Sheldon v. Metro-Goldwyn Pictures Corporation

Decision Date17 January 1936
Docket NumberNo. 118.,118.
Citation81 F.2d 49
PartiesSHELDON et al. v. METRO-GOLDWYN PICTURES CORPORATION et al.
CourtU.S. Court of Appeals — Second Circuit

O'Brien, Driscoll & Raftery, of New York City (Arthur F. Driscoll, Edward J. Clarke, and Sidney G. Rosenbloom, all of New York City, of counsel), for appellants.

Nathan Burkan and J. Robert Rubin, both of New York City (Louis D. Frohlich, David O. Decker, and Herman Finkelstein, all of New York City, of counsel), for appellees.

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

L. HAND, Circuit Judge.

The suit is to enjoin the performance of the picture play, "Letty Lynton," as an infringement of the plaintiffs' copyrighted play, "Dishonored Lady." The plaintiffs' title is conceded, so too the validity of the copyright; the only issue is infringement. The defendants say that they did not use the play in any way to produce the picture; the plaintiffs discredit this denial because of the negotiations between the parties for the purchase of rights in the play, and because the similarities between the two are too specific and detailed to have resulted from chance. The judge thought that, so far as the defendants had used the play, they had taken only what the law allowed, that is, those general themes, motives, or ideas in which there could be no copyright. Therefore he dismissed the bill.

An understanding of the issue involves some description of what was in the public demesne, as well as of the play and the picture. In 1857 a Scotch girl, named Madeleine Smith, living in Glasgow, was brought to trial upon an indictment in three counts; two for attempts to poison her lover, a third for poisoning him. The jury acquitted her on the first count, and brought in a verdict of "Not Proven" on the second and third. The circumstances of the prosecution aroused much interest at the time not only in Scotland but in England; so much indeed that it became a cause célèbre, and that as late as 1927 the whole proceedings were published in book form. An outline of the story so published, which became the original of the play here in suit, is as follows: The Smiths were a respectable middle-class family, able to send their daughter to a "young ladies' boarding school"; they supposed her protected not only from any waywardness of her own, but from the wiles of seducers. In both they were mistaken, for when at the age of twenty-one she met a young Jerseyman of French blood, Emile L'Angelier, ten years older, and already the hero of many amorous adventures, she quickly succumbed and poured out her feelings in letters of the utmost ardor and indiscretion, and at times of a candor beyond the standards then, and even yet, permissible for well-nurtured young women. They wrote each other as though already married, he assuming to dictate her conduct and even her feelings; both expected to marry, she on any terms, he with the approval of her family. Nevertheless she soon tired of him and engaged herself to a man some twenty years older who was a better match, but for whom she had no more than a friendly complaisance. L'Angelier was not, however, to be fobbed off so easily; he threatened to expose her to her father by showing her letters. She at first tried to dissuade him by appeals to their tender memories, but finding this useless and thinking herself otherwise undone, she affected a return of her former passion and invited him to visit her again. Whether he did, was the turning point of the trial; the evidence, though it really left the issue in no doubt, was too indirect to satisfy the jury, perhaps in part because of her advocate's argument that to kill him only insured the discovery of her letters. It was shown that she had several times bought or tried to buy poison, — prussic acid and arsenic, — and that twice before his death L'Angelier became violently ill, the second time on the day after her purchase. He died of arsenical poison, which the prosecution charged that she had given him in a cup of chocolate. At her trial, Madeleine being incompetent as a witness, her advocate proved an alibi by the testimony of her younger sister that early on the night of the murder as laid in the indictment, she had gone to bed with Madeleine, who had slept with her throughout the night. As to one of the attempts her betrothed swore that she had been with him at the theatre.

This was the story which the plaintiffs used to build their play. As will appear they took from it but the merest skeleton, the acquittal of a wanton young woman, who to extricate herself from an amour that stood in the way of a respectable marriage, poisoned her lover. The incidents, the characters, the mis en scène, the sequence of events, were all changed; nobody disputes that the plaintiffs were entitled to their copyright. All that they took from the story they might probably have taken, had it even been copyrighted. Their heroine is named Madeleine Cary; she lives in New York, brought up in affluence, if not in luxury; she is intelligent, voluptuous, ardent and corrupt; but, though she has had a succession of amours, she is capable of genuine affection. Her lover and victim is an Argentinian, named Moreno, who makes his living as a dancer in night-clubs. Madeleine has met him once in Europe before the play opens, has danced with him, has excited his concupiscence; he presses presents upon her. The play opens in his rooms, he and his dancing partner who is also his mistress, are together; Madeleine on the telephone recalls herself to him and says she wishes to visit him, though it is already past midnight. He disposes of his mistress by a device which does not deceive her and receives Madeleine; at once he falls to wooing her, luring her among other devices by singing a Gaucho song. He finds her facile and the curtain falls in season.

The second act is in her home, and introduces her father, a bibulous dotard, who has shot his wife's lover in the long past; Laurence Brennan, a self-made man in the fifties, untutored, self-reliant and reliable, who has had with Madeleine a relation, half paternal, half-amorous since she grew up; and Denis Farnborough, a young British labor peer, a mannekin to delight the heart of well ordered young women. Madeleine loves him; he loves Madeleine; she will give him no chance to declare himself, remembering her mottled past and his supposedly immaculate standards. She confides to Brennan, who makes clear to her the imbecility of her self-denial; she accepts this enlightenment and engages herself to her high-minded paragon after confessing vaguely her evil life and being assured that to post-war generations all such lapses are peccadillo.

In the next act Moreno, who has got wind of the engagement, comes to her house. Disposing of Farnborough, who chances to be there, she admits Moreno, acknowledges that she is to marry Farnborough, and asks him to accept the situation as the normal outcome of their intrigue. He refuses to be cast off, high words pass, he threatens to expose their relations, she raves at him, until finally he knocks her down and commands her to go to his apartment that morning as before. After he leaves full of swagger, her eye lights on a bottle of strychnine which her father uses as a drug; her fingers slowly close upon it; the audience understands that she will kill Moreno. Farnborough is at the telephone; this apparently stiffens her resolve, showing her the heights she may reach by its execution.

The scene then shifts again to Moreno's apartment; his mistress must again be put out, most unwillingly for she is aware of the situation; Madeleine comes in; she pretends once more to feel warmly, she must wheedle him for he is out of sorts after the quarrel. Meanwhile she prepares to poison him by putting the strychnine in coffee, which she asks him to make ready. But in the course of these preparations during which he sings her again his Gaucho song, what with their proximity, and this and that, her animal ardors are once more aroused and drag her, unwillingly and protesting, from her purpose. The play must therefore wait for an hour or more until, relieved of her passion, she appears from his bedroom and while breakfasting puts the strychnine in his coffee. He soon discovers what has happened and tries to telephone for help. He does succeed in getting a few words through, but she tears away the wire and fills his dying ears with her hatred and disgust. She then carefully wipes away all traces of her finger prints and manages to get away while the door is being pounded in by those who have come at his call.

The next act is again at her home on the following evening. Things are going well with her and Farnborough and her father, when a district attorney comes in, a familiar of the household, now in stern mood; Moreno's mistress and a waiter have incriminated Madeleine, and a cross has been found in Moreno's pocket, which he superstitiously took off her neck the night before. The district attorney cross-questions her, during which Farnborough several times fatuously intervenes; she is driven from point to point almost to an avowal when as a desperate plunge she says she spent the night with Brennan. Brennan is brought to the house and, catching the situation after a moment's delay, bears her out. This puts off the district attorney until seeing strychnine brought to relieve the father, his suspicions spring up again and he arrests Madeleine. The rest of the play is of no consequence here, except that it appears in the last scene that at the trial where she is acquitted, her father on the witness stand accounts for the absence of the bottle of strychnine which had been used to poison Moreno.

At about the time that this play was being written an English woman named Lowndes wrote a book called Letty Lynton, also founded on the story of Madeleine Smith. Letty Lynton lives in England; she is eighteen years old, beautiful, well-reared and intelligent, but wayward. She has...

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