Twentieth Century-Fox Film Corp. v. Dieckhaus

• Decision Date: 25 March 1946
• Docket Number: No. 13121.,13121.
• Citation: 153 F.2d 893
• Parties: TWENTIETH CENTURY-FOX FILM CORPORATION v. DIECKHAUS.
• Court: U.S. Court of Appeals — Eighth Circuit

153 F.2d 893 (1946)

TWENTIETH CENTURY-FOX FILM CORPORATION v. DIECKHAUS.

No. 13121.

Circuit Court of Appeals, Eighth Circuit.

February 25, 1946.

Rehearing Denied March 25, 1946.

John Fletcher Caskey, of New York City (Samuel W. Fordyce, George T. Priest, and Thomas W. White, all of St. Louis, Mo., and Edwin P. Kilroe, of New York City, were on the brief), for appellant.

J. Porter Henry, of St. Louis, Mo., (John Raeburn Green and Robert D. Evans, both of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

In her complaint in this action the plaintiff accused the defendant film corporation of copying her unpublished and uncopyrighted book "Love Girl" without her consent in the production and presentation by defendant of its sound motion picture "Alexander's Ragtime Band." There was jurisdiction by reason of diversity of citizenship and amount involved, and on the trial of the issue joined the court entered interlocutory decree in favor of the plaintiff awarding an accounting for damages and profits and injunction against further exhibition of the picture. Dieckhaus v. Twentieth Century Fox, D.C., 54 F.Supp. 425. There was no extraneous evidence that defendant had ever had access to the plaintiff's book prior to the exhibition of its picture on August 19, 1938, and there was direct evidence that it had had no access thereto, but the court found from comparison of the book with the picture that there were similarities which could not be the result of coincidence and which, therefore, were the result of access to the book by defendant and of "conscious or unconscious" copying thereof.

It recognized as the parties here agree, that in law the unauthorized copying of the whole or substantial part of the literary property of another is a tort and that in an action such as this the burden of proof to establish the commission of the tort was upon plaintiff. Also that the law of literary property and copyright, differing from patent law, protects the property right of the originator of a composition, even though the composition he has originated is the same as that which another has originated. Each originator has property right in his own and the action does not lie unless the defendant had access to the plaintiff's work and copied therefrom. But as summarized in its written opinion, included in the record, the court inferred from the existence of similarities which it found "that this is a case where plaintiff's treatment has been consciously or unconsciously purloined."

The defendant prosecutes this appeal to reverse the decree and contends, among other things, (1) that the court erroneously applied the doctrine of unconscious plagiarism and that upon proper application of the law relating to access and copying to the evidence before the court, the defendant was entitled to a finding that it had not had access to the plaintiff's book and to dismissal of the action. It also contends (2) that the plaintiff in the prosecution of her action practiced fraud upon the court in connection with documentary evidence introduced by her to sustain her claims and therefore is not entitled to relief in equity. These contentions present the only substantial questions for decision here.

(1) The trial court recognized in its findings that the defendant had adduced the testimony of witnesses and documentary evidence tending to show that its named servants acting in its behalf originally composed and produced Alexander's Ragtime Band, and that "each of them denies having ever seen or heard of plaintiff's story or knowing plaintiff or any of the literary agents mentioned above (referring to a Mrs. Malone and a Mr. Laurence R. D'Orsay, to whom plaintiff had entrusted her book for brief periods for criticism)", but immediately following, in the findings, the court said: "Nevertheless access may be inferred from similarity between the two works as stated above and we will therefore, proceed to an examination of the alleged similarities between the novel and the movie."

The court did not find any of the particulars testified to by any of defendant's witnesses or reflected in its documents, to be false, but concluded that the similarities revealed by the comparison of the book with the picture established defendant's "conscious or unconscious" plagiarism of specified parts of the book.

The evidence as to the production of defendant's picture shows that Mr. Zaryl Zanuck, production vice president of defendant, originated the idea of making a picture to be called "Alexander's Ragtime Band" (that being the title of Irving Berlin's earliest great song hit success) reflecting the life of Berlin which would present the playing and singing of, and dancing and acting to his famous songs. He broached the matter to Mr. Berlin in 1936 while Mr. Berlin was in Hollywood working under contract with defendant on another picture. Berlin "had done a cavalcade of his songs on the radio" and at or about the time of Zanuck's suggestion a "cavalcade" of Berlin's songs was being presented to the public over the radio to which "the reaction was a very enthusiastic one." Berlin accordingly responded favorably to Zanuck's suggestion to put the music on a screen production under the title Alexander's Ragtime Band, with the qualification that he (Berlin) should not be pictured as the hero, but that the hero should be a fictional character, a composite of several men identified with the rise of Jazz music, and he applied himself for a month or more to composing an outline for the picture which would tell with the music the story of what he and those in this field of music regard as American music during the period of his conspicuous activity in that field. He completed the outline and had it typed by his secretary in October, 1936. The outline as he wrote it, is entitled Alexander's Ragtime Band, and is a story of a fictitious "Alexander" and of his jazz band and of the steps through which the band and the kind of music it played advanced from gaining the attention and approval of small and lowly audiences until, as the climax of the story, it was acclaimed by most critical and conservative authorities in music at an historical performance in New York at Carnegie Hall. Study of the outline and the testimony concerning its composition and the use made of it after it was submitted to Zanuck in December, 1936, convinces that it included the substance of the musical plotting of the final production and was closely adhered to throughout the period devoted to the work of producing the picture. It had its historical basis in the lives of Berlin and his intimates, Whiteman, Gershwin and others. Berlin appended a note to his outline stating that it was merely his attempt to put down on paper an idea of a story around "Alexander's Ragtime Band" title and character; that the love story had not been developed and that he had made no effort to "cue any musical spots other than the old songs that are tied up to the story."¹

After Zanuck received the outline from Berlin and approved it, they proceeded with the project and Berlin testified as to his part in the production that he "was on it continually with the exception of an Alaskan trip and a couple of trips I might have made to New York. I was on it continually. I did nothing but that." The period referred to being twenty months.

Mr. Zanuck assigned Richard Sherman, an experienced scenarist, to write in association with Berlin, an arrangement or treatment of the scenario for the projected Alexander's Ragtime Band picture and they worked together on it for some three months. By March 3, 1937, they had finished and their draft had been mimeographed and submitted. It contains 121 typewritten pages and seeks to present the kind of love story contemplated in Berlin's outline. The time element, including the period from the date of Alexander's Ragtime Band in 1911 through the first World War and up to the climax of the concert at Carnegie Hall, some time around the middle of the 1920's, is preserved, but the main contribution of the Berlin-Sherman treatment was the supplying of the climax of the love story to coincide with the climax of the victory of the jazz music at that musical performance. The incidents bringing together the hero and heroine lovers as the triumphant finale of the hero's victory in both his music and his love affair, was developed in this composition in indicated action and in dialogue substantially as finally produced. Zanuck then engaged Sheridan Gibney, another well known writer, who in association with Berlin began work on March 9, 1937, and finished an outline of proposed scenarios of date April 3, 1937, and a complete dialogue scenario of date May 21, 1937. The dialogue scenario followed closely the composition of Berlin and Sherman but expanded and developed it.

Mr. Zanuck testified that he considered the work of Sherman and Gibney in their association with Berlin to be fine contributions but "we were disappointed still with our individual characterizations. We had a script that was away over length. It was not dramatically compact. * * * We decided to try other writers." He picked for the assignment Mr. Lamar Trotti, whom he considered the finest scenario writer in the moving picture business, and Miss Kathryn Scola. They commenced work June 10, 1937, and in their work they hit upon correction of what Zanuck considered a defect of the preceding scripts which was an insufficient contrasting of the type of the hero and the type of the heroine, by making the hero a high born gentleman of conventional culture in accepted music and in general, and showing the heroine to be of the type drawn from the other side of the tracks. The clash and struggle between the types of music personified by "Alexander" after he devoted his life to jazz and its advancement, and the type approved in the established order in music, shown in...