32 F. Supp. 359 | S.D. Cal. | 1940
DEZENDORF
v.
TWENTIETH CENTURY-FOX FILM CORPORATION.
District Court, S. D. California, Central Division.
James M. Naylor, of San Francisco, Cal., and Calvin L. Helgoe, of Los Angeles, Cal., for plaintiff.
Alfred Wright, of Los Angeles, Cal., for defendant.
COSGRAVE, District Judge.
The plaintiff's play and the defendant's motion picture were both written for the use of the child actress, Shirley Temple. It is not unnatural, therefore, that they should have common features. These they have: An orphaned American child in China, missionaries, bandit raids, protection of the child by an individual who happens to be a bachelor, the influence of the child as an agency in the marriage of her protector and a woman. These are all, however, situations that are not in themselves subject to copyright.
An exhibition of defendant's picture shows the introduction of features and a treatment of the subjects so widely different from that appearing in plaintiff's play as to force the conviction that, except as to the general nature of the subject, there is no substantial similarity. It is obvious that the picture is not a copy of plaintiff's play. Access on the part of the defendant corporation in the legal sense is shown, but there is nothing to indicate that the actual writers of the motion picture script had themselves seen the play.
Judgment must therefore be in favor of the defendant, and it is so ordered. Defendant will propose findings and judgment.