Frolic of His Own (58 page)

The picture opens with a decrepit horse and buggy carrying two silent passengers, an aging woman and a handsome, intense young man, through a variety of bad weather and unpromising vistas to pause and then enter at a gate labeled Cross Creek. As he stands and snaps the whip imperiously they proceed up the moss-hung drive to an elaborate antebellum mansion where a black house slave disdainfully points them on their way, and for a moment we glimpse a ravishingly beautiful young
woman in negligee watching from behind a curtain as the buggy retreats back down the drive and is next seen pulling up before a small farm house in bad need of repair. A long montage sequence follows in which the young man is seen hammering, splitting, driving posts, planting tobacco, assisted by a young black evidently a slave who is also shown by lamplight at the woman's knee learning with the Bible's help to read and write. Thus far the entire story is told in dumb show, heightened by musical effects, until the day of his dramatic sexually charged encounter with the ravishing young woman glimpsed in the opening scene and even more so now, on horseback, where he is out hunting; their acquaintance rapidly ripens into love and marriage, and he moves into Cross Creek with her jealous, vindictive brother Jake and her vain, drunken father, who assumes the rank of major with the dawn of the Civil War where they go up, leaving the sniveling brother behind. The battle at Ball's Bluff is next portrayed with all the ferocity that modern motion picture techniques and special effects are capable of producing and which need not be detailed here, except to observe that the Major appears to stay well out of the action into which his son in law, whose name we have since learned is Randal, plunges with admirable not to say bloodthirsty zeal. Returning home, Randal learns from his mother of the death in the North of a wealthy coal baron uncle whom she has taught him to despise for having cheated his father of the legacy to which he now, as the only surviving relative, may lay claim as she urges him to do. Similarly, he is urged on by the Major who, we learn in a fiery scene between father and daughter, has accumulated heavy gambling debts and sees his son in law's good fortune as a way out, conniving meanwhile to satisfy the new Confederate draft by sending his own son Jake up in Randal's place. Leaving his wife behind at her own wish, Randal proceeds north to take over the coal empire where, with the collusion of the mines' wily manager Carlucci, he brutally suppresses a strike by the miners against their unhuman working conditions, contemptuously sending one of them up as his substitute when he is threatened by a draft by the Union army. Unwilling to risk his new empire by returning to Cross Creek as the war draws closer threatening both his wife and mother, only the Major is there recuperating from a minor wound with an abundance of drink when a marauding band abruptly materializes to shoot him dead after degrading him mercilessly, tormenting the older woman beyond endurance and then in a prolonged scene reveling in its own depiction of cruelty raping the younger one in almost clinical detail. All this however has been in mere preparation for the scenes which follow depicting the war's bloodiest confrontation in the Battle of the Antietam, which exhausts every conceivable cinematic
possibility for the exploitation of blood and gore concluding, amidst the moans of the dying at nightfall, with Randal's spectral appearance on the battlefield where among the day's twenty odd thousand casualties he stumbles upon the corpses of his two substitutes locked in mortal combat. The rest of the picture seeks simply to lend dramatic credibility to Randal's eventual self destruction with his discovery of certain letters drawn by defendants from the public domain but which, finding no parallel in plaintiff's play, is of no consequence here.

The defendants are in the business of providing motion picture entertainment in Hollywood, California. Erebus, headed by studio chief B F Leva for almost two decades, a rare event in that mercurial milieu, is well known for its lavishly budgeted ‘blockbuster' offerings. Kiester is an independent producer and director whose recent Africa extravaganza Uruburu, containing scenes aptly tagged ‘Not for the squeamish,' made over $300 million and his top professional reputation. While denying allegations of fraud as set forth in plaintiff's Third Cause of Action, Kiester concedes that he began his career as a television producer in New York under his given name Jonathan Livingston, later to be known as Jonathan L Siegal, and upon arriving in Hollywood taking the name Constantine Kiester. It was to the defendant under the first of these names plaintiff contends that he originally submitted his playscript, receiving it back with a curt note of rejection, an occurrence of which defendant denies any recollection and in any event did not solicit. Defendants contend that having determined that the motion picture market was ready for a spectacular treatment of the Civil War, given the historic success of Gone With the Wind and its projected sequel by a rival studio, they cast about for a story that would provide a suitable vehicle for an actor named Bredford, just then not employed. To this end Kiester contacted a former schoolmate named John Knize whom he remembered as a Civil War ‘buff' who provided the story idea and at Kiester's request expanded it into a treatment. On the strength of this treatment Kiester contracted with Erebus to produce and direct the picture, assigning preparation of the screenplay to Knize and, between them, choosing Afhadi, Railswort, Schultz and Probidetz to help him, the first three with the scenario, the fourth with the dramatic production. All these five were examined by deposition; all denied that they had ever encountered, known of, read or used the play in any way whatever; all agreed that they had based the picture on material in the public domain provided by Knize. To meet these denials, the plaintiff appeals to the substantial similarity between passages in the picture and those parts of the play which are original with them.

In granting summary judgment to defendant, the district judge felt
that story idea central to the play was not sufficiently novel to create ‘property interest' entitled to protection under New York law in action against the motion picture makers for unfair competition and unlawful use, misappropriation and conversion; that notwithstanding the author's alleged submission of his play to defendant there was no evidence of any intent to contract with regard to the said play by defendant and thus its alleged unlawful use could form neither any basis for action for breach of implied contract, nor any basis for plaintiff's unjust enrichment action, nor for fraud action in that the defendants could not have enriched themselves at the authors expense on the ground that ‘plaintiff's alleged submissions lack the requisite novelty under applicable law' and so falling into the public domain where he could not be defrauded of property he did not own.

Plaintiff argues that in granting defendant's motion for summary judgment the court below erred in misunderstanding the applicable law and in deciding this case should have applied a different body of doctrine. The courts have frequently debated whether laws of unfair competition are similar enough to copyright jurisdiction in its aims to be preempted by Federal copyright law, to which defendant argues that preemption is not absolute in the area of intellectual property. However under the doctrine of pendent jurisdiction a Federal court may take jurisdiction over a State law if, as established by the Supreme Court in United Mine Workers v. Gibbs, that State law claim rises out of a ‘common nucleus of operative fact' with the Federal claim, and here plaintiff argues for such a common nucleus residing in all his claims rising from defendant's use of his playscript. His entitlement to copyright thereof is undisputed under 17 U.S.C. 303 dealing with the transition between the Copyright Acts of 1909 and 1976, the play having been written before the 1976 Act became effective but never published thus furnishing him this protection.

Both the issues of originality and novelty were raised before the district court by defendant asserting lack of novelty as a defense to all of plaintiff's claims, the judge holding that the latter applied whereas the former did not and that even if the issue of originality did apply plaintiff would lose since though defendants might have used the play they had taken only what the law allowed, that is, those general themes, motives or ideas where there could be no copyright and that in any case if they did copy this constituted fair use, embracing the famous dictum that even if a law does not apply, if it did the result would be thus. Should it emerge that the judge below focused on superficial differences or mere disguise ignoring identities of locale, motivation and similar persuasive factors the matter would be remanded to the district court for review; or further, if the judge assumed copying and failed to pursue the question
whether similarities between the works were substantial enough to raise triable issues of fact concerning infringement thereby depriving plaintiff of trial, this would constitute an abuse of discretion.

Whereas the low threshold of originality as opposed to novelty had already been clearly established by this court (See Alfred Bell & Co. ν Catalda Fine Arts, Inc. 191 F.2d 99, 2d Circ. 1951), under the 1976 Copyright Act it is now explicit in the statute that copyright subsists in ‘original works of authorship,' and it is the task of this court to determine whether the issue of novelty or originality applies in the case before us.

In an appeal bearing certain striking resemblances to the case at bar, Judge Learned Hand disputed the issue of novelty more than a generation ago in observing at the outset that ‘[w]e are to remember that it makes no difference how far the play was anticipated by works in the public demesne which the plaintiffs did not use. The defendants appear not to recognize this, for they have filled the record with earlier instances of the same dramatic instances and devices, as though, like a patent, a copyrighted work must be not only original, but new. That is not however the law as is obvious in the case of maps or compendia, where later works will necessarily be anticipated. At times, in discussing how much of the substance of a play the copyright protects, courts have indeed used language which seems to give countenance to the notion that, if a plot were old, it could not be copyrighted.' Sheldon et al. v. Metro-Goldwyn Pictures Corp. et al., 81 F.2d 49, quoting London v. Biograph Co. (C.C.A.) 231 F. 696. Defendant-appellees in the instant case have pursued a similar course, and the district court has joined with their pursuit, conjuring up once more this spectre of novelty in arguments relying heavily on citations from a more recent case in which the judge determined this to be the ‘sole issue' before the court in granting defendants' motion for summary judgment, and affirmed in the review by the appeals court limiting its decision to whether there was ‘no genuine issue as to any material fact' entitling defendants to ‘judgment as a matter of law.' Fed. R. Civ. P.56(c). Murray v. National Broadcasting Co. Inc., 671 F. Supp. 236 (S.D. N.Y. 1987), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In so arguing, defendants in the case before us have sought and found refuge in a decision embracing property rights in an idea, thus narrowing the issue to those mean constraints which the district court had then proceeded to analyze in light of the New York Court of Appeals decision in Downey v. General Foods Corp., 31 N.Y.2d 56, 334 N.Y.S.2d 874, 286 N.E.2d 257 (1972) Affirmed (1988) establishing the general proposition that ‘[l]ack of novelty in an idea is fatal to any cause of action for its unlawful use' therewith granting defendants' motion for summary judgment. In tying the case at bar to
the Procrustean bed of
Murray
as refined by further pruning at the hands of this court, plaintiff is disabled from pursuing the triable issue of infringement of a copyrighted work wherein novelty rightly construed is a contributing but not the controlling factor and where, for that matter, we may take notice of Pratt, C.J. dissenting in
Murray ‘
convinced that the novelty issue in this case presents a factual question subject to further discovery and ultimate scrutiny by a trier of fact.'

In deciding Nichols v. Universal Pictures Corporation (45 F.2d at 121) Judge Hand stated ‘[I]t is of course essential to any protection of literary property, whether at common law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations . . . When plays are concerned, the plagiarist may excise a separate scene (citations omitted); or he may appropriate part of the dialogue (citation omitted). Then the question is whether the part so taken is “substantial,” and therefore not a “fair use” of the copyrighted work; it is the same question as arises in the case of any other copyrighted work. (Citations omitted.) But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome.' Further, in
Murray,
this court has conceded ‘that even novel and original ideas to a greater or lesser extent combine elements that are themselves not novel. Originality does not exist in a vacuum.' And as stated in Edwards & Deutsch Lithographing Co. v. Boorman, 7th Circ., 15 F.2d 35, 36, ‘The materials used are all old and in the public domain, but the selection, the ordering and arrangement, are new and useful, and copyrightable. In deciding the question of infringements, the first and most obvious thing to do is to compare the productions themselves. The copyrightable feature of appellant's production being a particular plan, arrangement and combination of materials, the identity of such plan, arrangement and combination of similar materials, found in appellee's production, not only suggests, but establishes, the claim of copying.' See Universal Pictures Co. v Harold Lloyd Corporation 162 F.2d 354.

The defendants took for their mise en scene the same locale, the same two fragmented families contrasting privilege and penury, the same leading roles and the same protagonist's relationships with them. Both Thomas and Randal are fueled by indignation; both escape their humiliating circumstances through marriage to the plantation heiress next door, whose father is a Confederate major and whose brother takes their place at the battlefront unbeknownst to them; both travel north on the same mission and send substitutes from the mines up in their place, to the same fate and in the same battle; finally, both are saddled by a bleak embittered mother who holds the key to their family
injustice in the form of the intestate uncle. The differences are not of character but of dimensions, convenience or mere disguise; thus Thomas is an ambitious young man of intellectual leanings caught at cross purposes and fully aware of the ethical fine points at stake in his demand for justice, whereas Randal is cast in a simpler mould, reflecting the vacant stare of the motion picture audience in its warm acquaintance with greed undiluted by any exercise of the intellect let alone the bewildering thicket of Socratic dialogue. Where the play has in mind to edify, the picture sets out to entertain; thus Giulielma, Thomas' touching and desolate bride, finds her tempestuous full bosomed counterpart on the screen composed to arouse those appetites that will find their vicarious reward in the rape scene. Similarly, the sympathetic stage portrait of the Major as a genteel if self serving Southern aristocrat not unfamiliar in the literature, becomes that of a scheming rural drunk familiar from the small screen of television, and his son a mean figure of weakness and spite who is portrayed on the stage as a complex mixture of thwarted and divided love and loyalties. Even the part of Mr Bagby, a study in the business as usual corruption that ushered in Reconstruction and flourishes among us today as the beau ideal, is taken by a comic Italian stereotype reflecting, perhaps, no more than the mirth provoking possibilities provided by each successive wave of immigration, where were the story set in our own time his name would be Jimenez. Only the mother remains the same consistently unpleasant presence from one incarnation to the next, though her message delivered at the opening of the play does not come until later in the picture with its full impact when the two have parted company altogether. The Negro boy at her knee in the play has all but disappeared in the picture, there being no need to explore Rousseau's views on freedom; and Mr Kane of the play is entirely absent from the picture where Crito would be as unhappy a stranger as King Tut.