Marvin Worth Productions v. Superior Films Corp.

• Decision Date: 30 September 1970
• Docket Number: No. 70 Civ. 3558.,70 Civ. 3558.
• Parties: MARVIN WORTH PRODUCTIONS, Douglas International Corporation and Sally Marr, individually and as Administratrix of the Estate of Lenny Bruce, Plaintiffs, v. SUPERIOR FILMS CORPORATION, Herbert S. Altman and Budco Distributing Corp., Defendants.
• Court: U.S. District Court — Southern District of New York

319 F. Supp. 1269

MARVIN WORTH PRODUCTIONS, Douglas International Corporation and Sally Marr, individually and as Administratrix of the Estate of Lenny Bruce, Plaintiffs, v. SUPERIOR FILMS CORPORATION, Herbert S. Altman and Budco Distributing Corp., Defendants.

No. 70 Civ. 3558.

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

September 30, 1970.

Schwartz & Frohlich, New York City, for plaintiffs; Michael S. Fawer, John L. Amabile, Jeffrey A. Moross, New York City, of counsel.

Weil, Gotshal & Manges, New York City, for defendants; Marshall C. Berger, New York City, of counsel.

LASKER, District Judge.

Plaintiffs, suing under 17 U.S.C. § 1 et seq., move for a preliminary injunction restraining the defendants from producing, publicizing or distributing a film containing material which allegedly infringes their copyrights. The copyrights apply to two books by and about the late night club entertainer and social critic Lenny Bruce ("Bruce"). The first, "How to Talk Dirty and Influence People," describes itself as an autobiography of Bruce; the second, "The Essential Lenny Bruce," is a collection of his commentaries, jokes, monologues and routines. The copyright on the first is owned by Sally Marr, Bruce's mother and the administratrix of his estate. The copyright on the second is owned by Douglas Inter-National Corporation. Both are published in paperback and more than 200,000 copies of each have been sold.

Plaintiff Marvin Worth Productions ("Worth") has secured by assignment the exclusive right to use the copyrighted material of the two books to make a film on the life of Bruce, which is now in production by Columbia Pictures Corporation. Defendant Altman was also associated with Bruce during the performer's life. After Bruce's death Altman prepared a film script of Bruce's life which he offered to Marvin Worth, but which was rejected. Altman attempted also to secure permission for the use of the copyrighted material from Douglas and Marr, but they denied his request. In spite of these rebuffs, Altman has produced a biographical film about Bruce, named "Dirtymouth," and it is ready for distribution. After "Dirtymouth" was completed, Altman screened it for Worth to see whether Worth would be interested in purchasing or distributing it. Again a rejection occurred. However, as a result of his viewing the film, Worth was convinced that it contained copyrighted material which had been assigned to him, and accordingly he commenced this litigation. His complaint, and the affidavits on this motion, claim 44 specific infringements. The defendants have agreed to delete nine of the items, and I concern myself accordingly only with the remainder.

I. The Contentions of the Parties

To the allegations of infringement the defendants answer: (1) that a substantial portion of the material is derived from public sources, jokes and factual items, and is not copyrightable; (2) that a significant number of the passages were drawn from conversations between Bruce on the one hand and Altman and Bernie Travis (who takes Bruce's part in Altman's film) and others, and that as to such material it either was not copyrightable or, if there was a common law copyright as to it, that copyright was waived by Bruce; (3) that the doctrine of "fair use" protects the defendants; (4) that in any event, a preliminary injunction is here inappropriate in view of the severe nature of such relief and the fact that plaintiffs may secure adequate money damages should they prevail.

To these defenses plaintiffs reply: (1) that none of the material is derived from public sources or consists of jokes and factual items not copyrightable; (2) that there is insufficient evidence to establish that any of the material is drawn from conversations with Bruce and, to the extent that there may have been such origin, the material was protected by common law copyright which Bruce never waived; (3) that the doctrine of fair use does not apply in the circumstances; and (4) that a preliminary injunction should issue since a prima facie case of infringement has been made and the difficulty of determination of damages renders an injunction the sole effective relief.

A reading of the voluminous and well documented record and a viewing of the film "Dirtymouth" (after deletions voluntarily made by defendants) establish that defendants have copied or paraphrased Bruce's material in such substantial quantity as to constitute a prima facie case of infringement. I find that defendants have not (except as to the few jokes and factual items specified in the Appendix to this opinion) established any of the four defenses asserted, and that a preliminary injunction is required to protect the rights of the plaintiffs.

In the discussion below I deal first with the contentions that apply to some but not all of the allegedly infringing items, and thereafter with defendants' claim of "fair use," which relates to the entire body of the allegedly infringing material.

II. Material allegedly from Public Sources or Not Copyrightable

A. Public Source Material:

1) Bruce's outspoken method of expressing his extreme views as to organized religion, sexual mores, his frank use of four-letter words, and his use of narcotics resulted in numerous criminal prosecutions against him. Defendants claim that certain allegedly infringing items in this case are derived solely from the transcripts or opinions in Bruce's prosecutions and that the use of such material is not barred by law. Without determining whether defendants in fact took the language in question from transcripts of trials or opinions, I find unpersuasive the contention that the use of such material, if originally copyrighted (as is undisputed here), is rendered innocent by inclusion in legal transcripts or opinions. To hold that such originally copyrighted material becomes somehow dedicated by use in the courts would permit the unraveling of the fabric of copyright protection. If defendants' theory were accepted, James Joyce's Ulysses, for example, would lie within the public domain merely because the United States prosecuted the book, unsuccessfully at that, a generation ago. Defendants cite no authority to support their position, and I find it without merit. Indeed, though not covering the point precisely, Section 8 of Title 17, U.S.C., which reads in relevant part:

"The publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor."

suggests a statutory policy opposite to defendants' theory.

2) Defendants claim that three further allegedly infringing items emanated from the uncopyrighted jackets of phonograph recordings made by Bruce. The first two passages, defendants say, come from the jacket of "The Essential Lenny Bruce Politics." I find the attribution incorrect, however, since this "blurb" was not published until after defendants' picture was written and produced.¹ The last of these passages is said to derive from the jacket material of "Lenny Bruce, The Berkeley Concert." I have examined this jacket and do not find the material referred to— certainly not in form recognizable as a source. However, more important is the fact that the material reprinted on the jacket of "Lenny Bruce, The Berkeley Concert" consists of a commentary on Bruce's work by one Ralph J. Gleason, a critic of repute. While it may well be that Gleason had the right to utilize such material, qua critic, under the doctrine of fair use, the law does not permit a third party to lift from a critic's article copyrighted material of the original author unless the third party can independently justify his utilization under the doctrine of fair use—a matter which I deal with in a later portion of this opinion. The same observation applies to an item that defendants assert was published in The New York Times in a critic's column.

B. Stock Jokes and Factual Material:

I have indicated in the Appendix to this opinion some few jokes which I find to involve stock situations and to lack the quality of originality necessary to render them copyrightable. There are also discussed in the Appendix a few items which in my opinion are entirely factual in nature, and thus not entitled to protection. Except as thus specified, I find no other stock jokes or factual items not copyrightable.

C. Material allegedly emanating from Conversations between Bruce and the Defendants or Others:

Defendants make generalized claims that Bruce's free-wheeling conversational proclivities were such that much of the allegedly infringing material was to be found in his conversations with Altman, Travis and others, and that indeed he did not care whether others took and used his material. The evidence, such as it is, offered to support this assertion is found only in the affidavits of Altman and Travis. However sincerely these claims are pressed, they must be severely discounted by virtue of the fact that the affidavits are self-serving and are unrestrained by any counter-assertion by Bruce, who is dead. No affidavit of any person dissociated from the defendants is offered in support of the claim. The generality and conclusory nature of the assertions is typified by the following passage from Travis' affidavit, sworn to September 2, 1970:

"This law suit attempts to protect Lenny Bruce's material after his death. In contrast, during his lifetime Lenny Bruce never made any attempt to protect his material. When he started out as a comedian, he was part of a milieu of comedians centered around Miami Beach. Lenny Bruce took material from his co-workers and they took from him, all without complaint. This free exchange of material is alluded to in `Dirtymouth.' Further Lenny Bruce gave away to a number of persons, including fellow

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