Harold Lloyd Corporation v. Witwer

• Citation: 65 F.2d 1
• Decision Date: 10 April 1933
• Docket Number: No. 6398.,6398.
• Parties: HAROLD LLOYD CORPORATION et al. v. WITWER.
• Court: U.S. Court of Appeals — Ninth Circuit

65 F.2d 1 (1933)

HAROLD LLOYD CORPORATION et al. v. WITWER.

No. 6398.

Circuit Court of Appeals, Ninth Circuit.

April 10, 1933.

Robert C. Gortner, of Beverly Hills, Cal., Max Felix, of Los Angeles, Cal., and Alfred Sutro and Eugene M. Prince, both of San Francisco, Cal. (Lawler & Degnan, of Los Angeles, Cal., and Pillsbury, Madison & Sutro, of San Francisco, Cal., of counsel), for appellants and cross-appellees.

Harold A. Fendler and Ingle Carpenter, both of Los Angeles, Cal. (Benjamin F. Bledsoe, C. P. McCarthy, and Hill, Morgan & Bledsoe, all of Los Angeles, Cal., of counsel), for appellee and cross-appellant.

Before WILBUR and SAWTELLE, Circuit Judges, and McCORMICK, District Judge.

WILBUR, Circuit Judge.

Plaintiff appellee sought to enjoin the exhibition of a silent photoplay filmed in 1924, entitled "The Freshman," and to recover all profits therefor derived from its exhibition upon the ground that "The Freshman" infringed the copyright of a story written by H. C. Witwer entitled "The Emancipation of Rodney." The trial court held that there was infringement, enjoined the further production of the play and ordered an accounting to determine the profits derived from the exhibition of the play alleged by the plaintiff appellee to be $2,300,000, and admitted by the defendants appellants to be over $1,000,000.

The story was sold by the author to the publishers of the Popular Magazine for $75 and copyrighted by them in 1915. In 1929 an assignment of the copyright was made to the author, the sufficiency of which is attacked by the appellants, and this action was brought. This appeal is from the interlocutory decree.

Before entering upon the legal questions involved, and a comparison of the story and the play for the purposes of determining whether the play infringed the copyright, a general statement of the situation will be of assistance.

The thread upon which the story of Rodney is strung, whether we call it plot, sequence of events, or theme, is as follows:

A young man goes to college as a freshman, aspires to be popular, meets a girl, falls in love, wins a football game and the approval of the girl. Rodney, the hero, is a young man of mediocre scholastic ability, but so extremely industrious in his studies that he cannot even forget the cube of 206. He achieves great success in his studies at college by reason of his extreme industry and not at all by reason of intellectual brilliancy. He reads Latin and Greek for the pleasure of reading about Julius Cæser's fights and Hercules' prowess. His fellow students, however, believe him to be brilliant. They accept him as such. He evokes their respect as well as their scorn. The students stand somewhat in awe of him so that he is not given a nickname. He is not hazed. He stands apart. He feels himself isolated from his fellow students. However, he despises his intellectual accomplishments, such as they are, and his success as a scholar, and wishes to be thought a dub. He apparently is unable to understand that he could readily achieve this result by ceasing to study so hard. He has to study all night to pass the simplest examination. At the same time he has an intense ambition to be an athlete. In order to achieve success in athletics he purchases text books on athletics, studies them, practices in accordance with their directions; and purchases the uniforms used in different types of sports. Nevertheless he is conscious of his lack of ability.

Rodney meets the heroine under most embarrassing circumstances. He is in the woods, believes himself to be alone, has taken off all his clothes except his underclothes, and in accordance with the instructions contained in his text-book on boxing is sparring at a tree, when he is surprised by the heroine. He is, of course, terribly embarrassed, attempts to get into his clothes hastily, and, in his confusion, makes mistakes. Meanwhile the young lady looks on complacently, not at all embarrassed. Rodney, however, in spite of the situation, conceives a liking for the heroine. He later meets her on numerous occasions and endeavors to impress her with stories of his marvelous athletic prowess. These stories she believes for a time but finally, ascertaining that he is misrepresenting his physical condition as resulting from injuries received in a football game, thus excusing himself from athletics by false pretenses, she cuts his acquaintance.

Apparently Rodney's desire for athletics is for athletics' sake, or at least for his own sake, until he puts himself in position, by his falsehoods and braggadocio, where he feels he has to make good in the eyes of the heroine by actually playing in a football game in order to regain her interest.

The climax of the Rodney story is in the football game in which he earns fame with his schoolmates and becomes a football hero in the annals of the college. Moved by a desperate desire to redeem himself with the heroine Rodney argues for a right to go on the field in the last five minutes of the game when his college is losing, takes advantage of the silence and uncertainy of the coach and rushes on the field to take the place of a disabled player. In his excitement he forgets the signals, although he claimed to the coach to know them. The ball is thrown to him and without passing it, as the signals require, he runs down the length of the field and makes a touchdown, which not only wins the game but the plaudits of his classmates as well.

In the play the principal character is Harold Lamb, impersonated by Harold Lloyd, who also goes to college as a freshman, aspires to be popular, plays football, and in the last five minutes of a big football game is sent on the field by the coach and wins the game. There are some marked differences between the story and the play which we will note at the outset, and others which will be discussed later.

In the play Harold Lamb, the hero, on his way to college, goes into the diner on the train and is seated next to the heroine, Peggy. She is attempting to solve a cross-word puzzle and Harold helps her. They are interested in trying to find "a name for one you love," and in his enthusiasm Harold repeats several endearing terms such as "sweetheart, darling," etc., entirely without reference to the girl and wholly by reason of his absorption in the puzzle. The heroine, equally absorbed, ignores the forwardness of Harold and considers his suggestion. Neither one looks at the other. An old lady passenger, hearing the terms of endearment, makes an audible comment concerning the beauty of love between young people which Harold overhears, and becoming very much embarrassed he rushes frantically from the car. Later, he rents a room in a cheap rooming house, only to discover that the heroine is the daughter of the landlady.

The hero of "The Freshman" presents a different type from Rodney. The play is entirely silent as to Harold Lamb's mental equipment and his success or lack of it in his studies. It may be inferred from his evident stupidity that he would not be a success in his studies and that his desire for scholastic success would depend upon whether or not in his opinion it would add to his popularity. Harold Lamb does not study the subject of athletics, but does have overpowering confidence in his ability to achieve success as an athlete. Harold desires to be popular and has ascertained to his satisfaction that one method to achieve popularity is by playing football. He therefore decides to play football. He works hard and suffers much in order to get on the team. He believes himself to have accomplished this. The coach, however, and all members of the football team, consider him a nuisance and believe that he has no talent whatever in that line, but they deceive him by giving him the impression that he has made the team as a substitute, whereas, it is intended that he should serve as a water tender and for that reason is allowed to sit on the seat with the players. The heroine ascertains that Harold, whom she apparently loves from first sight, is being made a butt of and determines to inform him of this, but refrains from doing so for fear of hurting his feelings. Harold Lamb also goes upon the field in the last five minutes of play when the score is against his team. He makes a touchdown, but instead of one successful play there are eight different plays, in each of which Harold demonstrates to the audience that he is a complete ignoramus and knows nothing about the game. On one play, although unopposed, he puts the ball down within two feet of the goal line on hearing a locomotive whistle, because the referee has told him on a previous play that when the whistle blows he must "down the ball." Harold Lamb believes in himself, takes his efforts with the utmost seriousness, has no doubt of his ability to participate in the game and win it, and actually does win it, but by a fluke, as was obvious to all concerned. Instead of becoming a football hero he is considered a boob and ridiculed as such. Harold's athletic attempts were predicated entirely upon his desire to be popular and not at all upon a desire to be an athletic success. Whether he knew it or not he had the affection of the girl from the start and there was no reason to believe that his efforts in football had anything to do with his desire to win or hold the affection of the heroine. Harold got into the game because he believed in himself, and Rodney to make good with the girl if it were possible to do so.

That there are similarities between the play and the story is manifest and we proceed to consider the legal significance of such similarities. The primary question is whether these similarities resulted from copying the story; if not, the similarities are without legal significance. The secondary question is whether the similarities are themselves so marked as to prove by such circumstantial evidence the fact of copying, in the teeth of a denial thereof by those who produced the play.

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