Dieckhaus v. Twentieth Century-Fox Film Corporation

• Decision Date: 04 March 1944
• Docket Number: No. 904.,904.
• Citation: 54 F. Supp. 425
• Parties: DIECKHAUS v. TWENTIETH CENTURY-FOX FILM CORPORATION.
• Court: U.S. District Court — Eastern District of Missouri

54 F. Supp. 425

DIECKHAUS v. TWENTIETH CENTURY-FOX FILM CORPORATION.

No. 904.

District Court, E. D. Missouri, E. D.

March 4, 1944.

J. Porter Henry and Robert D. Evans, both of St. Louis, Mo., for plaintiff.

Boyle & Priest, of St. Louis, Mo., and Edwin P. Kilroe, of New York City, for defendant.

MOORE, District Judge.

Plaintiff bases her cause of action on an alleged pirating of portions of her unpublished novel entitled "Love Girl" by defendant in production of the movie "Alexander's Ragtime Band". No statutory copyright was issued on plaintiff's novel, but she claims to have preserved her exclusive property in her work according to common-law principles, that is, by not publishing the book. Plaintiff completed her novel sometime prior to the year 1934 and in January of that year delivered two copies of it to the Copyright Office for the purpose of securing a copyright. The manuscripts were not printed, and for that reason the Copyright Office returned them to plaintiff and notified her that they could not be deposited or a certificate of registration issued.

Under this state of facts, plaintiff did not secure a statutory copyright. She tendered copies of her book to the Copyright Office, but they were refused and no deposit of the copies was made. While it has been held that deposit of a book in the office of the Librarian of Congress in accordance with the Copyright Act, 17 U.S. C.A., is tantamount to publication (Bobbs-Merrill Co. v. Straus, 2 Cir., 147 F. 15, 15 L.R.A.,N.S., 766; Jeweler's Mercantile Agency v. Jewelers' Weekly Pub. Co., 155 N.Y. 241, 49 N.E. 872, 41 L.R.A. 846, 63 Am.St.Rep. 666), that the rights incident to a statutory copyright accrue with such deposit (Caliga v. Inter-Ocean Newspaper Co., 7 Cir., 157 F. 186; Shilkret v. Musicraft Records, D.C., 43 F.Supp. 184) and that the author's common-law copyright is thereafter dead since the author is deemed to have made an election between statutory and common-law copyright (Photo-Drama Motion Picture Co. v. Social Uplift Film Corp., 2 Cir., 220 F. 448; Loew's, Inc., v. Superior Court, 18 Cal.2d 419, 115 P.2d 983), the refusal of the Copyright Office in this instance to file this book or to issue a certificate of registration was in accordance with regulations providing that only printed documents would be filed, and left plaintiff's position with respect to her common-law copyright unchanged. None of the cases cited hereinabove holds that an applicant for registration of an unpublished work under Section 11 of the Copyright Act, 17 U.S.C.A. § 11, loses his or her common-law copyright by tendering books to the Copyright Office and failing to accomplish what the statute provides because of non-compliance with the statute or regulations made thereunder.

Subsequent to her attempt to copyright her work, plaintiff submitted her manuscript to several persons in St. Louis, where she resided, for criticism, but there is nothing in the evidence to indicate that she made any public revelation of the work, and we hold that she has an existing common-law copyright on her novel. On January 24, 1937, plaintiff mailed a copy of her manuscript to herself in a sealed package; the seals remained unbroken until the sealed copy was examined by counsel at the direction of this court. That copy is before the court, marked "Exhibit 5".

Defendants not only deny that any similarity exists between their movie and plaintiff's novel, but deny that any of them ever read the novel or had access to it. Plagiarism is copying (Wilson v. Haber Bros., 2 Cir., 275 F. 346; Becker v. Loew's, Inc., 7 Cir., 133 F.2d 889) and copying implies access. Since access to the allegedly plagiarized work by the alleged plagiarist is a sine qua non of this cause of action, the facts pertinent to that issue will be reviewed briefly. After failing to obtain a statutory copyright, plaintiff submitted her novel to a Mrs. Mabel Malone, who held herself out as a literary agent and critic. Mrs. Malone, for a small fee, read and criticized the novel. She returned plaintiff's manuscript to her and suggested to plaintiff that, since the work was designed to serve as a vehicle for the introduction of popular songs, it might well be offered to Irving Berlin for exploitation. Subsequent to this episode, Mrs. Malone moved to Hollywood, where she has remained, following her profession of literary agent and critic. When questioned regarding her connections in Hollywood, Mrs. Malone denied any acquaintanceship or business relation with any of the defendants, or with any of the defendants' employes who were concerned with the fabrication of the scenario for the accused movie, or with any of the other persons with whom plaintiff had dealings.

After showing the manuscript to Mrs. Malone, plaintiff had her niece, a Mrs. Hillis, make a typewritten copy: this was done in 1936. The second copy was shown to a Dr. Wieman and later to a Mr. Phillips. Then on January 24, 1937, plaintiff mailed this copy to Laurance R. D'Orsay, a literary agent and critic doing business in Hollywood. On the same day, the original manuscript was sealed, as described above. The second copy, marked "Exhibit I" in evidence, was identified by Mrs. Hillis, Dr. Wieman and Mr. Phillips as the copy that they had seen.

The facts detailed thus far are not disputed. There is conflicting evidence as to the length of time plaintiff's manuscript was in D'Orsay's possession and as to whether or not it was under his exclusive control from the time he received it in the mail until he returned it to plaintiff. The latter testifies that the manuscript was not returned to her until May 2, 1937; D'Orsay states that he kept the manuscript for only twelve days before returning it, but at another point in his testimony says that he returned it on March 24, 1937. On the other question, D'Orsay testifies that it was the invariable practice in his office for him to personally read all novels submitted and to keep them in his possession until they were returned to the authors; on the other hand, plaintiff's evidence tends to show that D'Orsay had several employes, that manuscripts were sometimes referred to one or the other of them for reading, that manuscripts were kept in a closet accessible to various persons.

The foregoing facts prove no more than that the manuscript was temporarily out of plaintiff's control and was in Hollywood, the same city in which defendant's employes carried on their endeavors. We certainly cannot infer from this alone that defendant's employes had access to plaintiff's novel for the purpose of copying it. However, we think the facts before the court are such as show that such access was not impossible and, therefore, lay the foundation to permit the ultimate fact of access to be inferred from similarities, if any appear, between the novel and the movie. See Simonton v. Gordon, D.C., 12 F.2d 116; Frankel v. Irwin, D.C., 34 F.2d 142; Dam v. Kirk La Shelle Co., 2 Cir., 175 F. 902, 41 L.R.A.,N.S., 1002, 20 Ann. Cas. 1173; Wilkie v. Santly Bros., 2 Cir., 91 F.2d 978.

To say that plaintiff's novel is bad, or amateurish, or even that it represents the nadir of literary accomplishment, would be beside the point, since neither quality nor merit is a pre-requisite for obtaining the protection of literary property accorded by the law. Vernon v. Sam S. & Lee Shubert, Inc., D.C., 220 F. 694, 696. If the novel "Love Girl" is plaintiff's work (and we find that it is), then she is entitled to the protection of her rights in her property regardless of its worth or lack of worth as a piece of literature. The court will, therefore, endeavor to refrain from any literary criticism.

Plaintiff claims that substantial portions of her novel, but not the novel in its entirety, were copied by defendant in the production of its movie. In the first place, it is argued that each character in the movie finds a counterpart in the novel, although there are some additional characters in the novel who are not represented in the movie; furthermore, the relationships between the characters are said to be substantially the same. Finally, it is contended that various scenes in the novel are to be found in the picture, involving in both cases the same characters, incidents, action and dramatic effects.

In behalf of defendant, there is evidence to show that the original inspiration to make a movie based on Irving Berlin's tune "Alexander's Ragtime Band" came to Darryl Zanuck, vice-president in charge of production at defendant studio. Irving Berlin, himself, wrote a sketch of the story to be embodied in the proposed production. A professional film writer, Richard Sherman, was then engaged to write a treatment of the Berlin story. After conferring with the song-writer, Sherman began work on his script December 9, 1936, and finished work on March 3, 1937 (during this period, plaintiff's manuscript was in Hollywood). Sherman's scenario was not satisfactory to the producer, Darryl Zanuck, and another writer of recognized ability, Sheridan Gibney, was detailed to render a treatment of the Berlin story. Zanuck was not satisfied with this treatment either and engaged two more writers, Miss Kathryn Scola and Lamar Trotti, to work together on a third treatment. Trotti and Miss Scola worked on the story from June, 1937, until January, 1938. All of these writers are professionals with considerable experience, and each of them denies having ever seen or heard of plaintiff's story or knowing plaintiff, or any of the literary agents mentioned above.

Nevertheless, access may be inferred from similarity between the two works, as is stated above, and we will, therefore, proceed to an examination of the alleged similarities between the novel and the movie. Each deal with people of the entertainment world. The principal characters of plaintiff's book are Hubert Alexander Landcaster, an orchestra leader; Marzella Ralston (who uses a stage name, Zella Lane) a singer of popular...