Burnett v. Lambino

• Decision Date: 06 April 1962
• Citation: 204 F. Supp. 327
• Parties: Morris Bertram BURNETT, also known as Murray Burnett, and Frederick Stephani, Plaintiffs, v. Salvatore LAMBINO, also known as Evan Hunter, Simon and Schuster, Inc., Metro-Goldwyn-Mayer, Inc., and Pocket Books, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

204 F. Supp. 327

Morris Bertram BURNETT, also known as Murray Burnett, and Frederick Stephani, Plaintiffs, v. Salvatore LAMBINO, also known as Evan Hunter, Simon and Schuster, Inc., Metro-Goldwyn-Mayer, Inc., and Pocket Books, Inc., Defendants.

United States District Court S. D. New York.

April 6, 1962.

Blumberg, Singer, Ross & Gordon, New York City, for plaintiffs; Leon Singer, Fred Newman, and Richard B. Rodman, New York City, of counsel.

Sam Rosenblum, New York City, for defendant Salvatore Lambino.

Philips, Nizer, Benjamin, Krim & Ballon, New York City, for defendant Metro-Goldwyn-Mayer, Inc.; Simon Rose, and Albert F. Smith, New York City, of counsel.

Brennan, London & Buttenwieser, New York City, for defendants Simon and Schuster, Inc. and Pocket Books, Inc.; Ephraim London, and Jordan Derwin, New York City, of counsel.

FEINBERG, District Judge.

This is an action for alleged copyright infringement of plaintiffs' plays by the book and motion picture "The Blackboard Jungle," which deal with the problems of a teacher in a New York City vocational high school. Plaintiffs are Morris Bertram Burnett ("Burnett"), a citizen of New York¹, and Frederick Stephani, a citizen of California. Defendants are Salvatore Lambino, who uses the pen name of Evan Hunter ("Hunter")², a citizen of New York, Simon and Schuster, Inc. ("Simon and Schuster"), a New York corporation, Pocket Books, Inc., a New York corporation, and Metro-Goldwyn-Mayer, Inc. ("MGM"), a Delaware corporation. The case was tried without a jury. For the reasons set forth below, defendants are entitled to a judgment dismissing the complaint.

Plaintiffs are the co-authors of a play entitled "Shadows In The City" ("Shadows"). Plaintiffs deposited a copy of "Shadows" in the Copyright Office in 1943. A Certificate of Registration of a claim to copyright as an unpublished work under 17 U.S.C. § 12 was issued May 20, 1943. Plaintiffs are also co-authors of "Hickory Stick" which they characterize as a "rewritten version" of "Shadows."³ No copy of "Hickory Stick" was deposited in the Copyright Office nor was a Certificate of Registration of a claim to copyright ever obtained for that work. "Shadows" was not produced or exhibited in any theater in the United States or elsewhere. "Hickory Stick" was performed for one week only in May 1944, at the Mansfield Theater in New York City.

Hunter is the author of a novel "The Blackboard Jungle," published in 1954 by Simon and Schuster. In 1955, the novel was reprinted in a paperback edition by Pocket Books, Inc. Approximately two and one-half million copies of the novel were sold. In 1954, a motion picture version of Hunter's book was produced, and, in 1955, exhibited by MGM.

Plaintiffs claim that both Hunter's book and the motion picture version were plagiarized from "Shadows" and "Hickory Stick" and that plaintiffs' statutory and common-law copyright in those works have thereby been infringed.⁴ Plaintiffs seek an injunction, damages, an accounting and costs of the action, including attorneys' fees.⁵

I

Before reaching the merits, there is a preliminary question to be considered. Defendants claim that plaintiffs have forfeited any statutory or common-law copyright by making a "general publication" of both "Shadows" and "Hickory Stick." If this contention is correct, that would dispose of the case, since plaintiffs urge no theory in support of their complaint which is not based on copyright law.

With regard to this issue of forfeiture, plaintiff Stephani testified⁶ that copies of the plays had been distributed in 1943-1944 to persons who were potential buyers, financial backers or persons connected with the production of "Hickory Stick." However, there was no evidence indicating that distribution had been made except to sell or arouse interest in producing the plays, or in connection with the production of "Hickory Stick." Stephani testified that he made no other distribution of the plays and that "the copies were too valuable to distribute to people just to read."⁷ Defendants' argument that plaintiffs forfeited their rights to protection of the works by making a "general" publication of the plays must accordingly fall. Restricted distribution to a circumscribed class of persons of an unpublished work, whether copyrighted under 17 U.S.C. § 12 or uncopyrighted, for the purpose of arousing interest in a possible sale or production, is a sufficiently limited distribution to work no forfeiture of an author's rights.

In Hirshon v. United Artists Corp., 100 U.S.App.D.C. 217, 243 F.2d 640, 644-645 (1957) some 2,000 copies of an unpublished song "were distributed to broadcasting stations and professional musicians for `plugging' purposes." The Court of Appeals for the District of Columbia refused to hold, on a motion for summary judgment, that there was "such general publication as to vitiate appellant's copyright." The court also pointed out that "From the results of the decided cases, the principle is discernible that it takes more publication to destroy a common-law copyright than to perfect a statutory copyright." See American Visuals Corp. v. Holland, 239 F.2d 740, 743 (2 Cir., 1956). In Ilyin v. Avon Publications, Inc., 144 F.Supp. 368, 373 (S.D.N.Y.1956) 100 copies of an uncopyrighted work were distributed "to certain theatrical producers free of charge in an effort to induce them to produce the work." This Court held that this "was not a publication within the meaning of the act." See also Jerome v. Twentieth Century Fox-Film Corp., 67 F.Supp. 736, 739 (S.D.N.Y.1946) aff'd 165 F.2d 784 (2 Cir., 1948). The public performance of "Hickory Stick" in New York in 1944 was not an abandonment of plaintiffs' copyright protection⁸, and, indeed, defendants make no such contention. Continental Casualty Co. v. Beardsley, 151 F.Supp. 28 (S.D.N.Y. 1957) modified and aff'd 253 F.2d 702 (2 Cir.), cert. denied, 358 U.S. 816, 79 S.Ct. 25, 3 L.Ed.2d 58 (1958), on which defendants rely heavily, does not support the conclusion that plaintiffs here forfeited their rights. In that case, Judge Palmieri held, and the Court of Appeals for this Circuit affirmed his holding, that the distribution of 100 copies of an uncopyrighted work constituted a divestitive publication because the distribution had not been limited "as to persons or as to purpose." 253 F.2d at 707. There has been no proof in this case that the distribution plaintiffs made of their works was unlimited as to persons or to purpose. So limited, the distribution effected no forfeiture.⁹

II

Plaintiffs' primary claim is that defendant Hunter had access to plaintiffs' plays and that he copied from them. There was an oblique attempt made by plaintiffs to show that Hunter actually saw the play "Hickory Stick" when it was performed in May 1944 in New York City.¹⁰ At that time, Hunter, a 17-year old¹¹ art student, was not interested in becoming a writer. In his testimony, Hunter denied that he saw the play performed. I do not believe that plaintiffs seriously contend that Hunter ever saw the play performed and, in any event, I find that there is no credible evidence to sustain a finding that he did.

The proof urged to show access and copying by Hunter is mainly the allegedly "great number of similarities between the works." It is true that, to substantiate their claims, plaintiffs also point to various other facts, such as that Hunter sought the assistance of sources other than his own experience, that his experience as a teacher in a vocational school was of a limited nature, and that he did not plan to write the book during the period when he was engaged in teaching. Hunter's teaching experience was as follows: during the period from February to June 1950, Hunter taught English as a student teacher at Machine and Metal Trades High School, a vocational high school in the City of New York; during the month of September 1950, he taught English at Bronx Vocational High School, another vocational high school in New York City.

During the months from August 1953 to January 1954, Hunter wrote and created the novel "The Blackboard Jungle." The main character is Richard Dadier, who shares many physical characteristics with Hunter, and much of his personal background as well. In the novel, Dadier is represented as a married Navy veteran of World War II, who lived in the Bronx and attended Hunter College, where he "majored" in English and "minored" in education and performed in amateur plays. Dadier is further described as a student teacher in a trade school who, upon his graduation from Hunter College, secured an "emergency" license to teach and then taught English in a vocational high school. All of this describes Hunter and Dadier with equal accuracy. It is clear that Hunter could have been — as Hunter testified he was¹² — the basis for the character Richard Dadier in the novel "The Blackboard Jungle."

Hunter, since 1954, has become a professional writer of established reputation whose works have sold well. Hunter's writing habits, his methods of research and his manner on the witness stand all demonstrate that he retains and uses his experience as grist for the writer's mill. While his teaching experience in a vocational school was limited, it was vivid and clearly sufficient to provide Hunter, a writer with a receptive mind, with many details that could be incorporated into a novel about a teacher in a vocational school. The "other facts" relied upon by plaintiffs, therefore, do not support plaintiffs' contentions of access and copying. In the last analysis, plaintiffs' claim of "great number of similarities between the works" is the crucial question.

III

Attached to this opinion as an Appendix is a detailed summary of the plots of the four works in question. Plaintiffs' two plays are essentially melodramas, with a vocational school background, focusing on incidents in the lives of three students, a teen-age boy, his sister and the boy with whom she is in love. The...