Echevarria v. Warner Bros. Pictures

• Decision Date: 30 October 1935
• Citation: 12 F. Supp. 632
• Court: U.S. District Court — Southern District of California
• Parties: ECHEVARRIA v. WARNER BROS. PICTURES, Inc., et al.

12 F. Supp. 632

ECHEVARRIA v. WARNER BROS. PICTURES, Inc., et al.

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

October 30, 1935.

William Barnett Spivak, of Los Angeles, Cal., for complainant.

Freston & Files and Clarence M. Hanson, all of Los Angeles, Cal., for defendants.

YANKWICH, District Judge (after stating the facts as above).

The right of a person in literary work exists at common law, and may be protected irrespective of copyright. The law of copyright has merely provided an additional method whereby an author by registering his work establishes his right as of the date of registration with the Register of Copyrights, so that he may be in a position to show by the official registration the date of the publication of his original composition. The right which the copyright law protects differs in no respect from any other form of personal property in the protection which the common law throws about it. Its basis is the right to every one to the fruit of his labor. These principles are adverted to merely for the purpose of emphasizing the foundation upon which the law of copyright is based.

The law is desirous of protecting a person in the fruits of his literary labors. In determining whether there has been use or appropriation of the labor of another, whether under the common law or under the law of copyright, certain fundamental principles apply.

In 13 Corpus Juris, I find on page 1145 a very succinct statement of the principles applicable to dramatic works: "Dramatic compositions are the most valuable of all literary works, and for that reason are entitled to a great measure of protection. The unauthorized performance of a single scene in a copyright play may constitute an infringement. And in the case of copyright in books or other literary works the part taken must be material, and there must be a substantial identity, pro tanto, with the original composition in order to constitute piracy, and that identity must be due to copying and not to mere coincidence such as may exist even in the case of works independently produced. Where the two productions produced the impression on spectators that they were substantially the same, one will be held to be a colorable imitation of the other. But a substantial similarity founded on coincidence, or the use of old or stock situations, or common sources, and not the result of piracy, direct or indirect, is insufficient to establish infringement; nor is the taking of a general idea or scheme sufficient. The common stock of dramatic ideas cannot be exclusively appropriated by anyone. Originality in dealing with incidents familiar in life or fiction lies in the association and grouping of those incidents in such a manner that the work under consideration presents a new construction or a novel arrangement of events. A copyright protects this element of originality, and it is an infringement to appropriate a novel combination of old or stock situations, or to take elements of literary or dramatic value with which an author has dressed up an old plot. An indirect, as well as a direct taking constitutes an infringement."

In the note to this text are found many cases. I find reference to a well-known English case, Chatterton v. Cave, 3 A. C. 483, 501, in which it is said: "An idea may be taken from a drama and used in forming another without the representation of the second being a representation of any part of the first. For example, — I have no doubt that Sheridan, in composing `The Critic' took the idea from `The Rehearsal,' but I think it would be an abuse of language to say that those who represent `The Critic' represent `The Rehearsal' or any part thereof; and, if it were left to me to find the fact, I should, without hesitation, find that they did not." This statement is quoted with approval in Eichel v. Marcin (D. C. N. Y. 1913) 241 F. 404, 408.

The dramatic situations which form the stuff of drama are few. The entire dramatic literature of the world can be reduced to some three dozen situations. In fact, an ingenious Frenchman has written a book in which, after analyzing the entire dramatic literature from the time of the Greek and Hindu dramas to the present time, he concludes that all these dramatic works present, in variant form, the few situations which he has analyzed. A rule, therefore, which would place originality not in the manner of treatment of a theme, but in the theme, would place the "hack writer" upon the same footing with the genius. And so the law, realistic in this respect, places originality where it belongs. In the books dealing with the subject, and particularly in the series of books which the United States government has published on copyrights, being Copyright Office Bulletins Nos. 17, 18, and 19, and subsequent volumes, we find many illustrations of the application of the general principles which are stated in the quotation from Corpus Juris. I wish to refer to some of them, chosen from a large mass of material I have accumulated in the trial of cases of this character. Where plays are dissimilar in thought, character, text, and situations, there can be no infringement merely because both made use of an old situation. This is particularly true where the points of essential difference so far outnumber the points of similarity that "it is difficult to understand how any one could persuade himself that the one was borrowed from the other." Hubges v. Belasco (C. C. N. Y. 1904) 130 F. 388; Stevenson v. Harris (D. C. N. Y. 1917) 238 F. 432.

Even though there are characters in both plays having similarity and some instances of similar phraseology, when the theory of the two plays is entirely different, there is no infringement. Vernon v. Sam S. & Lee Shubert, Inc. (D. C. N. Y. 1915) 220 F. 694. The connection between the two works must be obvious to the ordinary reader or observer. Bachman v. Belasco (C. C. A. 2d Cir. 1915) 224 F. 817; Roe-Lawton v. Hal. E. Roach Studios (D. C. Cal. 1927) 18 F.(2d) 126. Protection is extended to the means of expression, not to the plot. Dymow v. Bolton (C. C. A. 2d Cir. 1926) 11 F.(2d) 690; Eichel v. Marcin, supra; London v. Biograph Co. (C. C. A. 2d Cir. 1916) 231 F. 696.

A person may take the same fundamental idea as that of another work, and if in developing it the incidents in which it is developed are substantially different, if the idea is worked out on different lines, so that the two works bear no real resemblance to each other, there will be no infringement: Rees v. Melville, MacGillivaray Copyright Cases, 1910-1916, p. 168; Bagge v. Miller (Ch. D.) MacGillivaray Copyright Cases, 1917-1923, p. 178.

In Bagge v. Miller, supra, although the central idea of a sketch and a play was found to be the same (compulsory truthtelling by means of a bet), the idea being stock, no infringement was found to exist.

In another English case, Vining v. Evett, MacGillivaray Copyright Cases, 1910-1916, p. 188, the court made a similar ruling where the story turned around a band of brigands with a lair in the mountains. The court held that choosing the mountains as the locale for the story, even in conjunction with the fact that in both stories the plot turned around a band of brigands who had a lair in the mountains, was not an infringement, because the idea was stock.

In Eichel v. Marcin, supra, the court was confronted with a claim of similarity between the two stories, "Cheating Cheaters" and "Wedding Presents," both being "crook plays" of the type that was rather common at the time. In discussing the question of similarity the court uses this language: "The object of copyright is to promote science and the useful arts. If an author, by originating a new arrangement and form of expression of certain ideas or conceptions, could withdraw these ideas or conceptions from the stock of materials to be used by other authors, each copyright would narrow the field of thought open for development and exploitation, and science, poetry, narrative, and dramatic fiction and other branches of literature would be hindered by copyright, instead of being promoted. A poem consists of words, expressing conceptions of words or lines of thoughts; but copyright in the poem gives no monopoly in the separate words, or in the ideas, conception, or facts expressed or described by the words. A copyright extends only to the arrangement of the words. A copyright does not give a monopoly in any incident in a play. Other authors have the right to exploit the facts, experiences, field of thought, and general ideas, provided they do not substantially copy a concrete form, in which the circumstances and ideas have been developed, arranged, and put into shape. Holmes v. Hurst 1899 174 U. S. 82, 19 S. Ct. 606, 43 L. Ed. 904. The plaintiffs have prepared a chart, in which they point out the similarities in the two plays, and they claim that their composition may be called a `crook play,' in which two bands of crooks are trying to cheat each other, and that the subjects of their cheating are some famous jewels; further, that both plays deal with thieves masquerading as respectable citizens, detectives, and robbery planned and carried out as an inside job, and then that the big surprise is that the leading crook is in reality a detective, and then, of course, a love affair. But the idea of showing a band of thieves in action is as old as the idea of a man impersonating a female for the purpose of detecting a crime."

After referring to some other plays in which similar incidents have been used, the opinion continues:

"There is an important distinction between copyrights and patents. Letters patent give a monopoly to make, vend, and use, while copyright does not give an exclusive right to use. Copyright protection is extended to authors, mainly with a view to inducing them to give their ideas to the public, so that they may be added to the intellectual store, accessible to the people, and that they may be used for the intellectual...