Caruthers v. RKO Radio Pictures

• Decision Date: 22 September 1937
• Citation: 20 F. Supp. 906
• Parties: CARUTHERS v. R. K. O. RADIO PICTURES, Inc.
• Court: U.S. District Court — Southern District of New York

20 F. Supp. 906

CARUTHERS v. R. K. O. RADIO PICTURES, Inc.

District Court, S. D. New York.

August 14, 1937.

Supplemental Opinion September 22, 1937.

Greenbaum, Wolff & Ernst, of New York City (Morris L. Ernst, William S. Savage, and Harriet F. Pilpel, all of New York City, of counsel), for defendant.

Irwin Halpern, of New York City, for plaintiff.

WOOLSEY, District Judge.

This motion is granted and the defendant may have a decree dismissing the complaint, with costs, which, in pursuance of the power given to me by section 40 of the Copyright Act, title 17, United States Code, § 40 (17 U.S.C.A. § 40), will include reasonable counsel fees.

I. This suit was first brought in the New York Supreme Court for New York county. The plaintiff is a citizen of New York state and the defendant a corporation of the state of Delaware. The defendant duly removed the cause to this court.

II. The plaintiff claims to be the owner of the common-law copyright to an unpublished manuscript called "The Sooners," dealing, inter alia, with the opening up to settlement of, and the early days in, the territory now constituting the state of Oklahoma.

The defendant's moving picture play "Cimarron," based on the well-known novel by Miss Edna Ferber, which also deals with the first settlement and early days in Oklahoma, is claimed by the plaintiff to be an infringement of his common-law copyright in "The Sooners."

The motion to dismiss is based on the practice followed in Lowenfels v. Nathan (D.C.) 2 F.Supp. 73, 74, for the moving picture and the cutting continuity thereof have, by stipulation, been incorporated as part of the complaint herein.

III. At my request, both parties prepared and submitted to me summaries of plaintiff's copyrighted manuscript work, "The Sooners," and of defendant's picture, "Cimarron." These summaries are ordered filed with the papers in this cause and are to be deemed incorporated by reference in this opinion.

I have read the manuscript of "The Sooners" and the cutting continuity of "Cimarron" several times, and, in the presence of counsel for both parties, have seen "Cimarron" on the screen, at which time I made notes of my impressions of it.

I do not find any basis for the plaintiff's claim of literary larceny.

IV. The principal point of resemblance between the plaintiff's manuscript and the picture is that the locale of the latter part of the manuscript and of the picture are both in Oklahoma, and that they both deal with the opening of the territory of that state to occupation by settlers, an occasion of the impact of history on the public domain of land which certainly must be deemed within the public domain of letters.

There is not and is not claimed to have been any copying of the plaintiff's manuscript and the characters therein are without such distinctive qualities as would be a sine qua non of their copyrightability. Cf. Nichols v. Universal Pictures Corporation et al., 45 F.(2d) 119, 121 (C.C.A.2).

The incident mentioned in "The Sooners" and shown in "Cimarron" are certainly, with one exception, familiar to all readers of stories of the western frontier and the rough life led thereon by its early settlers.

The exception to which I refer is the episode in "The Sooners" of the little negro boy Percy, who, whilst fanning a dinner table to keep away flies, becomes so absorbed in the talk of the diners that by mistake he strikes one of the guests on the side of the head with his fan. This episode becomes to the narrator a mere memory of the faux pas of a little negro who was the son of a good cook. It has no functional relationship whatever to the development of the story of "The Sooners."

In "Cimarron," Isaiah, a little negro, who, when fanning flies from a swing or cradle above the dinner table, gets interested in the conversation, overbalances, and falls into a frosted cake. It is he who succeeds in following the hero of "Cimarron," Yancey Cravat, into the wilderness, by hiding in a rug during the early part of the wagon journey thereto. When found, he comes to be a valued part of the family until his death. These two episodes of the little negro boys have been so much emphasized by the plaintiff, as proof of literary larceny, that I am giving them far more attention that they really deserve in order to explain their true status in this cause.

The inquiry in causes of this kind when access is proved, or admitted, as it is here for the purposes of this motion, is always: (1) What, if anything, the defendant has appropriated; (2) if he did appropriate anything, whether what he took was copyrightable material; and (3) if so, whether it was a substantial and material part of the copyrighted work, playing a role of consequence therein. Cf. Dymow v. Bolton, 11 F.(2d) 690, 691 (C.C.A.2); Wilson v. Haber Bros., 275 F. 346, 347 (C.C. A.2); Rush v. Oursler (D.C.) 39 F.(2d) 468, 472; Chatterton v. Cave, 3 App.Cases 497; Drone on Copyright at page 415.

It was, as I understand, only because the Court of Appeals considered that what was borrowed by the defendant was essential to the stories in both plaintiff's play and the defendant's picture that I was reversed in Sheldon v. Metro-Goldwyn Pictures Corporation, et al. (C.C.A.) 81 F.(2d) 49, 55.

Even if the defendant had the episode of Isaiah and the cake suggested to it by the episode of Percy and the fan, it would not constitute any basis for a decree in the plaintiff's favor, for the episode of Percy is merely glanced at as a supposedly comic accretion to the story of the manuscript, and is not intrinsic to the development thereof.

As courts have repeatedly said, ideas as such are not copyrightable. Dymow v. Bolton (C.C.A.) 11 F.(2d) 690, 691. This is also true of the supposed facts of history which necessarily must be dealt with in a similar manner by all historians. Cf. Dr. Samuel Johnson on Plagiarism, The Adventurer, No. 95 (1753), quoted in Lewys v. O'Neill (D.C.) 49 F.(2d) 603, 606.

If under the theory of access, implicit in the procedure here followed, aught may be...