Shipman v. RKO Radio Pictures, 131.

• Decision Date: 19 December 1938
• Docket Number: No. 131.,131.
• Parties: SHIPMAN et al. v. R.K.O. RADIO PICTURES, Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

100 F.2d 533 (1938)

SHIPMAN et al. v. R.K.O. RADIO PICTURES, Inc., et al.

No. 131.

Circuit Court of Appeals, Second Circuit.

December 19, 1938.

Friend, Holbrook, Cotton & Reiskind, of New York City (Arthur S. Friend and Edwin M. Reiskind, both of New York City, of counsel), for appellants.

William Mallard, of New York City (Cravath, deGersdorff, Swaine & Wood, Bruce Bromley, and Albert R. Connelly, all of New York City, of counsel), for appellees.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

This suit is for infringement of the copyright of appellants' play "Depends on the Woman" written and copyrighted in 1924, which is allegedly infringed by a motion picture play entitled "I Dream Too Much" which the appellees have been instrumental in preparing, filming and distributing. On motion, the bill of complaint was dismissed by the court below for failure to state facts sufficient to constitute a cause of action, after a reading of the play and viewing of the motion picture. No other testimony was offered; it was held there was no infringement of the play.

A summary of the play and the picture is necessary to an understanding of the issues.

In "Depends on the Woman", the play opens in the tiny apartment of Luella and Seymour Clayton, married a year. Luella is a charming vivacious person, deeply in love with her vain and obstinate husband, Seymour. Seymour is a composer, among other things, of an operetta which is considered by producers to be too classical to be a stage success and which they, therefore, refuse to produce. Seymour has great faith in his composition, however, and believes it to be that of a great artist. He has definite convictions on the place of a wife; she should remain in her home; she should have no outside interests and should do nothing to contribute to the financial maintenance of the family. Furthermore, she should not interfere in her husband's work. Consequently, Seymour has steadfastly refused to allow Luella to work and has just as steadfastly refused her suggestions as to his music. The result is an almost penniless household. Seymour's reasoning does not apply to Caroline Penrose, an actress and cabaret singer of sorts, and he accepts her criticisms of his music; he also composes some music for her for which, unbeknown to Luella, Caroline pays Seymour. Caroline is more interested in the male than in the artistic aspects of Seymour. Caroline is a protegee of Roy Denton, a theatrical producer who, in return for her favors, keeps her working. Denton has met Luella and is interested in her. Denton comes to see Seymour to tell him he will not produce his operetta, but is persuaded by Luella to produce it with Luella, suddenly revealed as possessing a remarkable singing voice, as its star. Denton, like Caroline's interest in Seymour, is interested only in the physical side of her singing career and hopes to make her his mistress during the course of her career. Seymour rejects Denton's offer when he discovers that his wife is to sing in its leading role, but Luella accepts for herself when she finds out that Caroline's money payments to Seymour have been financing the family budget. Luella then starts on a year's session of voice training.

At the end of the year, Luella sings in Seymour's operetta in an out-of-town performance. It is a great success. Seymour, realizing that the success comes more from his wife's performance than from his music, is sullen and refuses to allow necessary changes in the construction of the operetta. He is not a husband, but a husbanette; not a man but a marionette. Caroline Penrose has a small part in the operetta through Denton's magnanimity, which she plays so badly that Luella determines to be rid of her services. Denton agrees to rid the cast of Caroline and tells her. With her back to the wall, Caroline tells Seymour that Denton wants Luella for his mistress as Caroline has been, and that Luella cares for Denton; Seymour is unconvinced, however, since he really loves his wife, but his disappointment in himself drives him into a rage and he accuses his wife of unfaithful intentions, which she denies. Seymour is continuously plagued by the idea that he is a poor husband because he alone is not the wage earner. Denton demands that Luella give him her love or the show will not run in New York and Luella, who has sought success for herself only to make her husband successful, refuses, but temporizes with Denton until the New York opening. The temporization is unsuccessful; Denton, alone with Luella in her New York apartment, threatens to put Caroline in Luella's place when Luella refuses to become his mistress. Caroline unexpectedly comes in and notifies Seymour, who soon appears to discover that his wife and Denton were having a tete-a-tete. Struck by this discovery and placing the worst possible interpretation upon the events, all of Seymour's suppressed emotions are worked up within him; he denounces his wife and strikes a bargain with Denton whereby Caroline is to replace Luella in the New York premiere of the operetta, even though Seymour knows Denton wants Luella as his mistress. His hate for his wife is again a product of Seymour's rampant egoism and its suppression. The first scene of the New York premiere is so poor, because of Caroline's misperformance and singing, that Luella bursts in, determined to save the performance for her husband's good name as a composer and playwright. By connivance with the manager of the theatre, Luella takes the part of Caroline, brushing away the opposition of Denton and Caroline to the amazement of her befuddled husband. The operetta is a huge success. The theatre manager, Bradley, buys out Denton's interest and Seymour, realizing at last his wife's great love for him and her innocence of his suspicions, begs her forgiveness. Luella, outwardly undecided, appeals to the audience and on a divided vote, decides to take her husband back, and home. The play ends here.

The motion picture story "I Dream Too Much" may be stated as follows:

The story opens in France in the home of Tito, an uncle of Annette. Tito, a musician, has carefully trained Annette's voice and she is a very good vocalist. She sings an Italian aria, but she is restless and the sound of music from a street carnival excites her. She wants to sing, yes, but she wants to dance with young men also. Her stern uncle loses patience and plans to place her in a convent the next morning. That night, Annette, locked in her room, escapes by a window and eventually falls on Jonathan Street, a young American living in Paris, who has composed what he believes to be the best opera ever composed. John is an intense believer in his creative ability as a musician. He is an equally intense believer in the necessity of complete freedom for himself if he is to be a successful composer; but he is fun-loving too and takes Annette to the carnival after learning of her escape from Tito's house. He drinks excessively and awakens next morning to find himself married to Annette. Annette, a sweet, young and totally naive creature, adores John. Overcoming his initial misgivings ("who ever heard of a great composer with a baby?"), John takes Annette to Paris and his quarters there, where they live as husband and wife. Annette is a very good wife to John and he appreciates her care and thoughtfulness, but he does not appreciate her presence when he is working on his music and she leaves the rooms for some recreation. Coming to a carnival, she sings for a little boy; people coming from all parts stop to listen and wildly applaud her voice. John, hearing the tumult, comes down, hears his wife's beautiful voice and is proud of her. He tells her his opera can wait, that she must be trained for the operatic stage herself and then some day she can sing in his opera as a great star for a great composer. She protests that she wants to be nothing but a good wife and have babies, but he overrules that and gets a job as a conductor of tours. On one of these tours he comes to a Parisian cafe and is surprised to find his wife there singing. He loves her voice but thinks that it is too good for popular music. She insists that since she is being paid to sing, it is worth while, since that will pay for her singing lessons. A theatrical producer, Darcy, conveniently happens to stop at the cafe, sees Annette and likes her. He does not hear her singing. While he is talking with her, a mouse frightens Annette and she leaps into Darcy's arms. At this critical juncture, John sees the two, strikes Darcy and blackens his eye. He forces Annette to give up the singing and says he will find work to pay for her lessons. Annette maneuvers to see Darcy who tries to send her away, having no interest in her in view of the still blackened eye. He finally consents to hear Annette sing one number of her husband's opera and after hearing her is amazed at her superb singing and arranges for her musical education to prepare her for the Paris opera. He thinks John's music not opera and is not interested in John, but only in Annette's voice. John is puzzled and chagrined that his opera is thought less of than his wife's voice, but Annette accepts Darcy's offer in the hope that by her success she may bring the opera to the attention of the public. Annette's dazzling success pushes John into the background. He is little known and then only as the star's husband, but he seems to accept the situation with good grace, still believing that when his opera is produced it will be a success. Throughout this period John is very much in love with Annette and she with him. Stormy scenes between the two are unknown until John hears that his opera, rejected all over Europe, is to be sung by his wife only because she is financing its production; then a tempestuous scene follows in which he packs his belongings and leaves her, declaring he will no longer be merely a lapdog to her success. Annette,...