Eichel v. Marcin

• Decision Date: 02 April 1913
• Citation: 241 F. 404
• Parties: EICHEL et al. v. MARCIN et al.
• Court: U.S. District Court — Southern District of New York

241 F. 404

EICHEL et al. v. MARCIN et al.

United States District Court, S.D. New York.

April 2, 1913

Ruskay & Ruskay, of New York City, for plaintiffs.

Nathan Burkan, of New York City, for defendants.

MANTON District Judge.

The defendant Max Marcin claims to be the author of a play registered for copyright called 'Cheating Cheaters.' The defendant Woods produced the play on the 9th of August 1916, at the Eltinge Theater, New York City, where it has been playing since. The Eltinge Theater is controlled by the A. H. Woods Theater Company. Woods is the president and general manager of the Cheating Cheaters Company.

The plaintiffs claim they are the sole and exclusive proprietors and owners of a satirical melodramatic farce or play entitled 'Wedding Presents,' written and composed by them jointly, that it has never been published or produced in this or any foreign country, and that it was copyrighted under the copyright law of the United States under the title of 'Wedding Presents' on the 18th of December, 1915. The latter part of January, 1916, the plaintiffs submitted a copy of this play entitled 'Wedding Presents' to the defendant Woods, by leaving a copy thereof at his office, the Eltinge Theater, with a Mr. Hoffenstein, then connected in business with said defendant. This dramatic composition was returned to the plaintiffs about two months later. The inference sought to be drawn, and the claim by the plaintiffs, is that the title of this composition was changed to 'Cheating Cheaters,' and the play has been stolen in violation of the plaintiffs' copyright, and the defendants should be restrained from producing it longer. The bill of complaint asks for the usual relief of damages in addition to an injunction.

Marcin a playwright by profession, has produced such well-known plays as 'The House of Glass' and 'See My Lawyer.' Prior thereto he was a reporter and author, and had written several novels and a number of short stories, which have been published in current magazines. He declares that his previous stories were so-called detective stories and were built upon detective plots. 'Cheating Cheaters' is a crook play, with a woman detective as the leading figure. It has had a full season's run, and has proven very successful dramatically and financially, and therefore has had the approval of the theater-going public. Marcin swears the first act and part of the second were written as early as January, 1915, and in the month of January, 1915, he read to the defendant Woods the part written at that time and outlined the balance of the proposed play. It pleased Woods, and he then agreed to finish the production, which he did in April, 1916. He explains his delay in the production of the finished manuscript, stating that he was engaged in preparing the plays 'The House of Glass' and 'See My Lawyer.' He denies any knowledge of the manuscript 'Wedding Presents,' and the story therein told, until the present action was instituted. Woods makes substantially the same claim. The affidavit of Woods' representative, Mr. Hoffenstein, denies the use of the play 'Wedding Presents,' and, indeed, deposes that he never as much as finished its reading. Briefly stated, the story of 'Wedding Presents' is as follows:

The main idea is based upon the skillful attempt of Jack Barnes, the son of a police commissioner, who, in order to win the girl with whom he is in love and the consent of his father to the match, undertakes to apprehend a notorious band of thieves known as the 'Wedding Present Trio.' After a honeymoon, a young couple return to their home and employ a maid called Marie. She is in fact Jack Barnes. The wedding presents are displayed, a notorious gang known as the 'Wedding Present Trio,' much sought by the police, makes entry into the apartment by means of an aeroplane, landing on the front balcony of the house; this through permission obtained from the superintendent of the building. Marie assumes the identity of 'Chicago Nell,' a notorious crook, and with the butler, Dennison, find themselves in this home. The famous Dunne Jewels and the wedding presents become the object of their plans. Other characters, Second Story Smith, Frenchy, the aviator, and Frisco Kate, the bogus Lady Dunne, are introduced. These crooks, fearing the proximity of the police, endeavor to take immediate action. Barnes, the detective, disguised as Marie, secures this employment, feeling that the 'Wedding Present Trio' will be attracted to the Dunne household by newspaper reports of the arrival of the famous Dunne jewels and the wedding presents. A robbery of the house is planned at midnight. Carlo arranges to have Barnes accepted as the new maid in the Dunne household. Frisco Kate, one of the 'Wedding Present Trio' disguised as Lady Dunne herself, bringing imitation jewels, asks for a safe place, and in that way secures the combination of the wall safe, in which the jewels are placed with the jewels of the newly weds.

Dennison informs Marie, who he thinks is Chicago Nell, of the appearance of the crooks, and Marie is caught by bogus Commissioner Barnes tampering with the safe. She agrees to assist him in securing these jewels and participate with him in the robbery at midnight. Marie, in reality being Jack Barnes, the detective, has penetrated the disguise of Frisco Kate, or the bogus Lady Dunne, and constantly thwarts her as she wanders about. At midnight, the time planned for the robbery, bogus Commissioner Barnes learns of the duplicity of Henri, who is not on hand to aid him, and resolves to force Marie to assist in opening the safe. Marie tries to do so, but her plans are frustrated. Bogus Commissioner Barnes, or Second Story Smith, realizing the need for immediate action, arouses all the crooks and arranges for a clean get-away. To carry out his plan, he promises to arrest Henri, Dennison, and Marie, and, playing the part of the real Police Commissioner, he places the other members of the Dunne household about the room supposedly armed. Frisco Kate suddenly appears, and, finding the imitation jewels from the safe, claims that she has been robbed, when the real Lady Dunne appears on the scene bringing with her the real Dunne jewels. Bogus Commissioner Barnes, or Second Story Smith, takes possession of the jewels, and Marie, who has now succeeded in getting all the crooks together, exposes the bogus Lady Dunne as Frisco Kate, and charges her with having tried to double-cross the others. Bogus Commissioner Barnes, now confident, and believing that he has successfully secured the jewels, is about to leave, when the real Commissioner Barnes enters. Second Story Smith now stands revealed as the leader of the 'Wedding Present Trio,' and suggests that all the crooks make a get-away with a clean million in booty. Marie, who now suddenly turns upon him, covers him and the rest of the crooks, and after freeing the police commissioner's hands, they having been tied, turns the 'Trio' over to him as prisoners. Marie is now revealed, not as a maid, but as Jack Barnes, son of the commissioner, who has successfully rounded up all the crooks without a struggle.

The story of 'Cheating Cheaters,' for the purpose of comparison, may be stated as follows:

Ruth Ferris, a young newspaper woman, who has displayed considerable skill in the investigation of news items concerning the doings of criminals, is offered a position at $75 a week by one of the burglary insurance companies. She accepts, and displays exceptional skill as an investigator so much so that she resolves to go in the business for herself. The Ferris Detective Agency is established, and she has as her principal customers various burglary insurance companies which she has organized into a Mutual Protective Association. Ira Lazarre, a lawyer, has appeared for many years with suspicious regularity as counsel for the more prosperous members of the underworld. The authorities have entertained the belief that Lazarre has not only acted as counsel for the criminals, but has participated in their crimes to the extent of being an adviser and backer. Ruth Ferris determines to apprehend Lazarre, and enters into an arrangement with the district attorney whereby she is arrested as a shoplifter and lodged in the Tombs. She employs Lazarre, and he succeeds in gaining her acquittal before a jury. She easily convinces the lawyer that she is a highly gifted crook, and he places her with a company of high-class jewel thieves, known as the 'Brockton gang.' The Brocktons are located in an expensive suburban home, not owned by them, but rented and furnished. They masquerade as persons of eminent respectability, and are accepted as such by respectable neighbors, the Palmer family. The Brocktons are waiting to dispose of some stolen jewels. The unsuspected Ruth Ferris lives among them as Nan Brockton. George Brockton, head of the gang, finally decides to dispose of the stones in Europe, and takes Nan Brockton (Ruth Ferris) along on the trip. She poses as his daughter. Just as they arrive on the other side, the war breaks out and obviously it is useless to endeavor to market the jewels under such circumstances. They return to America, and on the boat Ruth meets Tom Palmer. They discover that they are neighbors, and, moreover, it is discovered by an exchange of confidences that the other is in possession of valuable jewels. On the second day of the return trip, the ship strikes a mine, Palmer's heroism results in saving the lives of many, including Ruth and George Brockton. Ruth, first impressed with Tom's heroic conduct, admires him, and then grows to love him. Tom falls in love with her. In this state of bliss, the Palmers and Brocktons become neighbors in a suburb of New York. Brockton and the Brockton gang, realizing that...