MacDonald v. Du Maurier
| Citation | 144 F.2d 696 |
| Decision Date | 18 August 1944 |
| Docket Number | No. 390.,390. |
| Parties | MacDONALD v. DU MAURIER et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
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Charles S. Rosenschein, of New York City (Charles S. Rosenschein and Arthur Leonard Ross, both of New York City, and Herman Schner, of Brooklyn, N. Y., of counsel), for appellant.
Beekman & Bogue, of New York City (Benjamin H. Stern, Edward K. Hanlon, and Harry Buchman, all of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and CLARK, Circuit Judges.
This is a suit for infringement of copyright. The plaintiff, appellant here, wrote a story entitled "I Planned to Murder My Husband" which was published in Hearst's International Magazine for October 1924 and copyrighted. Later she expanded the story into a novel entitled "Blind Windows," published and copyrighted in 1927. In 1938 the appellee published a book entitled "Rebecca" of which Daphne Du-Maurier (named as a defendant in the present action but not served with process) was the author. The other defendants, not parties to this appeal, had to do with the production and distribution of a motion picture entitled "Rebecca" based upon the book of the same name. The complaint charging infringement of the plaintiff's copyrighted story and novel was filed on September 15, 1941. There has been no trial of the action. After answering the complaint the appellee moved for judgment on the pleadings. In an opinion which admirably outlines the stories of the two books the district judge granted the motion. His unpublished opinion is appended hereto.
Because of the way the case came on — a motion for judgment on the pleadings — we must assume not only that the author of the book charged with infringing had access to the plaintiff's copyrighted works but also that she actually copied those parts common to both. Dellar v. Samuel Goldwyn, Inc., 2 Cir., 104 F.2d 661, 662; Collins v. Metro-Goldwyn Pictures Corp., 2 Cir., 106 F.2d 83, 86. The complaint alleges that the "book `Rebecca' is in large measure copied from" the plaintiff's story and novel. Upon motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723, this allegation must be accepted despite its denial in the appellee's answer. Hence we are forced to suppose that all common material in the two books was the result of copying by the author of "Rebecca." If so the only answer to the charge of tortious plagiarism must be that the common matter was either in the public domain or was so trifling as not to count. Judge Bondy's opinion sums up all, or at least the greater part, of the similarities which the plaintiff asserts to exist. Even though some of them may be far fetched, for example, the reference to trees looking like sentinels, so many remain that the common matter is not so trifling that it can be ignored. Consequently the question comes down to whether the author's borrowing, although substantial in amount, was a "fair use." That is always a troublesome question. In the case at bar the supposititious borrowings are not in the general outline of plot and character: in "ideas" as opposed to "expression." On the contrary they consist in a series of concrete incidents and details, and if in fact these were all borrowed from the plaintiff, we cannot properly hold that the common matter was outside the protection of the copyright law. That law indeed gives no monopoly of general ideas, but authors, most of all, will be jealous that this exception does not swallow all their rights.
In an infringement suit coming up in this way we believe that a judge unconsciously tends to make a summary judgment which disregards the concession of copying; when upon a reading of the two works it seems unlikely from their relative merits that the common matter could have been borrowed, the judge will hold, without quite saying so even to himself, that it was not borrowed. To do this is to deprive the plaintiff of his day in court; and that is the real vice of the procedure here adopted. It is quite true that if we permitted ourselves to judge from our own perusal of the books whether the author of "Rebecca" had used the plaintiff's literary material, we should have little doubt that she did not. But we know nothing about the author's access to that material or about what evidence the plaintiff can produce in support of her assertion of copying; and both of those issues the appellee has conceded in the plaintiff's favor. Accepting that concession, as we must, we hold that it was error to dismiss the complaint.
This does not mean that the suit must necessarily go to trial. Upon a motion for summary judgment under Rule 56, supported by the author's deposition or perhaps even by her affidavit, it might be satisfactorily established that there was neither access nor copying. But a motion for judgment on the pleadings asks the court to determine the issue of infringement with these facts conceded. This precludes us from saying that "Rebecca" — even though we regard it as immeasurably superior to "Blind Windows" — could not have been borrowed in respect to the common material. While we agree that dispatch in litigation is highly desirable, it should not be pressed to the point where it shuts out an adequate examination of the merits. Little as we expect any other ultimate result than dismissal of the complaint, we think that it has been prematurely reached by a forbidden path.
Judgment reversed.
I fear that an expression by this court of a preference for full and formal trial of plagiarism issues in Dellar v. Samuel Goldwyn, Inc., 2 Cir., 104 F.2d 661, 662 — though the actual decision there supported the result reached below here1 — is now being pressed into a rule of decision for this Circuit, which, with deference, I must conclude is as contrary to the provisions, as well as the spirit, of the new civil rules as it is admittedly opposed to the realities of authorship and of literary thievery. Procedure should be viewed simply as a means of doing justice, not as an end in itself or as something which requires vindication without respect to results; and the new rules were designed to afford not only speedy and efficient adjudication of actions on the...
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