Dymow v. Bolton

• Decision Date: 05 April 1926
• Docket Number: No. 269.,269.
• Citation: 11 F.2d 690
• Parties: DYMOW v. BOLTON et al.
• Court: U.S. Court of Appeals — Second Circuit

11 F.2d 690 (1926)

DYMOW v. BOLTON et al.

No. 269.

Circuit Court of Appeals, Second Circuit.

April 5, 1926.

O'Brien, Malevinsky & Driscoll, of New York City (Walter C. Noyes and Francis L. Kohlman, both of New York City, of counsel), for appellants.

Samuel R. Golding, of New York City, for appellee.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

It has been pointed out that the protection of the statute extends to "all the copyrightable component parts of the work copyrighted," which phrase presupposes that there may be much in what is popularly called a copyrighted work as to which the statute affords no protection. Eggers v. Sun, etc., Corp. (C. C. A.) 263 F. 373.

The same case shows that infringement is not a statutory phrase, but that by repeated decisions infringement of copyright is judicially held to consist in the copying of some substantial and material part of that as to which the statute affords protection. Cf. Wilson v. Haber (C. C. A.) 275 F. 346.

One of the entities or things which every author tries to insert in his copyrighted work is a set of ideas; yet ideas as such are not protected. Holmes v. Hurst, 19 S. Ct. 606, 174 U. S. 82, 43 L. Ed. 904; Kalem Co. v. Harper Bros., 32 S. Ct. 20, 222 U. S. 55, 56 L. Ed. 92, Ann. Cas. 1913A, 1285.

Just as a patent affords protection only to the means of reducing an inventive idea to practice, so the copyright law protects the means of expressing an idea; and it is as near the whole truth as generalization can usually reach that, if the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result, and no infringement will exist.

If one compares two dramatic compositions, whether in forms suitable for the stage or for the library, what has been called the "fundamental plot," the "same old plot," or an "old story," can assume any author's dressing or adornment; that author can devise and use his own way of expressing that plot, and he will not infringe. This general proposition is illustrated in London v. Biograph Co., 231 F. 696, 145 C. C. A. 582; Eichel v. Marcin (D. C.) 241 F. 404; Stodart v. Mutual Corp. (D. C.) 249 F. 507.

The theory is (however difficult may be its application at times) "that the protection accorded the owner of copyright is of the intellectual product of the author." King, etc., Syndicate v. Fleischer (C. C. A.) 299 F. 533, at page 536.

Admitting, now, that a plot, the mere concept of a situation around which to build and develop literary adornment, is not copyrightable, it is insisted that the court below was right in holding that Bolton had appropriated the "theme" of Dymow's work. "Theme" is not a word of art, and an examination of the cases will show that, where it has been used in decision writing, it means a great deal more than the jealousy motif on which the fabric of Othello is hung, or, to go to the other extreme of composition, the theorem of a proposition of Euclid. Thus Mayer, J., in Underhill v. Belasco (D. C.) 254 F. 838, at page 842, said in speaking of methods of decision: "The safest guide is always to determine what the fundamental theme is, and to see whether it has been appropriated."

But an examination of that and other cases will show that the inquiry actually made was always to ascertain what had been appropriated, if anything, and then decide whether the appropriation was (1) of copyrightable matter, and (2) was substantial.

If the appropriation complained of is of the "combination or series of dramatic events apart from...