Cain v. Universal Pictures Co., 1755-Y.

• Decision Date: 14 December 1942
• Docket Number: No. 1755-Y.,1755-Y.
• Citation: 47 F. Supp. 1013
• Court: U.S. District Court — Southern District of California
• Parties: CAIN v. UNIVERSAL PICTURES CO., Inc., et al.

47 F. Supp. 1013

CAIN v. UNIVERSAL PICTURES CO., Inc., et al.

No. 1755-Y.

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

December 14, 1942.

Gang & Kopp and Martin Gang, all of Los Angeles, Cal., for plaintiff.

Loeb & Loeb and Norman Newmark, all of Los Angeles, Cal., for defendant Universal Pictures Co.

Sam Wolf and Harold Fendler, both of Los Angeles, Cal., for defendant John M. Stahl.

Loewenthal & Elias and Paul Loewenthal, all of Los Angeles, Cal., for defendant Dwight Taylor.

YANKWICH, District Judge.

The plaintiff, James M. Cain, is a well-known writer who has written several novels, among which, perhaps, the best known is "The Postman Always Rings Twice", and a large number of short stories and stories for film production. In 1937, he wrote a novel called "Serenade", which he copyrighted on December 1st of that year. Universal Pictures Corporation, Inc., is a corporation engaged in the production of motion pictures. On November 22, 1938, the plaintiff sold to the film corporation, for the sum of $17,500, a story entitled "Modern Cinderella". The defendant John M. Stahl is a director employed by Universal in the production of motion pictures. The defendant Dwight Taylor is a playwright and scenario writer who, at various times, has been employed by the film company. In 1939, Stahl began the filming of "Modern Cinderella". Difficulties were encountered after a portion of the story was filmed. The need to use a particular contract star, Irene Dunne, arose. And it was determined that the story should be recast so that she and her male lead, Charles Boyer, could be used in the picture. The adaptation of the story began and went through many hands working under the great strain of filming one portion while writing another portion of the story. Suggestions were made and abandoned. Writers and adapters were changed several times. Finally, the adaptation written by Taylor, in consultation with the director, was accepted. The motion picture was completed on July 15, 1939, and released on August 11, 1939, under the title "When Tomorrow Comes". Credit for the screen play was given to Dwight Taylor and the further legend "Based upon an original story by James M. Cain."

The plaintiff, in his complaint, charges that the motion picture infringes "Serenade". More particularly, he claims that the church sequence in the motion picture is copied from the church sequence in the book. He seeks damages, accounting of profits and injunctive relief against further exhibition of the motion picture. Compliance with the copyright law by legal registration of the book under 17 U.S.C.A. § 1 et seq., is not in dispute. But all the defendants have denied copying.

During the trial of the cause, the Court read the book, the scenarios in their various forms, including the final form, and what is known as the "cutting continuity", which is a description of the action as it evolves on the screen. I also saw the motion picture at a private viewing.

We are to determine whether infringement of copyright has been shown.

Counsel for the plaintiff seem to think that because the plaintiff is a successful writer and has had friendly business relations with the motion picture company, and Taylor admits reading the book upon its publication, while denying copying any portion of it, the case is unusual.

Granted that all these facts do not, ordinarily, co-exist in an action of this character, they do not call for different treatment from any other action of this type. Ultimately, the governing principles are the same whether, as here, we deal with an author of prominence or, as was the case in Echevarria v. Warner Brothers Pictures, Inc., D.C.Cal.1935, 12 F.Supp. 632, with one who is, practically, unknown.

The issues in both cases are access and copying. Counsel for the plaintiff seem to lay too much stress on access. It is true that where access is admitted, "the probability that the similarities are the result of copying, intentional or unintentional" is high. See Shipman v. R. K. O. Radio Pictures, Inc., 2 Cir., 1938, 100 F.2d 533, 537. This, because access being admitted, there may be, despite the best of intentions, unconscious and unintentional copying amounting to infringement. See Harold Lloyd Corp. v. Witwer, 9 Cir., 1933, 65 F.2d 1, 16. But access alone "means nothing". Dellar v. Sam Goldwyn Inc., 2 Cir., 1939, 104 F.2d 661, 662; and see, Amdur, Copyright Law and Practice, 1936, pp. 670-672. There must still be similarity. And the following questions must still be answered:

"Are there similarities of matters which justify the infringement claimed?

"Was there a piracy of a copyrightable play as shown by similarities of locale, characters, and incidents?" Shipman v. R. K. O. Radio Pictures, Inc., 2 Cir., 100 F.2d 533, 537.

The rules by which it is determined, once access is shown, whether similarity exists which amounts to infringement are always the same. We still must find similarity of distinctive locale, character and incidents.

In assaying the two works to determine the existence of similarities, we are warned constantly by courts to avoid the analyses of experts who, by reducing incidents to abstractions, can find the similar in the wholly dissimilar. Judge Learned Hand in Nichols v. Universal Pictures Corp., 2 Cir., 1930, 45 F.2d 119, 122, 123, states: "This is not the proper approach to a solution; it must be more ingenuous, more like that of a spectator, who would rely upon the complex of his impressions of each character." This is the test which makes similarity dependent not upon the minute, scalpel-like dissection of an expert, who transmutes each incident into an abstraction or sublimation in order to find identity, but upon the impression of sameness which the two works carry to the ordinary reader and observer. And it is the test which the Ninth Circuit Court of Appeals adopted in Harold Lloyd Corporation v. Witwer, 9 Cir., 1933, 65 F.2d 1, 18 et seq., and which it followed later in Kustoff v. Chaplin, 9 Cir., 1941, 120 F.2d 551, 561.

The reason for this is obvious. One does not infringe the secret, undisclosed thoughts of an author. One infringes the literary product in which his original thoughts have found expression. And, just as in the case of musical composition, similarity in accent, harmony or melody means "resemblance noticeable to the average hearer" (Hirsch v. Paramount Pictures Corp., D.C.Cal.1937, 17 F.Supp. 816, 818; and see, Carew v. R. K. O. Radio Pictures, Inc., D.C.Cal.1942, 43 F.Supp. 199, 200 et seq.; Darrell v. Joe Morris Music Co., 2 Cir., 1940, 113 F.2d 80), so in the case of a motion picture, there is no infringement "unless an ordinary observer is led to believe that the film is a picturization of the story." Kustoff v. Chaplin, 9 Cir., 1941, 120 F.2d 551, 561.

With these principles in mind, the problems involved here can be solved easily.

As to access, the testimony of Taylor shows that he read "Serenade" when it was published some two years before he began work on the scenario of the picture. But he denies copying. He denies that, at the time he evolved the church sequence at the request of the director, he had any recollection of the church scene in "Serenade". He states that the sequence of incidents came to him from his own recollection of regular church attendance and service as an altar boy in a Catholic church in his youth. The producer of the picture, John M. Stahl, testified, without contradiction, that the church scenes were suggested by him to another writer, George O'Neil, who worked on the script before Taylor and that Taylor began work with O'Neil's material. Taylor had nothing to do with the direction of the motion picture.

These facts are important because plagiarism, if it exists at all, must be found in the finished motion picture. The Taylor scenario has not been published. It has never left the files of the film company. It has been transmuted into the motion picture. And unless Taylor's borrowing, assuming that there was such, was carried over into the picture by the director, so as to convey to the person who, having read the book, sees the motion picture, the idea of identity, we have neither access nor copying. Stahl, the director, a man of long experience, denies that he had ever read "Serenade" or that he had read the two synopses found in the files of the story department of the film company and dated December 10, 1937, and January 7, 1938. He also denies that when the church scene was discussed with Taylor, Taylor suggested that such a scene had been used recently by Cain in a book. Stahl, who was solely responsible for the motion picture, told a very direct, forthright, and convincing story of the evolution of the picture, of the difficulties encountered in its production and how they were solved by introducing the church scene which had been used successfully in a recent picture produced by another company and which he, himself, had used in other productions. So, if we disregard Taylor's random remark, to which the plaintiff has attached implications of deliberate theft, and which Taylor, himself, repudiates, there is no proof of access.

But admit that there was access. As I stated at the trial, in the face of the denial by Taylor, Stahl, his secretary, Miss Boone, of any deliberate copying, a finding of conscious copying would find no support whatever in the evidence. Was there what the cases call "unconscious and unintentional copying?" See Harold Lloyd Corporation v. Witwer, 9 Cir., 1933, 65 F. 2d 1, 16. If we apply the only permissible test a€” similarity a€” as it is manifest to the ordinary reader of the book and observer of the picture, the sole and obvious answer must be negative.

One need not deny originality to "Serenade". There can be no claim of similarity of subject or of characterization between the book as a whole and the motion picture. In the book, we have a musician, who, seeking escape from a failure of his voice, caused...