Leeds Music Limited v. Robin

• Decision Date: 03 May 1973
• Docket Number: 71-304.,Civ. No. 72-474
• Parties: LEEDS MUSIC LIMITED et al., Plaintiffs, v. Pierre ROBIN et al., Defendants. The ROBERT STIGWOOD GROUP LIMITED et al., Plaintiffs, v. REPERTORY COMPANY OF AMERICA, INC. et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

358 F. Supp. 650

LEEDS MUSIC LIMITED et al., Plaintiffs, v. Pierre ROBIN et al., Defendants.

The ROBERT STIGWOOD GROUP LIMITED et al., Plaintiffs, v. REPERTORY COMPANY OF AMERICA, INC. et al., Defendants.

Civ. Nos. 72-474, 71-304.

United States District Court, S. D. Ohio, E. D.

May 3, 1973.

Earl F. Morris, Wright, Harlor, Morris & Arnold, Columbus, Ohio, Robert C. Osterberg, Abeles, Clark & Osterberg, New York City, Stephen A. Kroft, Rosenfeld, Meyer & Susman, Beverly Hills, Cal., for plaintiffs.

Stuart A. Benis, Benis & McGinley, Columbus, Ohio, for defendants.

OPINION AND ORDER

CARL B. RUBIN, District Judge.

These actions¹ in copyright infringement and for permanent injunctive relief are before the Court on the parties' cross motions for summary judgment. At issue are the questions of whether defendant Robin and his Repertory Company of America are in the process of or plan to infringe the copyrights of plaintiffs Leeds Music Limited and The Robert Stigwood Group Limited, in the dramatico-musical work entitled Jesus Christ Superstar. The Court must further determine whether this work, whose lyrics were written by Timothy Rice and whose music was composed by Andrew Lloyd Webber, was in turn pirated from The Passover Plot by Dr. Hugh J. Schonfield.² If this latter question is answered in the affirmative, the Court must then consider what effect such piracy should have on the validity of the copyrights here involved.

To assist us in making these legal determinations, both sides have submitted extensive briefs, affidavits, exhibits and analyses of these respective works. In addition, the Court has heard testimony from defendnat Robin; has carefully listened to the authorized recording of Jesus Christ Superstar and read The Passover Plot with some care; and has been generally briefed by its own teenage children on the place of rock opera in the counter-culture. We have also scrutinized the certificates of registration of copyright in Jesus Christ Superstar which have been submitted to the Court.³

It is, of course, well established that these certificates of copyright registration are prima facie evidence of the validity of the copyrights and of the right to enforce all rights and interests therein. See 17 U.S.C. § 209; also see Blumcraft of Pittsburgh v. Newman Brothers, Inc., 373 F.2d 905 (C.A.6 1967); Flick-Reedy Corp. v. Hydro-Line Manufacturing, 351 F.2d 546 (C.A.7 1965), cert. den. 383 U.S. 958, 86 S.Ct. 1222, 1223, 16 L.Ed.2d 301 (1965); Remick Music Corporation v. Interstate Hotel Co. of Nebraska, 58 F.Supp. 523 (D.Neb.1944), aff'd. 157 F.2d 744 (C.A. 8 1946), cert. den. 329 U.S. 809, 67 S.Ct. 622, 91 L.Ed. 691 (1946); Jerry Vogel Music Co. v. Forster Music Publisher, Inc., 147 F.2d 614 (C.A.2 1945).

Nor is there any question that these copyrights, if valid, are properly within the possession and for the protection of the plaintiffs herein. Rice and Webber, who originally claimed rights in the rock opera, Jesus Christ, assigned these rights, except as to a segment entitled "King Herod's Song," to plaintiff Leeds Music Limited. This plaintiff then separately registered these claims to copyright in the opera as a dramatico-musical work and as to several of its individual segments. See 17 U.S.C. §§ 1(d), (e), 5(d); also see Robert Stigwood Group Limited v. Sperber, 457 F.2d 50, 51-52 (C.A.2 1972); Robert Stigwood Group Limited v. O'Reilly, 346 F.Supp. 376, 378-380 (D.Conn.1972). Plaintiff Leeds Music Corporation subsequently acquired by assignment the rights of Leeds Music Limited in Jesus Christ Superstar for its United States productions. Plaintiff Universal City Studios, Inc., then acquired the exclusive worldwide motion picture rights in the work. See Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F. 2d 49 (C.A.2 1936), cert. den. 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936).

The issue of defendants' alleged intent to infringe plaintiffs' copyrights was first presented to the Court in late December, 1972. At that time the plaintiffs moved, pursuant to Rule 65, Fed. R.Civ.P., for a preliminary injunction. After hearing testimony in open court, we granted, by Order dated December 29, 1972, plaintiffs' motion for preliminary injunctive relief, thereby restraining defendant Robin and his agents from proceeding with threatened plans to make a movie version of Jesus Christ Superstar, in complete disregard of plaintiffs' similar plans, sizeable capital investment, and presumptively valid copyrights.

The Court, at that time, specifically found that Robin had such infringing plans and intended to act on them unless restrained from doing so by court order. See Leeds Music Limited v. Pierre Robin, Civil No. 71-474, Finding of Fact No. 6, at 3 (S.D.Ohio E.D.1972) (slip opinion). There has been no change in the publicly stated position of defendant Robin since the date of our last order. We have no doubt that if the earlier restrictions were lifted, the defendants would proceed to attempt to carry out their plans of filming Jesus Christ Superstar. Their position has been consistently that plaintiffs' copyrights are invalid for aforementioned reason of alleged literary piracy.

As this affirmative defense raises only questions of law and as there are no genuine fact issues before the Court, disposition of this matter on motions for summary judgment is appropriate. See Rule 56, Fed.R.Civ.P.; also see Lewis v. Magna American Corp., 472 F.2d 560 (C.A.6 1972); Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L. Ed.2d 569 (1972). While it is true that summary judgment should only be granted through the exercise of "great restraint," see Wahl v. Vibranetics, Inc., 474 F.2d 971 at 976 (C.A.6 1973); also see Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); C. F. W. Construction Co. v. Travelers Insurance Co., 363 F.2d 557 (C.A.6 1966); it is equally true that summary judgment is proper where, as here, "a trial would serve no useful purpose." Wahl v. Vibranetics, id., 474 F.2d at 976, also see Applegate v. Top Associates, Inc., 425 F.2d 92 (C. A.2 1970); Rogers v. Peabody Coal Co., 342 F.2d 749 (C.A.6 1965).

We must now turn to the central question presented in these actions and determine whether Jesus Christ Superstar was, in fact, pirated from The Passover Plot. Sadly, in view of the great expenditures of time and effort by the parties herein, the answer to this query flows inexorably from its statement. It is true that these two works have some superficial similarities. Obviously, both works deal with the character of Jesus, his historical setting and religious experiences; both works do this in a nontraditional, revisionist-contemporary manner. However, nearly everything else about them is dissimilar.

Dr. Schonfield's The Passover Plot is a somewhat scholarly if sensational work dealing with Jesus' life and times. It is set in the form of a conventional book and contains no musical score; it can be read profitably and enjoyed without the services of a musical accompanist. Dr. Schonfield presents in his book the not altogether novel thesis that Jesus has a historical, as well as a religious dimension, and that any serious attempt to understand Jesus the man must, of necessity, involve an understanding of the political and social milieu of which he was a part.⁴

Schonfield's original contribution is to specifically argue that Jesus was something of a political machiavel who consciously plotted to fulfill the political prophecies of the Old Testament, and especially those of Jeremiah, Ezekiel and Daniel, having to do with the coming of a messianic King (or Son of God). See Schonfield, id., at 11-39. A crucial part of the alleged plot involved an effort to simulate death on the cross through a drug induced trance, and a later "resurrection" which the plotters hoped would set off a political insurrection by Jewish zealots against the Roman overlords.⁵ The plot failed, not because of any character defects in Jesus, but because of the clumsy sadism of one of the faceless Roman spear-carrying soldiers on Golgotha.

The Jesus Christ Superstar of Messrs. Rice and Webber, to the contrary, is in the recently evolved art form known as "rock opera." Hear and compare The Who, Tommy (1971); also hear Hair (1969); Godspell (1972). Even after making allowance for artistic license and a liberal interpretation of the Aristotelian unities, this Court concludes that Superstar is a more temporally limited work than is The Passover Plot. While the Plot considers the whole of Jesus' life as its subject, Superstar depicts only his last seven days in Jerusalem which culminate in his crucifixion. The message of Superstar, as with all truly operatic works, is rendered exclusively through song and music and spectacle. It is all music and libretto and contains no "book" in Broadway on Schonfieldian terms. The Jesus of Superstar⁶ is a charismatic, rock and roll singer who, through indecision and curiosity, and on a kind of ego-trip, goes to his confused death on the cross. His great popularity among his followers has partially convinced the Superstar that he is divine. This is particularly distressing to one of his most dedicated followers, Judas, who, while he loves Jesus the man, dislikes, distrusts and ultimately betrays him as a "Superstar."

In many ways, Judas is the most carefully delineated character in the play and perhaps the true protagonist of Superstar. Judas, unlike Jesus, is portrayed as one deeply committed to the cause of the poor and the meek. This was, of course, the characteristic stance of the early church as recorded in the New Testament. See Acts iii, 44-45. The sybaritic and egocentric attitudes of Jesus, which Judas interprets as a betrayal of the movement, lead, in Jesus Christ Superstar, to his misguided treachery.⁷

This is not to suggest that there is...