Harold Lloyd Corporation v. Witwer

v. et al. HAROLD CORPORATION LLOYD

WITWER.

No. 6398. Appeals, Circuit. Court of Ninth Circuit April Beverly Hills, Cal., Gortner, Robert C. Angeles, Felix, Cal.,

Max of Los and Alfred Eugene Prince, Sutro M. both of San Francisco, (Lawler Degnan, Los & Cal. Cal., Pillsbury, & Angeles, Madison Su- tro, Francisco; of San for Chi., counsel), appellants cross-appellees. Ingle Carpenter,' Harold A. Fendler and Angeles, (Benjamin both of Los Bled- Cal. F. soe, Morgan McCarthy, Hill, C.' P. & Bledsoe, Angeles, Cal., counsel), all Los appellee cross-appellant. for SAWTELLE, Before Cir- WILBUR and Judges, MeCORMICK, District cuit Judge.

Judge. WILBUR, Circuit appellee sought enjoin Plaintiff to. photoplay exhibition of a silent filmed in 1924, entitled “The Freshman,” recov- profits er all therefor derived from its ex- upon the ground hibition that “The Fresh- infringed man” copyright of a by

written H. C. entitled “The Eman- Rodney.” cipation of The trial court held enjoined there infringement, play production of the and ordered further accounting profits to determine de- play alleged rived from the exhibition of by plaintiff appellee be $2,300,009, appellants the defendants admitted to he $1,000,000. over by the was sold author to the Magazine Popular publishers $75 copyrighted them 1915. In 1929 an assignment of the author, sufficiency which is attacked appellants, and this action was brought. appeal interlocutory This is from the decree. entering upon legal questions Before comparison involved, and a purposes for the determining play infringed whether copyright, a general statement situation will be of assistance. dissenting. MeCORMICK, Judge, District thread which the of Rod- ney call strung, plot, whether we se- events, quence theme, is as follows: young goes man a fresh- A aspires popular, girl,

man, meets falls game ap- a football love, wins girl. Rodney, hero, proval of the is a young ability, mediocre scholastic man of his studies extremely industrious in his schoolmates football hero 206. He and becomes a forget cannot cube of even college. Moved studies at col- annals great in his achieves success desperate industry himself with the desire to redeem lege reason of his extreme brilliancy. Rodney go argues heroine not at all reason intellectual game pleasure the field in the last minutes of the for the five reads He Latin Greek advantage fights when his of reading losing, Gasser’s takes of about Julius of students, uneertainy the silence and the coach and prowess. fellow Hercules’ His They place ac- on the to of dis- him rushes field take however, believe to brilliant. be player. forgets respect their as abled In his excitement cept as such. He evokes although signals, stand some- he claimed to coach as their students well scorn. The given know them. him and he is not a to The is thrown to what in awe him that ball of signals require, it, He stands without as passing nickname. He is not hazed. length runs from his fel- he down the field and apart. himself isolated He feels only despises his wins the touchdown, in- makes a which not However, 'low students. they are, game plaudits as but the his classmates accomplishments, such tellectual scholar, and wishes to be his success as well. is unable thought to apparently a dub. He principal character play In the readily achieve this that he could understand Lamb, impersonated Harold Harold hard. He has study so by ceasing to result college as a goes also fresh- Lloyd, who to simplest ex- study night pass to all to plays football, aspires popular, man, be he has an in- time At the same amination. big of a football in the last five minutes ambition be athlete. In order to tense by the coach and game is sent on the field purchases success in athletics he text achieve some game. There are marked dif- wins the practices athletics, them, studies in books play and the between the ferences directions; pur- with their accordance which we will note at the outset, and others types different the uniforms in chases used will be discussed later. Nevertheless he is sports. his conscious play In the Lamb, Harold the hero, on ability. lack way college, goes his into diner on the Rodney meets the heroine under most train and is seated next the heroine, Peg- He embarrassing circumstances. is in the gy. attempting She is to solve a cross-word alone, woods, believes has tak- himself puzzle helps They and Harold her. are in- except his his underclothes, off all elothes en trying you terested in to find “a name for one in accordance with the instructions con- love,” in repeats his enthusiasm Harold boxing his is sparring in text-book on tained endearing several terms such “sweetheart, surprised tree, when he is heroine. at a darling,” entirely etc., without reference to terribly course, is, embarrassed, at- He girl wholly by of his absorp- reason tempts get hastily, into his clothes and, in puzzle. heroine, equally in the tion The ab- confusion, make's mistakes. Meanwhile his sorbed, ignores the forwardness Harold lady complacently, young looks on not at suggestion. considers his Neither Rodney, however, spite embarrassed. lady passenger, at the An old looks other. liking situation, conceives for the hearing endearment, terms of makes an later meets her numerous oc- heroine. He concerning beauty comment audible impress casions and endeavors to her with young love between people which Harold stories, of his marvelous prowess. athletic overhears, very and becoming much embar- stories she These for a time believes but final- frantically he rushes rassed from the ear. ascertaining ly, that he misrepresenting his Later, he rents a room a cheap rooming physical injuries condition resulting from house, to discover heroine is the game, received in football excusing thus daughter landlady. from himself false athletics pretenses, she The hero of presents “The Freshman” acquaintance. his cuts type Rodney. different play is en- Apparently Rodney’s desire for athletics tirely as to silent Lamb’s mental sake, is for athletics’ least for his own equipment and his success or lack of it in his sake, puts until he position, by himself may studies. be inferred from his evi- braggadocio, falsehoods where he feels he stupidity dent that he not be a would success good eyes has make in the of the heroine his studies and his desire for schol- actually game playing in a football in order depend upon success astic would whether or regain her interest. opinion pop- add to his it would ularity. Rodney study climax of the is in Harold Lamb does not overpower- game subject athletics, earns which he fame but does copying, evidence the fact teeth abiEty to achieve success confidence Hs pop- produced denial thereof those who desires to as an athlete. Harold play. to his satisfaction ular has ascertained popularity that one method achieve infringement “There can be unless no decides to playing football. He therefore there copying in whole or in either suffers works hard and football. He copyrighted copying work. Some get much on the team. be- in order necessary infringement.” to constitute accomplished this. The lieves himself to have C. J. note eases. § the foot- however, aU members of coach, “Since there can be a nuisance and believe team, ball consider him copying without some the mere Ene, no talent whatever in he has similarity identity fact of even they him or between by giving him the im- but deceive two works does not itself make one an in as a of pression he made the team sub- fringement the of other.” 13 J. § he should C. stitute, whereas, is intended it reason and for that serve as a water tender by Judge The rule well Learned stated players. on the allowed to sit the seat with Dilling Fisher, Inc., Hand in case of the v. Harold, The ascertains that whom heroine (D. C.) 145, 147: “To sustain it F. ham sight, being first apparently she loves from however, must suit], more [an to inform made a butt of and determines appear similarity than the mere or even doing so this, him but refrains from of supposed infringement the with identity, of hurting feelings. fear his Harold Lamb of question. the this In Ees one distinc upon in the last five goes also the field min- One patent copyright. tion between a against utes score is his play of when the may infringe patent by repro the innocent touchdown, makes a but instead team. He of the law duction of the machine patented, eight are one successful there different imposes upon who, prohibition no those with of Harold plays, in each which demonstrates pre independently the copying, out arrive complete ignora- is a audience that he the combination or notes which cise of words nothing game. mus knows about the On copyrighted.” have been although unopposed, puts play, one he the from Judge quotes approval with Hand goal within two feet of the line ball down Copyright, page 205, by text-book on Drone whistle, hearing a locomotive because the on by approval also with the which was cited previous play told on a referee has him of Cir- Appeals-of Circuit Seeond Court he “down whistle blows must when the School, Chautauqua v. National cuit in School believes in himself, ball.” Harold Lamb alike 151, 153, 238 F. as follows: “Works takes efforts utmost serious- his may original. not essential be is—It abiEty ness, participate of has no doubt his original or new within production, to be game it, actually does and win win dif- law shall be meaning copyright, of the of to all it, fluke, obvious con- composi- from Whether ferent another. becoming a football Instead of hero cerned. is the is claimed tion for which ridiculed he is considered boob such. it is whether like from, different or same as or attempts predicated athletic were Harold’s one, matters existing are unHke, popular entirely upon and not desire except cognizance, which law takes no be an at all a desire to athletic success. production is result whether the determine knew had the it or affec- * Whether * * copying. independent labor or the start and there girl tion from may more authors write on same Two or efforts foot- reason to believe no similarly, and use the same subject, treat anything desire to to do with his win baU had like manner or for common materials in one affection Harold hold heroine. purpose. productions may Their contain the game got beEeved him- into the because they ideas; may thoughts, sentiments, same Rodney good girl with the make self, and identity identical. Such resemblance so. do possible if it were showing only as whether there has is material copying. many cases, the unlawful between the That there are similarities necessary two natural or resemblance between proceed is manifest and we play and the of inde- which are result significance productions, legal such sim- to consider amount substantial labor, wiU question pendent primary is whether ilarities. * * * notwithstanding their identity. But, copying the these similarities resulted from pro- number another, Ekeness to not, the similarities without story; original may be the same kind ductions of secondary question legal significance. con- law; meaning within the the similarities are themselves is whether originaEty are impqsed ditions as to prove by such circumstantial marked as to weigh evidence with the other evidence producer be the except that shall makers, each ques- parties protections.” adduced to determine of that for which he claims infringement. it was tion While admitted plain prove copying In an effort to magazine contain- Harold following officers tiff witnesses called as possession, he and was in his agents corporations: appellant appellee all his office force called secretary general Fraser, William R. including her those worked witnesses, manager Lloyd Corporation; of the Harold denied that picture, the scenario or the Lloyd, charge president, story. They all they or heard the saw or read production star department, and actor any time in the not used at testified was corporation John L. Mur play; and of the Lloyd testi- production play. Harold production Taylor, one phy, manager; Sam memory, gave entirely Witwer, fied Freshman,” the other directors story which the outline of being Newmeyer, Fred who was called clearly remember, and then he did not stated excep It is stated in bill of defendants. copy that he would furnish'them tions that these witnesses were under called might magazine they determine order that section 2055 of Code Civil Procedure that he whether would use the California, permits such witnesses testimony gist of this offered did so. The to be called examined “as if under cross- by other wit- appellee and corroborated party calling “The such ad examination.” that by appellants, then, is nesses called by verse witness shall bound his testi not be produc- with the of connected people none mony, by given and the such wit testimony particularly Freshman,” tion “The may party calling him by ness be rebutted heard read or staff, none of ever the scenario by such for examination other evidence.” by them Rodney story as told other than statute Proe. 2055. This § Cal. Code Civ. opposed evidence The direet Witwer. application equity no in the suit to a that testimony Mrs. Witwer to this Fabel, federal 132 U. courts. Dravo v. S. telephone, told one the writers her over 487, 421, 10 L. it is Ct. Ed. S. 33 copy mag- of the inquired she about the when plaintiffs were not con stated: “While by azine which had been left her husband might they by evidence, cluded their show Lloyd Lloyd, with Harold that had read it. (cid:127) mistaken, properly were it not be con could hearsay, This was but admissible as such be- plaintiffs un tended worthy were cause it constituted an appears admission. It given The must evidence of credit. testimony of William Fraser, R. as, weight circumstances, under all the general manager Lloyd's studios, called fairly entitled to receive.” appellee, that he introduced Mr. Witwer to Lloyd. testimony regard Mr. His The federal rule is in ac different story as told at that time Witwer is as (C. A.) at tions law. Ward Morrow C. v. follows: accept F.(2d) If as true tes we “I had known timony thus Mr. Witwer as a called writer witnesses years clever literature, perhaps for appellee, copying ten there was no in having quite a fringement. read number his stories. ordinarily While appeal in an from a in equity Appellate decree Court “I personally introduced Mr. Witwer to not does disturb conclusions of the trial day Lloyd, the same that Harold court as to the credibility of ap witnesses and Mr. I went to lunch at the pearing him except before error, manifest Armstrong Hollywood Cafe on I Boulevard. this rule must be altogether relaxed, not Lloyd understood Mr. Witwer and Mr. had abandoned, party where the is estopped slightly nearly met before that. As Ias cam claim that the witnesses unworthy of cred remember the entire talk that we three had conver-., having reason of called them as his own general at the luncheon consisted of a witnesses. cannot, therefore, We assume on sation, largely about the motion in- this appeal, as we might, otherwise that the dustry, events, Lloyd’s pic- current and Mr. rejected trial court testimony of these tures. I think there were comments on Mr. witnesses unworthy credit, especially Witweris work which led Mr. Witwer nothing inherently there is improbable stating years quite ago number of their testimony. might appellee fact that the had written which interest Mr. may Lloyd. ago have called long these witnesses under mis had been so he could taken applicability as to details, belief remember all of the of sec he could give tion high Cal. us Proc., lights, pro- Code Civ. cannot some of and he change the appellee thereby young rule that ceeded to type vouched describe this student credibility. for their proceed just will studies, We excelled in of his was an system merely straight envy all; played class outstanding marvel, the all his my recollec- That, mates because fact that he answered football. the best every question particularly tion, was is the idea told me. correctly, and Mr. Witwer history. proficient There in mathematics and game? “Q. boy Did the or lose win recall history date in he couldn’t was no game. A. He That is a must have won readily. or his He his teachers could correct point upon. I absolutely am not sure All every way professors in his excelled in game.” heroes win the had an ambition to He, however, studies. in the Taylor, Sam directors however, recognized was, athlete but production Freshman,” called as a “The physically conversation was brok- unfit. that he had appellee, witness testified trying times was en at when Mr. Witwer Emancipation never seen the it, recall all the se- recall don’t I Rodney,” about it all he knew quences except I dis- followed, remember Lloyd him that Mr. what Wit- Mr. told tinctly saying one ave- of his that he found wer He testified as had told about it. being recog- becoming nue of an athlete follows: developed by having as such formula nized Lloyd “Q. Mr. told What it that game. he at- winning And a football you story? about Mr. A. told this for- tеmpted coach that to convince the Harry me that Witwer had idea for a col- coach, accomplish that. The mula would lege story. I was because wo interested, were respected him as disregarded however, it. going college story. make a He said it encourage student, didn’t him in the geni- of a young mathematical use However, formula for the team. us, great student, who didn’t want to be a game final season with great student, who wanted athlete. to be college, the rival when everything looked as interesting appeared very So far it to me. though particular college was about Then he he to said that went tried lose the game, as resort the coach in a last to' become an athlete tried to malee the desperation thought young student, of this was failure, football team and but that he a up They grandstand. who was on called persuade the that ho tried to a coach had game developed that into and there he games. formula to win football This built forgot it, he either have formula didn’t his up They extent. all ridiculed it at to some game.” but fluke won finally day big game, first on the but appellee, Lloyd, as witness for Harold coach, losing, the home team in when was same conversation similarly to the testified desperation, decided a chance on this to take Witwer, as follows: mysterious marvelous student who had a for- you can the state- nearly “Give us as games. winning Up to this mula football story he football he made as to a ment story very point thought the or the idea I He had an idea Yes, sir. had written. A. Lloyd what I Mr. intriguing. So asked very pro- very who was youth of a studious boy finally got formula So he'said was. history. his studies, in ficient mathematics and to play game formula very good dates, remember, on He was I My as he could. straight, as hard football boy being very proficient partic- this very poor idea that was that it was con- longed branch, really he for other ular you building because struction were some- very being things. He was desirous complete thing and then didn’t it. You were pride athlete, being and he no took able leading expect the audience some to marvel- any up in class room and answer get you gave ous them nothing. formula might him, question professors put absolutely impossible discarded it And I he answer.- seems that he could which gave any thought any and never further team, get so devised—he couldn’t story by Mr. Witwer.” system, and he had in his mind a told Rodney story As to the actual use of had, whereby could win coach he n Lloyd “Q. testified as follows: Mr. Mr. system had worked games. -It was a out. your you state, you, do oath that Lloyd, paid to him at the The coach no attention you 'The story never read the Eman- large time. Later on in one of present Rodney’ present cipation up even losing don’t recall games, they when were —I positively have never A. I read moment? just coach or what the whether he went to the Emancipation Rodney’, 'The story, anyway the idea were, but circumstances now, like to would state then or even and I they system desperation up, came story magazine with a further that thinking chance, give boy a —a decided Witwer, or written matter Mr. written system. something this might there is a magazine in there from a boy play he didn’t have in to went When Freshman’ men en- particular, the other Witwer, Mr. never been used before or gaged myself Taylor and in the during making That beside Sam of ‘The Freshman.’ preparation picture, were motion positive am I of.” Johnny Timothy Teddy Grey, Whalen, Wild. testimony accepted The trial court this Taylor participat- Lloyd, Harold and I Sam Lloyd and found it be a fact that Harold Freshman.’ preparing ed in of ‘The by implication never read the course, the star of was, organ- members of the found that other picture, Taylor and I the directors. and Sam copied it. ization had done Timothy men, Wild, The other three Ted William R. Fraser testified further Johnny we Grey, Whalen and were what Lloyd organiza- practice it was gag called name men. That is a or term for seript, that none was used tion use writers, story put- scenario construction production Freshman.” in the of “The ting Usually business, gags. like their absolutely knowledge no stated: “I have they day the officeall would sit and work in script. hardly I visit the scenario de- ever long, they preparing and while were a se- partment during are be- the time stories quence shooting we would be one. We would prepared, discussed or and I did not at pre- shooting sequence while were being handled. I am the time this paring one; the next and then we would hold general manager handle the financial through conference after shooting we were end and the distribu- end and the investment sequence, go and then out and make the never, I have either as tion picture. next one. making ‘The Freshman’ we did any or as Freshman’, ‘The to the not at time work on written scenario. Lloyd’s other of pictures, Mr. seen such a history Never in the Lloyd pic- of Harold thing synopsis, as a written script, scenario tures has there ever been a scenario I since built-up written story,' and there is file have been with him. containing any at the studio or elsewhere “Q. story imparted How was the papers my knowledge, nor has there ever crew shooting that did the of the scenes? A. been, my knowledge. I never knew of Well, get through after we with a se- .would seript of ‘The Freshman’. In the scenario quence, then we would them, sit in with department, group gag-men, including then Harold would have the last word. There Lloyd, Mr. there were Mr. Sam Mr. Taylor, script was no to shoot from. We would Wild, Newmeyer, Ted Mr. Fred Mr. Tim probably put you notes, down know, of this Whalen, Murphy Mr. J. L. and Mr. John gag that gag, right or and then shoot from Grey, recognized by who were me when ‘The them. We have never had a scene number. being Freshman’ was made, gag as the men or always We had on our slates ‘O. K.’ or ‘N. story builders.” G.,’but no scene at all. numbers It was what making The actual method picture ‘shooting we called from the cuff.’ We had a Newmeyer, was testified to Mr. Fred group scenario room where this that I have Taylor codirector with Mr. Sam of “The would mentioned meet and discuss a story, Freshman,” when called as a witness particularly and with reference to ‘The defendants, as follows: Freshman,’ way that is the we built engaged picture “I am a motion direc- of ‘The Freshman.’ To describe how the Paramount-Famous-Laskey tor Cor- story made, so far as I observed it, Har- poration. I became connected first with Har- right old’s office is around the corner from Lloyd old in and continued with him or what gag we call the room. We had long a Lloyd the Harold Corporation till July of table, and we had chairs around this table, and ’27 I was Lloyd ’28. with Harold and the nothing but scratch ¿pads. We would dia- Lloyd Corporation Harold during period gram our football sequence, with our teams when picture the motion called ‘The Fresh- big up, lined on a paper. Everything we made, man’ was as a co-director. The other ever did do—like for instance, if we would Taylor. director was Sam go out with an automobile chase, we would “Before ‘The great Freshman’ put big was made our piece I paper here, out and Lloyd acted as director for Harold then we would other show our automobiles and so pictures, Boy,’ ‘Grandma’s on, they ‘The Sailor where Made would miss collisions and so Man,’ Never,’ ‘Now or ‘Never on. And that Weaken,’ way is the we would do with ‘Safety First,’ Jack’; ‘Dr. I can’t get our football. together remember We would all and all of them. I pick directed him all way out the formation, like, for instance, the ‘Number, from Please,’ but I can’t gag going remember the field down with a shoestring, the routine -of them, fact, pictures diagram we would all big piece that on a years. for close to ten Referring paper, to ‘The and that would be verified. And when get idea, and way you do; one man at the will looked never there, we we went out somebody will else elaborate good, it is then ahead just go paper; we would piece of say something, pretty will it, when on and he lib ad stuff was A lot of shoot. altogether, and maybe out to soon thrown how know don’t sets. I we were on the boys finally all those comes; so boys germ another would anything explain more, then is K. believe it 0. night agree, we at would work, and we come finally in at Harold and then call gone it,K. they would be them, see wouldn’t even Practically all times at finish sequence of that. finish we would home, and when it,’ like it,’ or ‘I ‘don’t like say, would next se- huddle get in a we would if he 0. it; and maybe he will elaborate in- mean huddle, I By into a getting quence. But the it. shoot go out and it, then we to do K.’s what about talk conference gag room all formed germs are next. boys. those framework present when “I ideas, of those “Q. During the formation up or worked ‘The Freshman’ room, or gag anyone ever mention de- did ago. We long time That is a out. talked Witwer, hearing, that Mr. anywhere your long time a a football make cided to story on foot- a had written Witwer, H. went out and C. We it off. put we ago, and my knowledge. A. Not to at ball? Pasadena at out stuff of stock a lot away. then all And put it we game, “Q. you gag room or Did ever see in the a foot- make said, ‘Let’s Harold of a sudden anywhere else, shooting stage, on the thing did, we we the first picture,’ ball mag- being made, a while ‘The Freshman’ was likes, gag Harold gag; and to find tried being you, I now show azine similar to the one get mostly. We gag we build Popular Magazine of November copy of hero, to be a wanted boy who premise of duplicate believe, a is, I year well, last the idol of wanted to follow — office; Fendler has filed in Mr. Clerk’s ' way popularity that worked a kid you did see this? A. No. ever captain being the school stipulate that We will “Mr. Fendler. business, good piece of got very We team. Complainant’s magazine, Exhibit or a 1 is the on from it, liked went we witness at copy magazine, shown to the to be a hero— got the idea that there. We that time. train, figured got we off see, Let’s when “Q. page This contains a picture and out his put cut if we could —he Emancipation Rodney,’ by H. ‘The called him, up alongside of and then put his see that you Did ever before Witwer. C. him, put it over him, under put it Newmeyer? No, I A. never very minute, Mr. it in the the wind came in and blew then I it; no, sir, saw did not. figured the first basket. So he waste-paper way college by pave his thing to do was to “Q. you Did ever hear Mr. or Mr. buying and we built an ice cones, ice cream Taylor any of you the other men whom par- ice set, parlor, mean cream cream I have mentioned as connected with ‘The Fresh- out; it we made lor, and we threw it man,’ you any did ever hear one of them men- Now, see, let’s then we had it out. threw story by tion this Mr. No, Witwer? A. I did with a he came helmet practice, and football directing making not. of the various door; and we a rapped at had and he scenes, any magazine no one had on the bulldog it, the bulldog chased him. stage set, or on that I know of. they we him tackle, And used for a because “Q. you co-director, As a were then not leg dummy. had broken a off of the And then guided any by any story way such as ‘The picked up I can para- remember he all the Emancipation Rodney,’ just I have phernalia funny gag there, was a —there you? No, thing shown A. I don’t know a thought leg where he he had lost —he about it. picked up paraphernalia all the and walked “Q. During production of the picture coach and had said, great day, ‘We a you any ‘The Freshman,’ called did time Coach,’ and he thinks club, he is on the ball change any sequences and abandon of actions isn’t; girl help and he and the little tries to story? a new line and start on A. Sure. him. you “Q. “Q. Now, develop how those You mentioned —A. The ice cream did vari- boys Through working sequence out; was thrown was an- ous ideas? A. there sequence out, thrown and I the room. other can’t re- them out in it member what was. “Q. they suggestions Were particular was, “Mr. I know what No, A. no. Here is it member? Gortner. they cameramen. ago were years Harold; objec- suggest you, I can it to if there is ‘Why Worry/ made It was before we tion. lot, Harold while Roach that' was out on the right. “Mr. all Fendler. That is lot Roach the Hal still worked will it give “A. a I tell line, Just me had a conversa- City. I At that time Culver you. making a tion with Harold about “Q. By a Well, there Mir. Gortner. was we do next? story. just will said, ‘What We sequence recognize you perhaps will know you got any ideas ?’ I don’t Have yes. sequence? Oh, I the Lester Laurel A. very but it sounded brought subject, up you following was will tell what is. He it there he said good smiled. So him, and he and went a motion theater actor into said, ‘Let’s there, and he game was out he popular picture actor, most to see this do stuff, because if we go get out stock got out came into an automobile and went that stoek got stuff.’ it, we decide do street, out of the au- down the' and as he camе they changed to reason for some And then step, him to show him that tomobile he asked ‘Why chance Worry/ because got.the step. is where he jig step, and that and the stock stuff big giant, get great footage. good gag, was a We were over it is away. know whether put I don’t was good plan got step, he where show is a up; it was burned here, or whether away we were we couldn’t use because boys went out and long ago; time footage. over film. of that shot an lot awful dory ‘The portion “As to what preparation method “This up first, Freshman’ was made went —we typical of shooting it ‘from the cuff/ Berkeley stuff, shoot some and took stoek Lloyd’s No to that time. stories off; clean down with his shoe Harold the field schedule. Harold surrounded himself from I started that don’t know whether we beginning Boy’ of ‘Grandma’s first; am not practice I football with gag best available men. He never believed we where did start sure. I don’t know scenario; fact, scenario, he did have a thing. you know. I swear to jump, We used he would never follow it. said to me when you. I tell couldn’t At we took Berkeley, my trip, I back on he came last wanted up, just game before the ranwe yet. know if I had finished a I said. the field, down and we had the men tackle ‘I have finished three of since I had them/ him, and thing he had left was his you me, seen him last. He said to ‘Do think 1 shoe —I mean he took one shoe off and went gain anything by shooting would from sce- on down I touchdown. think that was you just said, ‘No, nario?’ I would waste positive am out; taken I I that. think your away/ time and throw he because Berkeley game. and Stanford won’t follow one of things; those if he did “Q. Shooting, according records, go there, out change you; would it on started October 13,1924. it, impossible. couldn’t do it is “Mr. If it Fendler. will be assist- “Q. keep Did he gag this staff of men big ance, game played about the 20th year year? after A. Yes.” of November. Cross-examination Mr. Fendler: “Mr. guess I “A. we started the Then football Lloyd plenty suggestions. made really I first; action I don’t remember; I couldn’t you couldn’t anything tell suggested you tell my to save soul. We did a lot in connection with ‘The That is a Freshman/ jumping around, I know. long ago. time Murphy Mr. would sit in and listen, opened “The titles to but he never ‘The Freshman’ were mouth. He never up after contributed the anything. Taylor was finished. That was Mr. always was the Lloyd gag head of the the custom picture. with a department; I that corresponds to had to the nothing do with the scenario writing department titles. in , other studios. I The titles include never knew explana- both the of a story written got tory department.” dialogue gag and ever to matter that is thrown in. appears from the evidence that after Taylor participated “Sam Lloyd in the the scenario huddles writers in organization among gag conferences making in had general men formulated the story, or se- up gags quence, upon and the various they so which proceed more were to in making I. He gag moving than was the head of the depart- picture, Lloyd Harold Taylor again I remember ment. that Walter Lundeen and and Sam got in contact with Henry Lloyd Kohler went out to Pasadena Witwer. at the was interested in ascertain- spoke ing time I of to pictures take some football more about the football incident in the determining gags which at with a whether it to which we had hung, view of were be Tay- used, having he to time, could be with was reference the address conferred with magazine subject, college hall, lor on and in which Har- contain- dean in the misplaced. having stage In this old onto mistake and stumbled generally in himself, conversation occurred made a at which with Witwer which fool of said, October, 1924, started, funny production step before had time he did his little get sequence more was to Speedy/ not details of ‘Call me did That Taylor magazine story boy Witwer. suggestion from Mr. finish with the present way the'college was at later interview with Mir. a become in a boob. ques- in the Witwer. He was more interested “Q. you pho- was all started This before copyright infringement tion of than in Wit- Taylor? tographing, Mr. A. This outline knew, testified, wer’s he was, gags. but none college Rodney story story, and a was a sequence boy’s “The next was to show college story already developed in the was step college next toward fame play tes- outline of the “Thе Freshman.” He trying was for the team. actual second interview tified that at time of his physical sequence to foot- action of was be details of the with Witwer some training. gags, a few of the ball We had testimony developed. quote his had been We put later, although in most of them were regard: in that tackling dummy, and where he was used as a Harold was displayed “A. had decided that marvelous stamina forth, We who se- boy. the first admiration, pity, And and also the to be a small town and drew the gags dialogue were a be- quence was to be was be—none the coach. There all, they captain were to the effect you understand; in the coach this, tween was later —Harold a shame mostly interpolated that he had tried so hard and was all, team; boy to tell him he couldn’t make graduating small town be was captain suggest him think he had high wrapped up was to to let school and was all boy. water use him as going college. was have the team and the idea of girl boy home tell the go then to books, college, all about the all of The was read read team. The next college magazines college had made the football annual.' that he college fame an advance toward up step He was followed met and you before, I told be the final one. As moving picture hero called Lester was career there was to about that was forget have met this all we knew —I the name. He was to splurge, he was to make public appearance in which moving picture grand actor at a one appear popular the most him tremendous effort to and have asked to advise him of the actor ideal. And great college which was his hero, college, such man in to become on how they to realize this he was actor, realizing middle of films. The he was in the and he making fool out of him was unsophisticated youth, boy showed were was you know, the usu- which, as step in the crash to earth funny little which did him a construction, up build them anyone al dramatic he was introduced films when heights then knock them funny greatest their them. This little to hands with shook accomplished when This was down. step was the in which this boy, college told villain, heavy, or another appeared. college pic- hero And under this making a only fool of him. were posters him that caption ‘Step on the ture was girl in a scene with the there had And he Speedy/ me call other cried and realized down' and he broke words, moving picture actor called was they had made a fool a failure and Speedy boy the films. Then the set said, she ‘You should him. And college. out for That the first sequence, accomplish you what you would you yourself understand, gags hung were to be ‘There one chance left— said, want.’ He sequence photograph We did that. And, get I can big game tomorrow. eliminated it later now the girl at you.’ And looked will show picture. sequence that, I was to next show the big sympathy. Then we show the boy’s gay college, arrival bedecked against Naturally, going it was game. paraphernalia, letter on his were substitutes hurt. all the team and home sweater, guitar and all that of thing; sort alternative there was no finally, And, gags there was to a routine of at the boy And, in. with a they send this had to showing college station, atmosphere, comedy game. gags, won And college series slapping the dean as on the really game pro- he was finish riding off in his car at back and mistake and college the whole took hero and sequence The next claimed things -such as that. I funny they up jig step proved had rid- which later events to true. little his which very fully mean that that I was the was convinced picture. iculed earlier in the That that general exactly Mr. do what Witwer intended to outline we started on. “ * * * time; he did is, do at that to allow us subsequently I Mr. saw Wit- produce story lat- of ‘The Freshman’ and wer; but it date I don’t remember the exact er plagiarism. sue for rough completed was the time our at we had “I was convinced when he made state- getting you, outline such I told and were ment that was he had in mind. ready production what I believe production —before purpose asking my- Mr. Witwer come Mr. Murphy, started. Mr. Witwer the studio infringement. was to avert was I told Mr.- present, self were and аt that time I convinced at the time he made that statement story up we had outlined Witwer * * * going was to sue for infringement. point. I did not communicate that conviction to Mr. discussion, “Q. you Mr. Did ever have a Lloyd. say kept I may I didn’t secret, it a I Lloyd Murphy with with Mr. or Mr. Taylor, it with discussed a few I outsiders. having out to reference Witwer come Mr. don’t whether remember I discussed it with avoiding purpose for the an in- the studio anyone at the studio. might fringement action which Mr. Witwer “Q. time, you you At the say, told the Lloyd bring against Corporation for un- story of to Witwer, ‘The Freshman’ Mr. use of his material authorized story details out, of that hadn’t been worked A. I was the ‘The Freshman’ 9 believe that they? you had A. What do mean ‘de- more idea of the second conference. To be tails’? had told that Mr. realized Witwer explicit, we “Q. Exactly you college story -you what an idea for and that meant when Mr. days story. ago. testified college you a few A. If ourselves written a we had mean story ‘gags,’ very had not. fact that he had told him a v dangerous proposition; we was knew “Q. your I call your attention to testi- get Mr. out to the studio decided to mony your page deposition, Kne 3: lay exactly our before him as we ‘Q. you When production started the judge him it had it lined and let whether picture October, 1924, were all the details any degree story. This was in similar to his completed? Certainly then A. * * * we did. gave not. If you impression, I I certain- ly my very did not statement word well.’ Did After “A. I outlined to Mr. Witwer you testify? just A. Yes. repeated I it. it ‘The Freshman’ as at the we precise What is Court. like date? nothing said that was time, he testimony? Has fixed in the it been I mean story; fact, to his mind it was much bet- date of this interview. his; if wanted to use ter than and that we gags perfect- story, in his we were any of the I “Mr. Gortner. think it is stated as ly welcome do so. This conversation was days something about ten like that before prior any commencement of actual photographing started, actual and that start- photographing of ‘The Freshman.’ ed on October 1924.'- “Q. State whether or not at that time it “The Court. About the first of Oc- change possible ‘The Freshman’ tober, 1924? you had it A. It possible outlined. “Mr. Gortner. would be about the first change time. part of October. At this conversation I de- you rely “Q. Did on the entire statement especially scribed the outline many and as you he had there was no simi- gags as had then been worked out. When you if larity, you to, wanted could use telling I finished him Iwhat did he said in gags? of his A. No, sir. When that substance effect: ‘That is nothing my like completed conference Mr. Witwer was story; my is much better than story. If completely my dropped mind, out of and I you any gags use want to my out of story, gave story any thought never until you perfectly welcome to them.’ Mr. * * * ” came this case up. Murphy present at that conversation. Cross-examination Mr. Fendler: He told I Mr. Witwer that would tell him the possibly as I was more familiar with “I have a most vivid recollection of that Murphy it than was. Mr. That was the ex- conference, especially of Mr. words, Witwer’s tent to he took part ‘you conversa- any gags can use my story you see tion.” fit,’ my because to clearly mind it indicated what in Mr. Witwer’s mind at As time, conversation, same John L. Mur- appellant's phy, way production manager, testi- used you his Q. made What material. fied as follows: think simple that? A. For the reason we had a years case for a simmering couple of production am manager “I of the defend- against us regard Owen Dams in to “The ant Lloyd Corporation and been have * * * Wreck,” Nervous didn’t to and we want have years. such about seven Mr. Witwer any repetition; and had Mr. come we Witwer was asked to that oc- come to the studio on Q. you out. Had used Owen Davis’ materi- being purpose casion of his me. your al ?’ there objection by Then is an coun- asked to that time come over to the studio your sel that, and answer: can ‘A. I answer story. Taylor was was to tell him our Mr. anyway. was not At time I connected di- yesterday pur- in testifying correct Lloyd. rectly with Mr. I was connected with Taylor pose meeting of that so that Mr. was any- Roach, nothing it, Hal so I know about story. Lloyd Mr. should be told Mr. Witwer’s way. Q. you might Whose idea it that Taylor Mr. hear Witwer’s Mr. to wanted using material some Witwer’s Mr. himself; pur- but from Mr. story Witwer nobody’s “The Freshman”? It was idea A. to out was pose getting Mr. Witwer I had owing we particular, the faсt that to Mr. story. I wanted hear our let also him question Davis, thought had we one maga- story hear our because to Witwer upright thing fair be to come out and would months had all those been lost zine had table, open lay our cards on the over concerned we much intervened, and were way unconsciously if we in some used had many pro- being other it; and loss any of material, why, change we would very had been worked into embarrass- ducers you testify? it.’ Did Yes, A. sir. I ing innocently, we Mr. Wit- situations wanted don’t the date, spoke know Mr. Fraser any chance wer hear our and if making magazine, to me about for the search material, paralleled unconsciously we had 1, they Plaintiff’s Exhibit and said that had change it we him to state so wanted Lloyd’s looked over home Mr. and hadn’t My purpose was not to then there. it; just thought pos- able to find been we Mr. Wit- avert action way sibly might in some found it have its la.y our cards on the wer. way Lloyd’s dressing room; into Mr. and as let know our table and Mr. Witwer what resort, last because Mr. Fraser and Mr. story photographing, started before we Lloyd very put much out, were I had his any similarities he felt there had been dressing myself, room looked over. I it did ready change it. were parallels, or we my memory, To the no one alone. best else early part remember, was in As I dressing the search with me in the room made photograph- before month, and it was at the studio. commenced, and after ‘The Freshman’ story. completed outline of we had “Q. your I portion attention to the call I substantially when story set had the We your deposition my year. last taken at office being story By the for Mr. Witwer. sent just ready were about start “The ‘We story con- these various ‘set’ mean after I previous to that there had Freshman” and Lloyd Taylor and Mr. Mr. between

ferences two three calls I believe from been Mrs. Newmeyer, Mr. myself, Mr. Grey, and Mr. regarding the loss and Mr. Witwer Wild, after Whalen Mr. magazine Mr. tried to working story. We had agreed upon spoke it Mr. find Fraser to ine about it. story eight weeks, I believe. six or Lloyd’s dressing We all over hunted room the form of scratch notes was in little you it.’ you To whom did refer when believe, a Taylor I keep, and Mr. used to Lloyd’s said ‘We hunted all over dressing Mr. pages which outline of about two typewritten immediately your following room’ statement up personal own Taylor for his Mr. spoke you Mr. that Possibly Fraser about it? A. gag the other guidance. I did not nor did boys, maybe Lloyd’s Mr. — Taylor copy Mr. outline. men have a personal secretary, boys— one of the himself. keep notes for those used helped me move the furniture case it had por- to that your now attention “Q. I call -dropped something.” behind was taken your deposition tion of Seligsberg: Cross-examination Mr. 1929, Hollywood on March my office you “Mr. Fendler asked whether Mr. Wit- your portion you read ask you attempted you told to tell wer page line commencing about deposition Emancipation ‘The Rodney’? Yes, A. gotwe our ‘When reading follows: sir. good idea thought it was we lined “Q. you, There was he told but do and listen out come Mr. Witwer know you whether was ‘The in no we had let see story and our No, I junior success. Later he throw the decided to Emancipation Rodney’ or not? A. prom party year, or the which he did. of the party do not. At the end the realization was Emancipa- ‘The you read “Q. ever Have brought girl that he was home to him the Rodney’ No, ? A. sir. tion of j'ust making that, fool of himself if say Mr. you that Did “Q. By the Court. just aim, his he should wanted to attain at attempt tell the did to Witwer meeting dropped himself, This him and be natural. your Yes, A. 1924? October away remain- broken His one down, hearted. Mr. Witwer I one who asked Honor. was the game, ing big good chance to make was was 'my purpose meeting, to come to which, course, he did. might be told Lloyd story so that the Harold Taylor possibly “In addition told Witwer to him. gags big game two or three football in,the thereby Lloyd game, and that Mr. won the inten- “Q. parties that else were Who aims. achieving his you Lloyd and is, tion? That did and Mr. Taylor got through telling him Taylor purpose “When agree that was the Mr. that very A. That that Witwer said that it was having story, Mr. there? Witwer come your good his, was, believe, story, Honor. in fact that it was better than idea, I my * » (cid:127)» any gags there that, were mentioned use, was had told us we wanted to that exаmina- Murphy Mr. Direct recalled. perfectly okay. replied that we didn’t We tion: any gags need of his and that we carried gagmen staff throughout of our own pic- stand before and “I have been on the days ago ture. hands, With Witwer shook present in court several when wished was good us called Mr. Fend- luck left. as a witness Taylor, Sam ler, a conversation at the studio detailed “Q. you report Did that conversation and Lloyd Corporation between the Harold what Mr. Witwer had said to Harold ? myself Witwer, in Taylor, and Mr. Mr. A. Yes, sir. Taylor stated that he outlined Witwer “Q. you Did believe that Mr. Witwer was length story of ‘The quite at Freshman’ Absolutely. in earnest? A. present prepared. I was at as was then “Q. you go Did ahead in reliance on Mr. early conversation. October, ‍​​​​‌​​‌‌‌‌‌​​‌‌​‌‌​​‌‌​​‌‌‌‌​​​​​‌​‌​‌​‌‌‌‌‌​​​‍was being produce in earnest and ‘The 1924, in the afternoon. We had Mr. Witwer A. Yes, photo- Freshman’? Actual sir. come out, explained to him his purpose graphing started, my the best of knowl- coming out, Taylor and Mr. started to tell edge, conversation, about a week after that repeat- which was the that he and continued, believe, March, I until about here day. ed on the witness stand the other He outlined himto aof small-town “Q. you If had Mr. Witwer said to boy getting ready go college Taylor your story like his in re- got wrong off on the foot virtue gone spect, you would ahead and made following the antics aof motion regardless of that? actor, got from whom he the idea that.he objected popular wanted to be That is the most man in col- “Mr. Fendler. to as call- lege. college way girl. sug- On his he met the ing for a conclusion of witness and being assembly Then he, gestive leading taken out and outside of issue hall where body the student waiting in the case. the dean to make opening address, the “The objection Court. I think that should upper classmen framed him so that he made be sustained. fool of himself in front of the entire student May exception “Mr. Gortner. we have an body. they Then him, told as one of the your ruling, Honor, previous to this and to the ways to become popular, that he would have on the same line? good to be a fellow, whereupon they all lined Yes, sir. Court. go over to the ice parlor cream “Referring testimony Mrs. where Wit- they amade fool out of him, spending wer she me money. conversation with Later on he pre- where the read telephone November, popular vious some time in fellow in had been the Mr. captain that in that conversation I said ‘to tell of the football team, and he decided go the studio to meet Sam out Witwer to come to team, where he was Taylor go- rousted the man who was about because was and made a fool of. was so say sincere, that to however, picture,’ did decided not tell to direct I him. as testified Believing squad by it is not true that he was on Mrs. Also Witwer. virtue of conversation girl he told the in a ability, o£ his Mrs. Witwer

n withme only thing the Mr. that I Witwer remem- December, November say, very ber. As I very, slip- he told in a it to come I Mr. Witwer I said wanted only shod manner. That is I gag the remem- story. changes in the the studio to discuss possibly ber. He about three or of conversa- told four. recollection I have telephone say, was IAs it was him his over the hard to follow Mrs. tion with Witwer looking, speech. of I spoke about manner don’t remember the oth- to me Mr. Fraser after dressing gags Lloyd’s room er he told us about that in Mr. afternoon. resort, as last story its might did the magazine have found not mention title of the ‘The the to see if Rodney’ Emancipation upon I remember way that time that And at Satur- there. out day telling her that I afternoon that nor did he up remember, calling Mrs. Witwer at no story But any locate it. mention title of on that Satur- unable to we had been have, any day with my knowledge; no, conversation afternoon to sir. I time did ever having Lloyd subject “Q. you Did or did Mr. or did Mr. either the Mrs. Witwer Taylor going to di- upon ask him to who was that occasion tell the man Witwer meet * * * having story you? having come to I him A. believe picture or rect story. changes purpose to the studio for the Witwer come studio to discuss my hearing story our was idea I think that Mr. Witwer time “Referring Taylor Lloyd Mr. to hear Mr. also Mr. wanted just in October came studio story Witwer’s from Mr. Witwer direct. I Mrs. Wit- started, and to production before suggested believe I coming first Mr. Witwer either that I she testimony in which said wer’s to the studio on that occasion. I wouldn’t her home home, or called at her called say Lloyd’s it wasn’t quite idea as has been him wanted that I tell Mr. Witwer said to But my while. to the best of recollection they wanted that studio to come my it was idea. I had no with discussion testimony is cor- story, this him their to read Taylor before came Witwer studio concerned, calling far him is rect in so upon occasion, that other than I think I told ‘read.’ I think I used the word I think don’t having him I was Mr. out that after- ’ * * * story. ‘tell him our I said regulate noon, and to his time so he would be which Mr. I to an outline “Yes, testified Taylor sure and be did tell there. me at upon a subse- Taylor gave to Mr. Witwer time, remember, Uoyd that I had * ** recollection My quent occasion. previously story him told the Witwer Taylor upon that occasion said to what Mr. something about Witwer that he * * * repeated few here a minutes just I about as didn’t like idea. far to remember that ago. pretty It is hard “Mr. Witwer told me in substance at that told, but gags that he was exact just back time, Taylor immediately after Mr. had com- story that general outline that was pleted outline, Mr. To the best Taylor told Mr. Witwer. Mr. Taylor nothing him like his told was everything outlined knowledge I have my story. memory my But what left a on mind upon Taylor tell Mr. Witwer did Mr. here, was a was his statement better that occasion. story. just I remember than his don’t Taylor me said Mr. “Mr. Witwer general impression words, was exact completed outline, Taylor had when Mr. conveyed similarity, that there was no story very much, that he liked that he thought adapted our better to Mr. his, it was better than thought even and that Lloyd possible than is very his. that he to use some his gags, wanted it was if we words, said in substance or effect when Mr. okay him. Taylor completed his outline: ‘That is noth- “Q. occa- Was that all he said my story.’ just like I can’t remember you just speech giving A. I am sion? words, general spirit but I remember replied to I it. Then we that that remember of the conversation and he said that in sub- gagmen our which we we had own staff of car- my stance, recollection.” best throughout supply ried reference to the conversation of With Oc- gags. in the form the material we needed concerning the 4, 1924, tober disclosure those which he gags referred to were told Taylor Murphy nature to Witwer sketchy previous very manner Satur- in a produced proposed to be very haphazard, day' in a incoher- afternoon finding of the trial court is appellants, only thing that I And about the ent manner. as follows: boy was about remember that he told can day October, 4th “That on about the hurdling, believe he and I practicing out requested by said 1924, H. C. Witwer girl and the D.’s, V. in his B. practicing manager em- production Murphy, L. John caught doing it. That came the accuracy of their recollection and of their ployed by Corpora- defendant Harold testimony. ease, In that view of the a criti- of said defendant tion, to come to the studio analysis testimony unnecessary, cal corporation averting purpose critically and for reason we now do not avoiding infringement which action testimony examine the these witnesses. It might subsequently said be commenced stated, however, that, accepted should be if as against corporation defendant Witwer said true, completely this evidence almost covers story upon ‘The Eman- the use of said based cipation story play similarities between and the Rodney’ picture motion of in said as by finding found court in the herein- said date photoplay ‘The Freshman’ and on quoted, completely before Murphy, and also almost said Taylor, presence in the of said plot sequence covered the of events of said parts some related to said Witwer upon by appellee relied Freshman,’ proof as in- ‘The picture photoplay motion fringement as hereinafter set fully state or forth. then, de- all, but did not or at photoplay or the form said scribe Witwer question With reference of whether thereof, picture and said motion or content upon appellants or not the relied the state- or completed in form con- photoplay was not Taylor Witwer, ment of that stat- it is true 30th until about the tent or incident on or specifically rely upon ed that he did not day March, 1925. W'itwer, statement but it obvious that in empha- them would this making each “That defendants and statement intends then, of said size the fact that he did not proceeded production with the and never did, have- photoplay any and would consider that picture there was chance motion for an every infringement. and done each produced the same If the transaction occurred as them, by either of by them, or the witnesses by other act done and as found testified release, court, sale production, then it is connection with the obvious that the appel- picture photo- rely lants upon said motion did and distribution of Witwer’s statement be- they regardless paid each and cause play ‘The Freshman’ him, no further attention to story every attempt use said ‘The made moving consent to the no to secure the Rodney’ rights copyright Emancipation story asserted to have in the of the either Taylor given or by owner, said Witwer said from Witwer or its then pub- regardless any Murphy remarks lishers of magazine, said acted then Taylor by any theory upon they at time to and the made Witwer have ever since them. Murphy, acted, namely, or either of there was infringe- copyright story. ment of the in the The trial herein re* “That none the defendants they court found as a fact that would have wholly upon any part at lied or or produced play regardless of whether or Taylor by said or said statement Witwer to not Witwer consented thereto. This is no any time mislead Murphy, did nor Witwer Murphy true, doubt testified that any respect any them, in the defendants or any would have eliminated features that Wit- production whatever connection with wer claimed a on, and we see no of said motion photoplay ‘The Fresh- reason to doubt this testimony, for it is ob- man’ or in connection with purported au- vious from a fea-, play consideration of the episodes use ‘gags’ thorization to or many, all, if similarities portion tures or of said could readily have been eliminated without Emancipation Rodney.’ ‘The play. serious effect on the finding It is not clear from this whether fully The theme was disclosed at that accepted testimony or not the trial court time, if it yourself,” is “be as parties both Taylor Murphy as to the disclosures have stated it to be. them that time to Witwer at and con- Whether or not this doing they cluded that statement did not disclose Wit wer at regarded that time could play parol the nature character of as a as there- authorizing production license developed. play after If this was the of the intent of the question pressed that is not finding, it is in strict accord with the in the testimo- briefs by Taylor may and which we ny Murphy. not consider. It is given On oth- suffi say may cient the statement hand, er court have been influenced Witwer dissimilarity with reference to testimony given the fact that the some between play years and the question considered as seven after transaction persuasive admission and as evidence between related to conversation the de- 4,- play, on October as then cedent and the. two de witnesses who veloped engaged time, stated to Witwer at that production were play, of the infringe copyright,' this, did not discounted to reason some extent and, theme, large its said, contents, we have covers the and if there was a subconscious measure, plot sequence memory of events derived from such upon by appellee infringe- relied show knowledge, and if the evidence was such that persuasive ment. It is evidence at that some copying unconscious and unintentional copying, plagiarism, time there had been no play produced, disclosed when piracy, accepted, might would limit our there and, infringement, be an notwith- inquiry standing similarities to those with reference parties the intentions to avoid subsequent developed infringement. portions There are inherent difficul- October, application proposition the 4th of ties in the subconscious memory the facts in the case participated The evidence of all who at bar. production Freshman,” of “The gag or sce- play, the construction testimony as is indicated of all those them at time writers, nario that none оf is participated it, in in was the main extem- magazine con- copy a of thereafter had the poraneous, say, general that is with the story making the taining or in the used it background developed mind each scene was judgment the play. true, this is have If we very process producing. the of The testi- that the frame- story author of the of the mony 100,000 is that over feet of film were story copy his play not work of the did taken in connection with play, only 7,000 the testimony producers of the of all the the feet of whieh actually used. is It obvious copy The admission they did not it. play that process such a purpose is not important, in view particularly Witwer is of merely duplicate story scenes in the or to time it made the the of the fact reproduce them; story the gen- indeed is too appellants general knew of the outline of the descriptions eral its that, for but to de- general story, and knew of the out- Witwer velop produce carry scenes whieh would play. testify line the witnesses of All general to the plan they audience had in producers play effect that of the never production mind. In the gags of the there knowledge story. had a more detailed of the evidently rephotographing much get presented The situation thus the evi- sequence the exact essential laugh to create a Uoyd planned is had dence that Harold in the' gags audience. None of these years college story in whieh some to make a sequence story. is in the Consequently participate in a the hero should football reproduce there was no effort to some such period of three game. To that end for over situation in story, humorous pur- but the years and-long Witwer, four before he saw or pose separate was to create a distinct se- large of number football scenes had been quence gag produce case of each say, is scenes photographed, that different laughter It is audience. major games of football had been at different copied not contended that these matters were they idea that could be photographed with the contrary, story; from the it is admit- in connection with utilized large original ted that there of is a amount plan, This inchoate play when was filmed. it play. material There is nowhere with or his antedating all contact anything copying slavish in the necessarily the use of story, involved Harold Rodney. Rodney Indeed, the character of Lloyd play as the hero of the and the ex- vitally different from that of Harold periences attending whieh would portrayal Lamb of the character of college, and gags numerous in accordance Lamb in action necessarily must be different. general Lloyd of all the set-up plays. We now come to a more exam detailed true, If all this be question then the ination the question of the similarities be infringement is narrowed whether or not in tween the play bearing upon subsequent development play there question of copying and hence of in was an intentional or appropri unintentional fringement. regard The rule in that is thus sequences ation of incidents and and scenes Corpus stated in Juris: yet developed not at the time conference between may Witwer and Har “Since work be similar to another October, having old from, above referred without to.' derived or based inquiry, however, rejection This involves it, mere on, resemblance between two works testimony these necessarily witnesses never does not show that the one is a or the story, piracy merely knew read without such other. It is evidence of knowledge copying copying there could strong and more or' less according no. production original their would have been In no to circumstances. the case of works of closely story. If, imaginative how resembled the literature, strikingly matter or orig- character, any or however, read knew of inal considerable amount of has been the work manner in which strong similarity raises a inference dose * * * done.” weight of eases, the copying. In all similarity identity as evidence mere weight circum considering ex- likelihood of its copying depends оn the from an derived copying stantial evidence * * * ” copying. isting in the absence of play and analysis between of similarities 423, p. 13 C. §J. copy is an intent question of stat although, as has been factor, important not does con priority “Mere in time necessary copying not ed, an intentional sharp being a distinc monopoly, fer a there has been if there problem element copyrights and respect between tion in this ap copying. but actual subconscious copy may entitled Both works patents. pellee intention relies deliberate and orig although if each is right, identical, un copying, upon inadvertent or al and not sim independent production. Such inal and copying. this contention intentional While copy merely evidence of ilarity identity is necessarily decisive, emphasizes strong according to circum or less —more question an intent to importance may explanations stances and be. appellants evasively story. Did the copy similarity where it. evasively copy story and to intend use copyright copying from the identity due to it? Where a or a novel has had enor may be deemed later work work that the ed popularity unprecedented mous so that its Thus, person, if a infringement. Note 47. may justly some success be attributed to making any copyright use prior without aof therein, might unique quality it be assumed work, by pro ed independent his own labor literary pirate some to that would endeavor similar, something infringe duces there no discover the secret popularity of such copy ment. one work the So does not violate embody work, discarding as it own simply in another there is because story of the as was believed much drama similarity similarity the the two, between if story. not be essential to successof the to the results the fact that both works deal play in the case “Abie’s Irish Thus, subject, with the same use of or have made Rose,” success, with its remarkable it was p. 1114, 278, sources.” 13 C. J. § common to expected to that would be be efforts Story Justice stated rule for determin- by utilizing similar the same achieve a success ing Davies, piracy in Emerson 8 Fed. v. Cas. appeal popular if it be discovered could 615, 768, 3 624, 4,436, Story, No. as follows: play detached from the unessential in the piracy test or not is ter ascer- true given play. the new a new dress in Conse has, fact, tain whether the defendant used play suspect that deal quently, we would arrangements, the plan, and illustrations of family ing and a Jew with an Irish Catholie plaintiff, book, as the model of his own intermarriage family an between ish only with colorable and variations alterations attempt to make there be them would an thereof; or whether his disguise use “Abie’s Irish appeal popularized same which skill, labor, work is the result of his own Rose,” might thus realize some so that others materials, use of and common sourc- common that profits derived from of the enormous men, knowledge, open es of re- popular appeal. have We case in a such a semblances are either arising accidental or picture moving play, “The Cohens and the subject. from the nature of the In other Kellys,” having which was advertised as words, quoad whether is, the defendant’s book appeal moving pictures same as “Abie’s hoc, servile or evasive imitation of the stage. Notwithstanding Irish Rose” on plaintiff’s work, original aor bona fide com- temptation similarity piracy this pilation from independent other common moving drama, play of the “Copyright,” sources.” 13 C. J. note § recently the latter was held not to be an in fringement former. Nichols v. Uni Corp. Thompson (C. A.) F.(2d) In Pictures 45 Pub. versal C. West Co. v. Edward (C. C.) here exact F. 119. We have reverse of that the court said: “Ac- story infringement may copyright “Emancipation of the tionable con- situation. The Rodney” paraphrasing sist mere its author $75. or avoidance of the was sold appearance of copying appropriat- copyrighted only still it was a while It was because magazine ing proved copyrighted was as a subject-matter, may which either magazine whole. After the initial sale to evidence, depending internal se- story to lie dor in 1915 the was allowed quence language of ideas and in such num- published, it separately It was not mant. inevitably compels bers the conclusion dramatized, there was indication copyrighted was not work source any special popular had infringing appeal^ it publication, testimony that byor direct nothing appraising tb indicate there value their reasonable conduct. It is in moving picture rights copyright that, Lloyd believe if pro- and his which desire ducing company would copy- desired to utilize appropriate righted with compensation. or without “Emancipation Rodney,” they accomplished purpose mag- procured copyright as a eould its initial for a story. comparatively azine Lloyd, publishers this situation Harold small sum from the an reputation, purchased actor of who $75, international and also to believe producing procured by make it eould company, determined to have been some organization other college silent dealing motion with or individual who was not life so well upon they Lloyd merely known which ex- as Harold football pected spend large money figure. sums before nominal At the outset this consid- they get any eration, then, eould therefor, return we are asked to believe they actually avoid expended $330,000 payment this small appellants about took getting They expending $330,000 before a dollar of return. hazard of over with knowledge they began literary learned that, actual if theft was before their They .discovered, production, expense. its attendant it must be when the publicly they rejected exhibited, testified-that hope without eould not reading profit incongruous from the it because its investment climax, brought. suit incongruity patent assuming to all read We are mak- this author’s statement noted the statement as owner is entitled the profits climax thereof to all derived told to Harold from the in- quoted. expected fringing play. as above We are We wish to do not under- believe, testimony approving stood as is de- doctrine which is one liberately false, develop- issues bar, but also that in the main in the case at if in- fringement ment of this moving picture play there was found. attempt deliberate and appropriate evasive finding court, trial the in which the “Emancipation the story, Rodney,” of we concur, that the mag- never read compensation without to the owner of the azine story, is entirely inconsistent with an copyright. We are believe that to part intent on copy presump- his to it. The Lloyd, having produce his .up made mind to a against wrongdoing tion of law the evi- collegeplay involving game, a football believ- dence to the conclusion that there was lead ing be of Witwer eould substantial as- that piracy. no intentional writing sistance a play, scenario for such a turn, comparison sent for to a utilizing him with We now of purpose the of story the play the with a view ascer production connection with the talent of circumstantial, taining the him what moving play evidence there is paying without to overcome the therefor, and direct evidence there that Witwer’s statement that copying pre the was no inferences and play procured the copy did the sumption good favor by from of faith. The rule fraudulent and deliberate con- determining by copying comparison for scope cealment the of real character of succinctly accurately Corpus picture play. the stated in moving All this with the quoting Juris, from Music knowledge the White-Smith Pub. part on those of this 17, great Apollo Co., 319, Co. v. 209 28 Ct. thing U. S. S. investment that the whole awas 655, 628, 52 L. 14 Cas. as appropriate effort Ed. Ann. follows: colorable copy “A which comes so near to the which been $75 had sold for and which had original give every person seeing many years, as to remained dormant for so by original.” the 13 knowledge law, with the idea created the C. J. implied ap- of the as 1113, question really note pellee be, that, 276, if 30. The in § claims it to the was a comparison is volved in such to ascertain the success, all the profits, none of the haz- alleged infringing play upon of ards, go effect the copyright- would of owner is, upon average story. ed reasonable public, evidence Witwer sold оrdinary person moving picture many man. If an who has recent rights in of his ly through presentation read sits average later stories for about an $1,000 Why Lloyd pay picture, literary of the if there had been each. out $40,- should over literary piracy 000 he should detect that fact play to his staff work any suggestion aid or or critical without anal already work done and could public readily purchased copied ysis be others. The reaction for a much spontaneous should as the matter and im smaller was no ? sum, doubt case Such credulity. a This view is sustained in contention on its face taxes our mediate. judged beings decision Court Men must be reasonable least Circuit as

19 being difficultyof not dealing lustrative of the classic Circuit Appeals for the Second Infringe- trees. able to see the forest for the “Spark Plug,” as figure plaster cast with imagination is ment of work of determined cartoon copyrighted comparative reading Syndicate v. the result of (King such a horse Features reader, not dissec- imagination the court where Fleischer, 533, 535), 299 F. suitable incidents, tion of sentences and said: textbook, inher- study digest or of a us is whether presented question any who has the kind ently man unnatural for horse as duplicating the manufacturing and adapt a work that make him able of brains copyrighted idea copy of figure doll is a ours.) (Italics of fiction.” Act Copyright appellant’s. The pro- dramatiza- 1]) § USCA to consider We have (Comp. 9517 §St. [17 complied having Hur,” discussed .“Ben tion of the person, book vides 169 (C. A.) have exclusive C. Harper shall Bros. Kalem provisions act, & Co. v. 20, 55, copy, 32 S. Ct. 56 reprint, publish, S. 61, F. affirmed 222 U. print, ‘to copy 1913A, 1285, is that A copyrighted 92, work.’ L. Ed. Ann. Cas. under-. vend the cause to had read the would spectator who ordinary observation stand that or the recognize taken from having been at once recognized “Ben Hur” would at- In White-Smith deliberable reproduction another. as a thereof dramatization Ct. S. reproduce in the form a Co., tempt 209 U. S. Apollo book Co. v. Ann. question moving Cas. would be picture. 52 L. Ed. There [319], 323, spectator. With part of about it on the the court said: “ up a more detailed take mind we this rule in al- copy ? We is meant ‘What similarity be- points consideration understanding ready to the common referred story tending to show play tween the duplication reproduction itof as a tend- copying, dissimilarities and some Bailey, J., given by thing. definition A original production of the to show an 743, quot- Francis, Aid. 5 Bam. & in West v. respective parties. advanced Boosey 80 L. approval Whight, v. ed with copy said: “A is that which T. finding R. 561. of the trial Appellee adopts the original give comes so near to infringement as her statement of court as to by the seeing idea created every 'person it the play. similarity story and We * * * ’ original.” her as follows: quote brief protection owner accorded as a fact that has found “The trial Court product copyright is of the intellectual of Witwer portions parts ‘substantial species protect any is intended to appropri- author. used, copied and story have been to em- the author selects publication story structure, including by appellants ated (Italics ours.) body literary product.” incident, his event sequences plot, gags, including following plot situation, by Judge Saw same test was stated The incident,’ sequenceof to-wit: sitting Judge as District telle, while a he California, District where Southern boy country type “‘A of non-athletie 'is Judge language James in adopted college popular athletic ambitious to be a Hal earlier case Roe-Lawton v. Roach E. yells hero; practices mirror he before C.) (2d) 126, 18 F. 128 (D. Studios [Barba room; photographed he is privacy of his (D. Goldwyn C.) F.(2d) 881, 885], 42 dillo v. college letter an unearned inscribed wearing public “Unless the is follows: deceived photograph this upon clothing, his admires pictures, and led to believe that the secret; girl he meets a to whom he ex- tells literary pieturization plaintiff’s are a films aggerated prowess of his athletic stories ordinary observer (the standard work longs sympathetic; is he be called then no being applied) is he name; a familiar studies the literature of Roach shown.” Roe-Lawton v. Hal E. Stu athletics; he actual athlеtic work his is F.(2d) (D. C.) 126, 128; 18 Frankel v. dios inspires pitifully weak; he in the students (D. C.) F.(2d) 142; 34 v. Irwin Nichols feelings ranging contempt to grudging F.(2d) Corp. (D. C.) Pictures 34 Universal 145; toleration; permitted is to think he himself a Syndicate King Features v. Fleischer college team, of a athletic when member (Italics ours.) A.) 299 F. (C. C. part it; enjoys he reality is he not deception period; a brief (D. C.) bliss for F.(2d) Irwin of this v. In Frankel object an finally realizing he of ridi- Judge is 142, 144, supra, Hough stated Circuit away contempt, resolves throw he have cule and problem in this fashion: “Counsel self; photograph his real analyses play; pretense and be his each labored 'furnished de- as an athletic hero is picturing is il- himself excellent, sides to me both work stroyed; he hope ments, decided that his “dig,” but “scorned” as a and hence athletie consequent popularity eminence refused or failed to associate with him. Har- game to take with his old Lamb accepted by was at once the student college’s game rival; body traditional going appeared he was, what to bé and badly against team; the home the team is re- namely, a foil for pranks, their ridicule and substantially man; duced boy the last available entirely small-town unfamiliar stu- grasps appeal argument he the coach in making dent life egregious most blunders to be play; allowed to enter the he forces approach in his creating to it. As to way game, into dis- much to team’s “make-believe world” in which the hero of the gust ; extremely by an unusual and ridiculous play “imaginary hero,” an this play girl team; he wins home generality for the copy- is a to consider as difficult justifies him; her faith is the hero of rightable very general because it is a belief ” the hour and attains the nickname.’ coveted world, that we all live in a make-believe world, say, people tois most believe that the new plaintiff not what is does state good so far concerned, as we are deal or plot sequence novel about this of events what we make of it or think it be. It is court, found the trial about the matter question boys whether also most and men do copied appropriated claimed to have been secretly regard themselves as heroes in story. nothing from the There is abnormal world Certainly it. college desiring about a freshman to succeed the idea that an individual a hero in the desiring popular in athletics or or to be world as he understands it is not novel. As by a Rodney called nickname. abnormal, “accomplishments to the existing purely in although because, exceptionally fine schol- imagination hero,” as we under- ar, he desired ignoramus. to be considered stand really did not Rodney believe quote We from the as follows: “Rod- that he accomplishment. had athletie He ney’s being burned with the at- desire to lying knew he girl it, about and it illiteracy! overnight longed tain — ability was because of his disbelief in forget the cube root of two hundred and six participating he avoided college athletics age and the tri- Alexander Great’s until he felt must so in order to im- do umphs.” press the heroine quite that he was not so ac- “This, then, states it thus: was complished liar as Baron Munchausen. Rodney Benham, Hateh who, if some one had hand, theOn other it is not clear that Harold ‘Rod,’ hailed instead inevitable any accomplish- Lamb believed that he had ‘Mister,’ given individual his would have He was good, ments. determined make earthly cheerfully. calling But possessions get game, popularity, win into the football ¡Esthetic solemn-visaged- appealed ‘Rod’ hardship great he endured in order to to his students fellow about as much as ad- succeed, it is not clear believed dressing president as ‘Doe’ appellee that he would successful. While Rodney would —so missed the thrill the nick- synopsis relies name would have brought, and his soul be- findings in judge made trial as came more bitter toward unfeeling world showing the elements or features in the general.” in that are contained in play, the appellants’ pages analysis brief contains 30 Rodney of these was neither abnormal nor unusual findings purpose pointing for the out although dis- that, developed in having no athletic similarities in various items contained in ability, he desires become an athlete. Har- summary. analysis In the main this is only old Lamb was that, abnormal in in his correct, can only opin- but we indicate in this popular desire and to do what he ion some dissimilarities thought between the popular thing do, was the he com- play summary involved in the mitted absurdities so enormous as to imme- by taking diately attract the his some of the similarities prospective up attention of stated very schoolmates, so that in the (1) first contact trial court. Harold was not a pranks “country with him boy” a number of but lived in a small town. advantage ignorance him Rodney’s and take origin (2) of his is not indicated. Rod- ney’s please.' desire to With reference to the desire was prop- to be a “successful athlete.” person osition that both plots involved a Harold’s desire was popular; who to be his ambi- was scorned body entirely subsidiary. the entire tion to athlete student there be an was Rodney notable difference. ignored (3) type was Harold was not a “nonathletic” in body being physical because the student believed the sense a him be weak freak. On extraordinary student, contrary, boy a he is bookworm whom a remarkable they respected strength, which, notwithstanding ignor- his accomplish- for scholastic his concerning other hand, made no statements awkwardness, admiration. anee evokes Peggy. did tell his He prowess to his heroine appears paradox. He Rodney physical is a he her that he had made the football team basis introduction, in the which he and his belief so, believed that had done greatest having been story, telling had told upon was that he based the fact produced. college has ever player when made the team the coach that he had and makes a big game in He substitutes as a intended matter fact was specta- spectacular run convinces occupying the boy he as water speed should act was a captain that he tors and ¡marvel. track pur- in Bodney is also de- substitute’s bench uniform Contradietorally, pose. a real substitute. scholar, He he was bent believed having of a the frame scribed believing weigh- heroine, instead of height, in shoulders, one inch feet six telling from knows the real fact and refrains weigh much appearing to pounds, hurting feelings. his order to avoid half Harold in for more than less. He unable to run thought true; Rod- Harold told what he mechanism. his interior a mile because of (9) ney be false. As college told what he knew to “practices yells before (4) Harold sympathetic,” “heroine is point Rod- of his room.” privacy in the mirror dissimilarity appellants mirror in attention ney call passed and down before although girls, die in the conduct the two expressions as “spouting his room unimportant. Alice “cut” quite matter is bonehead,’ kid,’ others ‘knock out Rodney fabricating he was when she believed surrounding equally comprehensive, until the Peggy, while prowess, of athletic merrily rang his welkin ears.” Harold knowing Harold had been deceived practicing before the mirror order to believing schoolmates had college into he perfect himself as a hero imitation team, embarrassing refrained from moving him re- example whose he picture actor vealing although Rodney’s to him, impulse fact her performance emulates. before (10) was to do so. apparently imagines he himself a With reference to the mirror “nickname,” one of the basic factors in the spectator prize fight. (5) “Each has at Rodney story is his desire for contact with college upon letter inscribed his sweater and his schoolmates. wanted to be hazed in- secrecy.” admires it in Harold has a block being delighted, stead of let alone and was the usual letter sewed his sweater the end the story, when he was called fashion authorized ease of a Harold, however, “Rod.” hazed participated athlete an intercol- very depot moment he grounds, landed on the legiate game. He admire does not this in se- day before the over he was nick- displays wearing cret, openly it, it when “Speedy,” named because when called upon appar- leaves the train to enter college, speech nothing say make ently ignorance significance. of its Rod- in his confusion read from some notes he had ney, hand, on the other inks the letter on his by moving picture taken from a talk made secrecy underclothes the letter in admires right up me hero, “Step Speedy.” and call because realized it unearned and that his derisive, in In one case the nickname was reprehensible. (6) act appropriating it is other affectionate. There is indication Rodney “had himself photographed” in his that Harold wished to “Speedy” be called keeps underclothes and the photograph Rodney desired to be called (11) “Rod.” buried in his trunk secretly be admired “study With reference of the literature night each retiring. before Harold had no athletics,” Rodney specifically photograph described (7) taken. “Each hero meets the as a devoted and successful student of books girl,” but the meeting method entirely is of instruction on athletics. “If there had different. Rodney met heroine Alice been a gave in this fair land that stripped while he was underclothes in diplomas for manly dissertations on the art supposed what he place to be a secluded self-defense, football, baseball, and other while he performing spar- athletic feats pastimes the textbooks were ring written with a tree and jumping over a fence. —where by Christy Corbett James J. Mathewson Harold’s meeting Peggy will with be de- —Rodney joy would of that in- scribed later. As to the of ath- “stories (8) faculty.” Rodney Rodney prowess” letic stitution’s When is did tell his heroine found deeds prowess sport boxing “on fields with tree he is stated to be follow- weakling by chapter Hercules seem like an awkward rules contained 6 of the boxing. Harold’s comparison”; book on ideals are mov- day he told how he saved the actor, inning ing picture Trask, cap- eleventh and Chet game; baseball join how he tain of the football seeks to putting shot, shattered records team. He throwing popularity. discus, Harold, the football team to attain on the etc. 22

letic think himself tate his himself a substitute while ulty object of ridicule because of his effort a water blundering. Harold’s would it.” This “grind” of his ing to the faculty er caused the ly acterized as “like Simon inspires hailed liance.” writer John contempt of the coach title before in startle Legree tion with an dent in the The event is Legree,” gree.” be attached to the use of the name “Simon “An and is of ture of in. Referring to the statement, “The coach in votion to athletic literature is one of the most one case, Upper this passage ball,” session of a distinguishing and dominating characteristics wonderful was real literature, With reference to a game, away a ring to an book is shown game ball,” upon his newspaper hand, compared words “Simon and tell if team when developed of the scenes upper pluck come while appellants state that look like a moving picture Nile colored and is not 7,000 boy. in the students Of course no saw “a the name capacity and the general Students saw “another there is no account whatever of story says: “scorn” is archeological account world Rodney story appearance, Rodney in practice, upper wholly Rodney Gray grudging class text-book, takes true (13) feet of film As unfavorably with Simon Le- a member of a magazine his business of title faculty in entitled “How Professor Boniface occupies formula for upper usage. appellant correctly shining despised as a student. He is not a Legree” reality testified he had used that “He is classman, bully knows in'the up and he good hazed him.” On the oth- misappropriated glimpse dissimilar from the inci- apparently synonymous prize fight the picture expectations knows all “This, thought Rodney, underwear. This was burned with his other Harold, great significance feelings ranging football field is char- toleration.” Accord- nine hero, class with a “How to its discoveries Legree.” (12) section several In the silent drama student Samaritan.” Title actually he is not a who made Simon while where the conduct sporting light nothing as such. appear disgustedly generally intellectual bril- pected to state to us of Harold in allowed to think bully inches of a and his success. Refer- who, because based entire- of his room a measurement Rodney’s about it and and baseball delight telling сollege pages was at once with that would body. grind Play in another, of the fac- Play serving in connec- about the section of along He is an writing. Pindor.” general title is: to imi- states: mentioned cruelty led to hurled there- Foot- Foot- ath- “He pos- pic- can the blown de- copyrightable the from the embodiesall of n plainant’s her bill of entitled acterizations, that is substantial cluding what and ondary, pra]. F.(2d) 142, 143], claim v. ment of a theme 1002, 20 approval Roe-Lawton v. Hal E. Roach dios Film Corp. (C. A.) mann 1007], No. F. Nixon Daly York, December 28, 1932), voice, motions, Fields Judge Woolsey, U. S. District Court of the team. (C. A.) of a copyrighted story do not cover words events in the (2d) 119, 121; (C. ties found that of athletic (Lowenfels v. Nathan, 2 graph He does given “Rodney Universal nuisance. Harold is 'discarded.” This is true of postures The plaintiff 483; himself with the Without further C. A. C. 3552; sequences (D. may v. and the (C. C.) or a (C. copyrightable (C. picturing the theme, plot, story, and subordinate characters and char- his football photoplay entitled ‘The Freshman’ ‘The paraphernalia. Ann. Cas. Palmer, reward merit.” tear C. S. D. Brady is not rewarded said complaint: wall where he 2) dramatic and of such material, be thus C.) C. 175 parts plot Daly of actors Pictures motivation, treatment, climaxes, described in up story. Emancipation 159 F. literary composition in plot, scene, or play, A.) the court the essential elements of com- 125 F. Frankel breeze into F. F.(2d) C. [Dam and burn v. [Nutt v. Webster himself as an but an 6 Blatchf. 264, Fed. and stated in the Cal.) incidents and situations 210 F. 864, 1173; hero, Daly (C. we will consider black analysis 584; what it is in the Corp. (C. A.) appellee as new and novel and ^[*] * “ * 977; Savage v. portions [Bloom v. Nat. Institute moving purposely 249 F. 236, 237, citing 41 L. R. A. v. Irwin to' original 18 F.(2d) Kirk La Chet, Harold’s complainant’s up letter inked on-his Stodart v. Mutual Chappell F. appellant. exist of Rodney,’ in (14) placed of the similari- (C. any, C. should primary, sec- Supp. 73, by after he made 513; picture rights disposed & Hamlin v. Rodney supra, C. language athletic thereof, in- Said motion between the sequence wastebasket novel photograph (D. A.) C. Shelle “A and has been & Co. v. v. Hoff (N. Nichols what A.) C.) photo- 83 F. finally citing 45 F. treat above with Stu said only. New Her of as Inc. Cas. hero ex- S.) su Co. 56 - by symbolized imaginary is tion of his world ‘The story entitled and literary composition photo- dearly cherished his destruction of Rodney’ all of which and Emancipation of graph. intermingled by defendants inextricably are immediately in not found “Paradoxically, material freshman matter and other with big foot- composition literary determines to himself redeem complainant’s said pho- he is although not a game motion year; said ball defendants’ in ” substi- legitimate nor a Freshman.’ the team ‘The member of toplay entitled played in never a tute has apparently plot is her claim her brief previously. game football says: “Ap- and limited. She more definite particular and copied college big team in deliberately “Injuries to his pellants sequence of opportunity to plot and game an portion give freshman detailed story.” And a chance to appellee’s appeal coach anxiously in incident contained impatiently “The Freshman” refuses to plot of play; coach there follows plot “The her, anything as follows: him. with by to do summarized * * * an abnormal around constructed is awed; not cowed “The is freshman by the entire is scorned who college freshman changes instantaneously from humble a ‘make-be- creates body; but who student suppliant to of the situ- master determined imaginary hero is the world which lieve’ ation. pure- accomplishments ‘exist his and in which gets out “As soon as the freshman on the ” imagination.’ ly in his field, completely playing however, he is be- “sequence in her brief Appellee states idea, proceed wildered with how story” appellee’s contained of incident his teammates him. berate copied to have she considers paradoxically the “Suddenly and fresh- thus general sequence play, under changes totally inexperienced man from story with her compares incidents stated incompetent super- into a marvelous ‘Dub’ statement general Her play. those player, who, human without from his aid own follows: easily through opposing the entire team, runs adapted physically “The freshman successfully team blocked (which has knowledge thеmof athletics; his sole consistently outplayed the freshman’s team reading sport derived appears game). for the whole pe- yet possessed he seems manuals; single illogical play “This ridiculous complex. athletic culiar impossible —probably of execution even ‘most freshman’s cherished “One of the highly and skillful football most trained photograph of himself which possessions’ is a seriously coach, player received —is imaginary conquests. symbolizes his immediately regard players who students greatest player football the freshman as ‘the lonely unhappy, freshman “The ever college produced.’ body; by the entire or derided student scorned everything in willing sacrifice order he is of the freshman the sweetheart who “Even popular and be called a nick- become shortcomings always realized own choice. name of his ability total lack of real athletic assumes the always inconsistent that she expect- attitude unsophisticated greatly freshman big game.” ed him to win meeting girl his first with a embarrassed at only person who is proves to be bar, In the at if it case be assumed that encourages (although sympathetic and such there are similarities between the story by the deceived untrue is not all she provoke in and the as to the casual ob success). his athletic server consciousness that there is attempts live to his “The freshman similarity them, between that copying image trying win of himself mental own therefrom, may be inferred we are still con team. athletic place similarity fact that mere fronted inexperienced, incompetent and hopelessly literary necessarily piracy involve does not in arous- persistence results however, and his copyright. of a Such simi exasperation in amusement, anger, require larities then as exist would further Finally is disposed coaches. athletic analysis or not to determine whether being unique device of he has told copyrightable. and thus novel in team, although he not even athletic only covers of a what legitimate substitute. it, question so that the and novel new in fringement involves a consideration what “Eventually freshman realizes the fu- story wMch is new and novel tility pretences. destruc- his vain 24 priated play. has in the On this in monopoly subject, which Weil acquired author has Upon by his work on states misappropriated Copyright,” another. the “Law subject Judge Mayer states, in Stevenson law this as follows: 432, ne- (D. C.) 436: “Of v. 238 F. Harris Section 983: “It should also borne be be cessity, certain kinds incidents must steadfastly in that if work is not en- mind, many plays, original- in books and found tirely original, copyright there is in the no in ity, dealing familiar when incidents unoriginal part, use, which prevent will its fiction, life or in association lies separately, combination, or in not with matter in such a man- grouping those incidents copyright. course, any by covered Hence, pre- ner that the under consideration work inquiry per- infringement must exclude arrange- conception new or a novel sents non-original reproduction missible of such of events.” ment matter.” Appeals of the Sec- Circuit Court of The “If, hand, Section there 984: the other alleged in- with the dealing in Circuit, ond truly original thoughts are in the embodied fringement story, London’s “Just of Jack work,. merely expression —not play, “Love by picture Meat,” the motion thought, thought expressed, in then but (London Biograph Co. C. Gold” v. copyright [C. exists such intellectual creation “The 2, 1916], 696, A. 231 said: 697), P. throughout. then, scope copyright is, The and, plot story play both the and the always of, by the extent nature measured is burglary this: Two commit thieves original of, embodied a creation.’' work * * * discuss, harmoniously, (Italics ours.) plunder. them division of the Each of suc- There other definite and well-deter ceeds, other, putting poi- unknown to the mined upon limitations eopyrightability something the other about son in which a plot, sequence or of events, theme, * * * idea, swallow. The fundamental variously it is As stated called. the Cir play, story common both Appeals cuit Court of of the Second Circuit criminals, poisoning who thus mutual Daly v. 56 Webster, F. 487: “It is * * * plot is The die their own hands. plain that the author of such a work [a * ** But it one highly dramatic. old play], incidents, where various in themselves [citing Chaucer’s Pardoner’s Tale and other literary common property, are grouped to examples]. property; The common plot is n particular story, form must confined, be by presenting it with modern incidents story his claim copyright, closely to the appropriate copyrighting.” (Ital- can it thus author, composed, that another ours.) ics who, by materially varying incidents, ma (C. 2) terially Dam Kirk A. changes La Shelle Co. C. v. should not held be 902, 997, (N. S.) 1002, 41 R. A. infringer.” P. L. be Arm. plaintiff, Cas. cited the court (sections Weil 185,186) deals with the ef- following rule as to of a stated copyright upon of a fect dramatization copy- plot: In an action rights, right particularly obligation recognized right, court plot, as follows: “It is essential to a ‘dra- protect prepared one who the framework of a composition,’” matic said Laeombe, J., play said: was but a frame- (C. Puller C.), Case 59 P. “that it * * * right given work to an author story. should some plot tell may The be to dramatize work includes the to simple. may It rep- narration or representation it adopt stage single resentation transaction, but must necessarily which involve ad- changes, repeat must action, mimic some speech, ditions, and impossible omissions. to emotion, passion, character, imag- real or make a represent out aof a inary. —to When does, it is the ideas thus ex- by dialogue narrative and action —without pressed, which subject become the copy- * ** making changes, playwright ap- and a right. merely mechanical move- propriates [plot] the theme of another’s ments produced effects are on the cannot, in opinion, charge our escape the stage subjects are not of copyright where infringement by adding slightly varying to or they convey no ideas whose arrangement his incidents.” makes composition.” dramatic The following quoted from Weil rule settled that well matters Copyright Law, 187: § domain public are not copyrightable, and “ * * * appellee

we A understand concedes this combination or series of dra- events, and limits apart may her contentions ‍​​​​‌​​‌‌‌‌‌​​‌‌​‌‌​​‌‌​​‌‌‌‌​​​​​‌​‌​‌​‌‌‌‌‌​​​‍to what she dialogue, con matic ** * 188) protected copyright. siders novel features of the appro- (§

25 404; C.) Marcin 241 F. Stodart v. Mutu (D. con- 483, 56 F. Daly C. v. Webster A.] [C. C.) Corp. (D. 249 F. 507. me- al exhibition of a that the mere tains dictum represent incidents appliances chanical may be theory (however difficult is there must protected but not be would protection ‘that application times) its dramatically presented a series events copyright is of accorded the owner of order, for sequence or a actors, in certain King, product of the author.’ intellectual ren- decision apply. doctrine to This Syndicate (C. A.) 299 etc., Fleischer C. v. * * * films days moving picture dered before the 533, F. 536. apply to does law, is not not in that ex- similarity then, is extent “What, ‘writings/ plays. On or such motion is In each plays? isting between these two pictures, hand, except to motion the other poten- least girl of at presented an ambitious law. represents the probably still dictum am- willing to have her charm; tial while cases “It be noted should young man, in ingenious served bition Daly 256; v. Blatch, Palmer, 6 (Daly v. man, though financial In each straits. purport to estab 483) F. 56 cited Webster, means, wholly very close to sails different series, combination, a lish doctrine that veracity exploiting winds finance and may copyrighted, apart from events of dialogue a (Dymow) or girl fashion as a mold of they occur, and that this in which gratification (Bolton). ‘movie star’ Result — must be taken true, sense, a care probably requited by girl, affection ambition language copyright in the not to confuse part. the man’s described, or reflect in which such events plays two skeleton the incomplete “This protection against copying of ed, with the difficulty real is -with common, have in but it reflected, events described or which yet incidental, blood, flesh copyright. protection from results essential, trimming, adornment and * * * composi constitute dramatic To a away plays similarity can be cut to show be- tion, a work must tell connected a * * * tween few bones. n seriesof citing General O’Neill v. events” — “It requires dissection rather than obser- 854, App. Film 171 157 N. Co., Div. Y. S. any resemblance here. If vation discern 1028. believe), copying (which do not there we Appeals Circuit Sec- Court this mere sub- permissible, it was because novelty question of ond Circuit discusses the copy- susceptible not plot section of 11 play (Dymow Bolton, ain as follows v. right.” 691): F.(2d) 690, comparing The same court later every things “One of the entities or photo Rose,” “Abie’s play, Irish copyrighted to insert work author tries in his Kellys Cohens,” drama, “The and the above yet not ideas; as such are set of ideas again appropria- to, dealt referred 606, protected. Hurst, Holmes S. Ct. v. 19 commonplace. Nichols v. Univer- tion of the 82, 904; L. Kalem v. 174 U. 43 Ed. Co. S. supra. Corp., quote We sal Pictures Harper Bros., 20, 55, Ct. 222 U. S. 56 32 S. regard as fol- opinion of the court in 92, 1913A, Ed. Cas. L. Ann. “Upon work, especially lows : patterns increas- protection only play, great number of patent “Just affords more equally well, as ing generality fit reducing will to the means of an inventive idea and more of the incident left practice, protects the out. The so the law last may perhaps gener- be no more than the most means expressing idea; and it is as play about, al statement of what the near generalization the whole truth as can might usually title; at times consist its that, reach the same idea can be point there is a series of abstractions expressed in a plurality totally different longer protected, where are no oth- since manners, plurality copyrights may re- prevent playwright erwise the could the use sult, and no will exist. ‘ideas,’ apart from which, of his their ex- compares “If composi- two dramatic pression, property never extended. tions, stage whether in suitable forms Hurst, 86, 19 Ct. Holmes v. U. S. S. or for library, what has been called the 904; Curlett, Ed. Guthrie 43 L. v. plot/ plot/ ‘fundamental ‘same old or an 2).” (C. F.(2d) 694 A.C. story/ dressing "'old can assume author’s stating between the After the similarities adornment; that author can devise and drama, photo said: court way expressing use his plot, own infringe. general “If so much from proposi- he will This the defendant took may her Biograph Co., plaintiff, tion is well have been because illustrated London v. amazing prove that this was 582; 231 F. Eichel success seemed to 145 C. C. A. v. subject enduring popularity. so, already fact Still, Even is immaterial. as we have wholly granting play said, copyright plaintiff’s everything was her did not cover might original, assuming novelty play; that is not es- that drawn her its con- monopoly tent copyright, public sential to there is no went to some extent into the do- background. Though in such a main. plaintiff much, We have to decide how while vein, keep discovered the could not it to we any she are as aware one that the line, herself; defined, gen- so theme was too arbitrary, wherever it is drawn will seem eralized she that is drawing it; an abstraction from wrote. no excuse not it is a what question only part nearly such was of her ‘ideas.’ as courts answer in must may all cases. difficulties a Whatever be the her “Nor does she better as to charac- fare priori, question we no which have side scarcely ters. It is credible that she indeed comedy line up- this ease falls. A based those should not have been aware of stock Jews, Irish conflicts between into comedy figures, the low Jew and Irishman. marriage enters, which the of their children from her more The defendant has not taken susceptible no more than the contained for prototypes than their have outline of Romeo and Juliet.” obviously general- many If so to so, decades. theme, The lesson, or moral of the Rod- ize her would allow her to cover copyright, ney story, title, is indicated in the “The Eman- original what was not with her. But we need cipation Rodney.” After some of his ex- not hold this matter fact, much as we periences he decided “be himself.” might justified. though Even we take it carrying destroys that out idea he his athletic figures that she devised her out of her brain text-books paraphernalia and is thus novo, de still the defendant was within its emancipated. good resolution, however, His rights. was of duration, because, short although he “There are characters but four common knew he incompetent was’ football, in he at to both plays, lovers and fathers. The once rushed off to force himself endeavor to faintly lovers are so indicated to be no squad game into and into a in stаge properties. They loving more are than might good order that he make with the hero- fertile; really that is can be said ine. His resolution to “be himself” of course them, any quite one else within his rejection also involved a the absurd idea rights puts loving he and fertile lovers in a that he a poor desired to be known as student. own, gets his wherever he the cue. implied abandoned, This resolution was also quite plaintiff’s The Jew is unlike the defend- triumph, because after his football when * * * Both grotesque, ant’s. extrava- ques- asked the recitation room to answer a gant quarrelsome; both are fond of dis- entirely tion with he was he familiar, which qualities play; but these common make “ replied impudent answer, with an ‘Search simple only of their pictures, small drawled, me,’ cycle complete.” and his might than one lift if he more chose. only thing novel about this situation is unlike; Irish fathers are even more incongruity unconscious of the author symbol religious mere plaintiff’s a fanati- apparently made no effort to be consist- pride, scarcely a patriarchal cism and charac- ent or to teach the implied moral lesson in the- ter at all. Neither quality appears in the de- title. fendant’s, goes get for while grand- his On the other hand, Harold Lamb’s deter- child, it rather out of a truculent determin- himself,” mination to “be if he made ation not to be forbidden, pride than from determination, came cogi- not from his own progeny. Eor the rest he is gro- suggested tation but to him the hero- tesque hobbledehoy, comedy used for low ine after he had humiliating been told the sort, the most conventional truth, which he was unable-to observe himself, might borrow, if he ehaneed not to know the apparent popularity that his with his school- exemplar. mates was fame, accepted not argues “The defendant the ease is hospitality spirit in a of derision and re- by my Fisher, Inc., controlled decision v. garded contempt. him with Dillingham (D. C.) my 298 F. 145. Neither theme, As to there is nothing nor I throw brothers wish to doubt novel achieving popularity idea of ease, applicable success or doctrine but it is by being plaintiff’s play avoiding true to oneself and here. assume "We temptation altogether original, to imitate others who even to an extent that popularity. fame Bishop, achieved fact it is hard to believe. We assume fur- law that, anticipated by (First far as has his advice to students Book of ther Law, 375, 2¡43,published 1867), states plays p. earlier of which she knew nothing, § will be a second Rufus Choate/ is, at style: he draws an be a second herein the same we first says, will little education, Bishop which God has down to to be wise law of ferent a he will receive is sideration of overshadowing mind to presented fessional career. doWe ing to create but it cannot great than turning from a inent success and a beautiful lie cedar. So lic in the better following success way chapter cause Harold suffered sumed, adapted.” few particular cedar, not, failure, X- This theme is more scorn can “§ “§ “§ place, presented young germ one. varieties ‘I further will least, those ^[*] path of “If, a take his mortification 374: Before we 378: 377: not never in thinking nature, therefore, it/ drink folly have resolved make perfect its own following proposition in his usual sections an actual be seen by Bishop much more object let then, a plant that he cannot We although education can mind, If anything; as low as two happiness studies for land of man will cultivate what mean to educate Rodney ideal fill make cedar statements create for it a ** us refresh which what obedience to particular processes of it in commits an given may boughs. And, into the his touchdown and his well-proportioned path young an acorn myself up to be trees, perfected trunk, that, is like a 374, young pattern what was an actual reward public help during a follows the fame, it * him, argues did of disobedience mortification and considered 377, attendant seemed accomplished. so there are man received given; thus, enter the readers of this of what fully developed our recollections tree, law path instead of not. To Harold’s assist get failure. particular place equal the law of of a оf hundred. and 378: other new may mortify- acorn and cut student storm of scorn the little it, it; upon the con- grows well-doing, say ambitious for incapacity as lawyer, Rodney, is, and what folly.” advance, most even closely nature, he exhibits from be a as a words, the culty but he had limbs, obedience, to become whether or we there are oak; but of It is the scale attempt- pungent of capacity growing walking says, ‘I from a football nature, nature, myself minds. prefer theme, In Or, if public prom- party thing legal poor God. pub- pub- than pro- pre- thus best dif- be- by by low student that were sidered for his but where the al ing which commonplace form of facts, and much that has been said ment, monopoly. a 123, supra, forms a from the theme, there Universal ing shown text, tial to whether at common or a subordinate is ence Morosco, Appeals discussion with reference to terial said briefs and copying derived from law, but, two it is picture play, oneself in essarily ceases and is adverted to cannot of the and disinterested (Italics story duplication said There is still another Each ease must be determined on of the ideas is not weighing really else a fairly Freshman,” it After variations. really by tó be of ideas, in help three story participating any protection in a schoolmates were only thing with a theme, ours.) game. determining story of the Second Circuit hero dealing silent expression text of a Film as soon as literal the attitude of a distinguished judge, large, plagiarist failures, and he was told as follows: “It is argument not there having play clear thg much ridicule and scorn. weeks between casual It scenes, sequence scene, of cannot and the “The N. Y. the circumstantial evidence of copying argues and the expression scenes, view In each ease moving pictures. what test, a scene in the by sequence Corp., where a similar uncritical view with the is that, in story spectator That has repeating the words and Freshman,” considered read the critical that, would incapable law or be limited a new case. Fendler v. in the in contained is immaterial, would it is not comparison. when play’merely given an 45 copying. this manner whether thought laying a play whole matter question successes, of subject not occur to such a sequenceof events of literary the coachin refer- under play F. final Circuit form fairly contained escape events, there is an there no of course never been the ideas is in the approximating (2d) 171 story is similarities of independently appropriation literally of easy in the decisions /recently is plays events, etc., of foundation interval of of is N. E. indifferent very Nichols v. therefore, as property, 119, is Court The diffi- but both we express- approv- copying analysis be con- reading its statute,’ moving a utterly in imma- of the essen- copy- argu- a fel- great place scene think own well nec- 56.” in monthly periodical suggestion to that owned and issued spectator, absence of Smith, seeing moving picture Street & effeet, Inc., publishers, New York he was City. story of the form the “Emancipation Rodney,” this because complainant in the court below was name, and appearance, differences in author, but, during pendency Rodney and in the character of thereof, died, suit and before the trial true, If there no football scene. this widow, Witwer, and his Sadie S. admin- can see infringement. If we copying estate, istratrix of his was substituted similarity is no such at first blush that there plaintiff appellee court. ordinary observer, it impress as would appeal The deeree main from which the question of unnecessary nov- to.consider infringement was each by taken finds of the of such similarities elty copyrightability by appellants having pro- of their reason sim- opinion are such exist. We a mo- duced, distributed, and silent exhibited and between as exist ilarities Ereshman,” picture tion farce entitled “The many, as re- are such story, and there are commercially pub- was first shown comparison in or- analysis and critical quire September 12, lic The deeree about 1925. outstanding The themselves. to manifest der perpetually enjoins further distribution story play, and of both feature, climax picture, it orders the exhibition of the and necеssarily some game, with is the football picture. In of all films of the ad- destruction nothing new and novel there is similarity, but in dition, Witwer, the deeree awards to Mrs. participation in that other than the unusual representative her capacity, accounting respective games, of the heroes their and from the appellants, and each orders of them analysis these are neither identical nor on pay profits to her all that have been direct- conception of the in scene nor in two similar ly indirectly received or through, derived doubted, but, if as was productions, this from, distribution, or out the production, by clear that court, trial then it is done or exhibition of Freshman” from April “The similarity as overcomes the there is no such Lloyd 11, Corporation 1926. Harold is the testimony there was in fact positive no producer, Exchange, Ine., and Pathe is the circumstantial evidence de- copying. The distributor, picture. of the motion Harold comparison produc- of the two rived from Lloyd star, president is a noted screen enough weighty tions not forceful or practically and all capital owner of the persua- positive the direct overcome corporation stock of the that bears his name. contrary by offered sive evidence played leading part “The Eresh- plaintiff herself. way supervised general man” a its production. by public deceived “Ünless led films to believe pictures, and Witwer, being Mrs. dissatisfied with the literary work pieturization of plaintiff’s are interlocutory part that limits of the decree ordinary being observer of the (the standard profits picture her those infringement is shown.” no applied) then subsequent April 1926, 11, made has filed (D. C.) Studios Hal Roach E. Roe-Lawton v. solely cross-appeal herein submitted 126, F. 128. (2d) By part stipulation the deeree. cross-appeals of the the main parties findings Deeree reversed, with in- ap- court one record. Both before this proper structions to allow the defendants at- peals will be considered determined torneys’ fees and to holding enter a deeree opinion. convenience, For the appellants infringement there no copyright of the cross-appellees will be called “defend- story play. of the ants” Witwer, administratrix, Mrs. appellee and cross-appellant, will be MeCORMICK, Judge (dissent- District “plaintiff.” called the “Emancipation The ing). Rodney” will be referred the “story” to as appeal This is an Harold Cor- “picture.” and “The Ereshman” as the poration, Lloyd individually, interlocutory The decree rests spe- Exchange, Pathe Inc., corporation, from an findings cial fact conclusions of law interlocutory equity deeree in an suit for in- pursuant the court Equity below fringement story the copyright of en- (28 723).. opinion Rule USCA § 70i/2 titled, Emancipation Rodney,” reported the trial judge C.) (D. 46 F. Witwer, H. successful C. short (2d) 792. writer, print- was author. The was assign ed and as 20, 1915, November appeal defendants in'the main edition Popular many Magazine, a semi- errors in the They court below. assignment Smith, until an Inc., in Street & into their briefs their'assignments in grouped February 13, reasons which general six classifications least or at require a reversal 27, contend August On Witwer sold óf the decree. a modification rights partnership in it to all $75. The the sum of Street & was Smith that there Primarily, contended it pro- separately copyrighted, because defendants, & issued to Street tected actually appro- nothing 20, 1915, issue the November further, that, Smith story, and, priated from the appeared. Popular Magazine in which it copied their matter be held that copy- rights in and under to be nature story, it is of such from the partnership right were said transferred from copyright stat- protection without corporation, which Smith, Inc., to Street & United States. utes 13, 1929, February time, and until since federal Secondly, is claimed holder of the legal was the sole owner enter jurisdiction to wholly without court however, to a trust which subject, copyright, interlocutory deeree. have been made the trial court found to Smith, urged Thirdly, it is that Street & agreement between November, oral and this suit indispensable Inc., party is an MacLean, Witwer, and the author, of such absence no decree can be copy- corporate and publisher of officer the pаrty. whereby, of Wit- owner, consideration right in the of that is asserted Fourthly, it writing series of short subsequently wer’s by the deeree plaintiff profits awarded to Popular Magazine agreed for stories at an the in limitations, and statute of barred the price, he, (Witwer) moving could have all cross-appeal plaintiff the this connection picture rights eighteen other to the first and assignments of based her error where- his, of which included stories “The Emanci- that no of limitations she contends statute Rodney” pation previously- of that had been applicable right whatever to her to recover Magazine. printed Popular the It was that, profits picture, realized from the solely agreement from this asserted oral that any apply, if it be held that limitation does the court that below determined Witwer applied the four- the should have court below equitable the November, 1919, was owner year three-year period period instead of the ,of moving picture copyright the of all and covered the deeree. equita- rights story the as well as the and Fifthly, argue that award defendants the every ble owner of each and cause of aetion plaintiff profits of all defendants since of subsequently, accrued for 11,1926 years (three prior to the com- April upon the of such trust in and it was existence below), is court mencement of the suit in the of she was awarded all plaintiff that favor that, inequitable unjust, and and under profits picture that antedate of from the facts, circumstances, of the conditions and February 13, assignment 1929. of Both case, Copy- court, under 25 section it persons whose conversation as- right (17 25) Act USCA should § were deceased the trust at claimed created damages profits. lieu awarded sessed or the time of trial and neither them had interlocutory wholly (If af- deeree any given at any testimony relating time firmed, money recovery large, will gave any it. The witness substan- complaint alleges profits pic- from the tial evidence as to the existence of the claimed ture to have $2,300,000, and ad- answers agreement oral plaintiff, Mrs. mit $1,000,000. them to be The decree also Witwer, present who testified that she was at attorneys’ allows reasonable fees alleged conversation between her hus- staying bond execution pending appeal was band MaeLean heard the aforesaid fixed court $500,000.) trial at agreement. appears Nothing to have been done re- Finally, be- it claimed court garding or the until No- denying low abused its discretion defend- 1923, vember, when Fraser, William ground ant’s motion R. rehearing upon for Lloyd gen- secretary uncle of newly Harold motion discovered evidence. This Uoyd manager questioned Corporation, eral Harold alleged oral the existence of an of. arranged meeting Lloyd of Witwer at November, whereby plaintiff trust 1919, picture the latter’s motion studio. The three equitable copy- claimed title to the together purpose men went lunch for the picture all motion having Witwer, discussing prospect rights author, therein vested in the Lloyd although write for legal'title remained time, at that Lloyd Lloyd producing production make other (cid:127)and picture, later. was then before pictures occupied Taylor almost parts story. and was so continu- related to of Witwer’s ously August until lun- 9, Witwer, “The Emancipation Rodney,” and that at cheon, story having about written all times since 16, told November defend- Lloyd that he had ant Corporation, some time before stated officers, magazine printed. He agents, in which was and employees it, fully were in- Lloyd asked if he would like to read it. formed knowledge concerning and had full Lloyd said that he and invited Witwer the story, contents, subject-matter. would its brought copy during dine at home. Witwer Some July, time Mrs. Witwer magazine, containing story, to asked Fraser magazine for the return of the Lloyd’s 16, 1923, containing house on November that Witwer had deliv- evening gave Lloyd dinner, Lloyd. ered to Fraser her told it had been by him in purpose lost; of examination for would look for it around the might studio, whether days that it be determined order and in a few called Mrs. Witwer story for a write Witwer would her told that he had “hunted” for it all making. contemplated picture over the every studio and exerted effort to there is They get it, discussed the Witwer any- but had been unable to find it Lloyd at time Murphy direct evidence that where. also Mrs. told Witwer in evening it. He testified July, or afterwards read spoken that Fraser had to him opinion of the never read it. The magazine, that he had about the that he had looked judge acquits Harold Lloyd trial Lloyd’s it around the studio dress- knowledge plagiarism, although room, find- but was also unable find it. ings Physical preparation making and decree the eourt contain no below express August 11,'1924, determination. started on and until October 13, 1924, day the photographing that actual testified, however, that, Mrs. Witwer the Taylor, commenced, Lloyd, Murphy, John J. day following dinner, telephoned the Fraser appears Grey, who to have been a scenario Lloyd story, to her had the that read and “gag” man, writer or as he was called in the Lloyd that to the wanted to comeover Witwer Lloyd organization, and other members the of it, studio discuss and that Witwer to went Lloyd organization, planned, diseussed and day. over that arranged making pic- for the of the actual Lloyd testified that when he received the every ture. All of these witnesses and other magazine he 16, on November laid it on a person anything making who had to do days in the hall of his home and few chest picture the testified that had not read get it, intending it, later to to read went story production picture. before it was not there. synopsis There picture was scenario prepared, as their but, the result of confer- three or four weeks after the din- Within general discussion, typewritten ences and Lloyd’s home, Murphy, pro- ner at John Lj. picture outline of the was made Taylor, Lloyd manager Corpora- duction of Harold the chief director, and was used during the telephoned and asked him tion, to Witwer to making picture. This consisted of a Lloyd Tay- meet studios to Sam come to the sequences succession of into which thereafter (a charge writer) in sce- lor, who was during “shooting” the'actual pic- of the department nario towas be a director of funny episodes ture the “gags” or would be prospective college picture, discuss to developed interspersed picture. changes story. in the Mrs. Witwer further eight This outline consisted of or tfendouble- accompanied testified she her husband to spaced pages of typewriting. There were at that studio time and waited outside for several copies of it. The Taylor director about an hour while was Tay- Witwer inside. others also made rough additional notes' in lor production testified that before of the their handwriting sequences pro- picture Lloyd told him the idea of the Witwer posed picture progressed. work story. Taylor, later, request at of an at- plaintiff production made demand for the torney representing plaintiff, some time writings these below, eourt but none of trial, made a before statement that Lloyd, any them or writing, other or note, memoran- production before picture, of the had handed relating referring dum or containing to story him the for reading, he had any part story picture or the pro- was Lloyd Murphy discussed with pur- duced. story. chase of the trial At the he testified September Lloyd 1924, mistake, 27, statement was a On and as the result merely story. told him the Witwer The of conferences that going had been prior Taylor, trial eourt June, 1924, Lloyd, found that between Murphy, to Grey, and fully Lloyd 4, organiza- ber then or at a11 members of the but did not other staff substantially “The picture photoplay state or describe to him the tion, story for the was Taylor writ- agreed upon or the form or content thereof. Freshman,” and reduced to already were referred. The court that defendants ten outline which I have also found pro- six after actual materi- and would have This was about weeks not misled Witwer picture regardless anything had com- preparation picture for the duced the al agents approximately two weeks before or their menced them Witwer said oc- picture employees, defendants did photographing scenes and that rely upon any curred. statement Witwer Taylor Murphy. Murphy day, Taylor, and Lloyd, On that testimony of The defendants submitted come the studio. decided have Witwer picture dur- why was all those who worked just is not clear Witwer It photographing This day. of it. this actual to the studio on asked come testimony substantially picture that the However, between was and an interview came any at- Lloyd’s dressing produced planned and without place was four men took although was story, tempt and, the outline tell his at plot, asked Witwer room. Taylor, com- Rodney,” photographing prepared actual Emancipation of before by no menced, general condition means com- a befuddled it was was but Witwer developed as coherently picture either the was plete, discuss that his effort fruitless, place took production was physical or his action picture proposed min- a few without reference to or use meeting there lasted time however, that manner. clear, utes. group request Lloyd’s sketch did at “shooting” photographing or intelligently actually relate did completed on March episode Murphy, at least one after of it. and, already picture was first stated, accompanied meeting, place Witwer to September 12,1925. publicly exhibited about liquor obtained and where where more attorneys 2, 1925, On October for Witwer general talk and the further about Lloyd Corporation writing notified Harold men, price attempted it was the two sale plagiarism anything being accomplished. but without by the cor- steps demanded that be taken 4, following showing picture the of week, poration stop The and about October the telephoned accounting and Murphy again home also of all Witwer’s and demanded an Lloyd by and money him to come to the studio reason of the asked received distribution bring him there. picture. a rented automobile of the This notice was sent and release arrival, Murphy, Taylor, solely corporation his and Wit- Upon and no directed said Tay- proposed picture, the and any any discussed de- given wer kind was other notice of it had the of that he prior told outline com- filing lor fendant to the of the bill of Witwer that April time. prepared 11,1929. plaint the court below 26, brought 1925, On December Witwer Lloyd this second meet- present not at was superior of an some kind action the Tay- Witwer, but had discussed ing with Angeles county, of Los state of Cali- court advisability arranging of Murphy the lor relating fornia, production to the and exhibi- any photographing picture of the it before picture, of but the record is silent the Taylor purpose testified that commenced. the tion all de- as to the character of this action or meeting any infringe- this was of to avoid appear fendants named therein. does that might bring ment action alleged pleadings the court the state action Lloyd against Corporation use the story that the owner of the Witwer was not picture. of the the his material in At conclu- time. This state case was not further Taylor’s of his presentation sion of out- prosecuted Witwer, it was dismissed prospective picture Witwer, ac- line the days this few suit was commenced in before Taylor cording testimony of and Mur- to the the court below. picture, phy, stated that the The by Taylor, nothing -like his defendants continued to distribute disclosed picture further stray, fact, was better than and exhibit the without inter- it story, Lloyd that, they (the organiza- filing April ference this action on until years three tion) “gags” 11, 1929, use of the over and one-half wanted to first perfectly public picture wel- exhibition (Witwer’s) story, they “were length also time from the notice of so.” come do plagiarism. Taylor The related trial court found right The of Witwer institute picture on Octo- parts some of the to Witwer infringement Lloyd of the found that Corporation maintain suit for became copyright originally completely based expenses reimbursed for all complaint solely upon in the bill writ- connection with production, distribution, and assignment copyright picture ten exhibiton of the Feb- of the about March ruary 13, 1929, legal specificfinding the then sole There is no owner evidence or trial, and holder of During Inc., it to defendant Pathe Exchange, Witwer. actual- ly plaintiff changed theory anything making of the produc- to do with ac- tion, objections picture. finding and over of defendants in- The definite testimony relative troduced the of the oral trust of to such defendant that it and Har- November, 1919, equitable Corporation old presented, sold, and claimed own- ership copyright leased, picture distributed, for motion picture exhibited the rights allowed; from that date. She was also threaten to continue do so. objections defendants, over to amend appellee The brief paral- contains complaint by claiming equitable such owner- lels or language similarities of in the copyright ship of the and the find- Emancipation Rodney” and in the ings decree trial court sustain her Freshman,” novel “The that, states be- theory to recover the 1919 trust writing cause descriptive there is no assignment February well as under the picture, parallels are used and should be complaint alleged 1929. The infringe- infringement considered issue. ment of the story, of Witwer Although the novel has read, I think only by production and exhibition of the parallels properly that these cannot be used picture, publication also and sale comparison a basis of story1 between the picture novelization a certain writ- picture, First, for two reasons: because ten Russell Holman and distributed to ex- novel court, was stated the trial in the ploit opinion picture. of the trial opinion, infringe story, to not and there judge states that he did not consider this nov- nothing findings or in the interlocu el story, as an of the Witwer tory determining decree infringe it to be an findings merely and the of fact state ment of story; because, by and, second, evidence, partly received in and that it findings decree, a silent motion picture. follows the dramatic action of the picture infringing that is found to en specification opinion There is no in either the tity, and picture that are elements findings or the as to what of the dra- found copied to be are its fundamental theme matic action of the is held to have structure, characterizations, and se novel, been described or followed and quence findings are There no incidents. interlocutory decree contains reference arrangement that the words or verbal infringes novel determination that it copied titles of are the silent from the story. findings complete it is clear that are not. Under comprehensive, unnecessary and men- these circumstances, parallels the verbal be them in is sufficient tion detail. It to state story tween and novel are no criteria the court found concluded that and be considered. and cannot plaintiff interlocutory was entitled to the de- picture The was exhibited to this court in assignee copy- cree: Witwer That presence respective par- of counsel for the right properly maintained the suit for in- day appeals ties on the that these were ar- fringement, Lloyd and that Harold defendant gued, and from such observation of the Corporation, agents, officers, employ- its and picture comparison with the disregard ees, after full notice and in of the made. deliberately Witwer, will- rights of did and photoplay The consists of several reels permission, consent, or au- fully and without and contains thousands feet of film. It appropriate use, copy, and thorization, necessary picture see the motion in order reproduce, distribute, story, and did Witwer fully appreciate to observe and the similari- picture, picture, it in the and and exhibit ties and it and resemblances between the Wit- Freshman,” uses, appropriates, copies, “The story. prepared I have, however, wer a de- Emancipa- “The incorporates the and scription of both and so that I Rodney” parts substantial tion degree may point able some at least be that at all material thereof, and portions opinion out in this the features that I have Lloyd Cor- and Harold times common found to both. rights of knowledge of the full poration had Story. The production, proceeded with Rodney” Emancipation of is a distribution, and exhibition story. opens “scorn to honor” short with rights. The also court disregard of Witwer’s photograph kept This in the bot- buried colored he in which venerable introduction every night tom of his retir- trunk, and before employed of Hieksville man, caretaker secretly ing he resurrect admire College Hieksville, a vis- would it and Iowa, escorting it. college build- through campus itor through trophy ings. Briggs Hall, a going entering college, About a month after photographs of room entered in afternoon, Rodney, Sunday concluded bygone many athletic stars of of Hieksville’s “squander recklessly off in somewhere particularly days the walls. visitor line open surrounding Hieksville.” He country spec- tortoise-shell by picture attracted of a bought metropolitan in order to five dailies youth cap tacled, appearing studious thin, get complete sport sup- events and latest gown, proudly told, and is asks who it is candy plied himself with boxes several Benham, greatest foot- “that, sah, is Mr. Thing labelled in the World “Greatest college produced.” player yere ever ball Sportsmen In imitation and Athletes.” nonathletic, «es- Expressing doubt that according marathoner, pace correct for a guide referred thetic likeness was the one Manual,” jogged along his “Athletic he gazing he is is reassured that to, the visitor country covering a short dis- road, after gridiron greatest Hieksville’s star. stop tance he had to from sheer exhaustion. development then leads into rest, he Seeing an in which attractive field of its the reader how theme and reveals to “de- laboriously the road fence and climbed hero, Rodney, emancipate himself came to posited his tired form under first tree.” obscurity popularity scorn reading sporting sections, After all of substantially as follows: esteem, arose, hat, took off his coat, vest, college Rodney scho- entered his When took hip from his pocket a small book enti- appearance faculty stu- lastic deceived Box,” tled “How to and for the next fifteen former him as “a shin- dents. The observed minutes he administered to imaginary light that would startle the world with its opponent, a tree, what according the book brilliancy,” latter intellectual when the saw was lacing.” a “terrible Shortly after this “grind” nothing more than another contest he produced a memorandum book and faculty’s estimate, would meet but who wrote in “Boxing it: fifteen minutes.” would “tell” if were hazed. Another athletic venture him, and, seized “grind” because, unwillingly, He .was surveying locality to make sure he was notwithstanding bearing, his erudite he found unobserved, he removed his trousers and learning study difficult, only by hard proudly stood forth in the abbreviated ath- he able to the easiest examinations. His pass letic suit in which he photographed. had been burning appearances desire towas belie regaled attempted Thus nearby to clear a regarded as dull in the classroom, and his fence, and trial he fifth triumphed, greatest ambition was a popular college to be stumbling awkwardly on the other side. He athlete be called the nickname giggle heard away saw a few feet “the "Rod" being instead of addressed as “Mister Rodney being most beautiful had ever seen.” Benham,” but his appellation desired greatly fiustrated, abashed, and em- about as appealing to his fellow students as barrassed, and ran for the tree where he had addressing president as “Doe” left his clothes. In confusion it was would have been. difficulty finally that he attired himself. The girl Campbell introduced herself as Alice and to personify order his sportsmanship opened Rodney a conversation with desires, he outfitted and attired himself in sympathy showed interest his and both in garb, kept athletic bought, in his room, and propensities athletic as in per- well him studied numerous sporting publications, sonally. It was evident that this first meet- slang “fans,” memorized and in se- mutually sympa- curity was and the attractive of his room pace he would in front encouraged Rodney thetic attitude of Alice orally emitting ejacula- mirror to tions tell her unreal athletic as “He’s a a accom- bonehead,” out, “Knock him plishments. kid,” plaudits and others to the imaginary crowds. Rodney night quietude That in the of his room recounted the romantic events of during On one year occasion his freshman day regretted boastful stories when his to Alice varsity unconnected sport w'ith he capital because of her attractiveness also because big (cid:127)had inscribed a “H” in red ink on required the bosom his “X. Z.” he realized that he Y. underwear and would to dem- photographer had a her gone pic- to and had onstrate his athletic to pretentions his sports ture taken in approaching this simulated season at Hieksville. athletic uniform. 34' newspaper cor- all in secluded and burned co-ed, frequent visitor She, was while not a the ashes to campus, ner kicked professor college, father was at the as her ' defiantly Briggs Hall winds, walked to

there. that he where he assured that a notice himself annoyed exasperated the col- Rodney put there in the Captain had Jack Niles seen hy his lege two months for the next coaches morning posted. was was still This notice his demonstrate insistence for “a chance” to wanted chance to an invitation to all who inexperi- ability. They ignored this athletic University to get game with Gratton for, bought himself enced “dub” who had report that afternoon. sport mentioned particular uniform each resolution, hurried his Rodney, fired with get Finally, the “Athletic Manual.” report. tooff recogni- generalized demand of his rid period final just It was before coins matched tion, coaches the different game that annual football Hicksville-Gratton exclusively him. harried see who would berating was his of Hieksville let Rod- the coach had to captain lost The baseball eloquence playing “with charges for their as an unus- ney uniform sit on the bench any other cause have won These that would games. for several able substitute Legree would them until Simon having proved brow-beaten Alice good with efforts to make by com- man appeared well mannered deception fruitless, Rodney to the resorted was Hieks- The score Gratton parison.” legs bandaging his first his arms and then ville he was appear to make it disabled participate the sea- unable to and therefore a suc- resuming play, Hieksville Upon college athletics. plunge, son’s line pass, play a forward cessive some distance carried the ball and end run was revealed day, however, the truth One strong their de- territory when into Gratton great light.” A she Alice, “saw a further fense made Hieksville advance seem bitterest rival meet with track Hieksville’s hopeless. Wainright, quarterback, Then following day and for the scheduled signaled kick, which, however, for a Rodney kind of an in- display some had to play blocked Gratton. This unsuccessful inability appear in the his jury explain Wainright’s recovering the resulted ball bandaged hastily his arm left contest. He injuries Hieksville, it he sustained but in anxiously Alice whom to meet went being that necessitated his carried field off.the greeted campus. She coming saw into the game. and out of cordially him the band- glancing then Rodney had been on the players’ if the other seated sympathetically asked aged arm bench with unused forgotten substitute. Rodney ap- He had better. proached day the coach and was about to bandaged speak arm displayed roughly when coach caught deception, interrupted him, his before, being and, saying, Oh, “Heh? I bother confusion, you can’t and, by silent con- blushed, got now. We’ve four go, man, in- minutes to personation. This fake her his fessed to ” * * * Rodney’s and. changed indiffer- diffidence coolness caused a decided cident guard to defiance. He snatched a Rodney. nose likewise by Alice toward ence swinging a substitute the coach around to Rodney pseudo disclosed to life and rapidly exclaimed, “Somebody face him prompted forego pretense him to athletic go in signals; there! I know the I’ve naturally things. himself devote go for weeks; studied them let me in for ardently still desired to nevertheless restore Wainright and I’ll work a will beat himself in confidenceof Alice and make them!” popular himself so that his fellow students affectionately call him would “Rod.” acquiesced, Rodney The coach ran game out in the field and entered the reached, however, A crisis in his life was the rest of wonderment of the Hieksville Niles, captain when he learned that Jack forgot was so excited that he team. He eleven, Alice- the football had taken to a winning or signals. He knew no othеr kind fraternity hop. He locked himself in his pretext and he used the of know- play, of a analyzed his room, career, fictitious, found it simply get his chance to show a firmly change resolved and there to and then popularity. attain his stamina and his picture from the his it. He took trunk you on, dub! matter? What’s “Come big improvised suit with the crimson athletic day,” coming got all from his haven’t We up, shirt and tore then he on his also “H” enough his head to cause cleared teammates sport manuals and up all the the mem- tore signal “pass ball,” a for to remember in ‘which he had his orandum book cheeked called, and to the amazement of the he fragments wrapped which daily exercises, in a hung showing popular on the door motion a pass rest of team he from center took picture title, actor, Lester with the Laurel, ran regard and without his interference just right up regular “I’m a Step improbable and fellow. ball in unusual Speedy.” copies and call me the title one-yard Harold manner line where Gratton’s ain small on his bed and notebook. He sits tackled, he last a convulsive “with glances opens the manual, at an then spat athletic wiggle his dirt from body, tortured page showing “Tate Yearbook 1924” to way a goal his and over the mouth wormed his picture Trask, of Chester the most (Chet.) A. line, tackle with him.” dragging Gratton looks, popular college. man in As Harold try point The kick was successful for picture Trask’s score, likeness fades Harold’s game as the Hieks- was won. Just appears shown, place. in its Camp- Alice ville Gratton was saying, bell to her “Didn’t I tell turned escort rises, Harold Mr. Lamb enters the room. you it?” herself Rod would do She excused jig goes through step he a comical little edge “to escort, and, stepping to her he Laurel, learned and that has from Lester eyes” dreamy look in her the box” with “a popularizing a means of him- thinks will be congratulate “I —I Rod!” said: want go College. father turns to self at Tate The clumsy meeting gives a he Mrs. Lamb in a classroom of Hieks- The closes step opines days reproduction jig game. College after thé ville two college he actor at stop imitates the passing outside Harold group A students surely will open window and one them meet disaster. front of an Rodney is shouts, locomotive for Rod.” “A opening The of the fall term at Tate Uni- of the students and of admiration the center versity by. pietorialized is then showing the affectionately them as “Rod.” is hailed buildings stadium and ‍​​​​‌​​‌‌‌‌‌​​‌‌​‌‌​​‌‌​​‌‌‌‌​​​​​‌​‌​‌​‌‌‌‌‌​​​‍as as campus well a mo- realized and His ambition had been many boys girls arriving at the col- to be considered his twin ment later desire railway lege large A station. automobile dull class was achieved up when he stood depot draws pompous gentle- and a upon being question by asked professor alights. college man He is dean of the answered, me.” “Search dignified is as and described “so he never mar- call him ried fear his wife would his The Picture. college bullying first name.” A cad is shown The silent motion “The Fresh- newly freshmen, arrived and title describes designed convey man” is as a vehicle to to an upper bully him as “an class who Simon youthful audience comical pranks and an- Logree good look like a Samaritan.” produc- tics that all the characterize cinema Peggy, girl principal character in the Lloyd. tions Harold picture is then for the first time. She shown opens with a scene in the returning by train to home in Tate her (played by home Harold Lamb in the well-filled diner of “The seated boy age Lloyd), college entrance puz- working Limited” out a cross-word Tate spending $485 has and saved earned mon- waiting for her meal. Harold enters zle while ey College at Tate he is about to enter collegiate in his dress with the ear still clad parents discussing a freshman. His are the unearned block letter “T” on his sweater. go his thrift and effort to college. Mr. opposite He seated Peggy. table Lamb settled himself evening for an of com- trying observes her to solve the puzzle, and fort before radio receiving set. Harold, a thinking tell her the can word she is appearing pictured nonathletic youth, up- having wanting, but never met her before, he stairs in his room alone dressed in athletic hesitates do until he is reassured her attire awith red block letter “T” on the bosom smile. He submits endearing then several sweater, white his wearing tortoise shell “Dearest,” words Sweetheart,” and is spectacles standing before a mirror with a kindly looking elderly lady overheard megaphone vigorously sending into it sitting Peggy near who thinks lov- college yells imaginary concourse. His represented who is saying ers them: very collegiate appearance. room is Pen- “Isn’t wonderful to in love.” Harold ants, football, racket, college song tennis illustrated, embarrassed, and abashed and yell being displayed literature therein. His aisle, upset- runs down the confusion yells hearing father at first thinks that it tray, ting a colored waiter with of dishes. radio static in the later believes -picked up train reaches the recognizing China when station. heavily attempts platform voice he Harold on the laden son’s to hide his is with embarrass- fencing golf bag, foils, ukelele, goes upstairs racket, ment from Mrs. tennis Lamb to investigate. stranger. Peggy gives is a In Harold’s suitcase. He poster room a is party throng the but other- becomes all at the passes, a treated friendly wave she him a expense appear- sole of Harold. is his comical wise he unnoticed until college the cad the attention of ance attracts generosity This foolish has reduced Har- him. on who decides to a trick exchequer old’s to such an extent that it be- standing near a moved meantime, Harold has necessary comes for him to hunt modest liv- his pipe puffing and a passenger car man ing quarters he while Tate and at next window. lighted of the car match out throws engaging per shown a room week in a $3 at starts to on Harold’s sweater It falls plain-looking landlady, frame house. The the car win- The smoker leans-out blaze. upon showing room, apologizes him the slaps the back extin- on Harold dow soaped newly saying mirror and windows it is a thinking cor- guish the blaze. Harold daughter up that she would her to finish send slap on the greeting a similar dial bestows washing the shirt same. Harold’s has been standing near who gentleman of a back by the clawed at the auditorium. He kitten that he indignantly Harold informs turns and places. removes it and starts to mend the torn familiar fashion this saluted in all too Looking spot into a clear mirror he College.” this other than “Dean none entering Peggy with in hand sees broom bumps away embarrassed, Harold Turning They agreeably surprised, room. are both he has been as- asks him who into cad Peggy, hanging from noticing the needle college. to take him signed a car mending shirt, opera- finishes the tom directed to responding negatively, Harold, tion. nearby. As the parked that is car the dean’s is then paper “Tatler” shown disappears dozing- the colored chauffeur cad again in his room has eut and Harold alone obeys noticing ly go a direction without appears in the photograph out his own identity dean, passenger. of his paper awith title “Speedy, Spender. against fender, the rear leaning has been who frisky just regular This Freshman is fel- astonishment tumbles into the street in irate leaving empty who is low a trail of ice cream away it. as his ear starts with Harold dizzy popularity.” cones in his dash to He pins caption on this with its the wall stage up The automobile draws Trask, photograph under a the foot- of Chet “Tate for the an- Auditorium” entrance hero, and standing pic- ball before the two body, the student nual address dean secretly tures he admires them. surprise the chauffeur Harold parapher- his would-be athletic alights with Peggy is shown at her work in the check- sym- stage and is door He enters nalia. room of Hotel reads article in Tate. She crying cat by a mother pathetically attracted clipped picture, out the the “Tatler” and has stranded aon her kitten that has become cutting caption, off however. Harold en- pedestal stage. He climbs over the board ters hotel and surrounded students alighting he is but as kitten, and rescues flatter him the article. He thinks about raises the curtain in hand the kitten cad with appreciate they sincere are and does body student seen entire and Harold simply making of him. they fun While are walks off the laughable position. He in a appears they Trask outside talking, Chet told the сad should stage, togs except abrupt- cad in football speech make a to be the unless wishes most ly leave Harold and flock to the football hero. yields unpopular college. man in He tells The cad Harold that he can never be as warning, and, himself, nerving walks out on popular plays Trask unless he on foot- fencing fumbling foil, platform, with thereupon ball team. Harold manifests his gets empty electric shock from foot- determination popularity to thus attain ridiculously begins light socket, and mean- upon post his bringing upon fist down speech picture intersperses ingless which the unwittingly put high which the dean had funny with the kitten with incidents that in seeing Harold, upon silk hat. destruc- shoved Harold’s consternation he has un- wrought emphasis tion that finally looks at the der his sweater. He small quick escape, dean, dean’s hat made a notebook and concludes with hat, declamation putting comically the badly crushed actor, he had learned from the Lester lobby. walks out Laurel, applause amid tumultuous practice Football Tate field is athletic stage by a group He students. met back rough spoken with next shown head him “Speedy.” who all of students address berating telling coach his men them theii fighting points Trask, inviting group spirit. lack of He is next shown .observing man team proceed an ice that he is the treat, and, as cream spirit. real Tate enters the field group students, parlor, the invites other player through coach, gate he is patted unobserved the coach and the back togs and, by-gone suggesting spirit, Captain in “football era” reward his Trask position agree stay takes a near the coach that Trask coach to let him on the open gate coach, boy team leading left as water for Harold. The while him to think n dwelling upon still he qualities of real the athletie substitute. Trask, points to he thinks Trask is where Harold goes home from the strenuous standing actually in his Harold obso- “practice” ain taxicab. He is so sore and funny lete togs, saying, “There’s the man to slowly difficulty lame that it is with he yourselves model after! He’s worth more upstairs. Peggy, just crawls who over- has you than together.” the whole bunch A college telling heard the cad other students player trying prais- to tell the that he is coach of, fool hurries Harold been made a has away Harold is shoved Harold inno- home from tell of her the hotel to Harold cently accepts the unintended laudation. discovery, before has a chance to do she upon pulls a which Harold Some one blanket proudly her, “I interrupts so he informs he falls he standing topples him and as team,” has have made and she him, upsets support clutches the coach for He, limping, tell truth heart to him the then. arousing Harold from his ire. Trask saves pic- enters removes his Tatler the room and bodily wrathy coach, harm at the hands that of Chet position ture beneath from its jig, Lester Laurel whereupon Harold does his places Trask and instead it beside the football coach, offers shake hands with hero. reads in He then the latest issue of the his tells him he would like query step “Tatler” which as to student will team if he does not mind. The coach dis- year forward be the host custom- dainfully looks at inquires Harold and if he year ary Frolic, Fall last which event can ldck a football him and hands one to largely making contributed to Trask the most punt ato man whom the coach sends down p'opulár college. He ponders, walks man field to receive kick. Harold beckons the pictures, places over above two receiver further and further back and at- Trask, that of and later out invitations sends tempts the kick with the result he kicks Frolic body to the host to the Fall student the ball over backward his own head reading Peggy one Hotel is shown Tate. over the rear through fence. Harold runs out dismay, students expression gate after the ball which has rolled in laughingly peruse nudge, the invitations dog front aof A bulldog savagely kennel. another ridicule of Harold. guard rushes out and stands over the ball. party Harold orders a suit from a By a gets clever trick Harold the ball when tailor dizzy spells who is afflicted with bulldog slips his collar and takes after delay finishing clothes that on who barely dog through Harold beats the night party of the ball all the assembles gate. Inside drops he the ball and in his except “Speedy,” finally appears after picks excitement punching bag aup that is evening way was well under in the suit ground fastened to the jerks him back that been basted on account of the starts to run prac- to where the team is frequency dizzy and, spells, of the tailor’s ticing. Harold without then invitation lines emergency order render treatment to the up with the players practice tackling a accident, clothes in tailor, case of Mt in dummy. In turn he dives dummy for the hand, accompanies Harold ball. Then when holding the man pulls cord follow comical scenes in the ballroom de- away and Harold lands on his face in the saw- picting heroic efforts tailor to keep (cid:127) pit. dust He makes three tries with the same Harold’s clothes on. These scenes culminate result, the pulling third time the coach down in Harold’s pulling apart trousers and falling with 1dm. The coach, noting igno- Harold’s off while dancing he is girl. with a great inexperience rance and game of foot- embarrassment and confusion he runs into ball, orders get him “to stay out and out.” telephone shelter, booth for and, seeing a away backs to leave through the bellboy passing with a suit clothes over his gate where he the bulldog encounters still fe- arms guest, for a he reaches out, takes the rociously waiting outside. He returns, slam- puts trousers and them on. The cad ming gate on the bulldog, and is then has trying meanwhile been to force his un- utilized as dummy coach for tackling Peggy, welcome attentions on who has been practice by the entire team. Although very witnessing plight Harold’s and discomfort in roughly handled totally and almost the ballroom knocked from her check stand hotel out he has displayed grit duty. where stamina she was on Leaning out of the practice conclusion of the booth, trying Harold sees cad to kiss qualified thinks he has been a and accepted Peggy him, knocking rushes at follow in Har- Peggy’s gestures plays Several ludicrous ignoring cad, down. The ignorance to Harold old shows utter misunderstand- so, reveals and imploring him not to do college ing “the with one minute Finally, him as football. regard the students “kidding” left, him ever since man to Harold chases a Union State boob” and have been very goal Tate’s he him. college, and, out to Har- line where downs pointing he came recovering, fumbled, who are ridicul- The ball is and Harold in the ballroom old students madly humorously and the entire mimicking jig step sal- rims Harold’s and vainly length through players. tries Harold leaves. field utation, cad however, finally goal, He, Peggy. He is tackled near State’s unconcern Union to affect revela- dragging tackles with him over the the truth of cad’s but three is overcome entreaty by Peggy’s for he and is at line makes the touchdown seen tion, principally sticking up pile, and be true the bottom his head pretense off to throw malting showing the stu- with white his face covered getting out and himself naturally just gun announces the end of he chalk as the him for what dents like gust a, shows game. then Tate Union what he can do. A scene from its ex- picture blowing Harold’s of wind through crowd on Harold is carried into the picture Trask’s position above alted mates show- the shoulders his team face shows Harold’s wastebasket. Peggy, scribbles a note ers. As he she passes life, it indi- in his reached a crisis students are group of and hands it to A him. himself to alter grim cates determination earnestly trying (cid:127)shown jig learn Harold’s just says “There’s his conduct well as step. picture The closes with Harold so in- game get big in that one ehance left —if I ever reading you tent on “I Peggy’s note knew against State, I’ll show them.” Union proud. you,” could it—I’m I do love togs seen football seated Harold is next on the turns shower still in his tat- clad sponge bucket and on the bench near water tered suit. football substitute beside him. The an- with Tate embodies, colorfully The motion game Union State and between nual reproduces imitates, substantial and ma- are but thirteen minutes Tate is on and there parts terial of the Witwer that are nov- play, score Tate Union left with the el, unique, public and not found in the do- grandstand college cad State 3. main earlier literature. says girl companion, “Look sneeringly to his to, Both rеlate center still thinks he Speedy on the bench—he at in, and are built around the same locale and game.” Peggy, get in the chance to has a being fundamental theme. The in each locale mother, with her waves grandstand also in college major an American where football is During play members of Harold. activity, theme athletic and the basic in each rapid injured succession Tate’s team throwing being advantage in life of off ar- put game. into the substitute until the last being tificiality personation false only avail- injuries make Harold Other natural. Each has and concerns a similar only a few min- man Tate’s able on bench leading hero, male character called Harold, uninvited, starts out play. utes to Rodney Hatch Benham in the by the back commanded to the field but picture; in the each named Harold Lamb just “Why, we’ve been him, who tells coach college student who is hero is a lower class boy.” you, you’re only kidding the water — popular to be by an ardent desire dominated Harold, immediately dejected, sits down but and called nickname “Rod” in the defiantly gets clutching the coach se- “Speedy” picture; each hero is riously “You now! wasn’t exclaims, listen I body scorned the student and conducts working fighting— kidding! I’ve —and himself unpretentious college not as a normal got just you’ve give chance —and ” youth athlete; in imitation each is argu- ignores Harold’s it me! The coach ineligible inexperienced and for membership coming up to the coach ment and the referee teams, yet varsity athletic each one outfits enough time out that he has had tells him paraphernalia participation himself with at once or for- in a substitute and to send and, sports, although various game goes game. into the Harold feit athlete, engages team as an each one you teammates, old “Come to his and calls teams and causes practice with the to be your you mussing afraid Are women! clothing an unearned block inscribed you fight?” know Don’t how hair? actually although nonath- letter; hero, each untangle, teams play, and, putin ball carefully possesses letie, athletic manuals and the bottom and at is unconscious a mirror in yells before practices athletic but short- heap. put on a stretcher secretly«ad- room, and each game. privacy eyes back into ly and runs opens his tes- many discrepancies in the There are pseudo-athletic picture mires of himself in preparations timony of the witnesses as to the garb. annoys exasperates ath- and Each are the There production picture. is and persistence letic until each coaches the con- sharp as to recognized by to also conflicts in the evidence giving permission the coach story and college versations upon the athletic with Witwer about to sit bench of making of the being, during about the use during contests, the that of it team result picture. oppor- had better player, The trial court each hero a substitute believes he is tunity the rela- every to determine although one else knows that he is not than this court weight that tive and effect evidence only being and is tolerated. ap- given personally by the witnesses with the meeting of the hero first and below, peared testified in the court and story pic- and principal girl character in both plain or now, we in the absence should not by accompanied embarrassment and ture findings error, to disturb undertake obvious hero hero; of the each confusion, part on the upon conflicts in are made fact that (called Alice principal girl character tells International v. evidence. Gila Water Co. Peggy Campbell story and named F.(2d) 1; Corp. 13 (C. 9) C. A. Finance his unreal athletic achievements picture) 857; F.(2d) 9) (C. C. A. 19 Easton v. Brant girl thinks each and one believes (C. A.C. and Ætna Life Co. v. Geher Ins. girl in both college athlete. The is a real he story 9) F.(2d) 50 sympathy with expresses picture and and de- protestations hero his athletic thorough After a consideration of through girl in largely both sires and it opposing evidence and of two works as a ultimately story hero is picture and say findings whole, I cannot self-analysis as to a de- brought as well to a Lloyd Corporation, trial its' court - pretense and off sham throw termination officers, copied employees, sub- agents, and and be himself —to show his real character parts story and stantial and material spirit major fighting game and football reproduced picture, used them the are and year college of the with a traditional rival. supported by the evidence. story picture This in both and is sim- crisis considering whether there has been an ilarly disclosed. infringement, question Has is: there been persuades unwilling Each hero an illegal copying part a substantial aof game permit coach to him to enter the aat copyrighted validly work, not as matter moment, and, although crucial each hero is quantity, quality but of and value? by at the time held in scorn the team and does The series of I pointed incidents that have signals ignorant not know the of how and story out common both picture game play football, each hero wins the inconsequential are not immaterial or by running in the final moments touch- To contrary, they latter. part constitute by amusing improbable play down story picture. of the structure of the through opposing the entire team and there- readily appear true, as will from reading the by achieves his ambition to become the most descriptions, two aug- popular man in the com attains expanded mented and as well as interspersed gratulations girl and affection and the of the “gags” independent origin, with but these worship hero of the entire body. student incidents no means eliminate the common major story climax in both and picture is sub- They picture. features from the remain as stantially alike. part, least, of the central situation light In the the evidence that effect that the showed additions have had access some defendants story them to further dramatic effect in pic- conferences agents some changes ture. Such adaptation defendants and their are neces- sary author of the story in the visualizing relative to before an audience its prior contents use during of most short stories and do not in- evade production picture fringement of defendants them as long aas substantial because defendants produce failed to copyrighted copied manuscript, outline, writing incorporated other picture. The Circuit by them, satisfactorily Appeals Court of for the Second Circuit in show in the court considering below the originality adaptations effect of of short (cid:127)picture, I am constrained to stage believe that stories Dam v. Kirk La Shelle many substantial similarities appearing Co., 902, 907, 175 F. (N. A.L. R. S.) 1002, both reasonably cannot be 20 Ann. Cas. said: “The giving statute said have been independent- copyrighted coincidental or authors of works the exclusive ly conceived defendants. to dramatize them must receive rea- singular series in- these distinctive and sonably be whol- application, or it will liberal originated out, cidents just pointed that were ly we have ineffective. As uniquely stage copyrighted must described in his adaptation of a regarded property. cannot as common changes Few short additions. necessitate into dramatic stories could be transformed in evidence None of the stories or books many compositions without the addition incongruous, para- describe the contain .or copyright statute new Unless incidents. illogical doxical, situation a nonathletie any adaptation enough to cover is broad boy, inexperienced ex- in football to plot or theme the which contains regarded players tent him as coach and that wholly it is ineffective.” incapable participating game, in the and of rep- yet notwithstanding this status who, this in under picture consideration regular player, utation substitute over- from the merely take ideas appeal not does into a rides coach and forces himself the in story not permissive, which would bewildered, confused, forget- game, who, Hurst, 82, 174 U. S. fringement. Holmes v. unaided, runs to ting signals, practically v. 904; Kalem Co. 606, 43 L. Ed. 19 S. Ct. as in “The game, and wins the touchdown 20, 55, 56 32 S. Ct. U. Harper Bros., 222 S. Rodney.” The that Emancipation of fact 1913A, 1285; Nichols v. 92, Ann. Cas. L. Ed. story substantially the same structure 45 (C. 2) Corp. C. A. Pictures Universal only рicture events is found in the series of substantially copies F.(2d) 119. It concrete argu- any merit removes from defendant’s conceived, ar developed, that were forms ment of this consists standard- that situation shape by ex put ranged, and into college ized of there- forms stories nothing story. press the ideas This of original, wholly public fore within the not appropriation the of the intellectual than less domain. entity is the that product of Witwer which Dymow I on of conclude the this discussion branch by copyright Bol v. protected law. my appeal the with the statement that in 2) F.(2d) In other A. 11 690. (C. ton C. opinion the trial court not reverse this should literary is safe words, property the that on infringement, but, court the issue in not lie guarded appropriation from does contrary, the de- the find no error in should expressed that ideas se or diffused per to that extent. cree of court below in by literature, particular in form ideas are embodied in work Coming juris- now to consideration and unique. when such form is novel author questions in dictional raised defendants assignments their of error discussed There is a clear between this distinction brief, plaintiff their clear has first it is that where has case those the theme of position her relative to such issues modified generalized the author as include been commonplace incidents, decision since the trial and suit this events, historical Court. District characters, eases where it has been or stock right plaintiff based the to recover representation spurious held that February 13, profits prior from the infringe description an earlier event cannot trust of 1929, upon oral Novem- asserted Compare happening. Barba genuine upon assign- written ber, as well 881; Goldwyn (D. C.) F.(2d) 42 dillo v. covering that copyright ment of the (D. C.) Hal Roach Roe-Lawton v. E. Studios February 13, 1929, and the rec- was executed In F.(2d) 18 here 126. under con ord this court before indicates that was it being sideration, theme the basic true to existence of a relationship trust be- literature, has oneself, while old been con publishers, Smith, Inc., tween the Street & way cretely developed expressed in author, Witwer, the decree generis, that is sui this and in pecuniary plaintiff relief in- awarded for pietorialized by fundamental theme is fringements assignment. antedating the reproduction concept. substantial Witwer’s plaintiff’s in this the fol- briefs court many honor” There are “scorn to stories lowing are made statements : Emancipation Rodney” than “The earlier general following statement pertain ath- about and that center regard juris- position our the so-called romance interwoven letic life and have a questions appellants raised dictional A them. number were introduced in evi- complain- their brief: We contend have been con- dence in court below and copyright proprietor ant and the them, however, None of describe sidered. past infringements by owner all claims for unique sequence in- of connected contain assignment written virtue of present and sub- cidents in the Witwer contention, appellants’ “In stantially picture, answer reproduced in the the amendment July date of 9,1930, brought action can introducing trust, be- complaint the time copyright proprietor cause brought in a new cause that amendment did complainant the refusal and, (4) that action; reply enjoy status, we rehearing consider- grant a court trial past infringements assigned to sue for bearing alleged on the evidence ation of new assignment of 1929. the written If of discretion. trust of 1919 was an abuse as- appellee squarely on the “Since relies position of the were modified not for the signment copyright passing the imperative to plaintiff, would consider I right to including the existing rights, and all especially points discuss these past infringements, sue it is clear that suit. importance account their Smith, whatever Inc., Street no interest & controversy. We brought immediately are therefore or in this Ine., question Smith, is neither assign- that Street as to whether or not follows & necessary proper party February ment of 13,1929, nor a action. from the then sole legal copyright justified owner of the the pointed out that the previously “We have in awarding plaintiff profits court belоw to all right appellee’s oral trust is the of basis of the for acts of infringements. The writ- recover for such assignment. occurred before the date of ‘together assignment copyright of the ten general may The rule copyright might rights’ existing or which with all then assigned only by writing an instrument in the basis of existence, is thereafter come into signed by proprietor copyright, defi- appellee’s right and the court to recover Ledger 42; 17 USCA Publie Co. v. Post § nitely so found. Printing Publishing (C. 8) Co. C. A. 294 & “Appellee relying agree- is not on the oral 430, assignment F. and that a mere of a copy- independent ment as an source of title. She right vigore proprio does not ex transfer to squarely relies upon assignment 1929, of assignee any infringe- cause of action for pleaded original complaint, the. as- prior assignment. ments occurred signed copyright ‘together rights with all words, assignee In other before an of a may existing now or which in- hereafter come copyright infringe- can maintain suit for existence, except right magazine happened prior ments that to the transfer of publication,’ clearly passed which thus him, copyright writing that is nec- right past infringements. to sue for She essary copyright pro- to constitute agreement relies resulting oral prietor must contain explicit clear and lan- merely trust circumstances, prove as guage assigning causes of prior action for it must have been the intention of & Street infringements. United States Loughrey, v. Smith, Inc., when made the written as- U. 211,19 172 S. 153, S. Ct. 43 L. Ed. 420. signment 1929, all pass past claims for infringements. assignment The language question We claim that the reads: assignment used in the is sufficient of itself “Assignment of Copyright. any but if this, there be doubt as to we sub- agreement mit “We, of 1919 and the undersigned, the.sub- in consideration sequent parties, conclusively conduct of the sum of One Dollar us in paid hand show such intention.” receipt hereby whereof is acknowledged, hereby assign, do transfer, grant convey These statements present position to H. C. Angeles, Witwer of Los State of plaintiff appeals in these are tantamount California, copyright that certain taken out theory an abandonment of the trust aas day us on of November, 1915, the 20th reg- basis recovery any profits for the antedat- istered B, as Class XXc., No. 343424 assignment, and this altered situation Library Congress, Washington, being title necessity obviates the any discussion of Popular ‘The Magazine, Volume No. 38, 5, following points in the main brief of de- 20th, 1915, November York, Y.,’ New N. to- (1) fendants: That, since Smith, Street & gether rights all existing with now or which Inc., legal owner of the causes of action may hereafter into come existence except the for infringements prior assignment to the magazine right of publication. February 1929, 13, party, not a the court Smith, Ine., “Street & jurisdiction no prior over such infringe- George “By C. Smith.” ments; (2) that, independently juris- question, dictional Street & Smith, Inc., Leaving out of consideration for the mo- alleged trustee of the oral trust, question indis- ment to whether or not this pensable party; (3) that the period of the sufficient instrument is to constitute Witwer statute of limitations should “copyright be computed proprietor,” presence whose 42 (C. May of Juneau 846; County 38 F. any infringement indispensable un- suit is v. 244, Wis.) C. 30 8-25, as amended W. D. F. Copyright Aet, der the §§ 8-25-), (17 is clear there USCA §§ (C. May County C.) v. Juneau express action for transfer causes of later affirmed 241, 244, F. whieh decision was assignment. past infringements in this Supreme Court in 137 U. S. only clause, “together because Court, 729, the District S. 34 L. Ct. Ed. existing may hereafter rights whieh now construing assignment patent follows: existence,” appearing docu- come into right, interest, claims, and de- title, “All the any right recover ment, that claim of said the estate of mands whatsoever whieh by the past infringements made can be in, to, by, under, May, deceased, Edwin “Assign- assignee. entitled The document is improvements, and through the said explicit mention is Copyright.” No ment of patent thereof therefor extensions letters * * * ” instrument the title question said: aforesaid in- body action for causes of assignment with it the carries whether this subject-matter fringement. of the instru- infringements of action words, and the copyright itself, ment is the owner; May sole was the patent while Edwin “together existing,” are rights now with all and author- clear, principle it seems used, reference to the solely with strictly used language re- doеs that it not. ity, - copyright itself. future inter- present then fers patent, est in cannot construed My attention has not been called to rights to cover of action whieh accrued assignment case in which a similar during patentee infringements for his life- interpreted by courts, the and have I time.” by independent investigation. found none an however, many Lough are, ease, There well-considered v. In a later United States assignments 206, patent containing 153, 155, 43 L. rey, eases whieh 172 S. 19 U. S. Ct. judicially considered, May Supreme like terms have been cited v. 420, Ed. the Court “approval, say patent County supra, and I cases whieh construe Juneau, think with assignments affecting assignee’s right of land nor an as ing: “Neither a deed infringements past applica- are invention signment patent to recover for an carries for copyright prior scope right trespasses of this interpreting ble in of action for with it a assignment. rights are, of action infringements. Such by the statutes of assignable it true, now early Marsh, Moore case of v. 7 they only pass states, with but most 523, 37, Supreme Ed. 515, 19 L. Wall. where conveyance property itself “Grant that these views cor- said: Court explicit to that effect. 1 language is clear plaintiff unless the rect, clear that and it is Adams, 68; 12 Wend. Gardner v. Chit. Pl. re- can be action there can maintain the Wilson, 299; 103 Mass. 297, v. Clark Y.] [N. argument, plain for that a dress, as is too it Marsh, Moore v. Rep. 532]; 219, 223 Am. [4 grantee assignee can neither subsequent 37]; Dibble v. Au Ed. L. 7 515 Wall. [19 name, his own or be action in an maintain 86, 3,879; Fed. Cas. No. gur, 7 Blatchf. Mer maintaining it for patentee with the joined May 588; F. v. 11 v. riam Smith [C. C.] right exclusive any infringement of the eom7 241; County Kaolatype 30 F. Juneau [C. C.] pat- interested became before mitted Company v. Hoke 30 Engraving F. [C. C.] Undoubtedly assignee ent. thereafter 444.” place patentee, stands both as language in the eases think that I right patent respon- and future to under suggestive of a trans- just to is more referred great sibility ; suppose is a mistake to past infringe- of action for fer of causes assignment patent of a carries with that the assignment wording than the ment right damages to for it a transfer 11, 1929. February infringement assign- committed before such

ment.” contends, however, that, if it be Plaintiff language general used in the that the held See, effect, to Crown Die & Tool also, same sufficiently assignment is uncertain and Nye Works, Machine 261 S. v. Tool & U. Co. transfer to Witwer caus- definite to clear and 516; 254, 43 67 L. Ed. 39-41, S. Ct. infringements prior to Feb- es action for Loughrey, 206, 211, U. v. 172 S. United States by resorting to the as- ruary 11, 1929, then, 420; Herman L. Ed. 212, 19 Ct. S. between Witwer agreement oral serted (D. Shipbuilding C. E. Co. D. Detroit v. 1919, and a written November, MaeLean Superior 423, 424; Drill Co. Mich.) 295 F. by executed of trust declaration Ohio) 98 Mfg. (C. D. F. Ney C. N. Co. v. par- 1,1929, intention March about Y.) (C. 734, 735; v. Anderson C. N. Gilmore Emancipation Rodney,’ assignment pub- ties such causes to transfer was Popular Assuming Magazine lished in November clearly appear. action will for 20, 1925, assignment con- we find that the title ‍​​​​‌​​‌‌‌‌‌​​‌‌​‌‌​​‌‌​​‌‌‌‌​​​​​‌​‌​‌​‌‌‌‌‌​​​‍of this evidence dehors the should sidered, simply are was not mentioned, Popular think that we I that the evidence change Magazine. plaintiff referred cannot assignment not and that the does conclusion course, “As con- was, the intention was not intended to transfer Witwer vey only copyright cov- Mr. Witwer cause action ering eopies story, please the two return February copyright prior 1,1920. you give correct- assignment, and we will . early opinion eopies I mentioned at once.” in this ed establishing fact evidence attorney assign- return the did not 1919, agreement between Witwer November, brought Cal., Angeles, Los ment. it is claimed and MacLean which 1,1929, Angeles, and Mareh in Los wrote story was vested equitable acknowledging Smith, receipt Street & Smith, testi- Ine., Witwer was Street & assignment the corrected sent on It was mony Witwer. plaintiff, Mrs. February 14th, stating letter: in his memory entirely years after given ten Assignment of the entire issue of two men took between the the conversation Popular Magazine published November surprise completely as a place. Coming 20th, copyright was sent me during the rebut it defendants, they could not Washington officein for recordation immedi- correspondence trial, but between Witwer and ately receipt after its on February 13, me attorneys Inc., & Smith, Street at 1929. about when the time it is claimed the trust oral consulting “After authorities, amI created, just as well sоme before and assignment convinced -lesser might after the assignment obtained, months seriously jeopardize my rights client’s to re- subsequently discovered defend- infringement, cover for because a ants in New York used them on thé not divisible and it is doubtful whether the petition rehearing below, in the court assignment portion of a copyright of a val- us, that is in the but that I record before do for any purpose.” id necessary not consider to set forth in this attorney inclosed with this 1st Mareh opinion, at such Mrs. variance with Wit- letter the declaration of trust. The evidence testimony concerning wer’s the time and assignment shows that the obtained by the any agreement between terms Witwer and lawyer February 13, 1929, was sent from Smith, Ine., concerning any Street retrans- & Angeles Washington Los to for recordation by publishers to fer Witwer stories by attorney 2, 1929, another on March them, certainty sold to that no ex- that he had Washing- that it was received for record in agreement. any to ists relative such Under 7, ton on 1929. is clear Mareh It from the agreement circumstances these the claimed correspondence circumstances and surround- clarify the terms of the does not elucidate ing the execution of this declaration of trust 13, assignment February 1929. And less by solely that it was conceived at- Witwer’s assignment helpful of the to construction torneys subsequent to the assignment, and by plaintiffs for the declaration contended entirely that it was a unilateral instrument. by of trust executed Witwer 1, about Mareh any light If whatever is assign- shed surrounding circumstances its by subsequent ment these circumstances, isit genesis execution. The of this instrument is clearly to the effect that Ine., & Smith, Street interesting. February On then assign intended nothing to but the copyright attorney for Witwer & Smith, called on Street itself, only and that to a limited extent. Ine., City, York New and obtained from assignment. them pre- The document was assignment I think the was sufficient to pared by lawyer. this No other document “copyright constitute Witwer proprietor” day was executed that time. The follow- subsequently February 13, to 1929, so as to ing, & Smith wrote a Street letter the at- right invest him with the to maintain suit torney addressing York, him in New also infringements occurring after that date telephoned to him there. In the letter making without Street Smith, & Inc., party stated: action. reservation in the conclud- looking copy “In over the assign- assignment, of the words of the “except the copyright magazine you right publication,” ment of which handed retained in assignor convey rights intended yesterday, licensee, of a is, mere copyright in his our assignment, Mr. Witwer under construction of the ‘The 44 plain- unnecessary infringement thus reduced to whether party disposed by lan- tiff is entitled to award of all the point profits suit. This is well guage opinion the learned trial made the defendants. in the Inc., judge Smith, & follows: “Had Street plaintiff There is no claim reservation, conveyed and then without the damages actual been sustained or could have right maga- assigned had to it proved by infringement. be reason of the have a situation publication, zine we would alleged damages The bill no such and con- instru- exactly intended this parties as the prayer recovery tained no for the of dam- urged objection entirely free of the ment, and ages. a similar then, should Why, defendants. sought by complainant The sole relief result is accom- when the not arise situation injunction was an restrain defendants instrument in- by the execution of

plished infringing from ac- Suppose & Smith Street stead of two? counting prof- from each defendant of all the magazine publication right assigned the gains its picture, derived from the the in- executed party and then third some impounded that the films be picture reservation, omitting strument destroyed for reasonable attor- and also prior part of Witwer knowledge on the neys’ fees costs suit. possess then assignment would license, the of de- There are admissions in answers fact the same asserted does vice earnings large fendants that establish the hardly argued now, it would that Wit- shows profits and the record picture, from a ease would not have wer such profits about six these commenced infringement of maintain the suit for months picture after the was first commercial- * * * way relating copyright in ly period exhibited. took that of time for (D. C.) F.(2d) magazine publication.” recеipts picture recoup de- 792, fendants for the cost My to the con- relates final consideration $330,000. amounted to more than the broad award defendants that tention of that, damages claims Plaintiff because no the cir- is under profits all the sought by her, desired and that record in this case cumstances shown profits shown, equity court inequitable, and there- as to be so exorbitant grant circumscribed and restricted to or to allowed in lieu plaintiff should fore that deny specific monetary prayed relief relief as to the court pecuniary profits that, injunc- bill, as an inasmuch section 25 of the just under appear to be shall granted, tion restraining Aug. 24, Aet Aet, as amended Copyright necessarily plaintiff follows in ease that 25). (17USCA§ infringe- profits entitled from the to all interlocutory decree that part of the The damages in lieu ment and cannot be allowed re- profits awards accounting and an directs thereof. a full and “render defendant to quires each Copyright 25 of the Aet as far as Section complainant pay to the account and true any “If applicable it is to this case reads: the Witwer, administratrix as S. Sadie any infringe copyright in person shall the any deceased, all Witwer, of H. C. estate copyright laws of protected under the work and how- or nature whatever form profits of shall be : person such liable the United States by or received derived to soever accrued injunction restraining in- such (a) To an directly indirectly arising them, each of fringement. (b) pay copyright To the to any through or from source whatsoever from proprietor damages copyright such as the production, presentation, exhibi- the or out of may proprietor have the in- suffered due to of said lease or distribution motion tion, sale, fringement, profits as well which the as the Freshman,’ ‘The from photoplay, infringer infringe- shall made from have such present the day April, 1926, to 11th plaintiff shall ment, proving profits and in time.” only required prove to sales and the de- be every required prove ele- fendant shall be to My plaintiff that the has no conclusion claims, or in lieu of ac- ment he cost infringements prior to for recover to damages damages profits tual such as to February assignment 13, the date just, in appear shall to as- court be unnecessary further discuss makes it to 1929, damages may, in its sessing such court cross-appeal or the mone- question of the hereinafter discretion, allow the amounts as the decree that awards to tary feature * * * the case of the stated, and in profits any of the derived earlier plaintiff infringement undramatized or nondra- of an question picture. from the defendants pictures, by means of motion matic work recovery money amount of on the decision for 45 all the think exists this an award of case, not in infringer where the show that was shall infringement, al- profits resulting from an infringing, aware and that sueh bill, reasonably though only money in relief asked not could may injury disproportionate to damages be so foreseen, not exceed sueh shall * * * complainant damages in amount as excessive $100; sum of and sueh unjust. is clear that inequitable sum of to be It in other ease exceed the shall Congress $250, adequate- $5,000 less than sum of intended section nor be penalty. ly provide situations regarded But of these shall not as a both be exigencies of exceptions deprive the meet the foregoing not to enable court to shall remedy judicial copyright proprietor other each case the exercise of sound law, given awarding pecuniary the limita- redress him under this nor shall discretion in recovery in- in- apply copyright as in addition to proprietor tion to the amount of fringements occurring junctive after the actual notice relief. process defendant, service either (b) argues provision in Plaintiff upon other written notice served suit or exceptions foregoing 25, of section “But the him” deprive copyright proprietor shall not grammatical to me from clear remedy him under given other as from construction of section as well mandatory law,” on the makes it court it, equity an plain meaning of words in always complainant profits where award thereby court is discretion invested not alone and does seek asks for them granting copyright infringement cases damages. emasculates, show argument This monetary injunction to administer sueh not destroy, important does expres- just under appears relief the court to be as employed sion by Congress (b) earlier in particular facts and circumstances section, damages “or lieu of actual is also construction of section suit. This profits damages [italics mine] development substantiated when its historical court appear just.” Every shall is considered. arriving of the statute shall be considered plaintiff The claim of that the “in lieu” a proper it, and, construction of unless gives clause power in the section the court to necessary, interpretation renders award fixed amount where part meaningless suits should avoided. Con- damages sought, distinguished are gress from intended to make that, dear while the only profits demanded, those where is court exercise of sound discretion contrary ignores ordinary mean- arbitrary damages could fix in lieu of actual ing of statutory language, “in lieu ac- damages profits, proprietor damages tual and profits.” shall not reason such exercise discre- deprived tion the court be of sueh other Furthermore, proposition that a suitor injunction, remedies impounding, de- by demanding equity certain relief in an infringing material, attorney struction pleading can control the conscience of the fees, and costs provided that are thereby prevent en- chancellor Copyright Law. 17 USCA §§ tering equities of the decree that a case and 40. Sueh a construction the Copy- require impress forcefully. does right Act component renders all parts itof principle aptly correct stated in David v. effective and eliminates unnecessary in- (C. Wash.) 812, McRae C. 183 F. 814, as consistency provisions. in its follows: “The court is not restricted in granting equitable by relief the label which An examination of the of history section complainant adopts the for his pleading, nor 25 prior discloses that Copyright the by the phraseology may of his prayer, but Act statutory there was no direct authority render a decree for ap- the land of relief awarding for profits to a suitor in cases of propriate alleged facts proved.” copyright infringement of story by a drama- tizing it, and not until 1912 were I think it is motion unreasonable conclude that pictures photoplays specifically a suitor just is to be money denied made the relief un- subjects der this of simply legislation. statute sig- It because he does not nificant that at in his bill the same time complaint allege pic- of that motion damages, but prays only injunction tures provisions for an were classified the and an account- for ing of profits. Although arbitrary profits may damages fixed in lieu of actual dam- shown to by have ages infringer, profits infringements received in of undram- they may discharge be wholly insufficient to atized and by pic- nondramatie works motion the pecuniary detriment sustained tures were added section 25. This mani- complainant. theOn other fests hand, and as I an intention to deal with 46 may and stories ed but books a undramatized involving differ- pictures motion eases appropriated impunity.” re- be and used with employed with ent than manner had been instru- gard infringing to other earlier by Judge suggested Such a condition appar- was The differentiation mentalities. Noyes longer because possible, mo- time necessary, at ent and because express pe- terms of section 25 substantial and, silent, while pictures tion were cuniary for, although prof- provided relief is plagiarized plot or structure could damage its are disallowed and no actual can entirely cinema, was of an pirated or be shown. infringements lit- of than different character In Crowley, Turner & Dahnken 252 F. v. rea- It is drama. spoken erary works 749, 754, reviewing this was an court award Legislature national sonable infer damages of made by trial court under the when it framed in view had these differences paragraph (b) second of section 25 of 25 in section damage provisions arbitrary Copyright Act provides which for fixed for section allowances also made infringing copy allowance of $1 for each infringements unintended innocent and song that by, is made sold, found an in- there- intended pictures, of motion means fringer’s possession. complaint The asked enable that would enact statute injunction, damages. for an profits, and meet adopt processes to its equity to court proved was copyrighted song that a had been in- eases requirements concrete specific infringed 7,000 infringing copies were of suit- demands precise dependently of the infringer. possession found The ors. complainant $7,000 was $1 awarded Kirk Dam v. the case plaintiff cites The every infringing reversing copy. de- L. 902, 41 175 F. 2)A. (C. C. La Co. Shelle cree the “Appellee court said: offered no 1173, 20 Ann. Cas. (N. S.) R. A. proof of actual profits, loss or of but we discretion, had no court trial point that the gather testimony from the that at a retail nec- by was a profits award of price copy 15 cents a song granted injunction essary incident profit plaintiff would have exceeded Case La Shelle Kirk The below. court 8 cents per copy. If, therefore, plaintiff pas- before the in the trial court decided per copy upon received 7,000 cents Copy- sage present section copies possession found of Turner & time March Act on Dahnken, damage her total would have been provi- no such contained when statutes $560, which we think would be fair esti- authorizing contain now sions as mate. Plaintiff said she expected lieu actu- amount in fixed to award court authorized orchestrations song of her to be the earlier All of damages profits. al used, but did not use authorize of it as made were allowed profits had been which suits in by defendant. The allowance $7,000, jurisdiction equity general brought under per copy music, song $1 seems to methods with the historic in accordance $1 view that per been based Scribner, 144 (Belford v. chancery courts copy sum, is a fixed to be allowed under 514; 734, 36 L. Ed. 488, 12 S. Ct. U. S. infringement after circumstances of notice. 617, 9 S. Ct. Callaghan Meyers, 128 U. S. v. But, law, we do not so construe ap- be made 547), and cannot 177, 32 L. Ed. duty damages court to award brought under plicable to suit justified by the nature and circumstances authority in- express a statute that developed upon the ease as the trial.” equity power court plenary vested & principle of Turner Dahnken v. awarding discretion fixed dam- exercise Crowley the trial court un- discretion ages damages and profits. -of actual lieu der 25 to make an award section commensu- La inapplicability Dam v. Kirk Shel- rate with “the nature and circumstances clearly le suit is the to this shown Co. developed upon the ap- the as trial” is case (cid:127) opinion Judge of in the main statements suit, notwithstanding plicable to Noyes the in that ease follows: “Unless solely plaintiff profits is of in- demand profits all aris- complainant is entitled to the monetary solace as an incident stead of other production play, is, she from the ing injunction. no practical matter, pecun- entitled * * * facts, My that, under all the conclusion is If iary recovery at all. in case any circumstances, equities case, of this and present an author can not hold the like the inequitable profits the and award of all company trustee as his and ac- theatrical plaintiff. the not be allowed to Al- should play, profits from the countable for all the below that the though agree I with the court copyright- necessarily all it follows that then

47 tional for the from the word ly independently suggested by lay make the automobile the ice before actual Harold and Peggy scenes in the had with other the football them part tailor ever ment, I ly infringing picture, nection notice of “gags” episode hibition or he filed this suit in served the Harold scene with eat and picture nances planning ture are 11, 1929, lief to which ertheless, enormous and merit of dog, attentions Witwer denying after, and, commenced exploit mentioned tbe at their original The The dormant picture. first sequences of while tackling permission impossible puzzle scenes; ; state court about three sewing copies cream and the the the had told him making do not think that one is the counter- with to him an award of all the personality himself public inexcusable and production did to make a inextricably plagiarism consideration of profits might dizzy spells; about material expense other; story, distribution of matter and purchase the practice Lamb great purpose nothing game, Peggy material photographing treat conceived popularize dummy, and comic matters recurring exhibition of picture thereby true estimating interspersed plaintiff incidents; any segregation knew cad; possible to use story. three and buttons and in fact much of kitten; home; the court below expense. Lloyd sequence; from and for as well as Lloyd of scenes with in further to and the picture are the station intermingled the stretcher scene at many at least several powerful and has no relation dilatory be the inducing constitutes “gags” portions of commenced his Lloyd; jig step; relation to or immediately apparently picture Corporation accumulated the similar picture picture. the picture Harold’s organization entitled. substantial is true cad’s unwelcome dinner story. will be the auditorium ants, the sole of throughout one-half He had months there- fight great Lester the scenes of at monetary the of his many stop the picture, attitude it;of reason defendants sequences; in their the radio 360, should the profits the suit; infringe- appurte- with the episodes so as to present- between speech; no amount so that benefit Laurel hotel; inten- weeks cross- what- April given years value parts other after until bull- sole- nev- way con- pic- suit the Thompson ex- de- re- change, Inc., follows: “Under such representing, issuing, reissuing, selling, leas- upon them, and, in the admeasurement of the them, their the neys, claims of those who have lain idle while await- low as far as from man,” til ing, distributing, kind fact producing, tures or property tion plaintiff laches uted, tures or relief, it pecuniary liability of defendants, this fact is of, ants and that hibiting ed States Marshal to to him all ture films under Johnston v. Standard Emancipation require is that declared Harold Copyright corporations sented, issued, reissued, dramatization, tiff’s leasing, Corporation, importance service of for destruction, The See, and that picture. same to be energy motion pictures advantage that the conduct of rights.” was served Harold courts will given away, connection with and is of such character as to or producing, results principle applicable interlocutory also, Lloyd Lloyd, S. Ct. otherwise in whole from otherwise, ^[*] distributing, employees, and any part no Act positive ‍​​​​‌​​‌‌‌‌‌​​‌‌​‌‌​​‌‌​​‌‌‌‌​​​​​‌​‌​‌​‌‌‌‌‌​​​‍Co. presenting, and at the proper licensees, agents, ^[*] * picture photoplay orders defendants West or Lloyd Corporation, acting and Harold notice process recovering Pathe under imitation, or Pathe of this (C. produced, reproduced, of enjoins (17 585, 589, otherwise, look giving away, defendants’ control Rodney,” or prompt the complainant’s Publishing reproducing, presenting, developed or C. A. to direct attention to the and that orders the USCA § each under or Witwer exhibited motion the (b) with disfavor decree of the court be- Exchanges, portion expense in or Mining destroy complainant. development, giving away, and restrains defend- representing, selling, circumstances, negative from producing, sold, Exchange, given 2) this suit was of section 25 all the Supreme Uoyd, 37 L. Ed. assertion question adaptation persons, them, to this situation 25). servants, attor- leased, thereof in mo- Co. Edward through Co., of the defend- upon Harold to defendants equivalent or “The F. profits the motion motion Pathe Ex- v. exhibiting Inc., 148 upon Court colorable Inc., un- preclude firms, delivery courage causing each I distrib- or deliver Fresh- money repre- or plain- where there- them, S.U. think Unit- from pic- pic- will pic- ex- re- or in printed control of them pic- motion reproduced represented said or or any part photoplay ture “The Freshman” portion of portion any part or thereof, Rodney,” Emancipation attorneys’ and that awards fees costs should affirmed. interlocutory portions de- All other re- reversed, cree cause should pro- further manded to court below for ceedings foregoing with the inconsistent

opinion. BANK OF v. BOONE STATE ERHARD BOONE, IOWA, et al. No. Eighth Appeals, Circuit. Circuit Court April 21, 1933.

Case Details

Case Name: Harold Lloyd Corporation v. Witwer

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 10, 1933

Citation: 65 F.2d 1

Docket Number: 6398

Court Abbreviation: 9th Cir.