Arnstein v. Porter, 169.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation154 F.2d 464
Docket NumberNo. 169.,169.
Decision Date11 February 1946




Ira B. Arnstein, pro se.

Cohen, Cole, Weiss & Wharton, of New York City (Samuel J. Silverman, of New York City, and Joseph Good, Jr., of Brooklyn, N. Y., of counsel), for appellee.

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

FRANK, Circuit Judge.

1. Plaintiff with his complaint filed a jury demand which defendant moved to strike out. Defendant urges that the relief prayed in the complaint renders a jury trial inappropriate. We do not agree. Plaintiff did not ask for an injunction but solely for damages. Such a suit is an action at "law."1 That it is founded solely on a statute does not deprive either party of a right to a trial by jury;2 an action for treble damages under the Sherman Act is likewise purely statutory,3 but it is triable at "law" and by a jury as of right.4

2. The principal question on this appeal is whether the lower court, under Rule 56,4a properly deprived plaintiff of a trial of his copyright infringment action. The answer depends on whether "there is the slightest doubt as to the facts." Doehler Metal Furniture Co. v. United States, 2 Cir., 149 F.2d 130, 135; Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967; Arenas v. United States, 322 U.S. 419, 434, 64 S.Ct. 1090, 88 L.Ed. 1363; Associated Press v. United States, 326 U.S. 1, 6, 7, 65 S.Ct. 1416; see discussion below, note 16. In applying that standard here, it is important to avoid confusing two separate elements essential to a plaintiff's case in such a suit: (a) that defendant copied from plaintiff's copyrighted work and (b) that the copying (assuming it to be proved) went so far as to constitute improper appropriation.

As to the first — copying — the evidence may consist (a) of defendant's admission that he copied or (b) of circumstantial evidence — usually evidence of access — from which the trier of the facts may reasonably infer copying. Of course, if there are no similarities, no amount of evidence of access will suffice to prove copying. If there is evidence of access and similarities exist, then the trier of the facts must determine whether the similarities are sufficient to prove copying. On this issue, analysis ("dissection") is relevant, and the testimony of experts may be received to aid the trier of the facts. If evidence of access is absent, the similarities must be so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result.

If copying is established, then only does there arise the second issue, that of illicit copying (unlawful appropriation.).4b On that issue (as noted more in detail below) the test is the response of the ordinary lay hearer; accordingly, on that issue, "dissection" and expert testimony are irrelevant.

In some cases, the similarities between the plaintiff's and defendant's work are so extensive and striking as, without more, both to justify an inference of copying and to prove improper appropriation. But such double-purpose evidence is not required; that is, if copying is otherwise shown, proof of improper appropriation need not consist of similarities which, standing alone, would support an inference of copying.

Each of these two issues — copying and improper appropriation — is an issue of fact. If there is a trial, the conclusions on those issues of the trier, of the facts — of the judge if he sat without a jury, or of the jury if there was a jury trial — bind this court on appeal, provided the evidence supports those findings, regardless of whether we would ourselves have reached the same conclusions.4c But a case could occur in which the similarities were so striking that we would reverse a finding of no access, despite weak evidence of access (or no evidence thereof other than the similarities); and similarly as to a finding of no illicit appropriation.

3. We turn first to the issue of copying. After listening to the compositions as played in the phonograph recordings submitted by defendant, we find similarities; but we hold that unquestionably, standing alone, they do not compel the conclusion, or permit the inference, that defendant copied. The similarities, however, are sufficient so that, if there is enough evidence of access to permit the case to go to the jury, the jury may properly infer that the similarities did not result from coincidence.

Summary judgment was, then, proper if indubitably defendant did not have access to plaintiff's compositions. Plainly that presents an issue of fact. On that issue, the district judge, who heard no oral testimony, had before him the depositions of plaintiff and defendant. The judge characterized plaintiff's story as "fantastic"; and, in the light of the references in his opinion to defendant's deposition, the judge obviously accepted defendant's denial of access and copying. Although part of plaintiff's testimony on deposition (as to "stooges" and the like) does seem "fantastic," yet plaintiff's credibility, even as to those improbabilities, should be left to the jury. If evidence is "of a kind that greatly taxes the credulity of the judge, he can say so, or, if he totally disbelieves it, he may announce that fact, leaving the jury free to believe it or not."5 If, said Winslow, J., "evidence is to be always disbelieved because the story told seems remarkable or impossible, then a party whose rights depend on the proof of some facts out of the usual course of events will always be denied justice simply because his story is improbable."6 We should not overlook the shrewd proverbial admonition that sometimes truth is stranger than fiction.

But even if we were to disregard the improbable aspects of plaintiff's story, there remain parts by no means "fantastic." On the record now before us, more than a million copies of one of his compositions were sold; copies of others were sold in smaller quantities or distributed to radio stations or band leaders or publishers, or the pieces were publicly performed.6a If, after hearing both parties testify, the jury disbelieves defendant's denials, it can, from such facts, reasonably infer access. It follows that, as credibility is unavoidably involved, a genuine issue of material fact presents itself. With credibility a vital factor, plaintiff is entitled to a trial where the jury can observe the witnesses while testifying. Plaintiff must not be deprived of the invaluable privilege of cross-examining the defendant7 — the "crucial test of credibility" — in the presence of the jury.8 Plaintiff, or a lawyer on his behalf, on such examination may elicit damaging admissions from defendant; more important, plaintiff may persuade the jury, observing defendant's manner when testifying, that defendant is unworthy of belief.9

To be sure, plaintiff examined defendant on deposition. But the right to use depositions for discovery, or for limited purposes at a trial,10 of course does not mean that they are to supplant the right to call and examine the adverse party, if he is available, before the jury. For the demeanor of witnesses is recognized as a highly useful, even if not an infallible, method of ascertaining the truth and accuracy of their narratives. As we have said, "a deposition has always been, and still is, treated as a substitute, a second-best, not to be used when the original is at hand" for it deprives "of the advantage of having the witness before the jury."11 It has been said that as "the appearance and manner of the witness" is often "a complete antidote" to what he testifies, "we cannot very well overestimate the importance of having the witness examined and cross-examined in presence of the court and jury."11a Judge Lumpkin remarked that "the oral testimony of the witness, in the presence of the Court and Jury, is much better evidence than his deposition can be * * *"12 Coxe, J., noted that "a witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony, when read, may convey a most favorable impression."13 As a deposition "cannot give the look or manner of the witness: his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration;" it "is * * * or it may be, the dead body of the evidence, without its spirit * * *"14 "It is sometimes difficult and impossible to get so full, explicit, and perspicuous a statement of facts from the witness through a deposition as it is by his examination before court and jury."15 "The right of a party, therefore, to have a witness subjected to the personal view of the jury, is a valuable right, of which he should not be deprived * * * except by necessity. And that necessity ceases whenever the witness is within the power of the court, and may be produced upon the trial."15a

With all that in mind, we cannot now say — as we think we must say to sustain a summary judgment — that at the close of a trial the judge could properly direct a verdict.16

We agree that there are cases in which a trial would be farcical. If, in a suit on a promissory note, the defendant, pleading payment, sets forth in an affidavit his cancelled check to the order of the plaintiff for the full amount due on the note and a written receipt in full signed by the plaintiff, while plaintiff in a reply affidavit merely states that he did not receive payment and suggests no other proof, then to require a trial would be absurd; for cross-examination of the defendant in such circumstances clearly would be futile.17 But where, as here, credibility, including that of the defendant, is crucial, summary judgment becomes improper and a trial indispensable. It will not do, in such a case, to say that, since the plaintiff, in the matter presented by his affidavits, has offered nothing which discredits the honesty of the defendant,...

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