Christie v. Harris

• Decision Date: 19 May 1942
• Parties: CHRISTIE v. HARRIS et al.
• Court: U.S. District Court — Eastern District of New York

47 F. Supp. 39

CHRISTIE v. HARRIS et al.

District Court, D. New York.

May 19, 1942.

Loria & Martinson, of New York City, for plaintiff.

Greenbaum, Wolff & Ernst, of New York City (Alexander Lindey and Harriet F. Pilpel, of New York City, of counsel), for defendant Edna Ferber.

Howard E. Reinheimer, of New York City (Jack J. Katz, of New York City, of counsel), for defendant George S. Kaufman.

O'Brien, Driscoll & Raftery, of New York City (Benjamin Pepper, of New York City, of counsel), for defendant Sam H. Harris.

CONGER, District Judge.

This is an action for alleged infringement of plaintiff's copyrighted play.

Plaintiff Madge Christie and Renita Randolph sometime prior to November, 1930, together wrote a play entitled "Thru the Looking Glass". On or about the 28th of November, 1930, the said Renita Randolph caused said play to be copyrighted and on or about said date there was issued to her a certificate of copyright by the United States Register of Copyrights.

Sometime during the year 1935 said Renita Randolph gave to the plaintiff all her right, title and interest in and to said play and subsequently about August 2, 1939, the said Renita Randolph ratified the same in writing. The plaintiff is now the sole owner and holder of the copyright title to said play.

Plaintiff claims that the defendants Sam H. Harris, George S. Kaufman and Edna Ferber infringed against plaintiff's play when they wrote and produced the play "Stage Door".

This latter play was written by defendants George Kaufman and Edna Ferber and produced and exhibited by defendant Sam Harris at the Music Box Theatre in New York City. The complaint charges that the play Stage Door is a deliberate piracy and infringement of plaintiff's play.

There are two other defendants named. They are charged with having something to do with the sale, publication or distribution of the play Stage Door. It will not be necessary to refer to them or their connection with the alleged infringing play.

The question before the court is whether defendants Kaufman and Ferber in writing the play and the defendant Harris in producing it were guilty of infringement.

The law is well settled that there must be an actual copying whether wilful or unintentional, made possible by defendants' access to plaintiff's copyrighted material. Seltzer et al. v. Sunbrock et al., D.C., 22 F.Supp. 621.

Here all three defendants are jointly charged with access to plaintiff's play. The complaint (paragraphs 12 and 13) alleges that on or about January, 1931, Renita Randolph delivered the manuscript of the play Thru The Looking Glass to defendant Sam Harris and subsequently the said Harris delivered the same to defendants Ferber and Kaufman, who read and studied it. This is the charge of direct access made by the pleadings. On the trial no such evidence was brought forth. The uncontradicted proof was that Miss Randolph did deliver the play to Harris in the early part of 1931; that he kept it for some time, when it was finally returned. There is no proof that Miss Ferber or Kaufman ever saw it. There was a failure of proof on this point. Plaintiff attempted to prove by circumstantial evidence that this might all have happened, but the circumstances so proven do not warrant any such conclusion. The most I can deduce is that Harris had the play in his possession. He may have read it. There is nothing to warrant my finding that he ever showed the manuscript of the play to defendants Ferber and/or Kaufman. Both defendants Ferber and Kaufman have denied that they ever saw it or read it until preparations were being made for this trial.

This is not a case of unconscious copying; not a case of faulty memory. This case does not come within the principle laid down in Fred Fisher, Inc., v. Dillingham, et al., D.C., 298 F. 145; plaintiff's play had never been produced, had never been given out to the public. As far as the record shows there was only one copy and that had been given to Harris to read. Defendants could only have had access to plaintiff's play through this copy while it was in Harris' office. Both deny ever having seen it. I see no reason to doubt their testimony.

While plaintiff has failed to prove access by direct evidence this does not necessarily end her case. Direct access is hard to prove. Access may be inferred from the similarity of the two compositions. Mere similarities, however, are not enough. An independent reproduction of a copyrighted work is not infringement. Where similarities or identities are relied upon they must do more than engender a suspicion of piracy, they must establish piracy with reasonable certainty.

In the last analysis, I must decide whether or not defendants' play is so like plaintiff's, that one may reasonably infer that it was copied therefrom.

In support of her contention on the question of identity, plaintiff served a Bill of Particulars of alleged similarities and furnished the court with a document entitled "additional supplementary analysis".

The combined documents consist of 186 pages. In them plaintiff has digested and dissected to the minutest detail each of the plays. I confess that these documents have been of little help to me. I have labored through them with great care but have not been impressed. A great many of the alleged similarities are strained, forced and in many instances not correct. The only impression made upon me was that plaintiff was grasping at straws to prove her case. Space will not permit my going into this with particularity. One instance, among many, stands out. I cannot help but refer to it. I quote from page 16 of the Bill of Particulars:

"(ppp) In both plays, at Cleo's-Kaye's very first appearance, there is an implication, a premonition of her tragic end,

(1) In Thru the Looking Glass, Act 1 — page 3 Cleo says, `Holy Christ! keep that shade down, can't you?' In Stage Door, Act 1—page 15 Kaye says, `But I've got to come in tonight. I've got to.'"

At this point, I feel, I should state that in plaintiff's play there is much of the above type of language, which one does not find in the other.

After reading and studying these two documents, I cannot help but feel that the Bill and the additional analysis are a tribute to the plaintiff's ingenuity rather than an actual reflection of reality. Rose v. Connelly et al., D.C., 38 F.Supp. 54. This method of proving identity has been frowned on in the courts. See Bachman et al. v. Belasco, 2 Cir., 224 F. 817; Frankel v. Irwin et al., D.C., 34 F.2d 142; Eisman et al. v. Samuel Goldwyn, Inc., et al., D.C., 23 F.Supp. 519.

As the courts have often said, infringement of a work of imagination is determined by the result of comparative reading, on the imagination of the reader, not by a dissection of sentences and incidents. Frankel v. Irwin, supra.

With this rule in mind, I have read and studied the two plays and have tested them in the light of the foregoing decisions. I have to admit that I find no such evidence of similarities which would lead me to believe that defendants used plaintiff's play when they wrote theirs. As a matter of fact, I find more differences than resemblances, and I therefore must hold that plaintiff has failed to make out a case.

True the story in each is of the stage, of actresses, playwrights and managers. True the first act in each play takes place in a boarding house for young actresses. This does not point to piracy. It is a common topic;...