Bradbury v. Columbia Broadcasting System

• Decision Date: 15 June 1959
• Docket Number: No. 471-58-Y.,471-58-Y.
• Citation: 174 F. Supp. 733
• Court: U.S. District Court — Southern District of California
• Parties: Ray BRADBURY, Plaintiff, v. COLUMBIA BROADCASTING SYSTEM, Inc., a corporation; Martin Manulis; Robert Alan Aurthur; et al., Defendants.

174 F. Supp. 733

Ray BRADBURY, Plaintiff, v. COLUMBIA BROADCASTING SYSTEM, Inc., a corporation; Martin Manulis; Robert Alan Aurthur; et al., Defendants.

No. 471-58-Y.

United States District Court S. D. California, Central Division.

June 15, 1959.

Carter & Marks, by Gerson Marks, Sanford I. Carter, Beverly Hills, Cal., for plaintiff.

Lillick, Geary, McHose, Roethke & Myers, by William A. C. Roethke, Anthony Liebig, Los Angeles, Cal., for defendants.

YANKWICH, District Judge.

In this action the plaintiff Ray Bradbury, to be referred to as "Bradbury", seeks to recover damages, general and exemplary, with accounting of profits and attorneys fees from Columbia Broadcasting System, to be referred to as "Columbia", Martin Manulis, producer, to be referred to as "Manulis", and Robert Alan Aurthur, to be referred to as "Aurthur", for alleged infringement of copyright. 17 U.S.C.A. § 13. Injunctive relief and destruction of a film play is also sought.

Bradbury is a well-known writer in the field known as "Science Fiction". A Los Angeles columnist has called him "one of the nation's most prolific authors of realistic fantasy". (Matt Weinstock, Mirror-News, June 8, 1959, Page 1, Part II) Aurthur has been a writer-producer of television dramas and, more recently, of motion pictures. Columbia produces and distributes radio and television programs. Manulis was the producer of a television play entitled "A Sound of Different Drummers" which was telecast on October 3, 1957, on the program known as "Playhouse 90".

It is Bradbury's claim that the play lifted, in whole or part, materials from two of his books duly copyrighted, "The Fireman" published in "Galaxy", a Science Fiction magazine, in February, 1951, and later expanded into a copyrighted book called "Fahrenheit 451", published in 1953. In both instances, the Copyright Act was fully complied with (17 U.S.C.A. §§ 1-22) and the copyrights are now owned by Bradbury.

We state at the outset that the attorneys for the defendant agree with the court and concede that the material was copyrightable and fulfilled the legal requirements of originality. The problems to resolve are access and infringement.

I Access

Access "alone means nothing". Dellar v. Samuel Goldwyn, 2 Cir., 1939, 104 F.2d 661, 662. However, where direct access is shown, the probability of copying is high. Nikanov v. Simon & Schuster, Inc., 2 Cir., 1957, 246 F.2d 501, 504. On this topic, it is well to quote from Shipman v. R. K. O. Radio Pictures, Inc., 2 Cir., 1938, 100 F.2d 533, 537, because the court there distinguished its own prior case, Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 1936, 81 F.2d 49, on which so much reliance was placed by plaintiff in the case before us. To quote from the Shipman case:

"This court attempted to provide a workable test in Nichols v. Universal Pictures Corp., 2 Cir., 45 F.2d 119, where after asserting `the decisions cannot help much in a new case' (45 F.2d at page 121), it was suggested that we must view the problem as one of `abstractions'. We said,

"`Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about * * *; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his "ideas," to which, apart from their expression, his property is never extended. (Cit.) Nobody has even been able to fix that boundary, and nobody can * * *. As respects plays, the controversy chiefly centers upon the characters and sequence of incident, these being the substance.'

"But use of the device of `abstractions' seems but a new name for comparing `similarity of sequences of incident'. It is naturally difficult to compare literary works by using the terminology of metaphysics, and the rule thus provided does not seem to have been used since its suggestion. See Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 81 F.2d 49. In the Sheldon Case, this court propounded two questions: (1) did defendants actually use plaintiff's play, and (2) if so, was there a fair use. Fair use is defined as copying the theme or ideas rather than their expression. * * *

"As a result of these decisions, if there is access, the probability that the similarities are the result of copying, intentional or unintentional, is so high that there is only one pertinent question: are there similarities of matters which justify the infringement claimed? Was there a piracy of copyrightable play as shown by similarities of locale, characters, and incidents? We hold the answer should be in the negative." 100 F.2d at page 537. (Emphasis added.)

This pronouncement is extremely important, because, as will appear later on in the discussion, in the case before us the literary critic, Robert R. Kirsch, conceded that there was no imitation of Bradbury's dialogue or wording in any scene of the play. And Bradbury's claim that the reference to "the compact majority" was taken from his books, if not a "trivial" taking, lost all meaning when it was disclosed (even in the play) that it came from one of Henrik Ibsen's plays, where it read in full:

"The most dangerous enemy to truth and freedom among us is the compact majority." (Ibsen, An Enemy of the People, Act IV, as quoted in Bartlett's Familiar Quotations, 13th and Centennial Ed., 1955, pp. 641(b)-642(a))

The statement of doctrine from the Shipman case is also helpful because it condemns "abstraction"¹ as a means of identity, a phrase which Bradbury changed into "aura" and his expert changed into "impression" or other terms equally nebulous,—a test that might apply, if at all, to sculpture, music or painting. As to mood in music, reference is made to what is said in the writer's article "Legal Protection of Ideas", 1957, 43 Va.Law Rev. 375, especially the Subdivision entitled "Protection of Originality in Music", pp. 368-390.

As to mood in painting, there is a case involving a painting in which an English Judge remarked:

"It was not only the dog which was taken, but also the feeling and artistic character of the plaintiff's work." (Brooks v. Religious Tract Society, 1895, 45 W.R. 476, as quoted in Copinger and Skone James on Copyright, 9th Ed., 1958, p. 179)

But the same criterion would not apply to a book or a play.

What evidence is there of access? In my view, none. Aurthur has denied emphatically that he ever read the book before this litigation began. This is not contradicted by anyone. There is in evidence an option by Columbia to buy Bradbury's short story, "The Fireman", dated March 4, 1952. It is also of record that in 1955 Bernard Wolfe, who was to write the story, discussed with Aurthur some of the technical problems involved, such as the "mechanical hound". The memorandum which Wolfe wrote will be discussed further on in the opinion.

But there is no credible evidence that Aurthur was told the details of the story. In truth, he was, at the time, engaged in doing for television "Darkness at Noon" which deals with the eternal problem of the attempt to exercise "Tyranny over the Mind of Man".

Dealing with so important a production, it is doubtful if he was concerned with "book burning" enough to remember its details five years later. Of course, as suggested at the trial, some of the treatment of the ideas may have lingered in his mind. And if he remembered them later, the principle of "unconscious piracy" with which the Court of Appeals dealt with in Harold Lloyd Corp. v. Witwer, 9 Cir., 1933, 65 F.2d 1, 23, would apply:

"In the case at bar, if it be assumed that there are such similarities between the story and the play as to provoke in the same casual observer the consciousness that there is such a similarity between them, and that copying may be inferred therefrom, we are still confronted with the fact that mere similarity does not necessarily involve literary piracy or an infringement of a copyright. Such similarities then as exist would require further analysis to determine whether or not they are novel in the story and thus copyrightable." 65 F.2d at page 23. (Emphasis added.)

I find that no access is shown, so as to warrant the conclusion that, unconsciously perhaps,² there was in the play a substantial copying of the Bradbury books. More, as will appear further on in the opinion there was no copying at all.

II The "Theme" Involved

Jefferson, towards the end of his life, spoke of the ever-recurring struggle to preserve

"the palpable truth that the mass of mankind has not been born, with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately." (Quoted by Julian P. Boyd, Jefferson's Final Testament of Faith, The New York Times Magazine, April 10, 1949, pp. 11, 38)

Since Socrates was compelled, in 399 B.C., to drink the poison hemlock, through the Dark Ages, the Inquisitions and their modern counterparts, there has been a conflict between man's own conscience and the desires of the State or of the majority to enforce conformity and to outroot dissidence. Freedom from restraint in expressing ideas is a comparatively modern historical innovation. Indeed, the American Constitution in the First Amendment expressed an ideal far ahead of the times. (See the writer's book, "The Nature of Our Freedom," 1950, especially Chapter VII, "The American Bill of Rights") And the writers of books expounding new or disturbing ideas have not been favored by constituted authority.

An Italian scientist of distinction, writing in English, has recently expounded the problem as it relates to scientific thought in discussing the trial of Galileo by the Roman inquisition in 1633. In the preface to the book, the author contrasts the events and personages in the Galileo trial with some more contemporaneous events in the scientific world. (See George de Santillana:...