45 F.2d 119
2d Cir.
1930
L. HAND, Circuit Judge.

Thе plaintiff is the author of a play, “Abie’s Irish Rose,” which it may be assumed was properly copyrighted under section five, subdivision (d), of the Copyright Act, 17 USCA § 5 (d). The defendant produced puM liely a motion picture play, “The Cohens and The Kellys,” which the plaintiff alleges was taken from it. As we think the defendant’s play too unlike the plaintiff’s to be аn infringement, we may assume, arguendo-, that in some details the defendant used the plaintiff’s play, as will subsequently appear, though we do not so decide. It therefore becomes necessary to give an outline of the two plays.

“Abie’s Irish Rose” presents a Jewish family living in prosperous circumstances in New York. The father, a widower, is in business as a merchant, in which his son and only child helps him. The boy has philandered with young women, who to his father’s great disgust have always been Gentiles, for he is obsessed with a passion that his daughter-in-law shall be an orthodox Jewess. When the play opens the son, who has been courting a young Irish Catholic girl, has already married her secretly before a Protestant minister, and is concerned to soften the blow for his father, by securing a favorable impression of his bride, whiíe concealing her faith and race. To accomplish this he introduces her to his father at his home as a Jewess, and lets it appear that he is interested in her, though he conceals the marriage. The girl somewhat reluctantly falls in with the plan; the father takes the bait, becomes infatuated with the girl, concludes that they must marry, and assumes that of course they will, if he so decides. He calls in a rabbi, and prepares for the wedding according to the Jewish rite.

Meanwhilé the girl’s father, also a widower, who lives in Californiа, and is as intense in his own religious antagonism as the Jew, has been'called to New York, supposing that his daughter is to marry an Irishman and a Catholic. Accompanied by a priest, he -arrives at the house at the moment when the marriage is being celebrated, but too late to prevent it, and the two fathers, eaeh infuriated by the рroposed union of his child to a heretic, fall into unseemly . and grotesque antics. The priest and the rabbi become friendly, exchange trite sentiments -about religion, and agree that the match is good. Apparently out of abundant caution, the priest celebrates the marriage for a third time, while the girl’s father is inveigled awаy. The second act closes with each father, still outraged, seeking to find some way by which the union, thus trebly insured, may be dissolved.

The last act takes place about a year later, the young couple having meanwhile been abjured by eaeh father, and left to their own resources. They have had twins, a boy and a girl, but their fathеrs know no more than that a child has been bom. At Christmas eaeh, led by his craving to see his grandchild, goes separately to the young folks’ home, where they encounter each other, eaeh laden with gifts, one for a boy, the other for a girl. After some slapstick comedy, depending upon the insistence of eaeh that hе is right about the sex of the'grandchild, they become reconciled when they learn the truth, and that each child is to bear the given name of a grandparent. The curtain falls as the fathers are exchanging amenities, and the Jew giving evidence of an abatement in the strictness of his orthodoxy.

“The Cohens and The Kellys” presents twо families, Jewish and Irish, living side by side in the poorer quarters of New York in a state of perpetual enmity. The wives in both eases are still living, and share in the mutual animosity, -as do two small sons, and even the respective dogs. The Jews have a daughter, the Irish a son; the Jewish father is in the clothing b-usin'ess; the Irishman is a policeman. The children are in lоve with eaeh other, and secretly marry, apparently after the play opens. The Jew, being in great financial straits, learns from a lawyer that he has fallen heir to a large fortune from a great-aunt, and moves into a great house, fitted luxuriously. Here he and his family live in vulgar ostentation, and here the Irish boy seeks out his Jewish bride, and is chased away by the angry father. The Jew then abuses the Irishman over the telephone, and both become hysterically excited. The extremity of Ms feelings makes the Jew sick, so that he must go to Florida for a rest, just before which the daughter discloses her marriage to her mother.

On Ms return the Jew finds that his daughter has borne a child; at first he suspects the lawyer, but eventually learns the truth and is overcome with anger at such a low alliance. Meanwhile, the Irish famiM who have been forbidden to see ‍‌‌​​​‌‌‌‌‌‌‌​​‌‌‌‌‌​​​​‌​‌​​‌‌‌‌‌‌​​‌​‌‌‌​​​​‌‌​‍the grandchild, go to the Jew’s house, and after a violent scene between the two fathers in which the Jew disowns Ms daughter, who decides to go back with her husband, the Irishman tаkes her back with her baby to his own poor lodg ings. The lawyer, who had hoped to marry the Jew’s daughter, seeing his plan foiled, tells the Jew that his fortune really belongs to the Irishman, who was also related to the dead woman, but offers to conceal Ms knowledge, if the Jew will share the loot. This the Jew repudiates, and, leaving the astonishеd lawyer, walks through the- rain to Ms enemy’s house to sur render the property. He arrives in great dejection, tells the truth, and abjectly turns to leave. A reconciliation ensues, the Irishman agreeing to share with Mm equally. The Jew shows some interest in his grandchild, though tMs is at most a minor motive in the reconciliation, and the curtain falls while the two аre in their cups, the Jew insisting that in the firm name for the business, which they are to carry on jointly, his name shall stand first.

It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot he limited literally lo the text, else a plagiarist would escape by immaterial variаtions. That has never been the law, but, as soon as literal appropriation ceases to be the test, the whole matter is necessarily at large, so that, as was recently well said by a distinguished judge, the decisions cannot help much in a new case. Fendler v. Morosco, 253 N. Y. 281, 292, 171 N. E. 56. When plays are concerned, the plаgiarist may excise a separate scene [Daly v. Webster, 56 F. 483 (C. C. A. 2); Chappell v. Fields, 210 F. 864 (C. C. A. 2); Chatterton v. Cave, L. R. 3 App. Cas. 483]; or he may appropriate part of the dialogue (Warne v. Seebohm, L. R. 39 Ch. D. 73). Then the question is whether the part so taken is “substantial,” and therefore not a “fair use-” of the copyrighted work; it is the same question as arises in the ease of any other copyrighted work. Marks v. Feist, 290 F. 959 (C. C. A. 2); Emerson v. Davies, Fed. Cas. No. 4436, 3 Story, 768, 795-797. But when the plagiarist does not take out a Mock in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last ‍‌‌​​​‌‌‌‌‌‌‌​​‌‌‌‌‌​​​​‌​‌​​‌‌‌‌‌‌​​‌​‌‌‌​​​​‌‌​‍may perhaps be no more than the most general statement of what the play is "bout, and at times might consist only of its but there is a point in this series of Tons whore they are no longer pro-e otherwise the playwright could i of his “ideas,” to which, apart "ession, Ms property is never v. Hurst, 174 U. S. 82, 86, 19 S. Ct. 606, 43 L. Ed. 904; Guthrie v. Curlett, 36 F.(2d) 694 (C. C. A. 2). Nobody has over been able to fix that boundary, and nobody over can. In some eases the question has been treated as though it were analogous to lifting a portion out of the copyrighted work (Rees v. Melville, MacGillivray’s Copyright Cases [1911-1916], 168); but the analogy is not a good one, because, though the skeleton is a part of the body, it pervades and supports the whole. In such cases we are rather concerned with the line between expression and what is expressed. As respects plays, the controversy chiefly centers upon the characters and sequence of incident, these being the substance.

We did not in Dymow v. Bolton, 11 F.(2d) 690, hold that a plagiarist was never liable for stealing a plоt; that would have been flatly against our rulings in Dam v. Kirk La Shelle Co., 175 F. 902, 41 L. R. A. (N. S.) 1002, 20 Ann. Cas. 1173, and Stodart v. Mutual Film Co., 249 F. 513, affirming my decision in (D. C.) 249 F. 507; neither of which wo meant to overrule. We found the plot of the second play was too different to infringe, because the most detailed pattern, common to both, eliminated so much from each that its content went into the public domain; and for tMs reason wo said, “this more subsection of a plot was not susceptible of copyright.” But we do not doubt that two plays may correspond in plot closely enough for infringement. How far that correspondence must go is another matter. Nor need we hold that the same may not be true as to the charactеrs, quite independently of the “plot” proper, though, as far as wo know, such -a ease has never arisen. If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of Ms mis.tress. These would be no more than Shakespeare’s “ideas” in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must boar for marring them too indistinctly.

In the two plays at bar we think both as to incident and character, the defendant took no more—assuming that it ‍‌‌​​​‌‌‌‌‌‌‌​​‌‌‌‌‌​​​​‌​‌​​‌‌‌‌‌‌​​‌​‌‌‌​​​​‌‌​‍took anything a,t all—than the law allowed. The stories are quite different. One is of a religiоus zealot who insists upon his child’s marrying no one outside his faith; opposed by another who is in this respect just like Mm, and is his foil. Their difference in race is merely an obbligato to the main theme, religion. They sink their differences through grandparental pride and affection. In the other, zealotry is wholly absent; religion does not even aрpear. It is true that the parents axe hostile to each other in part because they differ in race; but the marriage of their son to a Jew does not apparently offend the Irish family at all, and it exacerbates the existing animosity of the Jew, principally because he has become rich, when he learns it. Thеy are reconciled tM’ough the honesty of the Jew and the generosity of the Irishman; the grandchild has nothing whatever to do with it. The only matter common to the two is a quarrel between a Jewish and an Irish father, the marriage of their children, the birth of grandchildren and a reconciliation.

If the defendant took so much from the plaintiff, it mаy well have been because her amazing success seemed to prove that tMs was a subject of enduring popularity. Even so, granting that the plaintiff’s play was wholly original, and assuming that novelty is not essential to a copyright, there is no monopoly in such a background. Though the plaintiff discovered the vein, she could not keеp it to herself; so defined, the theme was too generalized an abstraction from what she wrote. It was only a part of her “ideas.”

Nor does she fare better as to her characters. It is indeed scarcely credible that she should not have been aware of those stoek figures, the low comedy Jew and Irishman. The dеfendant has not taken from her more than their prototypes have contained for many decades. If so, obviously so to generalize her copyright, would allow her to cover what was not original with her. But we need not hold this as matter of fact, much as we might be justified. Even though we take it that she devised her figures out of her brain de novo, still the defendant was within its rights.

There are but four characters common to both plays, the lovers and the fathers. The lovers are so faintly indicated as to be no more than stage properties. They are loving and fertile; that is really all that can be said of them, and anyone else is quite within his rights if he puts loving and fertile lovers in a play of his own, wherever he gets the cue. The plaintiff’s Jew is quite unlike the defendant’s. His obsession is his religion, on wMch depends such racial animosity as he has. He is affectionate, warm and patriarchal. None of these fit the defendant’s Jew, who shows affection for his daughter only once, and who has none but the most supеrficial interest in Ms grandchild. He is tricky, ostentatious and vulgar, only by misfortune redeemed into honesty. Both are grotesque, extravagant and quarrelsome; both are fond of display; but these common qualities make up only a small part of their simple pictures, no more than any one might lift if he chose. The Irish fathers are even more unlike; the plaintiff’s a mere symbol for religious fanaticism and patriarchal pride, scarcely a character at all. Neither quality appears in the defendant’s, for while he goes to get his grandchild, it is rather out of a truculent determination not to be forbidden, than from pride in Ms progeny. For the rest he is only a grotesque hоbbledehoy, used for low comedy of the most conventional sort, which any one might borrow, if he chanced not to know the exemplar.

The defendant argues that the ease is controlled by my decision in Fisher v. Dillingham (D. C.) 298 F. 145. Neither my brothers nor I wish to throw doubt upon the doctrine of that case, but it is not applicable here. We assumе that the plaintiff’s play, is altogether original, even to an extent that in fact it is hard to believe. We assume further that, so far as it has been anticipated by earlier plays of which she knew nothing, that fact is immaterial. Still, as we have already said, her copyright did not cover everything that might be drawn from her play; its content went tо some extent into the public domain. ‍‌‌​​​‌‌‌‌‌‌‌​​‌‌‌‌‌​​​​‌​‌​​‌‌‌‌‌‌​​‌​‌‌‌​​​​‌‌​‍We have to decide how much, and wMle we are as aware as any one that the line, where-ever it is drawn, will seem arbitrary, that is no excuse for not drawing it; it is a question such as courts must answer in nearly all cases. Whatever may be the difficulties a priori, we have no question on which side of the line this ease falls. A comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Borneo and Juliet.

The plaintiff has prepared an elaborate analysis of the two plays, showing a “quadrangle” of the common characters, in which each is represented by the emotions which discovers. She presents the resulting allelism as proof of infringement, but jeetives employed are so general ¡ useless. Take for example the “love” ascribed to both Jev has depicted her father a to bis son, who is his hope and joy; not so, tho defendant, whose father’s conduct is throughout not actuated by any affection for bis daughter, and who is merely once overcome for the moment by her distress when he has violently dismissed her lover. “Anger” covers emotions aroused by quite different occasions in each, ease; so do “anxiety,” “despondency” and “disgust.” It is unnecessary to go through the catalogue for emotions aro roo much colored by their causes to be a test when used so broadly. This is not the proper approach to a solution; it must be more ingenuous, more like that of a spectator, who would rely upon the complex of his impressions of each charaсter.

Wo cannot approve the length of the record, which was due chiefly to the use of expert witnesses. Argument is argument whether in the box or at the bar, and its proper place is tho last. The testimony of an export upon such issues, especially his cross-examination, greatly extends the trial and contributes nothing whiсh cannot he better heard after tho evidence is all submitted. It ought not to he allowed at all; and while its admission is not a ground for reversal, it cumbers the case and tends to confusion, for the snore tho court is led into the intricacies of drama tie craftsmanship, the less likely it is to stand upon the firmer, if more naive, ground of its considered impressions upon its own perusal. We hopo that in this class of eases such evidence may in the future be entirely excluded, ‍‌‌​​​‌‌‌‌‌‌‌​​‌‌‌‌‌​​​​‌​‌​​‌‌‌‌‌‌​​‌​‌‌‌​​​​‌‌​‍and the case confined to the actual issues; that is, whether the copyrighted work was original, and whether the defendant copied it, so far as the supposed infringement is identical.

The defendant, “the prevailing party,” was entitled to a reasonable attorney’s fee (section 40 of the Copyright Act [17 USCA §40]).

Deereo affirmed.