Reyher v. Children's Television Workshop

• Citation: 387 F. Supp. 869
• Decision Date: 06 January 1975
• Docket Number: No. 72 Civ. 627 (JMC).,72 Civ. 627 (JMC).
• Parties: Rebecca REYHER and Ruth Gannett, Plaintiffs, v. CHILDREN'S TELEVISION WORKSHOP and Tuesday Publications, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

387 F. Supp. 869

Rebecca REYHER and Ruth Gannett, Plaintiffs, v. CHILDREN'S TELEVISION WORKSHOP and Tuesday Publications, Inc., Defendants.

No. 72 Civ. 627 (JMC).

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

January 6, 1975.

Stoll & Stoll, New York City (Samuel J. Stoll and Robert S. Stoll, of counsel), for plaintiffs.

Coudert Brothers, New York City (Eugene Girden and Paul B. Jones, New York City, of counsel), for defendants.

CANNELLA, District Judge:

This copyright infringement action was tried to the Court without a jury. After consideration of the facts presented and the law applicable thereto, the Court finds for the defendant and dismisses the complaint.

The plaintiffs herein, Rebecca Reyher and Ruth Gannett, the copyright holders, and respectively the author and illustrator of a children's book entitled, "My Mother Is the Most Beautiful Woman in the World," allege that the defendants, Children's Television Workshop ("CTW") and Tuesday Publications, Inc. ("TPI"), have copied said book and, have, thereby infringed upon plaintiffs' copyright. The alleged infringement occurred when CTW, a non-profit corporation, engaged in, among other activities, the production of the educational children's television program known as "Sesame Street", produced and caused to be shown on television a segment of the Sesame Street program entitled "The Most Beautiful Woman in the World" and when, thereafter, CTW caused articles to be published in both the English and Spanish language versions of the Sesame Street Magazine entitled "The Most Beautiful Woman in the World." Finally, it is alleged that TPI infringed upon plaintiffs' copyright by causing the publication, in an edition of "Tuesday at Home", of a story entitled "The Most Beautiful Woman in the World".

Plaintiffs' book, which was copyrighted in 1945, tells a simple but pointed story. In essence, it relates the tale of a small Russian peasant girl who is lost in the Ukraine. The little girl, having been separated from her mother, makes her way to a village where she tells the inhabitants only that "my mother is the most beautiful woman in the world." Upon hearing this, the villagers proceed to search the surrounding area and to bring all of the local beauties to see the little girl in the hope that one of them will turn out to be her mother. Eventually, the little girl's mother does appear, she is, to the villagers' surprise, a rather homely looking woman. The little girl, however, is not surprised and tells the villagers "this is my mother, the most beautiful woman in the world." The moral, as the village leader points out, is that "we do not love people because they are beautiful, but they seem beautiful to us because we love them."

It is clear to this Court, having viewed the relevant "Sesame Street" segment and read the three magazine articles involved, that there is a substantial similarity between plaintiffs' copyrighted book and defendants' allegedly infringing works. Although the only phrase which appears in both works is "Once upon a time, long, long ago," and although there is little, if any, actual paraphrasing of plaintiffs' book in defendants' works, no individual comparing the works at bar could help but conclude that they are substantially similar. While defendants' rendition of the story takes place in a different locale and is told with fewer frills than plaintiffs', both stories present an identical sequence of events.

Nonetheless, before it can be determined whether there has been an infringement of plaintiffs' copyright, the Court must first determine exactly what is protected by that copyright. In the instant case, we have a book which the author candidly admits is based upon a story which was told to her by her Russian mother. It is the belief of plaintiff Reyher (although no direct evidence was adduced to this effect) that the story told to her by her mother is in fact a Russian folk tale. It is clear from plaintiff's testimony that the story line as it appears in her copyrighted book is substantially taken from, if not identical with, the story told to her by her mother. Mrs. Reyher testified that she had "taken a storyline, but I have adapted it and that's a synonym for retold and that's why I raise no objection to retold. It's my treatment. That's what this book is, even though it was my mother's story." (Tr. 120)

Plaintiff did not testify that she had added anything to the story or changed it in any significant way. In fact, the plaintiff indicated that she wrote the book using a Russian dictionary. This clearly suggests a process whereby plaintiff attempted to recall the story as told to her by her mother in Russian, and then to translate that recollection into English. As plaintiff Reyher herself explained the process,

it not only required a translation, it required two volumes of a Russian dictionary to check certain words and impressions that I had because this was an impression rather than a literal translation. Anything that I used that she her mother had told me might have been a translation, but it also was primarily a mood and mine was an interpretation. (Tr. 71-72)

It is thus clear to the Court that plaintiffs' book is a "derivative" work. That is, it has been "substantially copied from a prior work" in the public domain. (1 M. Nimmer on Copyright § 39 at 166). The accepted rule as restated in the proposed copyright law (see Goodis v. United Artists Television, Inc., 425 F.2d 397, 402-403 (2d Cir. 1970); Rohauer v. Killiam Shows, Inc., 379 F.Supp. 723, 728 (S.D.N.Y.1974)), is that "the copyright in a derivative work extends only to the material contributed by the author of such work, as distinguished from the pre-existing material employed in the work. . . ." As one court has put it, if the work allegedly infringed upon is of a derivative nature,

the plaintiff . . . should be expected to state to us what it is in the story

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