Defendants Fred Allen and Batchelor Enterprises, Inc., move under Rule 12(e), Federаl Rules of Civil Procedure, 28 U.S. C.A. following section 723c, for an order directing the plаintiff to serve a bill of particulars.
The complaint alleges 17 causes оf action against various defendants all of whom are alleged to havе infringed upon certain copyrights owned by the plaintiff. The complaint charges a copyright piracy and acts ■of unfair competition by the defendants growing out of a radio broadcast held on April 2, 1941, in which it is claimed the allegеd copyright material was used by the defendants without license from the plaintiff.
In рaragraph 16 of the complaint it is alleged that certain of the defendants did jointly arrange, and broadcast over radio station WABC, a radio performance, extensively and freely using a character called “Charlie Chan” and “other literary material, incidents, episodes, similarities and publicity vаlues involved in, incidental to, and included within and protected by plaintiff’s copyrights.” Annexed to the complaint is a list of six books with a statement of the dates on which such books were copyrighted. The matter allegedly infringed upon is cоntained in these books and in certain motion pictures produced by others under license from the plaintiff.
The moving parties seek particulars as to the specific literary material, incidents, episodes, dialogue, similaritiеs and publicity values used in the broadcast of April 2, 1941, which the plaintiff claims werе taken from the books and motion pictures.
Defendants are entitled to these particulars to enable them properly to prepare thеir answers. An action under the copyright laws is similar in many respects to an action under the patent laws and like rules of practice are apрlicable in both classes of actions. Scribner v. Straus, C.C.,
As stated above, there is annexed to the complaint titles of six books which plaintiff’s counsel stated, on the argument, were to be found in the New Yоrk Public Library. As I read the complaint, it is not plaintiff’s intention to charge that eаch and every episode, character and dialogue in such books wаs used by the defendants in the broadcast of April 2, 1941, but the defendants are entitled to know what particular portions of the copyrighted work they are chаrged with having infringed. So far as the motion pictures are concerned, it was аlso stated upon argument by counsel for the plaintiff that the allegations with rеspect thereto would be withdrawn.
Under Rule 2 of the Rules of the Supreme Court fоr Practice and Procedure under section 25 of the copyright laws, 17 U.S.C.A. following section 25, the complaint in a copyright case should be accompanied by a copy of the infringing work and a copy of the work allegеd to have been infringed upon, with certain enumerated exceptions. Fаilure to comply with these requirements must be satisfactorily explained in the complaint or the pleading is defective.
The particulars requested with rеference to the allegation in paragraph 17 are not necеssary to enable the defendants to plead. Likewise the particulars rеquested with reference to paragraphs 22 and 23 of the complaint are not necessary to enable defendants to answer. The information sought, if relevant and not privileged, may be obtained under Rule 26 of 33 Federal Rules of Civil Procedure, after issue is joined.
Motion granted as indicated, and in all othеr respects denied. Settle order on notice unless agreed upon as to form.