O'ROURKE v. RKO Radio Pictures, 43.

• Decision Date: 04 March 1942
• Docket Number: No. 43.,43.
• Citation: 44 F. Supp. 480
• Parties: O'ROURKE v. RKO RADIO PICTURES, Inc.
• Court: U.S. District Court — District of Massachusetts

44 F. Supp. 480

O'ROURKE v. RKO RADIO PICTURES, Inc.

No. 43.

District Court, D. Massachusetts.

March 4, 1942.

James M. Hoy, Edward B. Hanify, and Ropes, Gray, Best, Coolidge & Rugg, all of Boston, Mass., for plaintiff.

E. Curtiss Mower, Jr., Jacob J. Kaplan, and Nutter, McClennen & Fish, all of Boston, Mass., for defendant.

SWEENEY, District Judge.

In this action, which was begun by a bill in equity in the state court, the plaintiff seeks damages and an accounting of the profits derived from the production and exhibition of defendant's motion picture "Condemned Women". The plaintiff alleges that the story of that picture was unlawfully copied and appropriated in whole or in a substantial part from a story "Girls' Reformatory" which he had written and submitted to the defendant for purchase. The defendant denies that any part of "Condemned Women" was taken from "Girls' Reformatory", and, while admitting access to the script of "Girls' Reformatory", says that the story upon which "Condemned Women" was based was purchased from one Lionel Houser many months before the plaintiff's story was submitted to it or even fully written.

Findings of Fact.

Both stories deal with the life of an inmate of a women's prison. There are many similarities between the two stories which naturally follow from their locale and from the necessity of weaving into such a story certain basic ingredients, such as love interest, the discipline of prison life, a prison riot and fire, and the pathos incidental to the confinement of women in prison. It is in the treatment of these ingredients that the plaintiff alleges the defendant has stolen from his story.

The plaintiff's story opens with its heroine Joan Blake in prison. She has killed a man while defending herself from attack in a nightclub. A former nurse, she is assigned to help the prison physician. They fall in love with each other. A flood in a nearby town gives Joan the opportunity of assisting the prison doctor who is called to the flood area, and she does meritorious work there. The doctor proposes marriage to her, and, after counselling against it, she agrees to marry him. Joan is paroled, presumably for the fine work she has done in the flood area. She marries the doctor, and they settle down to live in a nearby town where the doctor has a private practice. As an ex-convict, she is not received socially by the women of the town. On the contrary, they combine to make her and the doctor's life disagreeable and difficult. Joan watches her husband's great efforts and views with apprehension the resulting loss in his business, and, knowing it is because of her past that he is unsuccessful, she runs away to a distant city. In doing this, she violates her parole. In the distant city she is picked up by police officers, and returned to the prison to complete the balance of her original sentence. The doctor, in the meantime, has been distracted by her absence, and has started drinking heavily. His attempts to locate her are not successful. In a drunken fit the husband strikes another doctor with a bottle, and, assuming that he is dead, runs away. While hiding in a cabin in the mountains, he hears an automobile wreck, and, rescuing the occupants of the car, he learns that one is the Governor of the state. From him he learns that the doctor whom he had hit is not dead and has made no complaint against him.

During a prison riot in which Joan takes no part she is killed protecting a child from the rioters. Her husband, the doctor, reaches the prison with the Governor just in time to hold her in his arms before she dies.

The theme of the story deals with the futility and the impossibility of regeneration of a woman who has a prison past, and attempts to portray that society in general is cruel in that it will never overlook the mistakes of a woman.

The story "World of Women" was purchased from one Lionel Houser by the defendant early in 1937, and made into defendant's picture "Condemned Women". The first draft continuity depicts the heroine Linda being transported by ferry to a prison to which she has been committed for a series of minor crimes. Dejected, she attempts suicide, but is prevented in this by a fellow passenger who turns out to be a doctor who is being assigned to the prison to which she has been committed. The doctor is a friend of the warden, and Linda is assigned to work with him when it is discovered that she has had previous nursing experience. Linda refuses to join a group in a contemplated prison break. Narcotics are stolen from the hospital to which Linda alone apparently has access, and, on a search being made, the narcotics are found amongst Linda's effects. She is placed in solitary confinement, but about this time a typhoid epidemic breaks out in prison, and she is released to do service in the hospital. After the epidemic is controlled, she and the doctor have many moments together when they pour out their love for each other.

When the warden reprimands the head nurse for neglect of duty, she discloses to the warden that the doctor and Linda are in love with each other. He talks with Linda about it, and convinces her that her love is futile and can bring only tragedy to herself and the doctor. She eventually realizes that marriage to the doctor will result in wrecking his life, and, to avoid this, she makes up her mind to convince the doctor that she no longer loves him. She joins a group of fellow convicts who are about to make a break from the prison. She steals the keys, and, together with other prisoners, makes the attempt to escape. In making the break, they chop a hole in a smoke conveyor, allowing the smoke to escape inside the building. This terrifies the other prisoners who, thinking the prison is on fire, become excited and panicky. In the resultant confusion and rioting Linda and her pals try to break out. They kidnap the head matron, and, using her as a shield, drive through the prison gates in her car. They dump the matron from the car after getting out on the public highway, and Linda and another convict continue the flight. The other convict, who had received a bullet wound during the riot, dies in the car. Linda successfully eludes capture for a while. Meanwhile, the doctor, not knowing that the warden had convinced Linda of the futility of their marriage, is perplexed as to the cause of her escape.

At liberty, she is drawn to an advertised medical convention where the doctor is scheduled as the principal speaker. On going to this convention hall, she discovers that the advertisement is a plant when she is picked up by detectives and returned to prison to complete her sentence. There, in the warden's office she parts forever from the doctor and marches resolutely to complete her sentence.

In a later revision of the story, there is a subsequent trial of Linda for escaping from prison. Many of the inmates and jail officials falsely testify against her as the ringleader of the break. At the last moment the doctor intercedes with the court, and puts the warden on the stand, drawing from him the admission that he was the cause of Linda's changed conduct and her participation in the prison break by reason of the fact that he had warned Linda against marrying the doctor. Linda is exonerated from leadership in the prison break, and is sentenced merely to finish out the balance of her parole sentence. She and the doctor are reconciled, and she returns to prison to finish her sentence as the story ends. This revision has no similarity to any depicted situation...