Twentieth Century-Fox Film Corp. v. Stonesifer, 10399.

• Decision Date: 10 February 1944
• Docket Number: No. 10399.,10399.
• Citation: 140 F.2d 579
• Parties: TWENTIETH CENTURY-FOX FILM CORPORATION v. STONESIFER.
• Court: U.S. Court of Appeals — Ninth Circuit

140 F.2d 579 (1944)

TWENTIETH CENTURY-FOX FILM CORPORATION v. STONESIFER.

No. 10399.

Circuit Court of Appeals, Ninth Circuit.

February 10, 1944.

Alfred Wright and Gordon Hall, Jr., both of Los Angeles, Cal., for appellant.

Arthur V. Kaufman and Harry H. Licker, both of Los Angeles, Cal., for appellee.

Before WILBUR and STEPHENS, Circuit Judges, and McCORMICK, District Judge.

McCORMICK, District Judge.

This is an appeal by Twentieth Century-Fox Film Corporation from a judgment in the District Court awarding appellee damages in the sum of $3,960, attorney's fees and costs arising out of copyright infringement of appellee's dramatic composition "Women's Hotel" by appellant's motion picture production entitled "Hotel for Women."

The record reveals that appellee, a playwright, while living at the Allerton House, a women's hotel in New York City, originated and composed a play entitled "Women's Hotel," which she subsequently duly copyrighted. The characters in the play were drawn from people that the author knew in Allerton House. In addition to her work as a writer, appellee operated a theatre in New York City known as the Villa Venice, where she exhibited her original plays and those of other authors. Here, in July, 1937, before an invited audience appellee produced her play "Women's Hotel." Among those invited and present at the performance was one Frank Underwood, appellant's associate story editor. At the conclusion of the play Underwood told appellee that he was interested in the composition and he requested that she submit to him a copy of the play. During the same week appellee sent a copy as requested. Inquiring of Underwood a few weeks later whether he had finished with the copy, appellee was informed by him that the copy "was out at the coast." Several weeks later appellee sent her stage manager to Underwood's office and the play was returned. In the month of August, 1939, appellant produced and exhibited its sound motion picture "Hotel for Women."

Darryl F. Zanuck, vice president in charge of production of appellant and of the selection or rejection of story material suitable for motion picture production by appellant, testified that the idea of producing "Hotel for Women" came from one Silverman, president of a Chicago film distributing agency. Along in the summer of the year 1938, according to Zanuck's testimony, he dispatched a staff writer to New York City with instructions to live at the Barbazon Hotel, a hotel for women, and gather material suitable for the production. The writer testified that she had carried out these instructions but denied that she had discussed with one Moscovitz, Underwood's superior in the story department of appellant, the plot of the play "Women's Hotel," although admittedly she had visited the office of the story editor of the appellant company two or three times and had discussed her mission to New York with Moscovitz. Upon the staff writer's return to Los Angeles, according to the testimony of appellant's witnesses, other staff members also contributed to the ultimate scenario which was filmed as "Elsa Maxwell's Hotel for Women."

Before considering applicable legal questions in this appeal a summation of appellee's dramatic composition and appellant's motion picture is appropriate. The play "Women's Hotel" centers around the principal character, Margaret Ross, a small-town girl from Illinois, who arrives in New York City to study designing. The other principal characters are: Irene Marsh, an actress, frank, wise to the ways of the world, and with a slightly tarnished reputation; Lillian Forbes, also an actress, but presently unemployed, living frugally and making sacrifices for her "friend," Trevor; Anna Kutner, a model, seeking to pose for a cigaret advertisement; Joe Braley, a roué, with whom Margaret is trustingly indiscreet; Sue and Caroline, mannishly dressed women, and divers other characters, such as spinsters, women clerks, a doorman, waiters, bellboys — personalities found about a hotel exclusively for women.

The play opens in the lobby of the hotel as Margaret, accompanied by her father to see that she receives proper accommodations, checks in. After cautioning her with concerned fatherly advice, Mr. Ross draws a map of the hotel's environs that Margaret may more readily become accustomed to the locality. Margaret proceeds to establish herself at the hotel and there becomes acquainted with the various girls. As the play proceeds she meets actresses, models and lonely girls, all of varying moral attitudes, and with all the principal topic of conversation is men. Through an actress friend Margaret meets Joe Braley, with whom she falls in love and who quite willingly helps Margaret to forget her father's admonitions. Convinced by Braley that it is not improper to visit his apartment alone, she does so and there he proceeds to weaken her resistance. While the two are in the apartment the tete-a-tete is interrupted by the telephone. Braley, trying to allay Margaret's suspicions, and those of a cast-off paramour who is telephoning, unsuccessfully attempts to disguise the conversation; but the jealous woman, not to be supplanted, hastens to the apartment, and confirming her suspicion of the pair's intimacy, fires a shot at Margaret. Margaret, not seriously wounded, returns to the hotel, but her reputation is impaired by adverse newspaper publicity. At the play's conclusion her parents arrive at the hotel to take her home, and as the curtain falls on the drama, Margaret exits in melodramatic fashion.

In appellant's motion picture production Marcia Bromley, a small-town girl from upper New York State, comes to New York City to seek and be near her home town sweetheart, Jeff Buchanan. She registers at the Sherrington Hotel for Women. A map is flashed on the screen depicting the hotel's environs. Other principal characters in the film are: Eileen Connelly, an actress; Nancy Prescott, a model, and making sacrifices for the man she loves; Barbara Hunter, a model, cast off by John Craig, Jeff's employer and a wealthy man about town who sets out to ensnarl Marcia's affections, and Jeff Buchanan, whose love for Marcia has diminished since his success as a young architect in New York City.

The motion picture begins by showing Marcia just arriving, registering at the hotel, and telephoning Jeff, who is confused and surprised to learn she is in town. However he makes an engagement with her, which results in her knowledge that Jeff's affection for her has cooled. Marcia resolves to return home, but Eileen, in need of an extra girl to constitute a foursome for a blind date, persuades Marcia to join them, and lends her a dress for the occasion. The four go to a night club, where Marcia again meets Jeff, who is disturbed at her attractiveness. At Eileen's suggestion Marcia becomes interested in modeling and is chosen in preference to Barbara to pose for a series of Cambridge cigarette advertisements. Meeting with instantaneous success, she is admired, photographed and sought after, to the discomfort of Jeff, whose affections have become rekindled. Among Marcia's admirers is John Craig, with whom Barbara has been too friendly in the past. Marcia, invited by Craig to his apartment, imprudently goes, and is surprised to find herself alone with him. After dinner he makes advances in his sophisticated way and implies that she will be rewarded for her submission to him. Marcia adroitly parries his suggestions. In the midst of this situation, Barbara, who had previously telephoned and had been informed by Craig that he was in conference, enters the apartment, confirms her suspicion of Craig's deception, and in a fit of jealous rage fires a pistol at Craig. Barbara then disappears and Marcia is accused of the crime. Jeff appears and takes the blame until Craig clears the situation by stating the shooting was an accident. Marcia, because of her part in the affair, becomes the subject of notoriety and is no longer wanted by the modeling agency. She and Jeff are reunited and leave the hotel in each other's arms.

The Copyright Act¹ provides that "Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right (a) to print, reprint, publish, copy, and vend the copyrighted work." It is obvious from the foregoing statements of the play and the motion picture that there are similarities between the two works, but as there can be no infringement of copyright without some copying, the mere fact of similarity between two works does not of itself make one an infringement of the other.²

Appellant's principal attack in this appeal is upon the findings of the court below which epitomized are that unlawful copying and appropriation of material and substantial portions of appellee's copyrighted play "Women's Hotel" has been established as against Twentieth Century-Fox Film Corporation.

We must of course take into consideration the fact that the trial judge was in a more advantageous position than is this court to determine the credibility of witnesses who testified to the submission of the...