De Acosta v. Brown

• Decision Date: 13 December 1944
• Docket Number: No. 82.,82.
• Citation: 146 F.2d 408
• Parties: DE ACOSTA v. BROWN et al.
• Court: U.S. Court of Appeals — Second Circuit

146 F.2d 408 (1944)

DE ACOSTA v. BROWN et al.

No. 82.

Circuit Court of Appeals, Second Circuit.

December 13, 1944.

Milton Diamond, of New York City (Diamond, Rabin & Mackay and Henry Turin, all of New York City, on the brief), for defendant-appellant Brown.

Alfred H. Wasserstrom, of New York City (McCauley & Henry, of New York City, on the brief), for defendant-appellant Hearst Magazines, Inc. Carl J. Austrian, of New York City (Austrian & Lance and E. Robert Marks, all of New York City, on the brief), for plaintiff-appellee.

Before L. HAND, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Plaintiff has recovered a judgment below based on literary property in the "heart interest" which she has added to the life of a historical character with the avowed intent of making a biographical screen play palatable to the movie audiences of America. The historical character is that of Clara Barton, founder of the American Red Cross, who lived a long and very useful life from 1821 to 1912, in which, however, most of her biographers have found no love romance, though a few have hinted somewhat vaguely at the possibility, without personalizing the hero. Plaintiff completed her screen play of the life of Clara Barton, entitled "Angel in Service," on September 1, 1940, and registered it on September 9, 1940, at the offices of the Screen Writers Guild in Hollywood, California, but did not have it copyrighted or published, intending to sell it for production as a motion picture. In this play plaintiff creates a lover of Clara Barton, to whom she gives the name of Tom Maxwell (the surname, as she testified, occurring to her as she used the well advertised coffee of that name); she has Maxwell eventually going to California, where he dies, bequeathing to Clara a legacy in gold dust amounting to $10,000, as shown in a letter full of pathos sent to her by her brother. In addition to this incident plaintiff developed other fictionalized happenings at this same early period of Clara Barton's life, namely, her controversy with the school board in Bordentown, New Jersey, led by the lawyer Elisha Richards, more or less as the "heavy" or villain; her leaving of Bordentown in consequence and her work as a clerk in the Patent Office in Washington, where she was instrumental in ferreting out misconduct and fraud; and her meeting with former pupils, as soldiers, while she was serving as a Civil War nurse. In fact, Clara Barton did teach school at Bordentown and did later work in the Patent Office, where she was instrumental in stamping out fraud; but again the development of the incidents and the creation of specific named persons to participate in them were entirely the plaintiff's work. And while the sources refer to Clara's finding former pupils on Civil War battlefields, yet the nature of the incidents and the pupils involved were quite different in plaintiff's version.

Defendant Beth Brown, a well known and highly prolific writer of feature columns, short stories, novels, and songs, was also interested in the life of Clara Barton for movie purposes; and prior to the time when plaintiff's screen play became available, she, too, had prepared a screen play, which, while it had an added love interest, was significantly different from the characters and story later used by her. Thereafter, however, and by September, 1941, she completed an unpublished book entitled, "Dedicated to Life"; and in the March, 1942, issue of the Cosmopolitan Magazine, defendant Hearst Magazines, Inc., in its department entitled "The Nonfiction Book Digest," published extracts from it, which it termed "high lights from a forthcoming biography," under the title, "War Nurse; The Biography of Clara Barton. By Beth Brown."

In the unpublished book there is reproduced in substantially similar form the romance with Tom Maxwell, even to the point of reproduction of the letter supposed to have come from Clara's brother announcing the death of her lover — so similar in form and wording as to be strong evidence of copying. There is also reproduced the controversy at the Bordentown school, with the same persons in opposition to Clara and the same three identified school children who had been created by the plaintiff. Also is related her work in the Patent Office and her discovery of misconduct there, most significantly involving the clerk with the same unusual name, Eyra Jenks, found in plaintiff's work. Plaintiff testified that she had intended naming this character "Ezra" (as a "strong" New England name she had previously used in a play on New England), but that her typist misread her writing and made it Eyra, and she let it stand as she did not want to go to the expense of a retyping. All in all, some seven persons created by the plaintiff appear in the same characters and the same scenes with unsubstantial variations, except that Arthur Holt has become Arthur Hold, obviously the same pupil in both versions, who appears later as a Civil War soldier in both, though with a slight transposition of incidents.¹

These similarities, which are more extensively set forth and discussed by the district judge in his opinion, Acosta v. Brown, D.C.S.D.N.Y., 50 F.Supp. 615, and his findings of fact, are too pointed to justify any other conclusion than that of copying. Wilkie v. Santly Bros., 2 Cir., 91 F.2d 978, 979, certiorari denied Santly Bros. v. Wilkie, 302 U.S. 735, 58 S.Ct. 120, 82 L.Ed. 568, affirmed 2 Cir., 94 F.2d 1023. In addition, plaintiff proved the possibility of access through one Markey, an agent to whom she submitted her work with an eye to its sale, who thereafter, as the evidence showed, was consulted by defendant Brown as to research details of her work, though she failed to call him as a witness. The fact that the matter involved concerned only a small and an early part of Clara Barton's life and only a portion of defendant Brown's book may affect the amount of recovery, but does not prevent liability. The same observation may be made as to defendant Hearst, who reprinted only a small portion of the book, but did cover the Tom Maxwell incident quite thoroughly, including the pathetic death announcement from her brother. Particularly in view of the importance of the love interest to the movie trade, this copying cannot be considered insignificant within the meaning of cases such as Mathews Conveyer Co. v. Palmer-Bee Co., 6 Cir., 135 F.2d 73, 84, 85. See Chicago Record-Herald Co. v. Tribune Ass'n, 7 Cir., 275 F. 797, 799; Callaghan v. Myers, 128 U. S. 617, 666, 9 S.Ct. 177, 32 L.Ed. 547. The finding of plagiarism against both defendants must therefore stand.

Defendants contend, however, that this material deals with the life of a public character and is therefore itself public; but clearly the use of plaintiff's material here goes beyond such permitted use of historical matter. It seems quite clear that original treatment of the life of a historic character, like such treatment of any material even in the public domain, is entitled to protection against appropriation by others. Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 81 F.2d 49, 53, 54, certiorari denied Metro-Goldwyn Pictures Corp. v. Sheldon, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392; Stodart v. Mutual Film Corp., D.C.S.D.N.Y., 249 F. 507, 509, 510, affirmed 2 Cir., 249 F. 513; Stevenson v. Fox, D.C.S.D.N.Y., 226 F. 990; Banks v. McDivitt, C.C.S.D.N.Y., Fed.Cas.No. 961, Shipman, J.; Folsom v. Marsh, C.C.Mass., Fed.Cas.No. 4,901, Story, J. Defendants assert that there can be no literary property merely in proper names, and thus seek to discount the striking similarity here even to the misspelling of the name "Ezra." There is, of course, no arbitrary rule to such effect; use of a well known proper name may obviously signify little under many circumstances; in others, as here, it may assist to a conclusive demonstration of copying otherwise indicated. Stephens v. Howells Sales Co., D.C.S.D.N.Y., 16 F.2d 805, 806.

The injunction, therefore, and the judgment for an accounting of profits against both defendants² and for damages against defendant Brown are clearly correct. There remains, therefore, only the question of damages against Hearst, in view of the court's finding that its copying was "innocent." In Barry v. Hughes, 2 Cir., 103 F.2d 427, certiorari denied 308 U.S. 604, 60 S.Ct. 141, 84 L.Ed. 505, in dealing with a copyrighted play, this court expressed a caveat on this issue, saying, "Laying aside a possible action for unjust enrichment, or for an injunction after discovery, we should hesitate a long while before holding that the use of material, apparently in the public demesne, subjected the user to damages, unless something put him actually on notice." But the court made it clear that it was leaving the point "for decision when it arises."

So far as copyrighted material is concerned, the authorities are too conclusive to allow of doubt. Indeed, the inference from the copyright law itself would seem to be most direct; for, while it makes significant distinctions in certain instances based on innocent or willful infringement, as the case may be, it does not do so in the general provision for award of profits and actual damages, or those statutory sums allowable in the court's discretion in lieu of actual damages. 17 U.S.C.A. § 25 (b); cf. ibid. §§ 20, 28.³ Hence we have the classic statement of Brandeis, J., in Buck v. Jewell-La Salle Realty Co., 283 U. S. 191, 198, 51 S.Ct. 410, 411, 75 L.Ed. 971, 76 A.L.R. 1266, "Intention to infringe is not essential under the Act," and the important decision in Douglas v. Cunningham, 294 U.S. 207, 55 S.Ct. 365, 79 L.Ed. 862, holding erroneous the action of the Circuit Court of Appeals, 1 Cir., 72 F.2d 536, 539, in cutting the allowance by the District Court of the statutory maximum of $5,000 to the minimum of $250 because of the innocence of the defendant newspaper publisher and its employee. See also L. A. Westermann Co. v. Dispatch...