GOLDING et al. v. RKO RADIO PICTURES, Inc., et al.*
Appeal by defendants from a judgment for plaintiffs entered upon a verdict of a jury in an action for damages for plagiarism, and from an order denying defendants' motion for judgment notwithstanding the verdict.
Plaintiffs are the authors of a stage play, ‘The Man and His Shadow.’ Defendant RKO Radio Pictures, Inc., referred to as RKO, produced and distributed a motion picture, ‘The Ghost Ship.’ Defendant Lewton was employed by RKO as producer of the picture. Plaintiffs alleged that defendants pirated the stage play in the making of the picture. Defendants admit that they had the script of the stage play in their possession for at least six weeks before the picture was produced. They deny piracy. During the trial the play was read to the court and jury and the picture was viewed by them. Plaintiffs had judgment for $25,000. Defendants appealed.
Appellants specify two errors: First, that there is no evidence sufficient to support the implied finding of the jury that in the production of the picture ‘The Ghost Ship,’ they copied, appropriated or embodied any part of the material of the play, and that this is conclusively established by a comparison of the play and the picture; second, that there is no evidence sufficient to support the implied finding of the jury that by the production and distribution of the picture the value of the motion picture rights of the play was reduced in the sum of $25,000, or any other amount.
We have read the play and viewed the picture. An understanding of the questions presented requires description of the play and the picture.
A steam yacht is about to leave on a pleasure trip to Havana. Brancato, a well-known Shakespearean actor, is on board. The captain is late. Brancato meets Werner whom he recognizes as a government witness. Werner informs him he is taking the trip for protection. Brancato implies that he is escaping from something. Impatient to get to sea, he talks to Dr. DeVries, an alienist, who says Brancato has frightened him many times and wonders how he could run the gamut of violent emotions night after night. Brancato explains that for ten years he had a voice double, Crawley; that scenes of violence were played on a darkened stage; that Crawley spoke the lines from the wings; that Crawley had a howling, offending voice which blended perfectly with his own; that Crawley lived the parts and his realism had finally got under his (Brancato's) skin. He had not engaged another voice because Crawley was indispensable, almost a part of him. He had been trying to get rid of him. Crawley had ‘got so’ on his nerves that his doctor had advised a trip. Brancato tells DeVries that Crawley resented his (Brancato's) success, ‘hidden away in the wings for hundreds of performances, while all the plaudits went to me.’ Brancato is preparing for Richard the Third, ‘a demoniac role.’
The captain comes aboard, goes to the salon, says he has just been assigned to the command, examines the passenger list, discovers Brancato is on board. A large trunk is carried through the salon, labeled ‘Captain Henry Mason.’ The yacht sails. The captain meets DeVries, learns his profession, asks him to keep an eye on Brancato, says he has word that Brancato is a victim of hallucinations and delusions. Brancato encounters the captain in the dark, is startled, recognizes the voice, says, ‘Crawley.’ The captain, smiling, says, ‘Not Crawley! Captain Henry Mason!’
The following evening Brancato, in an hysterical, nervous state, encounters the captain, asks what he is doing in uniform. The captain says, ‘I am the captain here * * * You are on my boat * * * and I am the master’; adding that for the first time he is the one who gives orders; that no one will know the difference. Brancato is skeptical, angry. Crawley: ‘We have said goodbye to the despised Mr. Crawley. Crawley was a weakling—a spineless coward—a gibbering fool—a snivelling imbecile. He has ceased to exist—for both of us. There is no more Crawley.’ Brancato threatens to expose Crawley to the passengers. Crawley: ‘Go ahead! * * * You have the freedom of the ship! We will see whom they believe—who is the better actor.’ Brancato: ‘You're mad.’ Captain: ‘It is you who is mad, my friend—you have a strange hallucination that I am not the captain.’ Brancato: ‘I'm going to prevent you from endangering the lives of the passengers. You may destroy us all.’ Captain: ‘Not all.’ Brancato: ‘* * * it's me you're after.’ Crawley believes that Brancato had suppressed and destroyed him, until he has become only a voice, a shadow, a nobody. He is going to prove he is the greater actor—Brancato ‘will be in eclipse.’ He says they cannot live apart. Brancato says he can. Crawley says that when he learned Brancato engaged passage he was anxious to go too, and so went to see Captain Mason for a job. Mason refused. Brancato: ‘And then what happened—where is Captain Mason?’ Captain: ‘If you're excuse me—I have some duties.’
Doctor DeVries appears, observes Brancato ‘terribly upset.’ Brancato tells him that the lives of all passengers are in danger; that the captain is not Captain Mason, that he is Crawley, the voice in the wings; that he murdered Captain Mason to get on the boat, and that he will murder all. DeVries refuses to believe this, says the captain is a charming man. Brancato says he will warn the passengers. DeVries attempts to dissuade him, saying ‘* * * let me observe the captain for a while.’ Brancato threatens he will inform the first mate and radio the police. He tells the first mate the ‘captain is a dangerous criminal,’ that he is not Captain Mason. The first mate says to DeVries that the captain had mentioned that Brancato ‘suffers * * * from obsessions.’ DeVries suggests a sedative. Brancato to First Mate: ‘I want to send a radio to the police—my life is in danger—all the passengers!’ The first mate says he will notify the police and Brancato promises not to say anything to the other passengers. Brancato is afraid.
Malone, a passenger, is murdered—stabbed in the back in his cabin. While passengers discuss it in the salon, the captain is seen passing by. Brancato indicates to DeVries that he knows the murderer but doesn't dare say so as he may be accused. The captain conducts in inquiry. Brancato intimates to the captain that he suspects him. The captain implies he has enemies. DeVries says he was making notes about things, people, ‘explaining what goes on around us.’ He says to the captain, ‘Yes, you know—that black is not always black—and red is not always red, even though they seem to be,’—that he probes beneath the surface. The captain puts the radioman in the brig for the murder. He is anxious to know whether DeVries shares Brancato's suspicions.
The captain and Brancato are alone. Brancato accuses the captain of the murder of Captain Mason. The captain says he knows Brancato has an obsession that he (captain) murdered Mason and that if he had murdered Mason it would have been found out unless he conceived the perfect crime. The captain explains with passion that he had dreamed, planned, plotted and waited for this moment; that Captain Mason could not stop him, nor Brancato, nor DeVries; that anyone who opposed him would be destroyed—Brancato would be drowned or shot; that he was the strong one, Brancato the weakling. The Captain takes out a gun and drops it on a table, saying Brancato does not dare shoot him. Brancato: ‘8justice will catch up with you!’ Captain: ‘Justice—bah!—It's only the strong that survive!’ The captain leaves the gun; Brancato puts it in his pocket.
Brancato and DeVries are alone. DeVries tells Brancato that during the hearing he suddenly had the notion the captain was an imposter, that he had slain Malone, that he knows now that he (Brancato) has no obsessions—that, up to now, the captain has fooled him. DeVries says there is no use telling the first mate—he will not listen—‘A master is a God on a ship.’ He informs Brancato that he has a bold, dangerous plan which may require great courage on his (Brancato's) part. Brancato assures him he is not afraid.
A storm comes up. DeVries learns the captain will be on the bridge all night. After the storm the captain and DeVries are alone. The captain knows that the notes of DeVries concern him. What DeVries said during the inquiry was ‘A captain is not always a captain.’ He knows DeVries searched his cabin during the storm. He is afraid of DeVries. He says to him, ‘I'm afraid of you too, Doctor. * * * You're the only person on this boat I'm afraid of.’ He tells him, ‘You're always watching me—thinking about me! * * * Since I came on this boat you've been watching me, studying me, persecuting me! Why don't you leave me alone?’ He knows DeVries isn't afraid of him. The captain admits he has never traveled. He becomes aware that DeVries knows Captain Mason't body is in the trunk, and draws a gun. He says that DeVries is too clever, that he has concluded he is a dangerous criminal. ‘You're an intermeddler—Alive you are dangerous to me.’ He says that DeVries is getting ready to spring the trap; that he is just as smart as DeVries; that he has him in the trap, ready for the kill. DeVries calls the captain ‘Crawley.’ Crawley is stunned. DeVries attempts to dissuade him from killing him. Captain: ‘* * * there is no more Crawley.’ DeVries to Captain: ‘* * * you are afraid—you may have no physical fear—but you're tortured by greater fears * * * In your lust for power and glory you almost succeeded in murdering * * * Crawley, but Crawley himself will destroy you.’
Brancato enters, halting, nervous, distressed, wants to see DeVries alone. The captain says, no. Brancato: ‘My memory is gone.—I'm lost! I can't remember the lines any more—For me it is the end, I'm through!’ He quotes from ‘Richard the Third.’ Crawley, coldly, helps him. Brancato repeats from ‘Richard the Third,’—cannot go on, asks Crawley for help. Crawley: ‘* * * it's your final curtain.’ Brancato staggers out on deck. A shot is heard. DeVries wants to go to him. Crawley: ‘* * * he doesn't exist any more.’ Crawley, still holding the gun, loses his assurance, becomes remorseful, ‘I—I didn't—kill—him.’ DeVries demands the gun. Crawley doesn't know DeVries, doesn't remember he (Crawley) is the captain. He asks for Brancato. He is told that Brancato is dead. Thinking aloud, he tells how he killed Captain Mason—saw his uniform, saw his great chance—a great part to play—he always lived his parts, he had never acted them—now he would ‘live the captain—the Master—the Commander!’ He tells how he took the uniform and gun and put Mason't body in a trunk. ‘I'm a murderer!’ Overcome with horror, Crawley shoots himself.
DeVries calls Brancato who enters. Brancato speaks to Crawley. Crawley: ‘Help me, Mr. Brancato—help me.’ He requests Wolsey's words from ‘Henry the Eighth.’ Brancato: “Nay then, farewell! I have touched the highest point of all my greatness, and from that full meridian of my glory——” Crawley: ‘And from that full meridian of my glory, I haste now to—my—setting.’ Crawley dies.
A freighter is about to leave from San Pedro for a coastwise voyage down the Pacific Coast. Tom Merriam, a new third officer, comes aboard. He is off a training ship, without experience. The first man he meets on board is a mute, the Finn, whose thoughts are conveyed to the audience by the voice of an unseen person, which says ‘In my own silence I can hear things they cannot hear—know things they cannot know.’ He meets Captain Stone, a man with an air of authority, of many years' experience at sea and in command of ships. The captain immediately seeks to impress Tom with his authority, among other things, saying, ‘You will even learn to take great joy in it.’ Tom learns that the last third officer had died mysteriously in his bunk. A roll call of the crew is made before the ship sails and one of them is found dead. The captain takes no interest. He is callous about the death.
Shortly after sailing, the captain allows a large, freshly painted iron hook to remain loose and sway. Tom calls the captain's attention to the loose hook and suggests that it be made fast. The captain implies to Tom that it be left loose. A rough sea develops. The hook sways back and forth, nearly killing some of the crew. Tom calls the captain's attention to the fact that the hook may kill a seaman. The captain makes it clear that the lives of the men are his responsibility and if he wants to risk them, it is his affair, saying, ‘I have already given you my considered opinion as to the danger involved.’ Captain Stone watches the hook sway back and forth and seems to take a bestial delight in the probability of a seaman's being killed. Afterward, when Tom thinks the captain was negligent, Stone seeks to impress him with his authority and his rights over the lives of the crew.
A seaman is stricken with appendicitis. The captain is about to begin an operation on the man, under directions from a surgeon on the mainland given over the radio. Tom stands alongside. The captain becomes nervous, his hand falters, his is unable to perform the operation. Stone turns his head. Tom takes the instrument, successfully operates, saving the man's life. Tom asks Sparks, the radioman, the only other person present, not to reveal the fact that he, Tom, and not the captain, operated. Shortly thereafter, the captain explains his inability to perform the operation to Tom by saying that he is not squeamish of blood, ‘I'm not afraid of anything but failure—I might have failed.’ Tom is impressed.
In a discussion amongst the crew, Louie, a sailor, says that the captain should put into port and fill his crew because of the sailor found dead and one off duty. Another sailor says that the captain is the law on board ship. Louie says that he is going to complain to the captain. Other members of the crew dare him to, and wager with him that he will not. Louie complains to the captain, who resents this disparagement of his authority. He says to Louie, ‘You know, some captains would hold this against you, Louie.’
The crew is busily engaged on deck in rapidly rolling the anchor chain into the anchor chain locker. Louie is below deck in the locker keeping the chain straight as it comes in, expecting to leave before the entire chain is in the locker. The captain comes by, sees Louie in the locker, closes and bolts the door, Louie's only means of escape. The rushing anchor chain kills Louie. Tom appears to check the anchor chain in the locker, unbolts and opens the door and sees Louie dead, turns around and is confronted by the captain. Tom accuses the captain of having murdered Louie. The captain neither admits nor denies the murder, saying that the dead man has been a troublemaker, without proper regard for discipline, and ‘You're a little hasty, Mr. Merriam. * * * What do you propose to do? Denounce me?’ There is an implication that the captain feared Louie. Tom goes to the first officer and then to the radioman and tells them that the captain is incompetent, crazy, and murdered Louie. They refuse to listen. Tom tells the radioman that as soon as the ship reaches San Sebastian he is going to report to the company's agent,—‘When something is wrong I have to do something about it.’
The ship docks at San Sebastian. Tom goes to the company's agent, a long-time friend of the captain, tells him what has happened on the ship and accuses the captain of murder. The agent is skeptical, but calls the crew together in the presence of the captain and Tom. Members of the crew extol the captain's virtues. Tom's effort fails and he is discredited. He is dismissed from the ship.
Tom meets Ellen, who is in love with the captain. She tells Tom that she has learned all about him from the captain. She queries Tom about his outside interests. He tells her he has no girl. She tells him she will see to it that he will meet some; he should not lead a lonely ‘ghostlike existence’ such as the captain has led these many years; the captain's only hobby and interest has been that of ‘authority,’ and now she is free to change all that. The captain talks to the agent and to Ellen separately. To each he expresses fear of losing his mind. To the agent he says that some of the crew are suspicious and distrustful of him and are turning against him. The agent attempts to quiet him, telling him that all he needs is a rest and a good checkup. The captain tells Ellen that he is afraid, afraid of his mind. He relates a haunting experience, in his early days of seamanship, of seeing a captain go crazy.
A street brawl takes place between members of the crew and some loafers. Tom comes along, joins in the fight and is knocked out. One of the crew picks up Tom, takes him back to the ship, and puts him in his bunk. Upon awakening and discovering that he is on the ship where he should not be. Tom goes to the captain and attempts to explain. The captain tells Tom that he is glad he is aboard, that they will forget that Tom has told the agent that he was a murderer, and then makes the same remark he had made to Louie, ‘Mr. Merriam, there are some captains who would hold this against you.’
Tom realizes that the captain intends to kill him. The crew avoid him and will not talk. Tom tells the radioman the captain is going to kill him, that he is a homicidal maniac. He does not want Tom around. Tom asks the radioman to send a message to Ellen in San Sebastian telling her that he is aboard. The radioman tells him that he has orders from the captain not to send any messages without the captain's approval. Tom tells the radioman that that, in itself, is an indication that the captain is out to get him. The radioman refuses to listen. Tom goes to his cabin. He finds the lock to his cabin door removed and other evidences of an effort on the part of the captain to terrorize him. The Finn is vigilant. To protect himself, Tom goes to the gun cabinet to obtain a gun. He is discovered by the captain, who has a gun in his hand, is deranged, and threatens to kill him, saying ‘I want you to learn that great lesson that authority cannot be questioned.’ Tom tells the captain that he is crazy, that he wishes the crew could see him in his present state. The captain says, ‘I control the destiny of all aboard—you think I am insane—I am captain—there isn't a man who will listen or believe you. They are too lazy, cowardly, disinterested. Men are worthless cattle and a few men are given authority to rule them.’ Tom: ‘You can't prove that to me at the point of a gun—men are kind and help each other. It is only hard to get them to understand.’ Captain: ‘—go any place on board ship—see if you can get them to help you—see if they will stand up against authority.—Even your friend Sparks [radioman] will not help you—[shouting] Try and get help against me—try—try—try.’ Unknown to Tom, the Finn is aware of what is going on. The Finn resolves to protect Tom.
A message comes by radio for the captain from the agent, asking if Tom is aboard. The radioman takes the message to the captain, who writes a reply saying that Tom is not aboard. The radioman shows Tom the message and tells Tom that he may be right about the captain, that he will help him. The captain sees the radioman leave Tom's cabin, walks with him. They pass the Finn. The radioman drops the reply. The Finn picks it up.
The captain goes to To7's cabin and asks if he can operate a wireless. Tom says, ‘Yes,’ and asks where the radioman is. Captain: ‘The message I am asking you to send will answer your question.’ They go to the radio room and the captain hands Tom the message he wishes sent. It says that the radioman had been ‘lost overboard in heavy seas.’ Tom accuses the captain of lying, of having killed him. A fight between the two ensues. The first officer and members of the crew appear. The captain tells them that Tom is insane. At the command of the captain, Tom is bound, gagged, placed in his berth, and given a sedative.
The Finn takes the message in the captain's handwriting to the first officer. The first officer talks about it to some members of the crew. They think that perhaps Tom is not the crazy one and that he may be right about the captain. The captain, eavesdropping, hears this talk, is losing his mind, goes to his cabin, gets a dagger, goes to Tom's cabin. He raises the dagger over Tom, who lies helpless under the drug. The Finn intercepts the captain in the nick of time. A battle takes place between the Finn and the captain. The captain is killed. The Finn: ‘The boy is safe—His belief in man and man's essential goodness is secure.’
There was testimony that in writing the play respondents considered the period, the early part of 1941, ‘when the whole world was concerned with the madness that was raging over Europe, the totalitarian idea of the rule of absolutism, of one man over the other; of one man over peoples,’ and decided that a play should be written dealing with that subject. They hit upon the idea of using a ship because a ship ‘represents * * * a complete unit, with one man exercising the power of life and death, under certain circumstances, over everybody on board ship.’ There was testimony that the theme of the play—‘basically the lust for power by the master of the ship, suffering from the Hitlerian complex,’ is identical in both the play and in the picture; that the important dramatic situation is where ‘the captain commits the murders with impunity, masquerading as a very affable and very considerate captain; concerned about the welfare of everybody on board, which is a mask; a man who is doing a great deal of good for everybody around him, but in reality driven by a murderous, homicidal, sadistic drive, growing psychologically out of a great fear of failure’; that the basis of those occurrences psychologically is identical; that the situation in the picture when Tom begins to understand the captain and wants to warn the rest of the crew about what sort of a character he was, and the way everyone turns from him, is identical with the play. There was testimony that ‘the psychological employment by the captain of his authority, * * * the fetish he makes of it; that he is the only thing in the world worth while and that everybody who stands in his way’ will be destroyed, was literally copied from the play by the picture; that although the captain could dispose of either Brancato or Tom, he does not dispose of him, but by some peculiar psychological reasoning or quirk within him feels that he must convince this man that he is right; that a peculiar insane drive to bend this man psychologically to his will, is similar in play and picture; that the captain in both play and picture says to the man who holds the secret that he is a murderer, ‘I give you the freedom of the ship. You tell anybody that I am a murderer, * * * and see if they will believe you.’ Further there was testimony that if the general public, after having seen the play, saw the picture and listened to the dialogue, they could not avoid detecting in the picture the important elements of the play.
There was also testimony to the effect that the primary plot of the play concerns itself with the psychopathic homicidal captain, who is in charge of the ship, and who murders the people whose lives are under his control; that ‘the dramatic scene is brought out—by the situation where there is only one man on board who knows that the captain is a murderer and goes to the captain and charges him with it,’ who passes it off by saying, in effect, that he can't get anybody on board the boat to believe him; that dramatically what the audience sees in the picture is the captain committing murders and telling the other man on the boat, ‘You can try to convince anybody on the ship that I am a murderer.’
The play was submitted to RKO and read by its story department in the summer of 1942. It was returned to respondents with the statement that it was not suitable for RKO at that time. Appellant Lewton, during the time involved here, was story editor and a producer employed by RKO. In December, 1942, RKO assigned the production of a picture, which at that time had only a title, ‘The Ghost Ship,’ to Lewton. One Fanty was employed to write a story for the picture. Early in April, 1943, respondents submitted the play, ‘The Man and His Shadow’ to Lewton, who read it. About May 7, 1943, Fanty delivered his story to Lewton. Fanty's story was not satisfactory. After Fanty's story was discarded, Lewton was looking for a sea story for the picture ‘The Ghost Ship.’ RKO needed a ship story in order to utilize a ship set it had on hand and save some cost of construction. At this time Lewton had respondents' manuscript on his desk. ‘The Man and His Shadow’ was returned to respondents about May 21, 1943. They had some difficulty in securing its return. Between the time that ‘The Man and His Shadow’ was delivered to Lewton and its return to respondents, respondents had two or more conversations with Lewton. In the course of the conversations Lewton told them that he was looking for a sea story. They suggested to him ‘The Man and His Shadow,’ which they said was a psychological thriller—a play on a boat, showing lust for power. They showed Lewton laudatory articles of the play published in newspapers at the time it was produced at the Pasadena Laboratory Theatre. Lewton indicated that he was concerned about the cost of a picture based on the play. Respondents told him that it was not necessary that the play take place on a luxury yacht, that it could be set on a tramp steamer; that a picture could be made with an all male cast, creating the same dramatic atmosphere, by cutting out minor characters and changing the picture set so as to have just the basic story of the captain and the other men and their relationship with the real figure, the captain. Lewton said to them, ‘You know, Mr. Golding, I personally really don't have to buy any story. I usually take an idea and I take my writers and tell them what to do, and that's the way it is done.’
About May 23, 1943, and either just before or shortly after ‘The Man and His Shadow’ was returned to respondents, employees of RKO began the writing of the screen play for ‘The Ghost Ship.’ Lewton acted as chairman of the group and participated in all conferences in the writing of the screen play. He made a substantial contribution to the ideas in the script of the screen play. He suggested a number of story situations which were adopted in the picture as finally produced. He guided the creative writing of the picture. He made contributions with respect to the characters, the characterizations, the development of the theme and of the plot, and of the dramatic sequence of events. The screen play was completed early in July, 1943. Shooting of the picture began about July 29, 1943. Lewton was the producer of the picture. As producer he had the responsibility of making the picture and was in charge of all concerned in the making of the picture. Neither the screen play, nor the cutting continuity, nor any writing from which the picture was made, was introduced in evidence.
Respondents' right is the common-law right of an author in his unpublished manuscript. It is the sole right to decide by whom, when, where, and in what form, his manuscript shall be published for the first time; to restrain others from publishing it without his permission and from using it without his authority; and to recover damages from those publishing it without his permission or using it without his authority. Palmer v. DeWitt, 47 N.Y. 532, 7 Am.Rep. 480; Moore v. Ford Motor Co., D.C., 28 F.2d 529, 536; Johnston v. Twentieth Century Fox Film Corporation, 82 Cal.App.2d 796, 187 P.2d 474. To constitute an invasion of respondents' right, it is not necessary that the whole of the play should have been copied, or even a large portion of it, in form or substance. An unauthorized appropriation is not to be neutralized on the plea that ‘it is such a little one.’ Universal Pictures Co. v. Harold Lloyd Corporation, 9 Cir., 162 F.2d 354, 361. In ‘Law of Copyright and Literary Property,’ Ball says (p. 371): ‘If a substantial number of incidents, scenes and episodes in an alleged infringing play are so nearly identical in detail, combination and arrangement with those found in the copyrighted book, to which the author of the play had access, as to exclude all reasonable possibility of chance coincidence and point inevitably to the conclusion that they were taken from the book, the play is a piracy, irrespective of the fact that some of the similarities may logically result from identity of subject matter, theme and locale.’
The ultimate test laid down by some courts to be applied in determining whether any substantial part of the play was used in the picture is stated in Harold Lloyd Corporation v. Witwer, 9 Cir., 65 F.2d 1, 18: ‘The question really involved in such comparison is to ascertain the effect of the alleged infringing play upon the public, that is, upon the average reasonable man. If an ordinary person who has recently read the story sits through the presentation of the picture, if there had been literary piracy of the story, he should detect that fact without any aid or suggestion or critical analysis by others. The reaction of the public to the matter should be spontaneous and immediate.’ See, also: Kustoff v. Chaplin, 9 Cir., 120 F.2d 551, 561; Dymow v. Bolton, 2 Cir., 11 F.2d 690, 692; Barbadillo v. Goldwyn, D.C., 42 F.2d 881, 885; 13 Corpus Juris, sec. 307, p. 1136; 18 C.J.S., Copyright and Literary Property, § 111. The test, thus stated, appears to us to be deceptive for it is obvious that an ordinary observer could not differentiate between the original or unoriginal material included in the play and the picture, and could not say, from such shallow comparison, whether a substantial similarity between them is traceable to material copied from sources in the public domain, as the use of old or stock situations, or common sources, or arises from coincidence. Harold Lloyd Corporation v. Witwer, 9 Cir., 65 F.2d 1, 23, 24; Sheldon v. Metro-Goldwyn Pictures Corporation, D.C., 7 F.Supp. 837; 18 C.J.S., Copyright and Literary Property, § 113, 231, 232. If dissection rather than observation is required to discern any resemblance, there is no piracy. Dymow v. Bolton, 2 Cir., 11 F.2d 690, 692; Frankel v. Irwin, D.C., 34 F.2d 142, 144; Harold Lloyd Corporation v. Witwer, 9 Cir., 65 F.2d 1, 25; Ball, Law of Copyright and Literary Property, sec. 270, p. 618. In Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 561, 90 P.2d 371, 374, the test laid down for determining whether a substantial part of a play was copied in a picture is: Do ‘the two works, when compared, show pronounced similarities of substantial portions of protectable material, i. e., of details, sequence of events, and manner of expression and treatment, as to warrant the inference of copying’?
A dispute exists between the parties as to whether the test to be applied here—a case of alleged piracy of unpublished, uncopyrighted material—is the same as that applied in cases of alleged piracy of copyrighted material. The test for determining whether there is piracy is the same in both cases. The only distinction between the two classes of cases is that the law permits ‘fair use’ of copyrighted material. It does not permit ‘fair use’ of unpublished, uncopyrighted material. In each case the first question to be determined is whether there has been piracy. In a case of alleged piracy of unpublished, uncopyrighted material, piracy is to be determined by application of the test laid down in the Barsha case. In a case of alleged piracy of copyrighted material, the first question to be determined is whether there has been piracy; and the test to be applied is that laid down in the Barsha case. In the latter class of cases, if piracy is found, then the question of whether there has been ‘fair use’ is to be determined. Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 81 F.2d 49, 54; 18 C.J.S., Copyright and Literary Property, § 94, p. 219. The privilege of ‘fair use’ accorded in statutory copyrighted cases is not accorded by the common law in the case of unpublished works and the author has exclusive control of his work. Civ.Code sec. 980; 18 C.J.S., Copyright and Literary Property, § 5, p. 140; 13 C.J., § 2, p. 946. ‘Fair use’ is defined as use for ‘some legitimate, fair, and reasonable purpose, such as for illustration, comment, criticism, and the like.’ Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 81 F.2d 49, 54; Hill v. Whalen & Martell, D.C., 220 F. 359, 360.
Access is admitted. Access alone ‘means nothing.’ ‘There must still be similarity.’ Cain v. Universal Pictures Co., D.C., 47 F.Supp. 1013, 1015. Proof of access means that appellants read respondents' play before or in the course of the production of the picture. Kustoff v. Chaplin, 9 Cir., 120 F.2d 551, 560. There is no piracy because of similarity of locale, the taking of a general idea or scheme, or an historical incident, or the use of old or stock situations or dramatic ideas. Harold Lloyd Corporation v. Witwer, 9 Cir., 65 F.2d 1, 17; Moore v. Ford Motor Co., D.C., 28 F.2d 529, 536; Barbadillo v. Goldwyn, D.C., 42 F.2d 881; Echevarria v. Warner Bros. Pictures, D.C., 12 F.Supp. 632. Ideas, as such, are not protected. Kalem Co. v. Harper Bros., 222 U.S. 55, 32 S.Ct. 20, 56 L.Ed. 92, 96, Ann.Cas.1913A, 1285; Holmes v. Hurst, 174 U.S. 82, 19 S.Ct. 606, 43 L.Ed. 904, 906; Johnston v. Twentieth Century Fox-Film Corporation, 82 Cal.App.2d 796, 187 P.2d 474. At ‘common law, as well as under the copyright acts, it is the form, sequence, and manner in which the composition expresses the idea which is secured to the author, not the idea.’ Moore v. Ford, Motor Co., D.C., 28 F.2d 529, 536; O'Rourke v. RKO Radio Pictures, D.C., 44 F.Supp. 480, 483. It is only in the expression of an alleged infringed work that monopoly inheres; ‘the ‘theme,’ * * * the ‘ideas' may always be freely borrowed.’ Dellar v. Samuel Goldwyn, Inc., 2 Cir., 150 F.2d 612; Dellar v. Samuel Goldwyn, Inc., 2 Cir., 104 F.2d 661. It has been said that ‘plot,’ ‘sequence of events,’ and ‘theme,’ mean the same thing. Harold Lloyd Corporation v. Witwer, 9 Cir., 65 F.2d 1, 24. Other cases and writers disagree. The ‘theme’ of a play or picture is the dominant emotion of the basic character. The ‘theme’ is personified by the basic character. The ‘plot’ is the story or narrative. It is ‘the designed sequence of connected incidents.’ It is the thing which moves the play from cause to effect. It means, as its etymology implies, a weaving together. The ‘theme,’ or dominant emotion, personified by the basic character, evolves and develops by means of the ‘plot’—the story—motivated by conflict, complication or intrigue, or both, to a crisis and climax. Price, The Analysis of Play Construction and Dramatic Principle, 3, 46, 140; Malevinsky, The Science of Playwriting, 63, 110, 162, 219, 233, 234; Baker, Dramatic Technique, 58; Andrews, Technique of Playwriting, 35, 45, 63; Frankel v. Irwin, D.C., 34 F.2d 142, 143; Roe-Lawton v. Hal E. Roach Studios, D.C., 18 F.2d 126, 127; Becker v. Loew's Inc., 7 Cir., 133 F.2d 889, 892.
If such similarities exist as to justify an inference of copying of protectible material, it is necessary to prove only that a substantial part of respondents' play was copied to sustain liability on the part of appellants. Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 561, 90 P.2d 371. A subsequent author cannot avoid liability by making changes in, or by omissions from, or by additions to, the original story. Unlawful appropriation cannot be excused by a showing that there was much of the original work which was not appropriated. Barsha v. Metro-Goldwyn-Mayer, supra. With access admitted, similarity of incident rests upon a high degree of probability of copying and a low degree of probability of independent creation. Shipman v. RKO Radio Pictures, 2 Cir., 100 F.2d 533, 538. ‘Unconscious plagiarism is actionable quite as much as deliberate.’ [Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 81 F.2d 49, 54.] Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198, 51 S.Ct. 410, 75 L.Ed. 971, 976, 76 A.L.R. 1266; Harold Lloyd Corporation v. Witwer, 9 Cir., 65 F.2d 1, 16; Fred Fisher, Inc. v. Dillingham, D.C., 298 F. 145, 148.
Were we judges of the facts, we would have no hesitation in saying that, as ordinary observers, having read the play and sat through a presentation of the picture, we could not detect any literary piracy of the play without critical analysis; nor was there, in our minds, any spontaneous or immediate reaction that there was piracy. We would have been compelled to agree with appellants' contention that, from a reading of the play and a viewing of the picture alone, there is no evidence of similarity of protectible material. We are not judges of the facts. Appellants are in error in their contention that if we read the play and view the picture and find no similarity we must conclude that there is no sufficient evidence to support the implied finding of the jury that in the production of the picture appellants copied, appropriated, and embodied, part of the play. Issues of identity and piracy are for the jury. Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 560, 90 P.2d 371; Liggett & Meyer Tobacco Co. v. Meyer, 101 Ind.App. 420, 194 N.E. 206, 213; Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643, 651. The question of whether there is piracy is always simply one of fact. Universal Pictures Co. v. Harold Lloyd Corporation, 9 Cir., 162 F.2d 354, 360; Moore v. Ford Motor Co., D.C., 28 F.2d 529, 536; 13 C.J., § 307, p. 1137; 18 C.J.S., Copyright and Literary Property; § 111, p. 228. As we have said, there was direct testimony that there was piracy. There was evidence from which the jury could infer that appellants deliberately copied, appropriated, and embodied, parts of the play in the picture. Twelve jurors and the trial judge so inferred.
Analysis of the play and the picture discloses the following similarities of detail, sequence of events, and manner of treatment, which the jury reasonably could have found. Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 561, 90 P.2d 371. The setting of both is on a ship. The background of both is the life of a captain on a ship. The emotional response, stimulated in both play and picture, is horror. The theme of each is madness and ruthlessness. The basic character in each is the captain. Madness and ruthlessness are the dominant emotions of Crawley in the play and of Stone in the picture. Each is a homicidal egomaniac. Each murders with reckless abandon. Crawley to Brancato: ‘Anyone who opposes me will be destroyed!’ Again, ‘Justice—bah!—It's only the strong that survive!’ Crawley to DeVries: ‘—alive you are dangerous to me.’ Stone to Tom: ‘I have rights over their [the crew's] lives—I have certain rights of risk over them.—Death is absolute.’ Again, ‘Men are worthless cattle and a few men are given authority to rule them.’
Each captain has the same subsidiary or secondary emotions: egotism, fear, jealousy, hate and revenge. These subsidiary emotions thread in and out of play and picture in the development of the plot. Each captain parades his superiority and authority. Each brazenly flaunts his authority as captain. Each ‘can bore through you, or wither you with a levelling glance of contempt.’ Each captain resents intermeddling with his prerogatives as captain—Crawley by DeVries—Stone by Tom and Louie. Crawley says to DeVries: ‘You're an intermeddler—Alive you are dangerous to me.’ Stone says to Tom: ‘I have already given you my considered opinion as to the danger involved.’ He killed Louie because he was a troublemaker. Each is accused of murder. Each seeks to avert suspicion by saying that his accuser is suffering from hallucinations or delusions. In play and picture, the accusers are at the mercy of the captain. Each captain permits his accuser freedom of the ship while scheming to destroy him. Each accuser goes to the first officer and says that the captain is a criminal. Neither first officer will listen. In play and picture the captain is beset by fear. Crawley—fear of discovery of the fact that he is not Captain Mason, that he had murdered Mason, that he had murdered Malone. When Brancato suspects that Crawley killed Malone, Crawley fears that DeVries also suspects him. Later Crawley fears DeVries. Stone says, ‘I'm not afraid of anything but failure.—I might have failed.’ He says, ‘I am afraid—afraid of my mind.’ Each captain is plagued with the fear that others are suspicious of him. Crawley to DeVries: ‘You're always watching me—thinking about me—I want you to be afraid of me, but you're not—you've been watching me, studying me, persecuting me.—Why don't you leave me alone?’ Stone to agent: ‘I don't want him [Tom] on my ship.—People seem to be turning against me—the boy—some of the crew. I feel their dislike—their distrust.’
The conflict between the emotions of the captain and the emotions of the secondary characters creates the same complications in play and picture. In the play the captain says to Brancato, ‘Go ahead! Expose me! You have the freedom of the ship! We will see whom they believe.’ In the picture the captain says to Tom, ‘—there isn't a man who will listen or believe you—go any place on board ship—see if you can get them to help you—try and get help against me—try—try—try.’ In play and picture no one will believe them. As the plot develops in the play, DeVries becomes aware that the captain is not Captain Mason, that he is a murderer and dangerous to all on board. As the plot evolves in the picture, the radioman and first officer become aware that the captain is incompetent, crazy, a murderer and dangerous to all on board. In play and picture the identical complications bring about the final crisis, the ultimate emotional point: the mental breakdown of the captain. In each the climax is the inevitable result of the conflict between the captain and his accuser. The climax, the thing that happens to the causative character—the captain—is the same. He loses, he dies. It is the logical result of the captain's moving through substantially the same sequence of events or episodes. In each the climax satisfies the same emotional reaction of the audience. Play and picture are orientated to the idea that justice will ultimately triumph.
The dominant emotion of the accuser in both play and picture is justice. Each is actuated by the idea of bringing a murderer to justice. Each endeavors to do so in the same way. Neither is believed or listened to. As the plot unfolds, others realize that he is right. In the play DeVries becomes convinced. In the picture the radioman and the first officer awaken. In play and picture, the knowledge that others are convinced of his guilt brings about the death of the captain.
One watching the play and viewing the picture may find similarities between DeVries and the Finn. Both probe beneath the surface. Both are the first, other than the accusers, to become aware of what is occurring on the ship. DeVries makes written notes ‘explaining what goes on around us.’ The Finn appears at intervals from the opening of the picture, making mental notes which are conveyed to the audience by the voice of a person unseen. In the play DeVries watches over, protects and schemes for the accuser, Brancato. In the picture the Finn watches over, protects and schemes for the accuser, Tom. DeVries, in the play, the Finn in the picture, brings about the death of the captain.
If similar emotions are portrayed by a sequence of events presented in like manner, expression, and form, then infringement is apparent. Nichols v. Universal Pictures Corporation, D.C., 34 F.2d 145, 147. We cannot say that the jury could not reasonably have concluded that sufficient subject matter of the play, as to setting, atmosphere, sequence of events, and detail of narrative, was utilized in the picture as to constitute piracy. There is as much similarity here as existed between ‘I Am the Law’ and ‘The Valley of Silent Men’ in International Film Service Co. v. Affiliated Distributors, D.C., 283 F. 229, in which Judge Knox found infringement.
In Nutt v. National Institute Inc. for the Improvement of Memory, 2 Cir., 31 F.2d 236, 238, the court said: ‘Copying is not confined to a literary repetition, but includes various modes in which the matter of any publication may be adopted, imitated, or transferred with more or less colorable alteration.’ A picture may be a piracy in whole or in part, irrespective of the fact that some of the similarities may logically result from identity of locale, theme, and subject matter. Ball, The Law of Copyright and Literary Property, sec. 173, p. 371. A reasonable inference which is supported by evidence cannot be disturbed by this court. The effect of inferences reasonably deduced from facts in evidence is not destroyed by the testimony of witnesses when the testimony is contradictory of the inferences. The uncontradicted testimony of the witnesses in the employ of appellant RKO, who took part in the conception and production of the picture, that they did not use plaintiffs' play, does not compel the conclusion that respondents' production was not pirated. Sheldon v. Metro-Goldwyn-Pictures Corporation, 2 Cir., 81 F.2d 49; Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 90 P.2d 371. Merely because a reviewing court, as ordinary observers having read the play and viewed the picture, cannot, from such reading and observation, detect any literary piracy of protectible material, is not sufficient ground for reversing the judgment. A reversal is compelled only where there is no substantial evidence in support of the verdict. If two opposing inferences as to piracy may fairly and reasonably be deduced from the evidence, the question is determined by the jury and it cannot be set aside by this court on the ground that it is not sustained by the evidence. Hamilton v. Pacific Electric R. Co., 12 Cal.2d 598, 602, 86 P.2d 829; Washko v. Stewart, 20 Cal.App.2d 347, 348, 67 P.2d 144; Beck v. Sirota, 42 Cal.App.2d 551, 557, 109 P.2d 419.
The evidence of access, the circumstances under which the screen play was written, the fact, that Lewton, who read the play, took the lead in the writing of the screen play and produced the picture, comparison of play and picture, and the testimony of similarities, were sufficient to warrant the jury in concluding that there was piracy.
Appellants refer us to decisions of Circuit Courts of Appeal in equity cases where the courts have reviewed the facts and found no piracy after a holding of piracy by a District Court, or have found piracy after a holding of no piracy by a District Court. Those decisions are of no value here. On appeal in equity cases the Circuit Courts of Appeal review questions of fact subject to the rule that the finding of the trial court will not be lightly disturbed. Oxley v. Sweetland, 4 Cir., 94 F.2d 33; Standard Accident Ins. Co. v. Simpson, 4 Cir., 64 F.2d 583, 588, certiorari denied 290 U.S. 688, 54 S.Ct. 123, 78 L.Ed. 593; Harold Lloyd Corporation v. Witwer, 9 Cir., 65 F.2d 1, 5. In actions at law the rule in the federal courts is the same as here. White v. United States, 10 Cir., 48 F.2d 178, 180; Security Nat. Bank v. Old Nat. Bank, 8 Cir., 241 F. 1, 6.
There is sufficient evidence to support the finding of the jury that by the production and disturbution of the picture the value of the motion picture rights of the play was reduced in the amount of the verdict—$25,000. Appellants say that as to the value of the play ‘the finding was supported only by the testimony of the plaintiffs as owners of the play, and that their estimated value was supported by no witness versed in the value of such literary property, and was contradicted specifically, not only by the expert witnesses called by the appellants, but also by circumstances and facts which were of greater evidentiary value than the unsupported opinion of the owners of the property or of the experts called by the appellants'; that as to the second element, i. e., the value of the play after the production and distribution of the picture, the plaintiffs testified that the play was of no value and that such testimony is not substantial evidence in support of the verdict.
The owner of property may, without being qualified as an expert, testify as to his opinion of the value of such property, the weight and value of such testimony being left to the jury. Wigmore states the principle as follows: ‘* * * the general test, that any one familiar with the values in question may testify, is liberally applied, and with few attempts to lay down detailed minor tests. The owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury.’ 3, Wigmore on Evidence, sec. 716, p. 48. See, LeBrun v. Richards, 210 Cal. 308, 319, 291 P. 825, 72 A.L.R. 336; Hood v. Bekins Van & Storage Co., 178 Cal. 150, 152, 172 P. 594: Willard v. Valley Gas & Fuel Co., 171 Cal. 9, 14, 151 P. 286; 20 Am.Jur. 751, sec. 892. ‘Literary property is not distinguished from other personal property and is subject to the same rules. * * *’ Universal Pictures Co. v. Harold Lloyd Corporation, 9 Cir., 162 F.2d 354, 369. See, also, Yadkoe v. Fields, 66 Cal.App.2d 150, 160, 151 P.2d 906; Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 90 P.2d 371.
Plaintiff Golding testified, as an owner, that the value of the motion picture rights of the play, ‘The Man and His Shadow’ as of May, 1943, was ‘anywhere between 25 to 50 thousand dollars * * * 25 thousand dollars would be a very minimum price.’ He also testified that after the production and distribution of the motion picture, ‘The Ghost Ship,’ the motion picture rights were of ‘no value.’ Plaintiff Faulkner testified, not only as an owner but as an expert, that the reasonable market value of the motion picture rights of the play, as of May, 1943, ‘was fifty-thousand dollars, but if necessary we would have sold it for twenty-five,’ and that after the production and distribution they were of no value. The foregoing evidence as to value is sufficient to support the award of damages. The most that can be said of the testimony of appellant's experts that the stage play contained no material of value for motion picture purposes, is that it created a conflict in the evidence. Appellants severely criticize counsel for respondents, for arguing in his brief, and in support of his contention that the award of damages is supported by the evidence, that ‘The fact that dramatic critics reviewing it (the play) engaged in extravagant praise of its ‘novel theme,’ ‘sparkling dialogue,’ ‘powerful dramatic situations,’ etc., is evidence which abundantly supports the jury's implied finding of value.' Appellants' stricture of the argument is well taken. Counsel for respondents knew, or should have known, that the reviews of dramatic critics were no evidence whatsoever of value or of damages. The reviews were received in evidence because they were handed to Lewton by respondents. Counsel for respondents expressly stated to the court that they were offered for a limited purpose. They were received in evidence for that limited purpose only. The trial judge instructed the jury, in effect, that they were not evidence of the truth of their contents. The argument is highly improper and should not have been made.
The judgment and order appealed from are, and each is, affirmed.
VALLÉE, Justice pro tem.
SHINN, Acting P. J., and WOOD, J., concur.