Nash v. CBS, Inc., 89-1823

• Decision Date: 23 April 1990
• Docket Number: No. 89-1823,89-1823
• Citation: 899 F.2d 1537
• Parties: 1990 Copr.L.Dec. P 26,563, 14 U.S.P.Q.2d 1755, 17 Media L. Rep. 1798 Jay Robert NASH, Plaintiff-Appellant, v. CBS, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1537

899 F.2d 1537

1990 Copr.L.Dec. P 26,563, 14 U.S.P.Q.2d 1755,

17 Media L. Rep. 1798

Jay Robert NASH, Plaintiff-Appellant, v. CBS, INC., et al., Defendants-Appellees.

No. 89-1823.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 24, 1990.

Decided April 23, 1990.

Martin S. Agran, Agran & Agran, E. Leonard Rubin, Willian, Brinks, Olds, Hofer, Gilson & Lione, Chicago, Ill., Harvey C. Gordon, Glenview, Ill., for plaintiff-appellant.

William G. Schopf, Jr., Paula Litt, Schopf & Weiss, Chicago, Ill., for defendants-appellees.

Before FLAUM and EASTERBROOK, Circuit Judges, and GRANT, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

John Dillinger, Public Enemy No. 1, died on July 22, 1934, at the Biograph Theater in Chicago. He emerged from the air conditioned movie palace into a sweltering evening accompanied by two women, one wearing a bright red dress. The "lady in red", Anna Sage, had agreed to betray his presence for $10,000. Agents of the FBI were waiting. Alerted by Polly Hamilton, the other woman, Dillinger wheeled to fire, but it was too late. A hail of bullets cut him down, his .45 automatic unused. William C. Sullivan, The Bureau 30-33 (1979). Now a national historic site, the Biograph bears a plaque commemorating the event. It still shows movies, and the air conditioning is no better now than in 1934.

Jay Robert Nash believes that Dillinger did not die at the Biograph. In Dillinger: Dead or Alive? (1970), and The Dillinger Dossier (1983), Nash maintains that Dillinger learned about the trap and dispatched Jimmy Lawrence, a small-time hoodlum who looked like him, in his stead. The FBI, mortified that its set-up had no sting, kept the switch quiet. Nash points to discrepancies between Dillinger's physical characteristics and those of the corpse: Dillinger had a scar on his upper lip and the corpse did not; Dillinger lacked a tooth that the corpse possessed; Dillinger had blue eyes, the corpse brown eyes; Dillinger's eyebrows were thicker than those of the corpse. Although Dillinger's sister identified the dead man, Nash finds the circumstances suspicious, and he is struck by the decision of Dillinger's father to encase the corpse in concrete before burial. As part of the cover-up, according to Nash, the FBI planted Dillinger's fingerprints in the morgue. After interviewing many persons connected with Dillinger's gang and the FBI's pursuit of it, Nash tracked Dillinger to the west coast, where Dillinger married and lay low. Nash believes that he survived at least until 1979. The Dillinger Dossier contains pictures of a middle-aged couple and then an elderly man who, Nash believes, is Dillinger in dotage. Nash provides capsule versions of his conclusions in his Bloodletters and Badmen: A Narrative Encyclopedia of American Criminals from the Pilgrims to the Present (1973), and his expose Citizen Hoover (1972). ^**

Nash's reconstruction of the Dillinger story has not won adherents among historians--or the FBI. Someone in Hollywood must have read The Dillinger Dossier, however, because in 1984 CBS broadcast an episode of its Simon and Simon series entitled The Dillinger Print. Simon and Simon featured brothers Rick and A.J. Simon, private detectives in San Diego. The district court summarized the episode, 704 F.Supp. 823, 828-29 (N.D.Ill.1989):

The opening scene of The [Dillinger] Print shows Ty Becker, a retired FBI agent, telling his grandchildren about Dillinger's life and the shooting outside the Biograph Theater on July 22, 1934. Ty also mentions that he doubts Dillinger was the man who was shot that night and vows to track him down some day. After the grandchildren leave with his daughter Addie, an intruder breaks into Ty's home, steals an old gun which once belonged to Dillinger, and kills Ty with the gun.

Concerned that the police would regard Ty's death as a typical murder incident to burglary rather than related to moonlighting she suspected he was performing for the FBI, Addie hires the Simons. Next, Addie goes to the bank to remove her father's safety deposit box. While she is in the vault, a masked man, wearing 1930s-style spectator shoes, shoots tear gas into the bank and steals Ty's safety deposit box. The Simons arrive at the bank soon thereafter and pick up the thief's gun, which turns out to be the Dillinger gun stolen from Ty's house. Police investigation later reveals that the gun bears the fresh fingerprint of John Dillinger.

The Simons are next seen purchasing newspapers which are carrying the story that Dillinger may be alive. As the Simons discuss the case, A.J. reads from a book entitled "Twentieth Century Desperadoes." He implies that some evidence supports the idea Dillinger is alive and relates to Rick several physical discrepancies between Dillinger and the corpse described in the 1934 autopsy. Nash cites the same discrepancies in his books.

Numerous Dillinger impostors soon come forward, and the FBI enters the case. However, FBI Agent Kinneman, who is a friend of A.J.'s, informs the Simons that Ty Becker was not working for the FBI at the time of his death.

The scene then switches to a health club. As A.J. and Kinneman are playing racquetball, a man wearing a trench coat and spectator shoes enters the club and, from the viewing area, sprays a salvo of bullets over A.J. and Kinneman. Afterwards, A.J. solemnly swears revenge against Dillinger or whoever tried to shoot him.

The next day, the Simons visit the police station and discover that "leads" regarding Dillinger's whereabouts have poured in from all over the world. They agree to check out a few leads, including one that takes them to a dentist in San Diego. The dentist rejects the Simons' suggestion that Dillinger lives in his house and attributes the police tip to a crazy woman who lives across the street.

The Simons and Addie then pay a visit to Ty Becker's old secretary, who informs them that Ty was working on an internal FBI investigation at the time he was killed. Immediately thereafter, the Simons and Addie receive a call from Kinneman, who tells them that "there is more truth to this" Dillinger affair than anyone had imagined and that the Simons should meet him at a closed-down theater.

When the Simons and Addie enter the theater, a gangster documentary is playing. Kinneman and a man wearing spectator shoes shoot at the trio. The Simons eventually kill the man in spectator shoes. They then subdue Kinneman, who admits to killing Ty Becker in order to stop the internal investigation which, it turns out, was directed at Kinneman, and to leaving the fake Dillinger fingerprint on the gun at the bank.

In the penultimate scene, the FBI thanks the Simons for their help in arresting Kinneman and solving the Dillinger mystery. Rick nevertheless insists Dillinger may be alive and perhaps living in Oregon.... The episode closes with a teaser: the dentist, one of the leads whom the Simons had interviewed earlier in the program, is seen pushing his elderly father in a wheelchair and admonishing him to refrain from discussing the "old days in Chicago" anymore.

Nash filed this suit seeking damages on the theory that The Dillinger Print violates his copyrights in the four books setting out his version of Dillinger's escape from death and new life on the west coast. The district court determined that the books' copyrighted material consists in Nash's presentation and exposition, not in any of the historical events. 691 F.Supp. 140 (N.D.Ill.1988). CBS then moved for summary judgment, conceding for this purpose both access to Nash's books and copying of the books' factual material. The court granted this motion, 704 F.Supp. 823, holding that The Dillinger Print did not appropriate any of the material protected by Nash's copyrights.

CBS's concession removes from this case two questions that bedevil copyright litigation. See Selle v. Gibb, 741 F.2d 896, 901- 02 (7th Cir.1984). It leaves the questions whether the copier used matter that the copyright law protects and, if so, whether it took "too much" (that is, more than allowed by the "fair use" doctrine codified in 17 U.S.C. Sec. 107). See Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 614-17 (7th Cir.1982); Toksvig v. Bruce Pub. Co., 181 F.2d 664 (7th Cir.1950). These latter questions have proven especially difficult when, as in this case, the copier works in a medium different from the original.

Learned Hand, whose opinions still dominate this corner of the law, observed in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930), that all depends on the level of abstraction at which the court conceives the interest protected by the copyright. If the court chooses a low level (say, only the words the first author employed), then a copier may take the plot, exposition, and all other original material, even though these may be the most important ingredients of the first author's contribution. As a practical matter this would mean that anyone could produce the work in a new medium without compensating the original author, despite the statute's grant to the author of the privilege to make "derivative works". If on the other hand the court should select a high level of abstraction, the first author may claim protection for whole genres of work ("the romantic novel" or, more modestly, any story involving doomed young lovers from warring clans, so that a copyright on Romeo and Juliet would cover West Side Story too). Even a less sweeping degree of abstraction creates a risk of giving copyright protection to "the idea" although the statute protects only "expression". 17 U.S.C. Sec. 102(b); Holmes v. Hurst, 174 U.S. 82, 86, 19 S.Ct. 606, 607, 43 L.Ed. 904 (1899); Mazer v. Stein, 347 U.S. 201, 217-18, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954); Rockford Map Publishers, Inc. v. Directory Service Co., 768 F.2d 145 (7th Cir.1985); Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir.1981); United...