*1 696 rеpre- imposition cessful, ultimately in suc payment tax in accordance therewith which it was appraisal taxpayer’s its voluntary the the sented its own circumstance of liability. liability denial held and contest the was liability sufficient to render the uncer so taxpayer It in March that the was 1938 deprive tain and рayer tax indefinite as to the year tax the filed its income return for right the tax in the accrue capital for the it took deduction wherein a year for which assessed. See Dixie it was during taxa- the paid stock tax which it had Commissioner, Company Pine Products v. 1938, taxpayer year. April 27, ble the On supra. can be a de No less unwarranted for the Commis- filed a claim refund for which indis payment duction for taxa was not liable ground sioner the that it putably liability no existed. we capital in 1937. While for stock tax the having correctly The concluded Board brevity of time predicate nothing upon the question in a legally that the itеm was taxpayer’s income of its between tax return for 1937 filing taxpayer’s allowable deduction from refund for its claim and gross year income for we accord- it had capital for which for stock tax confirm and reaf- ingly former decision our deduc- lately claimed credit an allowable Ap- Tax firm decision of the Board of tion, give point the circumstance does peals. could be fact that before Commissioner oth- expected ordinary audit or course to return, taxpayer it- erwise consider the indirectly capital assailing the stock
self was in the re- taken tax which it had deduction turn. being for 1937 still The tax return by the open review being subject et MacDONALD v. DU MAURIER al. Commissioner, was well that he think No. 390. province disallowing legal within his payment of deduction claimed for the Appeals, Circuit Court of Second Circuit. the tax which capital tax 1937 for stock Aug. 18, 1944. taxpayer payer was not liable. That conclusivеly estab liable was was lished its claim for payment upon the allowance well within refund which was Commissioner’s available for the the time taxpayer’s income tax return review of the But, relating not a case of for 1937. reported complete a transaction back to a year, matter earliеr which occurred year. a later refund had no claim for been Even would, yet allowed, none or as made less, within have been the Commissioner’s review, open power, being return still payment the deduction for disallow liability legal rest for which there was no taxpayer. a upon the In order to isolate ing liability as payment accrual of a a or an completed year which transaction accrued, necessary that it is it made obligation taxpayer legal be under a payment at time it is made or for criterion, the basis of accrued. On Milling case Stanard-Tilton Co. recent Commissioner, T.C. -, which thе tax v. payer us, upon plainly distin urges seems liability a state tax Where guishable. taxpayer which denied the rested tax contesting its validity
69S *4 Rosenschein, Charles S. New York Arthur Rosenschein
City (Charles S. City, and York Ross, New both of Leonard Y., Schner, Brooklyn, N. Herman appellant. counsel), for City Bogue, Beekman & York New Hanlon, Stern, Edward (Benjamin H. K. Harry Buchman, York all of New City, aрpellee. counsel), HAND, SWAN, CLARK, Before L. Judges. *5 SWAN, Judge. infringement This is a for copy- suit of right. plaintiff, appellant here, The wrote story My a. entitled “I Planned to Murder published Husband” which was in Hearst’s Magazine ,1924 International for October copyrighted. expanded Later she the story into a novel entitled “Blind Win- dows,” published copyrighted in 1927. In appellee 1938 the published a book en- titled “Rebecca” Daphne of which Du- (named Maurier as a in the defendant present action but not served process) with was the author. The defendants, other not parties appeal, to this had to do with the production and of distribution a motion picture entitled “Rebecca” based book of the same complaint name. The infringement charging plaintiff’s story copyrighted and novel was filed on 15, September 1941. There has been no trial the action. After answering the complaint appellee judgment for moved pleadings. on the opinion In аn which ad- mirably outlines the stories of the two judge books the granted district the motion. unpublished opinion appended His is hereto. way Because case came judgment pleadings on—a molion on for only —we must not assume that the author charged infringing of the book had plaintiff’s copyrighted access to works actually copied parts but she those also that to Dellar common both. v. Samuel Gold Cir., Inc., 661, 662; wyn, 104 F.2d Col Metro-Goldwyn Corp., 2 lins Pictures v. Cir., 83, complaint 106 F.2d 86. The al large the “book ‘Rebecca’ is in leges that copied plaintiff’s story from” measure Upon judgment motion for novel. 12(c) of what evidence under Rule material or pleadings that about Procedure, her plaintiff produce support 28 U.S. as- Federal Rules Civil can allegation is- 723, and both of those following copying; C.A. section sertion plain- despite in the accepted appellee its denial sues the has must conceded be concession, forced as appellee’s Accepting that answer. Hence are to tiff’s favor. we suppose must, all in the to dis- that common material we that it error we hold was by copying two complaint. books was the result of miss the only author of an “Rebecca.” If so the not suit This that the does mean chаrge plagiarism swer to tortious Upon necessarily to mo must trial. go must be that the common was either matter for Rule summary judgment tion under public trifling domain or so as was deposition per supported by author’s opinion not Judge Bondy’s sitms to count. haps affidavit, by might it satis even be her up all, part, or at greater lеast factorily neither there established that plaintiff similarities which the asserts to for copying. access nor a motion But though may exist. Even some of them be judgment pleadings to on the asks the court fetched, example, far the reference to infringement with determine the issue of looking sentinels, many treеs like remain so precludes these facts conceded. This us that trifling the common matter is saying though from that “Rebecca” —even ignored. that Consequently can be it regard immeasurably superior it question comes down whether the au “Blind not have been Windows”-—could borrowing, although thor’s substantial respect borrоwed in the common ma amount, always was a “fair use.” That agree dispatch terial. While we question. troublesome In the case at bar desirable, litigation highly should supposititious borrowings are not pressed point where it be to the shuts out general plot outline of and character: adequate the mеrits. examination of opposed “expression.” in “ideas” as On any re expect Little as we other ultimate contrary they consist in a of con series *6 complaint, we dismissal of the sult than details, crete and incidents and if in fact prematurely think that it has reached been these were all plaintiff, borrоwed from the path. aby forbidden properly we cannot hold the that common Judgment reversed. matter was protection the outside of the copyright law. That indeed gives law no monopoly general ideas, authors, CLARK, Judge of (dissenting). but all, jealous of most ception will be that this ex expression by I that an this сourt of fear not rights. does swallow all their preference and a for full trial of formal infringement In an coming up suit plagiarism in in Dellar v. this issues Samuel Gold- way we judge unconsciously Cir., believe a wyn, Inc., F.2d though that 2 104 662— tends a summary judgment supported to make which actual there the re- the decision disregards the copying; сoncession being of when reached here1 —is sult below now reading a of the two pressed works a of it seems rule decision for this Cir- into unlikely cuit, which, from their deference, relative merits the with I con- that must common borrowed, contrary matter could have provisions, been is to the clude as as hold, the judge will quite spirit, without of the new saying well the civil rules as himself, even it opposed to admittedly that not it is realities as the borrowed. to deprive To this plaintiff thievery. do is to authorship literary the of his of and of court; day in and that is real simply the vice of be viewed as Procedure should a procedure the аdopted. here quite It justice, is not doing of as an end in it- means permitted true we that if something requires ourselves which to vindi- self or as judge perusal from our own results; respect of the books without to the cation and whether author designed the of “Rebecca” not'only had used rules to afford new were plаintiff’s literary material, the adjudication we and efficient of speedy should ac- have merits, also, little doubt that she did not. But we the but fair tions on wherever know about the nothing possible, disposition author’s access to and of cases without 1 doing In this case —as well as in Collins v. so.” What these cases were sent Metro-Goldwyn Corp., Cir., issue, 2 Pictures 106 back for was of decision another namely, “continuity” F.2d 83—the court held itself “in entire whether the sce- or judge’s finding that, presented accord with the even nario of the movie in rec- the though play actually reasonably synop- the took defendants from this ord was fair all in those matters film which the resem sis the film. it, they rights bles in were within their course, of the direction talk in terms trial. Of at that. —to expense of the and time say too, by was devised old demurrer” and demurrer, “admission to the common-law unnecessary Actual- copying that conceded. an stands avoiding here a means of as concеded; Nevertheless, at issue ly since it that we know not trial. formal us, the in is not we should found now before and only statement tacked up im either consider it decision exaggerate the bolster our pleadings, or it tended to in allegations way by which should bear to it. We reference portance technicаl rules, mind, us, too, before The civil that real issue now might conceal the merits. illegal writings, be in no similarity the merits therefore, that are insistent only merely presented them pleadings sense a formal one brought out and that necessarily by pleadings, that the ulti- kept subordinated to but is properly selves be can, howеver, be com- objective involving mate issue on the merits necessity. That upon parison writings insistence themselves. undue achieved without rules, all unlike trials. Hence formal therefore, issue, Confining myself, this to country systems procedural in earlier my bordering part I must it as consider summary remedy England, make fantastic, implying оn callous rather as a selected for all —not judgment available of, towards, real ness if not derision actions,2 intent the obvious few —civil skill, literary suggest that and talent ap screening of cases out trifling and coincidental similarities such disposition be should propriate for such microscopic two аs a examination parties judge and the trial by the made thought bring con books is out here be circumstances, particular light of the sharp weigh against sidered to at all arbitrary pursuant general than rather all differences between them in matters Moreover, other in common with fiat.3 viz., in intended really which should сount — interpreted 12(b) and Rules circuits have objective type appeal, of reader 6(d), with Rules (c), read in connection plot progres its fashioning 56(e), freely permitting as 43(e), and sion, conception in the and delineation of make real is affidavits to sure the use of story characters, in the climax of the court, just ¡ef as Rule are before sues plot, denouement of the and -in the summary judgment itself allows and, certainly part least, fectiveness at parties if choose —a pleadings alone literary skill with which the ob chosen fair, desirable, interpretation and rational plaintiff’s jective is reached. And as rules, explicit quite which is made story, magazine hardly earlier that alone is proposed pending amend certain of copied, obviously have been claimed to *7 Preliminary to the rules. ments Draft it not. In a manifest desire state to Proposed Amendments Rules of Civil to fairly, Judge Bondy the casе most em Procedure, 17-25, 65-69, May, pp. phasized everything which could be said for notes and cases cited. with therein process plaintiff of selection which —a perspective quite in results a overfavorable just short, plaintiff here had as free In plaintiff’s claims. Even on his state to the rely whether to chоice as defendants however, ment, dissimilarity I think too products literary pleadings and here controlling be and too to disre obvious accompany or dispute give them to which in sugges duty reject our garded, and to information to extensive court. more plain. of theft tion as upon purely to a formal сhose rest she Since hand, attempted specification we have an copying, with no allegation of On one study (in access, allegation success- psychoanalytical an too stands of actual which vogue publisher’s novels) of a recent by book ful imitation defendant denied through her childhоod and having girl young author not been served a (the answer marriage through her to unsuccessful lifting I it is self down appearing), think one’s married; previously might man as bootstraps wrong in the an older
'.by one’s —and Adm. feel texts expressed actual cause our Clark, [2] Not 3 decisive test justified Moore’s than Monographs, Summary Judgments, count only own recent by any because of Federal Practice more cases joining Dellar case for the other comparison Ser. experience this, A, means, disposed No. A. A.B. but also be- 3174, 3177; of the two preference shows I 5. do not meth- Jud. by by I would not od generally rience envisage, namеly, cumstances lied saying upon. general actually adjudication desirable; that of each admonitions are go demonstrates what the rules adjudication to the that by case must control and for to formal opposite particular me on motion trial. But our extreme be expe- cir- re- is runs expected, merely biography be closes on without climax until the book and sometime husband has died after the re- seemingly contemplates as heroine hand, to an earlier love. On the other turn superbly melodrama— have a fashioned told, true, sus- by second wife —of combined, pense cleverly wherе- and horror wife is the villain hero’s first unusual, sharp lead- denouement is book, directly with ing close having hero lost their home and heroine flames, hap- obviously but about to live marriages pily ever are too after. Second large a claim common to erect so I the courts small a foundation. beliеve encourage do disservice literature means, a trial with harassment which such tendency to force settlement obvious its be- just, it is but of the claim not because costly or contesting it has become too cause compel Here we now inconvenient. too publisher at least to seek аffidavits— safe, and, depositions— quite formal to be widely separated Eng- witnesses as as from California, Hollywood, all land present-day communica- difficulties of travel, tion and in order to reach end confidently can which we foresee and surely right I as now as quite reach later. procedural regret a failure of to see such court, when, particularly resources of the me, pro- it seems to the intent quite contrary. cedural to the rules *8 SQUIER,
McMULLEN Warden. v.
No. 10642. Appeals, Ninth Circuit. Court
Aug. 1944.