Kustoff v. Chaplin

• Decision Date: 31 May 1941
• Docket Number: No. 9494.,9494.
• Citation: 120 F.2d 551
• Parties: KUSTOFF v. CHAPLIN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

120 F.2d 551 (1941)

KUSTOFF v. CHAPLIN et al.

No. 9494.

Circuit Court of Appeals, Ninth Circuit.

May 24, 1941.

As amended May 31, 1941.

Michael I. Kustoff, of Los Angeles, Cal., in pro. per. for appellant.

Loyd Wright and Charles E. Millikan, both of Los Angeles, Cal., for appellees.

Before DENMAN and MATHEWS, Circuit Judges; BEAUMONT, District Judge.

BEAUMONT, District Judge.

This action was brought by Michael I. Kustoff to enjoin the showing of a motion picture entitled "Modern Times", and for damages for its exhibition. The picture was produced by defendants Charles Chaplin and Charles Chaplin Film Corporation, and distributed for exhibition by defendant United Artists Corporation. Plaintiff's complaint alleges that this filmed picture infringed his copyrighted book, "Against Gray Walls or Lawyer's Dramatic Escapes". Defendants had judgment in the district court. Plaintiff has appealed.

The book in question is an original work of appellant, copyrighted and published in 1934. The author states that it is a true account of incidents in his life. It also contains his observations on social and political problems.

The story from which Modern Times was filmed, according to the testimony of appellee Charles Chaplin, was originated by him and prepared for use under said appellee's direction, with the aid of Carter DeHaven. Chaplin's testimony was that he had had in mind the general idea of the photoplay many years before production of the film was begun; and there was further testimony that the writing of synopses of incidents, scenes and sequences from which the finished picture resulted, was commenced early in 1933. The picture was released for exhibition to the public in 1936.

For a better understanding of the case, we summarize book and picture.

The Book

In his autobiography, Against Gray Walls or Lawyer's Dramatic Escapes, appellant narrates the story of a "life of persecution" occasioned, as he views it, by his militant devotion to the cause of the masses against the capitalistic classes of Russia and the United States. The story appears to fall naturally into three periods, the first dealing with his boyhood in Russia, the second with the struggle for a professional education in America, and the third with the vicissitudes attendant upon his practice of law.

The book opens with a brief account of the author's life on a farm in the Orel district of Russia, where he was born in 1897; of his schooling in Moscow and of his efforts to assist in the support of his family. It traces his progress as a youth in various revolutionary-study circles, and his continued adherence to liberal principles when, at the age of seventeen, he was drafted into the White Russian Army, and admitted to a military college. It follows his service as an officer of the army in the years 1916, 1917 and 1918; his commission as a captain in 1917, and his appointment at the war's conclusion as Military Governor of a large province. The boyhood period is terminated abruptly when, after an abortive Communistic uprising in his province, he was first arrested for revolutionary activities and then, through the assistance of friends, enabled to escape to Vladivostok and hence, by way of an American military transport on which he stowed away, to the United States.

The second period finds the author at Mather Field aviation school at Sacramento, California, enlisted for one year's service pending his application for American citizenship. He outlines the story of his arrival at Sacramento, of his inability to make himself understood, of the finding of an interpreter and of the cordial reception accorded him as a World War hero when, through the interpreter, he made himself known. He tells of his attendance as honor guest at a luncheon given by the Sacramento Chamber of Commerce; of his transportation as an officer's guest to the aviation school, where he was again an honored guest. After a period spent in the servicing of airplanes in the military-college machine shops where, as his "liberal" sympathies became known, there was a waning of approbation by those who formerly had honored him, he was transferred to San Diego, and later to El Centro. There he engaged in patrol duty on the Mexican border. On one occasion he and his pilot were compelled, by reason of a heavy storm, to make a forced landing in the desert. He gives a very interesting description of this airplane ride in the storm.

At the conclusion of his enlistment the author received an honorable discharge; and then began his struggle to obtain a legal education in California.

To overcome a shortage of undergraduate credits necessary for entrance into a school of law, the author enrolled in Pasadena University, having been employed in the interim first as mechanic in machine repair shops, then for three weeks as butler to a "Pasadena millionaire", and thereafter as an employee of a hotel. He was employed as a motion picture extra from time to time. He tells a story of success as a student, and of leadership as an orator.

From a political speech made in defense of striking miners and from the three-weeks contact with the "millionaire" stems, according to his story, the "persecution" to which he was immediately thereafter subjected. Just prior to his final examination he was jailed on charges of writing bomb-threat letters to his former employer, but, after being subjected to the "third degree," was then released. Shortly after completion of his undergraduate course, through which he consistently maintained an outstanding scholastic rating, and just after he enrolled in the California Institute of Technology for the summer session, his former employer expressed interest in a scenario which the author had written. Almost immediately after the author delivered the scenario to his former employer for consideration, he was arrested a second time. Again he was subjected to a "third degree" and charged with the writing of threatening letters. Insanity proceedings were instituted against him. He was adjudged mentally sick but, not being dangerously so, was paroled. Some time later the charges against him were dismissed. He asserts that his apprehension was "framed" and that the conduct of the insanity hearing (which procedure he sets forth in considerable detail, quoting in part verbatim from the court record therein) was a gross miscarriage of justice. His capitalistic enemies accorded him treatment comparable to the "persecutions" of Tom Mooney, Maxim Gorky and Theodore Dreiser, he states.

Having lost his credits in electrical engineering by reason of his detention in jail, the author enrolled in Occidental College, where he continued to excel in his studies. He engaged in debates, and wrote scenarios in which he was unable to interest the studios.

Upon completion of his work at Occidental College, he entered the school of law at the University of Southern California. He worked at night in a hotel, took an extra-curricular course in salesmanship, and engaged during vacations in the selling of various products. Thereafter he returned to Pasadena University for his bachelor's degree. On discovering that his Bachelor of Arts degree would not be recognized at the University of California, where he hoped to continue with his law studies, he entered the summer school of the University of California, and made up the necessary prerequisites.

Some time after entrance in the law school the author was witness of a disastrous fire which swept through the residential sections of the city of Berkeley, to destroy much of the city. He tells of the confusion and despair of residents as they tried to carry their belongings to safety, and of the assistance given by professors and students. One incident he recounts is of his rescue of a small child from a home which was already ablaze. Seizing a wet blanket, he ran to the side of the house, broke a window and proceeded through the smoke and intense heat to the child. Wrapping her in a blanket, he fought his way from the house and carried her to safety. At the conclusion of several hours additional "volunteer" work, he returned to his dwelling to discover his clothes and law books completely ruined. He was, by reason thereof, forced to find part-time employment in order to replace the loss.

Also while in law school he was chosen, as the result of a competitive match, to represent the "attorney for the defendant" in a mock trial presented at a Labor Day parade. He attracted much attention in proclaiming the cause of the downtrodden from a float emblazoned with "radical" placards.

The next year, after three unknown assailants attempted to effect a midnight entry into his dwelling, he filed a complaint with the police and received a verbal assurance that he might carry a pistol for his own protection. Almost immediately thereafter he was apprehended and confined at police headquarters on a charge of unlicensed possession of firearms. There, as the story narrates, he was refused assistance of counsel. He was examined by alienists and was then transferred to the Oakland Emergency Hospital. At the hospital, he says, the "third degree" was administered to him, his food was poisoned and lethal gasses were pumped at night into his room. After a frustrated escape attempt, he was at last brought to trial. He was found to be insane and committed to the Napa State Hospital.

From the Napa Hospital, after a considerable period of hard labor, relieved only by his constantly writing petitions seeking assistance from prominent officials throughout the country, and by the companionship of a large group of inmates who, he claims like himself, had been confined only because of their "radical" sympathies, he conceived a plan of escape. On the day he set for the attempt, having pretended that he had torn his work clothes accidentally, he obtained possession of his "Sunday" suit, and collected the papers he desired to take with him. The opportunity to escape came...