Dellar v. Samuel Goldwyn, Inc., 278.
| Decision Date | 12 June 1939 |
| Docket Number | No. 278.,278. |
| Citation | 104 F.2d 661 |
| Parties | DELLAR et al. v. SAMUEL GOLDWYN, Inc., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Julius Applebaum, of New York City, for appellants.
Dwight, Harris, Koegel & Caskey, all of New York City (Richard E. Dwight, John Fletcher Caskey, and John D. Leggett, Jr., all of New York City, of counsel), for appellees Samuel Goldwyn and Samuel Goldwyn, Inc.
Before L. HAND, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.
This appeal comes up upon a motion to dismiss a bill of complaint upon two causes of suit; one, based upon the infringement by a moving picture of the plaintiffs' literary property in one version of a play; the other, upon infringement of their copyright in another version: the bill fused both causes into one unseparated narrative. The defendants answered, and the plaintiffs filed interrogatories, one of which demanded the production of a "scenario or synopsis" of the infringing film. After some delay the defendants filed a kind of scenario, known as "a cutting continuity"; and then in their turn demanded a bill of particulars, setting out in what regards the plaintiffs alleged that the film infringed. The plaintiffs filed such a bill, using the "cutting continuity" as a basis. The defendants then moved to dismiss the bill, inviting the judge to compare the "continuity" with the plaintiffs' copyrighted and uncopyrighted versions of their play. This he did, and concluded that there was no infringement, even though the defendants had actually taken from the play all those matters in which the film resembled it. The defendants protest against this practice, both because the judge never saw the film itself, and because there was no proof that the "continuity" correctly represented it.
The procedure adopted was not permissible. When the defendants produced and filed their "continuity", the plaintiffs were not bound to accept it as correct, even if it could be deemed a part of the answers. They had no means of knowing whether it was or not, and have never conceded that it was, and they have been deprived of their day in court on a vital issue. Nor can their use of the "continuity" in preparing their bill of particulars be taken as an acceptance of its correctness; they had nothing to rely upon but what the defendants gave them. They were to be understood as saying no more than that, if the film was as the "continuity" represented it, they relied upon the particulars set forth in the bill. At some stage in the proceedings they were entitled to try out the issue whether it did faithfully represent the film. For this reason the decree must be reversed.
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