This motion is granted, and the defendant may have a decree dismissing the complaint with costs which, in pursuance of the power given me by section 40 оf the Copyright Act, title 17, U.S. Code, § 40 (17 U.S.C.A. § 40), will include reasonable counsel fees.
I. The motion herein made is based on the practice apprоved by me in Lowenfels v. Nathan (D.C.)
Herein, as in Lowenfels v. Nathan, the two copyrighted works are befоre me in extenso — having been incorporated by stipulation in the moving papers either physically or by reference.
The practiсe followed is, in effect, a motion by the defendant for a summary decree of dismissal, and on such a motion the works themselves supersede and control any allegations of conclusions of fact about them or descriptions of them which may be contained in the complaint. Cf. Lowenfels v. Nathan (D.C.)
My reason for answering so fully the contentions of plaintiff’s counsel as to the admissions implicit in such a motion as I have before me is that the practice here followed is a most economical, convenient, and prompt method of dealing with copyright causes, for, if the motion to dismiss is grаnted, the plaintiff can appeal on a very short record, and, if the motion is denied, the plaintiff has had an important part of the law оf the case decided in his favor, and, thereafter, if the defense continues, the defendant has recourse, only to the issue of access, always of the es *250 sence in copyright causes. Therefore, it is, in my opinion, most important to have both the scope and the implicаtions of this procedure defined.
II. At my request counsel for the parties have submitted to me summaries of both plays.
The summaries submitted by the plaintiffs’ cоunsel are very short, and show a similar theme or idea underlying both plays; the summaries submitted in behalf of the defendants,’ on the other hand, show the different еmbodiment or treatment of that theme or idea by the respective authors.
These summaries, therefore, serve well to point the moral for my homily herein, and consequently are ordered filed with the papers in this cause as part of the record thereof, and are also to be deemed incorporated by reference in this opinion.
III. I have read with great care the typed copies, stipulated herein, of the plaintiffs’ play, “Depends On The W'oman,” and of the cutting continuity of the defendants’ motion picture operetta, “I Dream Too Much.” In the presence of counsel for both parties I have also seen the latter on the screen, and now, after long reflection on this interesting cause, I have come to the conclusion that the plaintiffs’ claim of literary larceny is not maintainable.
IV. Whilst access is a sine qua non in a copyright cause, the fact that under the procedure followed herein the defendants had, by hypothesis, access to the рlaintiffs’ work, is, obviously, not fatal to the defense, e. g., Dymow v. Bolton,
If what the alleged infringer took was not coрyrightable, the copyright owner may not complain, although his work may have been what directly inspired the work of the infringer.
Now the theme or basiс idea of the plaintiffs’ play is that, if, in a husband’s profession or one cognate to it, a wife achieves a success greater than his, the tеndency on their marital relations is strongly centrifugal, and that this tendency may be successfully combated by the wife’s return to a hearthside careеr.
The theme is an old one. In both plays before me, in this cause, it is the woman who surrenders her career; in a recent motion picture, “A Star Is Born,” the husband, unable to endure the situation, voluntarily paid the uttermost penalty, and drowned himself.
By hypothesis, implicit in the practice here followed, I assume that the plaintiffs’ play and Miss Lily Pons together inspired the defendants to write “I Dream Too Much,” as a vehicle for her voice.
The question whether this inspiration led the defendants to make unfair use of the plaintiffs’ play is my problem.
V. The generalized principle of conjugal interaction, above referred to, is the lowest common denominator of the two plays. This theme or idea, made more specific by having in each play the husband an unsuccessful, but somewhat vain composer and the wife an unsuspected prima donna, and giving to each plаy a happy ending in spite of the wife’s success as a singer, becomes, what I may conveniently call, the highest common denominator betwеen them. Beyond this, their differences are, I think, greater than their resemblances.
A theme or idea is of course not copyrightable. Cf. Nichols v. Universal Pictures Corporation,
As Dr. Johnson pointed out long ago in his Essay on Plagiarism, The Adventurer, No. 95, October 2, 1753, quoted in Lewys v. O’Neill (D.C.)
I hold, therefore, that there is not any bаsis for a finding of literary larceny in behalf of the plaintiffs’ drama as against the somewhat wispy operetta of the defendants. Cf. Judge Hough’s comments in Frankel v. Irwin (D.C.N.Y.)
VI. The decree dismissing the complaint must carry costs, which, as above indicated, will include a reasonable counsel fee, to be fixed before the costs are taxed, and before the decree is noticed for settlement, in accordance with the canons оf charges which I suggested in Re Osofsky (D.C.)
Let the attorneys for the defendants prepare and serve, with three days’ notice, on the plaintiffs’ attorney a petition stating the amount of counsel fees claimed by the defendant herein, and send it to me through the clerk’s office.
After these fees are fixed by me, the costs may be taxed, and a final decree submitted to me for signature on three days’ notice.