Becker v. Loew's, Inc.

• Citation: 133 F.2d 889
• Decision Date: 20 February 1943
• Docket Number: No. 8073.,8073.
• Parties: BECKER v. LOEW'S, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

133 F.2d 889 (1943)

BECKER v. LOEW'S, Inc.

No. 8073.

Circuit Court of Appeals, Seventh Circuit.

February 20, 1943.

Herbert M. Lautmann, David Levinson, and Ben I. Greenebaum, Jr., all of Chicago, Ill., and Samuel D. Cohen and D. O. Decker, both of New York City, for appellant.

Moses Levitan and Theodore J. Levitan, both of Chicago, Ill., for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

Plaintiff brought this action for an accounting of profits, an injunction, and damages for alleged violation of §§ 1(a), (b) and 4 of the Copyright Act, 35 Stat. 1075, 17 U.S.C.A. §§ 1(a), 1(b), and 4, and for unfair competition, on the theory that defendant had wrongfully appropriated the title and theme of his book, and had violated plaintiff's exclusive right to dramatize his book. By adopting the Master's report and entering judgment thereon, the District Court found the defendant, Loew's Incorporated, guilty of copyright infringement and of unfair competition. To reverse this judgment, defendant brings this appeal.

In August, 1936, the plaintiff, Harry Becker, wrote and copyrighted a book entitled "We Who Are Young," discussing economic and political problems with particular reference to the Roosevelt-Landon Presidential campaign. It did not have a large sale. Possibly 700 copies of the book were distributed by gift or sale, nearly all of them during 1936, and it was reviewed in some newspapers shortly after its publication. The book compares the doctrines of President Roosevelt as opposed to those of reactionaries and Karl Marx, and shows that the source material was "Das Kapital" by Marx, "Looking Forward" and "On Our Way" by President Roosevelt, Taussig's "Principles of Economics" and Walter Lippmann's "The New Method of Freedom." The book has no plot, no story, no character development, no sequence of incidents, only an abstract, general discussion in essay form. And plaintiff's claim for infringement rests on such general passages as: "We who are young, have seen this strife for property and find it not to our liking. We do not want to struggle ceaselessly to accumulate property to gain an illusory security. We would rather have security without great wealth."

In 1940 the defendant bought, produced, and released a screen play from Dalton Trumbo, describing a love story and the hardships encountered by a young couple. Trumbo, who had no knowledge of plaintiff's book or its contents, wrote the story in 1939, basing it on his own experiences and those of his friends who were attempting to solve the problem of getting married on a small salary. The story by Trumbo was originally entitled "To Own the World," the title of the photoplay was changed to "I Do" and finally, on the suggestion of one Whitbeck, defendant's employee, to "We Who Are Young." Whitbeck testified that he had never heard of plaintiff's book until after he had suggested the title to defendant.

The story: Bill, the husband, and Margy, his young wife, worked for the same business firm which had a rule that no married woman might work there. When their marriage was discovered, Margy was dismissed. The furniture company repossessed their household goods after Margy discovered she was going to become a mother. Bill lost his job and could not find another. Finally, however, an acquaintance got a job for him and Bill hurried back to his prior employer's office to get an office survey system which he had developed; on meeting Beamis, his former employer, he angrily told him what he thought of the firm's management. When he returned home, Bill found Margy in agony. After unsuccessfully trying to get an ambulance, Bill stole a car, bundled Margy into it, and started for the hospital. Policemen stopped him, but on taking in the situation, cleared traffic with their sirens while Bill drove at breakneck speed to the hospital where Margy gave birth to twins. When the car owner withdrew his complaint and Beamis sent Bill a letter asking him to come back to the firm under new conditions, Bill faced a new and brighter future. Plot, story, incident, and character development were used to bring out the romantic theme.

We commence our study of the instant case with the admonition of the court voiced in the case of Eichel v. Marcin, D.C., 241 F. 404, 408: "The object of copyright is to promote science and the useful arts. If an author, by originating a new arrangement and form of expression of certain ideas or conceptions, could withdraw these ideas or conceptions from the stock of materials to be used by other authors, each copyright would narrow the field of thought open for development and exploitation, and science, poetry, narrative, and dramatic fiction and other branches of literature would be hindered by copyright, instead of being promoted. A poem consists of words, expressing conceptions of words or lines of thoughts; but copyright in the poem gives no monopoly in the separate words, or in the ideas, conception, or facts expressed or described by the words. A copyright extends only to the arrangement of the words. A copyright does not give a monopoly in any incident in a play. Other authors have a right to exploit the facts, experiences, field of thought, and general ideas, provided they do not substantially copy a concrete form, in which the circumstances and ideas have been developed, arranged, and put into shape."

Plaintiff contends that defendant's motion picture infringed his copyright. We think his contention is not well founded. The chief similarity between the two works is identity of title, but it is well settled that the copyright of a book or play does not give the copyright owner the exclusive right to the use of the title, Glaser v. St. Elmo, C.C., 175 F. 276, 278; Corbett v. Purdy, C.C., 80 F. 901; Osgood v. Allen, 18 Fed.Cas. No. 10,603, p. 871; see Warner Bros. Pictures v. Majestic Pictures Corp., 2 Cir., 70 F.2d 310, 311; Harper v. Ranous, C.C., 67 F. 904, 905; Patten v. Superior Talking Pictures, D.C., 8 F.Supp. 196, 197; Nims, Unfair Competition, § 278, p. 748, since it is only a means of description which aids in identifying a literary production; and anyone may use it so long as he does not mislead the public into thinking it is the identical thing which it originally designated. Ott v. Keith Massachusetts Corp., 309 Mass. 185, 34 N.E.2d 683. The protection given by the copyright statute is to the property in the literary composition, not to the title given to it. Corbett v. Purdy, supra. Neither the words nor the particular combination of words "We Who Are Young" are unique. They are not the type of words to be found only in the vocabulary of a Bentham or a Veblen, but are, with minor variations, extremely common and generally used by everyone. They are merely a descriptive phrase in the English language, Oxford Book Co. v. College Entrance Book Co., 2 Cir., 98 F.2d 688. These identical words were used in a report of William W. Hinckley to the Third American Youth Congress, entitled "Youth Seeks Peace — Freedom and Progress," published shortly before plaintiff's book. Shakespeare used substantially similar words, "we that are young," in the closing lines of "King Lear." Similar words taken from the context of a copyrighted book for its title have not been protected by the copyright when used as a title for a motion picture. Collins v. Metro-Goldwyn Pictures Corp., D.C., 25 F.Supp. 781.

Plaintiff next contends that defendant has appropriated "original thoughts and ideas," "central themes," and "material portions" of his book. We have read the book and viewed the motion picture. A comparison of the two works reveals that no such wrongful appropriation occurred. Youth's struggle for security and freedom from want is by no stretch of the imagination an original idea. The subject of plaintiff's book is a wholly different composition from the story upon which defendant's cinematograph story is based, and nothing even remotely resembling the plaintiff's book can be found in it, except the idea that it is difficult to live on a small salary and that the difficulty increases when one is out of work. But this is common knowledge which lies in the public domain, and no monopoly of such theme has been granted to plaintiff. The purpose of copyright, to promote literary progress, would be frustrated if an author could prevent others from using such common ideas.

The law does not confer any exclusive property right in such a trite theme as a young couple's struggle against adversity, and another author is legally privileged to utilize the "theme" of a work so long as the mode of expression is not plagiarized, Sheldon v. Metro-Goldwyn, etc., Corp., 2 Cir., 81 F.2d 49, 54. But plaintiff's position is even less secure, since his book is not a development of such a theme. In his own words, it is "a discourse and discussion of economic and social problems of the present day." Plaintiff has not even shown how his abstract discussion amounts to a "theme" and any similarity is so abstract that the theme is common property and remains in the public domain with the result that no copyright protects it. Shipman v. R.K.O. Radio Pictures, 2 Cir., 100 F.2d 533. And since the statute can be infringed only by copying the copyrighted material, that is, engaging in literary piracy, Davies v. Bowes, D.C., 209 F. 53; Id., 2 Cir., 219 F. 178, and no copying or identity of expression is charged, it is difficult to understand how plaintiff can assert that the movie appropriated "material portions" of his book when he concedes that none of the scenes or dialogue were plagiarized from his book.

Two tests have been used by the courts to determine whether infringement...