240 F.Supp. 612 (S.D.N.Y. 1965), Davis v. E. I. DuPont de Nemours & Co.

Citation:240 F.Supp. 612
Party Name:145 U.S.P.Q. 258 Donald DAVIS, Plaintiff, v. E. I. DuPONT de NEMOURS & COMPANY, Batten, Barton, Durstine & Osborn, Inc., Columbia Broadcasting System, Inc., Talent Associates, Ltd., David Susskind, Jacqueline Babbin and Audrey Gellen, Defendants.
Case Date:April 16, 1965
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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240 F.Supp. 612 (S.D.N.Y. 1965)

145 U.S.P.Q. 258

Donald DAVIS, Plaintiff,

v.

E. I. DuPONT de NEMOURS & COMPANY, Batten, Barton, Durstine & Osborn, Inc., Columbia Broadcasting System, Inc., Talent Associates, Ltd., David Susskind, Jacqueline Babbin and Audrey Gellen, Defendants.

United States District Court, S.D. New York

April 16, 1965

Page 613

[Copyrighted Material Omitted]

Page 614

O'Brien, Driscoll & Raftery, New York City, for plaintiff; Paul D. O'Brien, and Milton M. Rosenbloom, New York City, of counsel.

Coudert Brothers, New York City for defendants; Carleton G. Eldridge, Jr., and Eugene L. Girden, New York City, of counsel.

FEINBERG, District Judge.

Plaintiff Donald Davis claims that a 1960 telecast infringed his copyrights in a dramatization of Edith Wharton's famous novel 'Ethan Frome.' Plaintiff sues on his own behalf and as executor of the estate of his father Owen Davis, a Pulitzer Prize winning playwright, who collaborated with him on the dramatization. Defendants are E. I. DuPont de Nemours & Company ('DuPont'), sponsor of the allegedly infringing telecast; Batten, Barton, Durstine & Osborn, Inc. ('BBDO'), DuPont's advertising agency; Columbia Broadcasting System, Inc. ('CBS'), the network over which the program was televised; Talent Associates, Ltd. ('Talent'), producer of the telecast; David Susskind ('Susskind'), the Talent officer in charge of the production; and Jacqueline Babbin ('Barbin') and Audrey Gellen ('Gellen'), Talent employees who prepared the script. The case, limited by stipulation to issues of liability, was tried without a jury.

Edith Wharton's novel, 'Ethan Frome,' is a classic in American literature. The setting of the novel is Starkfield, a small New England town at about the turn of the century. Ethan Frome, a man of twenty-eight, shares an unhappy, impoverished farmhouse with his thirty-five year old shrewish wife, Zenobia (Zeena). Her illnesses, real and imagined, consume the major portion of the meager living Ethan is able to eke out of the land. Mattie Silver, Zeena's young orphaned cousin, comes to live with the Fromes as a servant, bringing youthful

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exuberance to their otherwise drab existence. As Mattie's stay lengthens, she and Ethan come to share an unspoken, romantic attachment for each other. Zeena, suspecting this, orders Mattie to leave, ostensibly to replace her with someone who will be a greater help with the housework. Ethan is unable to persuade Zeena to change her mind and he cannot, morally or financially, abandon his unhappy circumstances and run off with Mattie. As he and Mattie are about to be separated forever, they realize that they can never be happy if they are apart. Impulsively, they decide to end their misery by sledding down a steep hill at high speed into a huge elm tree. Ironically, they are denied this ultimate means of escape and become mentally and physically crippled, trapped with Zeena in a poor house of bitter memories. 1

A dramatization of the novel by Donald and Owen Davis was produced on Broadway with a distinguished cast, including Raymond Massey, Pauline Lord and Ruth Gordon; it opened to critical acclaim on January 21, 1936. It is this dramatization that plaintiff Davis claims was infringed by a television version of 'Ethan Frome' in 1960. In response, defendants have hurled a barrage of contentions, discussed below.

I

Analysis of the issues in this case requires, at the outset, a detailed statement of the copyright history of various versions of 'Ethan Frome.' The novel was published in book form on September 30, 1911. 2 The publishers, Charles Scribner's Sons ('Scribner'), obtained a copyright on the novel at that time. 3 On June 1, 1934, Lowell Barrington obtained a copyright 4 in a purported dramatization of 'Ethan Frome,' entitled 'The Silent Women' ('the Barrington play'). 5 On December 1, 1934, Edith Wharton, Lowell Barrington, and Owen and Donald Davis entered into a written agreement ('the December 1934 Agreement') 6 whereby the Davises obtained exclusive rights to dramatize the novel.

The December 1934 Agreement stated that the Barrington play was not satisfactory to Mrs. Wharton and provided, among other things, that the Davises were authorized to use any portion of the Barrington play in creating their dramatization, and that the dramatic rights of the novel, the Barrington play, and the dramatization of the Davises:

'shall become an entity and shall be owned by the parties hereto in the respective portions in which they participate in the earnings * * * and that all contracts to be entered into for the use of said properties shall bear the signatures of the Author's representative and the Messrs. Davis.'

The 'portions' referred to were fifty percent to Edith Wharton, twenty-five per cent to Barrington, and twenty-five per cent to the Davises. By a supplemental agreement dated October 14, 1935, 7 Barrington's percentage was reduced to twelve and one-half per cent, and Donald Davis's percentage was increased from one-half of twenty-five per cent (twelve and one-half per cent) to twenty-five per cent. The December 1934 Agreement also provided:

'The copyright shall be taken out in the names of Owen Davis and Donald Davis, who shall execute a deed of trust that they hold it for themselves and the other parties hereto in the respective proportions in which they share in the earnings.'

On December 5, 1934, Owen and Donald Davis obtained a copyright as an unpublished

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work on the play written pursuant to the December 1934 Agreement. 8 Edith Wharton, the Davises and Scribner entered into a publishing agreement with respect to the Davis dramatization on December 26, 1935. 9 Scribner published the play in February 1936, and obtained a copyright on April 3, 1936. 10 Both the unpublished and published versions of the Davis dramatization are referred to herein as 'the Davis play.'

Edith Wharton died on August 12, 1937. Frederic R. King and Leroy King, executors of Mrs. Wharton's estate, renewed the copyright on the novel on September 22, 1939. 11 By written instrument dated February 4, 1962, Scribner conveyed to the executors all of its right, title and interest in the copyright of the novel. On this same date, Scribner conveyed to Owen and Donald Davis all of its right, title and interest in the copyright of the published Davis play. On February 17, 1942, Mrs. Wharton's executors transferred all their right, title and interest in new and renewal copyrights in the novel, together with all rights of any kind owned by them in the novel, all versions and dramatizations thereof, to Elisina Tyler ('Tyler'), residuary legatee under Edith Wharton's will. 12

On February 19, 1942, Tyler, Barrington, Owen and Donald Davis, Max Gordon, Max Gordon Plays, Inc. 13 and Warner Bros. Pictures, Inc. entered into a contract whereby Warner Bros. obtained the right to create a moving picture based on the novel, the Barrington play, and the Davis play. 14 This contract incorporated the December 1934 Agreement as a part thereof, and also granted Warner Bros. the right to show on television any film made pursuant to its terms. However, it did not grant the right to a televised production using live actors or any other television rights growing out of the properties involved. The consideration paid by Warner Bros. was $17,500, to be distributed fifty per cent to the producers of the play on Broadway and fifty per cent to Tyler, Barrington and the Davises in proportions conforming to the December 1934 Agreement, as amended.

Pursuant to the 1942 contract, Helen Deutsch, an employee of Warner Bros., thereafter completed a screenplay ('the Deutsch screenplay'). Apparently no motion picture was ever produced under this agreement. By mesne conveyances, on and before January 1, 1958, Columbia Pictures Corp. ('Columbia') succeeded to all rights of Warner Bros. 15 Owen Davis died on October 14, 1956, and plaintiff Donald Davis thereafter qualified as an executor. 16

In 1959, Susskind, at that time executive vice president of Talent, secured approval of BBDO and DuPont to produce 'Ethan Frome' on 'The DuPont Show of the Month.' At or about the same time, Susskind and other Talent employees explored the possibility of obtaining whatever rights might be necessary. On February 2, 1959, a Talent employee sent a telegram to plaintiff Davis asking if live television rights for the Davis 'adaptation' of 'Ethan Frome' were available for 'The DuPont Show of

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the Month.' 17 Thereafter, negotiations between Telent and Davis broke down because Davis imposed conditions that were unacceptable to Talent. 18 Meanwhile, Talent, for the sum of $15,000, obtained from the beneficiaries of the Tyler estate certain rights to present a television program based upon 'Ethan Frome.' 19 Plaintiff maintains that the rights obtained did not include the right to use the Davis play, but concedes that a television production based solely on the Edith Wharton novel would have been proper. The question is discussed in greater detail below. Talent also entered into agreements with Columbia, dated August 6, 1959 and February 4, 1960, which purported to grant Talent the right to present a single live television performance of 'Ethan Frome,' and to use and adapt the Deutsch screenplay in preparation thereof. 20

In December 1959 and January 1960, 21 Davis formally notified defendants that if they went ahead with the proposed television performance of 'Ethan Frome' based upon the Deutsch screenplay, without the consent of Davis, they would be committing a deliberate copyright infringement. Despite this, Talent's version of 'Ethan Frome,' the allegedly infringing telecast, appeared on television on February 18, 1960 as 'The DuPont Show of the Month' over the...

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