Stodart v. Mutual Film Corp.

• Decision Date: 15 June 1917
• Citation: 249 F. 507
• Parties: STODART v. MUTUAL FILM CORP. et al.
• Court: U.S. District Court — Southern District of New York

249 F. 507

STODART v. MUTUAL FILM CORP. et al.

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

June 15, 1917

Supplemental Opinion, June 29, 1917.

Paul N Turner, of New York City, for plaintiff.

Elijah N. Zoline, of New York City, and James P. Grier, of Chicago Ill., for defendants.

LEARNED HAND, District Judge.

In this cause the plaintiff sues two moving picture companies for infringement of copyright of his play, "The Woodsman," by performance of the same upon the screen. It is conceded that in the year 1911 plaintiff composed a play by the title in question and secured its proper copyright under the statute in that case provided, and that the defendants have performed upon the screen a moving picture drama entitled "The Strength of Donald MacKenzie." The first question, therefore, is whether this picture is an infringement of the plaintiff's copyright.

The scene of the play is the north woods of Maine, and one of its supposed merits consists in the fact that it contains an atmosphere based upon the woods and life in the woods. The plot I need not consider in great detail. It is trite and conventional in the extreme, and its only claim to originality is in the setting of the scenes, all of which are out of doors and in the supposed local color. There is a simple-hearted and poetic hero, a north woods guide, who wins the heart of a person described as a society girl, whatever that may be. The latter, who is the heroine, is at the time of the play engaged to a villain, a rich person from the city, who supports himself out of the income of filthy and squalid tenements which are outside of the law. He is a typical villain, of unqualified rascally character, who observing the tenderness of his lady for the heroic and poetic guide, employs the usual needy tool, and with him plots to compromise the lady and the hero in such a way as to make her suppose that the hero has intended her wrong. This he does by directing his tool, who is a half-breed Indian, to change a mark upon the trail upon which the lady and the hero are to start off on the morrow. The tool does as directed the couple are lost in the woods, and a compromise is effected sufficient to disturb the susceptibilities of the respectable. The lady doubts her hero. An imbecile father at once assumes that the hero has attempted to seduce his daughter, and all looks black for the hero and bright for the villain, as romance requires. The hero, however, induces the tool to repent upon the latter's deathbed, and he betrays the schemes of the villain, who is utterly confounded, and the couple live happily forever after.

The moving picture play is beyond question a direct copy from this plot almost in its entirety. The characters are the same. The hero is a woodsman guide with a turn for poetry, a strong father, and a poetic mother. The heroine is betrothed to a rascal in the city, who lives upon the income of foul and illegal tenements. The lady and the villain go with her father to the north woods of Maine, and there encounter the hero guide, for whom she develops a sentimental leaning, to the discomfiture of her betrothed. He thereupon suborns a half-breed villain to change the direction of a sign upon a trail upon which the lady and the hero are to leave on the morrow. The hero mistakes the trail by virtue of the sign, is compelled to spend the night with the lady in the open, to the great horror of all the respectable people who form the party and who go out in search of them. The hero's motives are at once misunderstood, both by the lady and by an imbecile father; the villain's tool is about to die from a wound, just as in the original; he repents and discloses the artifices of the villain, and the villain is thus exposed, to the eternal justification of the respectable nonentities. There are some incidents in the play which are not in the film, and some incidents in the film which are not in the play; but they are trivial and do not concern the plot. So far as infringement is concerned, the case needs no discussion.

Three points of defense are raised: First, that the play was in the public domain and was not entitled to protection. Nothing of the sort has been proved. The nearest approach is a play based upon Mr. Owen Davis' novelette, entitled "The Sentimental Lady," which was dramatized under the title "An Everyday Man." There are incidents in that play which are similar to those of the plaintiff's play. There is no reason to suppose one is copied from the other. The points of similarity are only these: That the scene takes place in the woods of the Adirondacks; that the lady and the hero are compromised by being left on a desert island for a short time. The hero, however, is not a poetic and romantic guide, but, strangely enough, a lawyer. The villain, who has nothing to do with illegal tenements, does not attempt to compromise his lady and the hero, so that the hero's motives shall be misconstrued; there is no change of the mark on the trail, no confession. There is nothing between the two but a similarity of incident, already mentioned. Now, incident is different from plot. It may be said that the incidents here are like those in the plaintiff's play, but that the plots are quite different, and the question here is of plot.

The defendant relies upon the case of London v. Biograph, 231 F. 696, 145 C.C.A. 582, in which Judge Lacombe held that, where the copyrighted plot was in the public domain, it could not be protected. This, of course, is true; but in that case it could be said that the supposed infringement was no nearer to the copyrighted plot than the copyrighted plot was to the plots in the public domain. If that had been true in this case, the case would apply; but the defendants have copied the plaintiff's copyright much more nearly than that which resembles anything which is in the public domain. A man may take an old story and work it over, and if another copies, not only what is old, but what the author has added to it when he worked it up, the copyright is infringed. It cannot be a good copyright, in the broader sense that all features of the plot or the bare outlines of the plot can be protected; but it is a good copyright in so far as the embellishments and additions to the plot are new and have been contributed by the copyright. That is this case. Therefore the first defense I overrule.

The second defense is that, because the title, "The Woodsman," was old as applied to plays, therefore the whole copyright is invalid. I cannot see how any one can think so. The title has not been copied by the defendants and the copyright of the title may be invalid. On that question I have nothing to say. But the idea that because a part of the copyright is invalid it cannot be protected in any part is a strange and new doctrine. If it had been shown...