The Paper Dragon (24 page)

"And generally distributed."

"It was a
limited
distribution."

"We can argue this forever," McIntyre said. "I will reserve judgment on the motion, Mr. Willow."

"May I then, your Honor, for the defendants Mitchell-Campbell Books and Camelot Books move for dismissal of the complaint under Rule 41, on the ground that on the facts and on the law the plaintiff has not made out a cause for action."

"I will deny that motion," McIntyre said.

"If your Honor please," Willow said, "I have no desire to waste the Court's time, but may I point out that our grounds are set forth in our main brief and in our reply brief?"

"I know that."

"Thank you, your Honor," Willow said.

Genitori rose from behind the API table and walked toward the bench. "May it please your Honor," he said, "Mr. Willow has made a motion to dismiss under Rule 41, and I would now like to join that motion as it refers to the first claim against API. But in addition, I would like to make another motion directed to the second cause of action, which charges independent infringement by API.

"For the purpose of this motion, your Honor, I must assume
arguendo
that Ralph Knowles, the man who wrote the screenplay and directed the film, had access to the play
Catchpole
, and that the five similarities listed in Plaintiff's Exhibit Number 8, together with the 'eyeglasses' incident which was added today — these six items were copied by Mr. Knowles directly from the play. I submit to your Honor that even
assuming
access and copying — and access alone means nothing, as your Honor well knows — even assuming
both
, these six incidents alone do not form the basis for copyright infringement.

"Let us examine them for a moment, if we may, your Honor. They are all as flimsy and as absurd as the man with his foot in bandages, or the far-fetched allusion to marksmanship, both of which claims have already been withdrawn. They are as meaningless, your Honor, as the incident of the eyeglasses, which was added to the list in this courtroom today.

"We are asked to accept as a unique idea, for example, the use of a bayonet as a weapon, your Honor — the use of a
bayonet
as a
weapon
— merely because the plaintiff's psychopathic colonel uses one. Never mind the fact that bayonet charges were prevalent during the Korean conflict, and that whereas none were mentioned in the novel, Mr. Knowles made pictorial use of them in the film. Or for example, your Honor, the plaintiff insists that because some soldiers are drinking coffee at one point in his play, and some soldiers in the film
also
drink coffee, this is another indication of access and direct copying from the play. I don't think I need bring up the other three points which are just as meaningless, and upon which the plaintiff bases his charge of independent infringement by API.

"I submit that the plaintiff's case is lacking in
any
evidence of infringement of copyrightable material. I call your attention to one of the more prominent plagiarism cases —
Morris versus Wilson
, cited on page 24 of our brief — in which Judge Weinfeld said, In order to suppose that these authors should have found in the plaintiff's play cues for the farfetched similarities which she discovers, one must be obsessed — as apparently unsuccessful playwrights are commonly obsessed — with the inalterable conviction that no situation, no character, no detail of construction in their own plays can find even a remote analogue except as the result of piracy.' The judge later quoted, poetically, Trifles light as air are to the jealous confirmations strong as proof of holy writ.'

"Your Honor, that's exactly what these six isolated incidents are, trifles light as air. Let us examine the rest of them a moment, if your Honor will allow. There is an enemy soldier being shot at and falling out of a tree, a supposedly
unique
event in time of war. There is an American soldier bursting into tears when his buddy is killed. And finally, there is a nurse putting on lipstick and using the back of a mess kit for a mirror. Your Honor, I submit that the first two of these alleged similarities are stock incidents to be found in
any
war film ever made, and that the incident with the nurse and her lipstick is non-copyrightable.

"If you will refer to page 31 of our brief — the case of
Rush versus Oursler
— Judge Thacher of this court observed, 'When two authors portray the same occurrence in the same setting; presupposing the presence of the same people in the same environment; similarities of incident unaccompanied by similarities in
plot
are not persuasive evidence of copying. The authors having worked with the same material to construct the environment or setting in which the action is laid, such similarities are inevitable; and the products of such labor are comparable to the paintings of the same scene made by different artists.'

"And a little later on, your Honor, he remarked, Tt may usually be said that such material is so unimportant and so trivial that its appropriation by copying, even if shown, would not be a substantial taking of copyrighted material.' Your Honor, the six incidents upon which plaintiff bases his second cause of action — the enemy shot from a tree, the eyeglasses, and so forth — are likewise not susceptible of copyright.

"I now respectfully submit that there is no evidence at all to support this second claim against API, and I beg your Honor to dismiss it from the case."

"Mr. Brackman?"

"I did not realize, your Honor, that Mr. Genitori was going to read us his entire brief," Brackman said dryly. He rose and walked slowly toward the bench. "Needless to say, I do not agree with him concerning the basis of our complaint, which he seems to have completely misunderstood. We are
not
claiming that these six incidents alone constitute our claim of infringement. Our complaint is quite clear on that. Our action against API is based on these six incidents
plus
all of the other similarities of theme, plot, and character which Mr. Constantine enumerated yesterday. It is a simple matter, of course, to label these similarities 'flimsy and absurd,' as Mr. Genitori has done, it is certainly much simpler than trying to explain them. But, your Honor, I feel defendant
should
and
must
explain them, especially when we consider Mr. Constan-tine's testimony, which indicates that in 1952 he worked with a man named Matthew Jackson, to whom he submitted a copy of his play
Catchpole
. This man Jackson…"

"Your Honor," Genitori said, "I only assumed access for the purpose of my motion."

"Yes, we understand that."

"API
had
access," Brackman said firmly. "There is no question about that. The play was submitted to five people at the studio in 1952,
including
Mr. Matthew Jackson, who later worked with Ralph Knowles on
The Paper Dragon
. Carl, may I see that brief a moment, please?" he said, turning to his partner. Arthur, watching him, saw that he was getting angry, and he immediately thought, Good, it's about time. Give it to the bastards.

"I don't like to waste this Court's time reading from cases. There are hundreds and hundreds of cases, as your Honor well knows, and it seems we have already heard a goodly percentage of them from my learned friend." Arthur saw Genitori smile, in spite of the withering glance Brackman directed at him. "But our brief is not exactly destitute of examples, your Honor, and if I may I would like to quote from it at this time."

"Please," McIntyre said.

"I thank your Honor for his indulgence," Brackman said. "In the case of
West Publishing Company versus Edward Thompson Company
, it was pointed out, and I quote, To constitute an invasion of copyright it is not necessary that the whole of a work should be copied, nor even a large portion of it in form or substance, but that, if so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient to constitute an infringement."

"So you see, your Honor, it does not matter whether we are dealing here with six incidents, or ten incidents, or twelve, or
twenty
— so long as these similarities have indeed sensibly diminished the value of the original. I'm sure your Honor is familiar with the now famous
Teton versus Caddo
case, this circuit, Judge Madison presiding, wherein it was claimed — as both Mr. Willow and Mr. Genitori are claiming — that the similarities were insignificant, even though there were a great many of them, a substantial number of seemingly unimportant similarities. There was, however, in the midst of these so-called insignificant similarities, one that was
indeed
significant, your Honor. I refer, and I'm sure you're ahead of me, to the misspelling of a place name in the original work, and the identical misspelling of that place name in the alleged piracy. This was, your Honor, the misspelling of a town in Michigan, Chippewa, which was spelled with an H at the end of it in both books, C-H-I-P-P-E-W-A-H, Chippewah — the identical error in both books, your Honor. The thief had left behind his fingerprints."

Brackman turned to look at the empty jury box where Driscoll and his wife sat, and then turned to the judge again.

"Your Honor, the thief has left behind his fingerprints in this case as well. I refer now to the numerical designation of the 105th Division, which is identical in both the play
Catchpole
and the novel
The Paper Dragon
, and which has been carried over to the film produced by—"

"Your Honor, this does not pertain to my motion," Genitori said. "I made no reference to the 105th Division."

"I appreciate that, Mr. Genitori," McIntyre said, "but if I understand Mr. Brackman correctly, he's saying there
is
a cause of action and that it goes beyond the six incidents and includes
all
of the other similarities as well."

"That's
exactly
what I'm saying."

"I'll continue to hear argument on the point."

"I was saying, your Honor, that the thief's fingerprints are clearly visible without the need of a magnifying glass, they are able to be seen with the naked eye, the 105th Division. If I may, your Honor, I would like to point out once again that there were only sixty-seven actual infantry divisions in existence during the time of the Eniwe-tok campaign, and that when we come to the divisions beyond the designation '100' we have the 101st, 102nd, 103rd, 104th, and
106th
. There is no 105th division. Nor was there a 105th division in 1950. There were only seven actual infantry divisions at that time, the 1st, 2nd, 3rd, 7th, 24th, 25th, and the 1st Cavalry. Today, there are twelve infantry divisions and, needless to say, none of
them
is the 105th, either.

"Perhaps Mr. Driscoll can adequately explain to this Court how he happened to hit upon those three digits in sequence. Until he can do that, I will continue to be amazed by the remarkable use of this designation, appearing again and again and again, first in the play, then in the novel, and again in the motion picture. Out of all the possible numbers Mr. Driscoll could have used to label his infantry division, he chose the identical number that appears in Mr. Constantine's work. This is an amazing coincidence, your Honor, it is almost an impossible coincidence."

"Now, your Honor, in much the same way that there are laws governing our society, there are also laws governing chance, and these are called the laws of probability, and it is against these that we must examine this use of an identical division number. If we were to take all the digits from zero to nine and try to figure out all the possible different combinations for any
three
of those digits, we would have to raise ten to the third power, which means we would have to multiply ten times ten times ten, and that would give us an answer of one thousand possible combinations. In other words, the odds would be a thousand to one that any man would choose a specific combination over any other possible combination. A thousand to one, your Honor. And those odds, as impressive as they may sound, are only the odds for a
single
event. When we come to two mutually independent events, the odds are overwhelming.

"What exactly is the probability that both these men, given the same ten digits, would then arrange three of them in identical order? I will tell you, your Honor. The laws of probability state that in the case of two mutually independent events, we must multiply the odds against Event One happening by the odds against Event Two happening. In other words, we must multiply a thousand-to-one by a thousand-to-one, and we then discover that the odds against Driscoll hitting on this same combination were a
million
to one. He had one chance in a million, your Honor, a deplorable cliché to use in a case dealing with literary matters, but those are the true odds nonetheless, a
million
to one, the figures do not lie. And even if we wish to give both men the benefit of the doubt, and say that neither of them would have designated an Army division with the number zero-zero-zero — although stranger things
have
happened in fiction, as we well know — even if we were to exclude this possibility, the odds for both men would be 999 to one, and when we multiply that by itself, the odds against Driscoll hitting on the same combination would be 998,001 to one. A million-to-one is a neater figure, your Honor, and will serve our purposes here, I believe.

"And I believe, too, that with odds such as these, we are justified in demanding an explanation, beyond the labeling of such similarities as flimsy and absurd. Thank you, your Honor."

"Do you now wish to reply, Mr. Genitori?"

"Only to say, your Honor, that my motion did not concern the 105th Division or any other similarities common to both the novel and the film."

"Yes, I understand that. Well, I want to reserve decision on your motion, and on Mr. Willow's as well."

"Your Honor?"

"Yes, Mr. Willow?"