Underhill v. Belasco

• Decision Date: 25 November 1918
• Docket Number: 13-181.
• Parties: UNDERHILL et al. v. BELASCO.
• Court: U.S. District Court — Southern District of New York

254 F. 838

UNDERHILL et al. v. BELASCO.

No. 13-181.

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

November 25, 1918

1. The Cradle Song.

The story is that of a community of Sisters. A baby is sent into the convent on the wheel at the door, by an unknown mother. The receipt of the infant and the decision of the Sisters to keep it form the climax of the first act. In making this decision, it is apparent that the natural love of the female for a child is what is dominating them. The simple inner life of the convent is portrayed.

An interval of 18 years elapses between the first and second act, and the child, who has led a happy, normal life, is now a girl of 18. It is her wedding day, and the Sisters are busily engaged in attending to the final details of her trousseau. It is apparent that she has won their hearts, that she is tenderly loved by them, and that all are keenly interested in her future welfare. When she departs to be married to an estimable young man, all are left sad because of her going away; but it is evident that all recognize her right to be a wife and mother and to live her own life. Her departure at the end of the second act ends the play.

2. Marie Odile.

The story is that of Marie Odile, a girl of 16, who has grown up in a convent, in which she is a lay sister. The first act shows that she was left on the doorstep when an infant, and that the Sisters have brought her up. In doing so they have kept her in ignorance of the world in every sense, and she has seen no men, except an aged priest and an old gardener. Marie Odile has heard of the immaculate conception. As a consequence she regards maternity as something holy, but she has no knowledge as to how maternity is achieved. A foreign foe invades the country (France) in which the convent is situated, and the Sisters take flight. Through mistake, Marie Odile is left behind in the company of the old gardener. Marie Odile sees one of the invading soldiers. He is the first young man she has ever seen, and she thinks he is St Michael, whose portrait hangs in the convent. This ends the first act.

In the second act the soldiers are in possession of the convent, and Marie Odile is attending to their wants. The one whom she regarded as St. Michael is especially kind to her, and they are mutually attracted. She permits him to embrace her.

In the third act, which is a year later, it is revealed that the young soldier went his way and Marie Odile now has a child. She thinks the fact of her having had a child places her on the same plane as the Virgin Mary. The Sisters return to the convent, and when they find what has happened are shocked and Marie Odile is dismissed from the convent and sent out into the world with her infant.

Paul Bonynge, of New York City, for plaintiff.

A. J. Dittenhoefer, of New York City, for defendant.

MAYER, District Judge (after stating the facts as above).

This suit is the usual infringement suit in equity, brought by the plaintiffs, Underhill and Sierra, against the defendant, Belasco. Sierra is evidently a Spanish author of repute, who has written a considerable number of successful productions. Underhill is Sierra's representative in the United States, and is an educated and accomplished Spanish scholar, who translated the work of Sierra which it is claimed defendant has infringed. Defendant is a theater owner, producer, and manager. The difficulty in the case, which doubtless led to the institution of the suit, was the failure of defendant promptly to return to Mr. Underhill the manuscript of 'The Cradle Song,' which had been delivered to defendant by plaintiff Underhill. This, together with the acceptance shortly thereafter and production of the alleged infringing play 'Marie Odile,' doubtless created in the mind of Mr. Underhill the feeling that the defendant had availed of the subject-matter of 'The Cradle Song,' and that the play 'Marie Odile' was not an original conception.

As has been frequently pointed out in reported cases, and as is matter of common knowledge, most of the incidents that happen in the world may be availed of in plays or books, and the question essentially is in what manner they are availed of. Except for some extraordinary developments, such as, for instance, have happened in the way of instruments of war in the present war, there is rarely anything that is physically new. Convents are old. The theme of a foundling in some relation or another is old. The conduct of persons in any given walk or department of life-- that is to say, the normal conduct-- is ordinarily old and well known. The task which is presented to the playwright is to weld together these old elements with some fundamental or controlling theme in such a manner as to make a successful appeal, either artistically or financially, or both. Except for the fact that the scene of both plays is in a convent, and that of necessity there are some similarities of dialogue and language, the two plays are essentially and fundamentally different.

'The Cradle Song,' as stated by Mr. Belasco himself, is a sweet and gentle story, presumably of marked literary merit disclosing in part the life within a covenant, representing the nuns as being sympathetic and kindly women, dedicated to good works and offices. The foundling in 'The Cradle Song' is left at the convent with a note from its unknown mother, and grows up, to all intents and purposes, as a normal female child, and in due course falls in love with the...