Chappell & Co. v. Fields
| Citation | 210 F. 864 |
| Decision Date | 13 January 1914 |
| Docket Number | 172. |
| Parties | CHAPPELL & CO., Limited, et al. v. FIELDS et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
William Klein, of New York City (Julian Arthur Leve, of New York City, of counsel), for appellants.
William D. Leonard, of New York City (George H. Gilman, of New York City, of counsel), for appellees.
Before LACOMBE, COXE, and WARD, Circuit Judges.
Chappell & Co., Limited, of London, one of the complainants, bought of the German authors and composers the exclusive right to produce the musical comedy called 'Filmzauber' in England, the United States, and Canada. They copyrighted in the United States the music and at least the dialogue of the scene, presently to be considered from the English adaption of the play as a dramatico-musical composition under the title 'The Girl on the Film.' The other complainant Frohman, has become the owner of the exclusive right to produce the play in this country. The defendants are producing a comedy called 'All Aboard,' containing a scene which the complainants charge is an infringement of the Girl on the Film. In all other respects the two productions are entirely different.
In the second act of the Girl on the Film a scene occurs in which an old miller informs a meeting of English villagers of the danger of a French invasion, and it is agreed that in case such a thing happen a bell shall be rung to call them together for resistance. Then a moving picture company appears and arranges to take a moving picture representing Napoleon and French soldiers and a young girl beseeching Napoleon to release her sweetheart, who is about to be executed as a spy. The miller, seeing this, rings the bell the villagers rally and set upon the party which is being photographed for the moving picture.
In the defendant's play, at the end of the first act, there is a scene laid in California in which a countryman warns others of the danger of a Japanese invasion, whereupon it is agreed that if such a thing occur an alarm bell shall be rung, so that the countryside may turn out to resist it. Then a moving picture company appears, arranging to take a picture of a Japanese general and troops and the effort of a woman to save a spy from execution by importuning the general. One of the countrymen, seeing this, rings the alarm bell. The neighbors turn out, and a fight ensues with the moving picture company.
The idea of the scene in the Girl on the Film is shown to be quite novel. It is certainly reproduced in All Aboard with substantially the same dramatic incidents. While the voice motions, and postures of actors and mere stage business may be imitated because they have no literary quality and cannot be copyrighted (Bloom v. Nixon (C.C.) 125 F. 977; Savage v. Hoffman (C.C.) 159 F. 584), a scene like the one under consideration has literary quality, and may be protected by copyright (Daly v. Palmer, 6 Blatchf. 264, Fed. Cas. No. 3,552; We agree with Judge Hough in thinking that this scene was a; Daly v. Webster, 56 F. 483, 4 C.C.A. 10; Brady v.
Daly, 83 F. 1007, 28 C.C.A. 253). subject of copyright, and that the defendants have infringed.
It is however, contended that, because the defendants deny that they or the authors of the scene in...
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