Rose v. Connelly

• Decision Date: 05 April 1941
• Citation: 38 F. Supp. 54
• Parties: ROSE v. CONNELLY et al.
• Court: U.S. District Court — Southern District of New York

38 F. Supp. 54

ROSE v. CONNELLY et al.

District Court, S. D. New York.

March 14, 1941.

On Reargument April 5, 1941.

George E. Carmody, of New York City, for plaintiff.

Howard E. Reinheimer, of New York City, for defendants Marc Connelly and Arthur Kober.

Irving Cohen, of New York City, for defendant Mitchell Grayson.

CLARK, Circuit Judge (sitting as District Judge pursuant to statutory designation).

The claim of plagiarism herein seems to me quite fantastic. The two plays differ in plot, in character interest, in background, in general purpose and intent —in short, in substantially all points of reader or theatre interest. Plaintiff's lugubrious drama has a somewhat pretentious, though not unified, story. First we find the heroine and her employer in his business office arranging a mutual seduction; next we find her as mistress of his home, where he dies suddenly as his wife returns. Then in the second act the scene shifts to a summer bungalow, where the heroine, admitting further promiscuous sex experimentation, is rejected as tarnished by the young man who was seemingly to be hero number two. Eventually she is accepted by the son of her original employer, who has appeared incognito about the middle of the play. The locale of the latter part of the play has no particular significance or interest; true, the heroine jumps or lands in the lake for an apparently unmotivated suicide, but any other device of destruction would have served as well or ill.

On the other hand, defendants' play has a simple and unassuming love story, set at a summer camp, between a New York stenographer and a law graduate waiter who meet, fall in love, and after lovers' tiffs finally decide to marry, notwithstanding their poverty. It is effective, however, as a vehicle for the real appeal of the play, which is the humor and wit developed from placing a large group of presumably typical New Yorkers from the Bronx— speaking a rich dialect euphemistically termed New Yorkese—in the midst of the turmoil of this ludicrously overadvertised camp. True, the heroine does take an early morning dip in the lake as a means of concealing from her boy friend that she has been compelled—by circumstances —to spend the night chastely in another's bungalow. But lakes and ultimate wedding bells are hardly the exclusive property of any one author. Even had there not been this complete disparity of character and incident, one would still hesitate to concede infringement of plaintiff's sombre product, so lacking in all the sparkle and wit which gives defendants' play lift and vigor and which is authentic skill. Dorothy Parker is reported to have said of the defendant author in another connection that "the lovely precision" of his ear and "the dogged faithfulness of his pen" have made impure pronunciation impossible, so that a reader or hearer "will speak the Bronx language not like a native, but as one." That is his original possession, disclosed in stories and articles long before plaintiff's piece was written.

Plaintiff's able brief does assert many identities of detail; but these are rather a tribute to his ingenuity than an accurate reflection of reality. Since trial has been set for next week, decision cannot be delayed for the discussion of each of these claims, nor would any good purpose be served thereby. But a fair example of the method is the attempted assimilation of the employer appearing at the beginning of plaintiff's play, to the former fiancé appearing briefly at the end of defenda...