s affidavit, contains (according to the affidavit of Sylvia Tabénhaus) a scene much in principle like Fran’s return to the circus, except that Polly is a bareback rider.

There may be several questions in the case, but at the threshold is the issue of originality. London v. Biograph Co., 231 Fed. 696, - C. C. A.-(decided by the Circuit Court of Appeals for the Second Circuit, February 15, 1916). Bachman v. Belasco (D. C.) 224 Fed. 815, affirmed 224 Fed. 817, 140 C. C. A. 159. In Dam v. Kirk La Shelle Co., 175 Fed. 902, 907, 99 C. C. A. 392, 397 (20 Ann. Cas. 1173, 41 L. R. A. [N. S.] 1002) the court was satisfied, on the evidence, that the “playwright deliberately appropriated the story and dramatized it”; but Judge Noyes said:

“It is undoubtedly true, as claimed by the defendant, that an author cannot by a suggestion obtain exclusive control of a field of thought upon a particular subject. If the playwright in this case, without the use of the story and working independently, had constructed a play embracing its central idea, it may well be that he would not have infringed the copyright of the story.”

While, in the case at bar, there are some marked similarities, the question of infringement is by no means clear, in view of the common sources; i. e., the theme of the deserted wife, etc., “Polly of the Circus,” and the incidents at Gadsden (typical of a small town), in respect of which there is no reason to doubt^the truth of Miss Fitzgerald’s statements. In other words, whatever may be the ultimate result, the case is not one justifying a preliminary injunction. Especially is this view confirmed when there is nothing to show irreparable injury, pendente lite. Plaintiff’s play is not being produced, and the picture surely will not hurt the sale of the novel for the present.

Motion denied.  