*1 аre suf petition allegations of the on good faith to show lack ficient by evi supported part appellees of the filed petition No to the dence. answer Reiskind, Friend, Holbrook, & Cotton misapprehension by appellees, under (Arthur Friend and City New York S. for the Procedure Rules of Civil Reiskind, of New York Edwin both M. States, 28 U. United Courts District City, counsel), appellants. by 723c, adopted following section S.C.A. City York Mallard, of New William ofAct pursuant to the Supreme Court Wood, deGersdorff, (Cravath, & Swaine 1, 2, 48 Stat. 1934, 651, 19, Sections c. June Connelly, Bromley, R. Bruce and Albert 723b, applica are 723c U.S.C.A. §§ ap- City, counsel), for York of New bankruptcy. proceeding in ble to a pellees. court be- Argument was had before the as to facts MANTON, HAND, certain admissions L. Before respective parties, by made counsel for SWAN, Judges. Circuit were not reduced but these admissions record appear on writing do MANTON, Judge. Circuit upon appeal. unable We therefore infringement of is fоr suit controversy. of the determine the merits play “Depends on appellants’ copyrighted the Woman” written and before the record It follows that allegedly infringed mo- which is of Oc us the decree of the District Court picture Too play “I Dream tion entitled dismissing petition of the tober appellees in- have been Much” which the appellant According cannot be sustained. filming dis- preparing, strumental cause is decree is reversed and the motion, tributing. complаint On the bill of the court be remanded directions to fail- dismissed the court below for appellees a low to afford the reasonable to constitute sufficient filing time for of an answer and to ure state facts action, reading hearing ceed in order the issues cause No picture. viewing fact law be determined. offered; testimony it was other play. infringement of the no there was picture summary play and is- understanding of the necessary to
sues.
Woman”,
“Depends
In
on thе
opens
tiny apartment of
Luella
Clayton,
year.
married
Luella
Seymour
person, deeply
charming
vivacious
et
SHIPMAN
al.
R.K.O. RADIO
her vain and obstinate
love with
PICTURES,
Inc., et al.
among
Seymour
composer,
Seymour.
No. 131.
operetta
con-
things, of an
which is
producers
classical
sidered
too
Appeals,
Court of
Circuit.
Second
they,
success and which
stage
there-
be a
19, 1938.
Dec.
fore,
produce.
has
refuse to
however,
composition,
faith in his
be that
artist.
and believes
has
convictions on
He
definite
home;
wife; she should remain in her
outside
she should
interests
nothing to contribute
should do
to the
family.
maintenance of the
Fur-
financial
n
thermore, she should
in her
not interfere
Consequently, Seymour
work.
steadfastly refused to allow
Luella
has
steadfastly
just
refused
work and
suggestions
to his music. The
result
penniless
Sey-
almost
household.
reasoning
apply
does not
to Caro-
mour’s
Penrose,
singer
actress and cabaret
line
*2
sorts,-
place
acceрts her
Luella’s
when
refuses
be-
criticisms
Luella
to
and he
music;
music
composes some
unexpectedly
come
his
he also
his mistress. Caroline
Luella,
which, unbeknown to
for
for
her
Seymour,
in and notifies
soon
who
pays Seymour. Caroline
Caroline
appears to discbver
his wife and Den-
artistic
than in the
interested in the male
ton were
a
Struck
tete-a-tete.
protegee
Caroline is a
aspects
Seymour.
discovery
placing
possi-
this
worst
who,
producer
Denton,
Roy
theatrical
interpretation
ble
events, all
work-
favors, keeps her
in
for her
return
Seymour’s suppressed
emotions
worked
interest-
Luella and is
ing. Denton has met
him;
up within
he
denounces his wife
Seymour
see
ed in her.
comes to
Denton
whereby
bargain
strikes a
with Denton
operetta,
produce his
tell him he will not
to.
replace
Caroline is
New
in the
to
Luella
produce it
persuaded by Luella to
but is
premiere
though
York
operetta,
even
pos-
Luella, suddenly
reveаled
with
Seymour
knows Denton wants Luella
voice, as its
singing
sessing a remarkable
his
again
mistress. His hate for his wife is
in
Denton,
interest
Caroline’s
star.
like
product
Seymour’s rampant
egoism
physical
only in
Seymour, is
interested
suppression.
and its
The first scene of the
hopes to
career and
singing
side of her
premiere
poor,
New York
is so
because
course of
during the
his mistress
make her
misperformance
Caroline’s
singing,
offer
Seymour rejects Denton’s
her career.
in,
that Luella bursts
savе
determined to
sing
is to
his wife
when he discovers that
performance
for
her
role,
for
leading
Luella
in its
By
composer
playwright.
name as a
out
Caroline’s
herself when she finds
manager
with
connivance
Seymour
money payments
have been
to
theatre,
Caroline,
part
Luella takes the
family budget. Luella then
financing the
brushing away
opposition
of Denton
year’s session of
train-
starts on a
voice
Caroline
be-
amazement
her
ing.
huge
operetta
fuddled husband. The
is a
manager, Bradley,
success. The theatre
year,
sings in
end of the
Luella
At the
buys
Seymour,
out Denton’s
interest
per-
Seymour’s operetta
out-of-town
realizing
for
at last his wife’s
love
Seymour,
success.
formance.
It is a
suspicions,
him and
his
her innocence of
comes more
realizing
the success
Luella,
begs
outwardly
her
forgiveness.
performance
than from
his wife’s
undecided, appeals
on
to the audience and
music, is sullen
refuses to
neces-
allow
vote,
divided
deсides to take her hus-
sary changes in
construction of the
back,
band
and home. The
ends here.
operetta.
He is not a
but a hus-
picture story
“I
Too
Dream
banette;
a man but a marionette. Caro-
Much”
be stated as follows:
part
operet-
line Penrose has
small
in the
through
magnanimity,
ta
Denton’s
.
s.tory opens
in France in the home
badly
plays
she
Luella
Tito,
so.
determines
Tito,
an uncle
Annette.
agrees
be rid of her
services. Denton
musician,
carefully
trained Annette’s
rid the
of Caroline and
her.
cast
tells
With
very good
is a
voice
she
vocalist. She
wall,
Seymour
her back to the
Caroline tells
sings
aria, but
an Italian
she
restless and
that Denton
Luella
mistress
wants
for his
sound of music
from a street carnival
been,
as Caroline has
and that Luella cares
sing, yes,
excites her. She wants to
Denton; Seymour
unconvinced,
for
how-
young
wants
dance
she
men also.
ever,
wife,
really
since he
loves his
patience
plans
Her stern uncle loses
disappointment
himself
him
drives
into
morning.
her
in convent the next
a rage and he accuses his
of unfaith-
wife
room,
Annette,
night,
That
locked
her
intentions,
ful
which she denies.
escapes by
eventually
a window and
falls
continuously
plagued
he
Street,
young
on
American
Jonathan
poor
husband because he
alone is
Paris,
living
composed
who has
he
wage
earner. Denton demands that
opera
believes
be
best
ever com-
him
give
Luella
her love or
will
the show
posed.
intense believеr
John
Luella,
ability
in New York and
not run
who has creative
as a musician.
He is
sought
equally
believer
necessity
success
herself
her
intense
make
complete
successful, refuses,
freedom for himself
temporizes
is to
husband
he
composer;
a successful
but he
be
is fun-
Denton until
New
opening.
York
takes
loving too and
Annette to
temporization
unsuccessful;
the carni-
Den-
escape
learning of
ton,
with Luella in her New
val
from Tito’s
alone
York
excessively
apartment,
рut
He drinks
threatens
Caroline in house.
awakens
cept
good grace,
the situation
still be-
himself married
morning
find
next
sweet,
Annette,
young
lieving
opera
produced
Annette.
that when his
Over-
creature,
period
adores
totally
Throughout
naive
success.
John.
*3
ever
(“who
misgivings
coming
very
his initial
is
Annette and
much in love with
John
she
baby?”),
a
great composer with
Stormy
heard
with him.
scenes between the
quar-
and his
Paris
to
his
takes Annette
two are
until
that
unknown
hears
John
John
there,
and opera,
live
husbаnd
they
rejected
as
be
Europe,
where
is
ters
all over
to
very good wife to
sung by
only
a-
wife.
is
his wife
because
is financ-
Annette
she
John
thought-
production;
and
appreciates
ing
tempestuous
care
her
its
then a
and he
her
appreciate
fulness,
packs
belong-
he does
scene follows in
but
which he
his
music
working
ings
her,
on his
presence
declaring
is
and leaves
will no
when he
he
recrea-
longer
merely
for some
lapdog
and she
the rooms
be
a
leаves
to her success.
carnival,
for
sings
Annette,
she
Coming
pining
companionship
to a
tion.
for the lost
parts
boy;
husband,
from all
people coming
sing
a little
leaves
her
refuses to
and
’
stop
wildly applaud her voice.
night
to listen and
Paris the
is
in
sing
before she
down,
tumult,
hears
John, hearing
opera. By
coincidence she
a
takes
John’s
proud of
is
voice and
by John,
his wife’s beautiful
taxi driven
who has turned taxi
wait,
opera can
that
her. He
her his
A
tells
driver.
Dar-
reconciliation fоllows until
operatic stage cy
John,
be trained for the
she must
finds them. Then
remorseful be-
sing
day
in
she can
and
some
he
give
herself
cause
his
then
wife
she should
com-
opera
star for
goods,
away
life’s
drives her
to be
protests
wants
poser.
sings
opera
She
that she
indifference.
another
She
babies,
nothing
but
wife and have
arranged
of her husband’s
with
job
as a
gets
Darcy
revamp
opera
produce
but he overrules that
John’s
tours
On one
conductor
comedy,
tours.
it in Londоn as a musical
shrewd-
cafe,
is
Parisian
sur-
he comes to a
sensing that her husband needs some
singing. He
prised
By
keeps
find his wife there
she
success.
a ruse
her husband
is too
that
jail, arranging
loves her voice but thinks
it
in a Paris
release so
insists,
popular
only
that
good for
music. She
for
London
time
he can reach
paid
sing,
being
is
it is worth
she
since
show.
arrives
opening
of the
John
pay
singing
while,
success,
for her
a'comedy.
since that
is
is
but he
hears
Darcy, con-
producer,
lessons.
theatriсal
he considers to be
disgusted with what
cafe,
music,
stop
people begin
veniently happens
until
degradation
at the
sees
of his
composer.
and likes
does
His
congratulating
her. He
not hear
him as its
Annette
her,
for her
talking
commendation
singing.
wife also receives
her
While he
singing.
fine
leaps
,
frightens
mouse
Annette-
she
junc-
Darcy’s
this critical
into
arms. At
closing
shows
feverish-
scene
John
two,
ture,
Darcy
strikes
sees
Annette,
music,
popular
ly writing
while
John
eye. He forces Annette tо
blackens his
lovingly
stage,
from the
who has retired
says
up
singing and
he will find
give
baby.
changed
plays
has
John
pay for her
lessons. Annette
work to
one who
babies to one
believes
Darcy
to send
to see
who tries
maneuvers
indispensable.
they are
who believes
away, having
in her in view'
her
no interest
Palmer,
Daly
early
In the
case of
C.C.
eye.
finally
still
He
con-
blackened
S.D.N.Y., Fed.Cas.No.3,552, 6 Blatchf.
one
sing
number of
sents to hear Annette
infringement,
plays
a suit
both
for
opera
hearing
her
her
up
much
climax which
built
superb singing
amazed at
ar-
scene wherein the climax was
same and the
pre-
education
ranges for her musical
readily be
for
could
said
reached
account
opera.
Paris
He thinks
pare her
dramatic success of the
work.
opera and is not
music not
interested
John’s
concluded that
was the idea
only
John, but
voice.
in Annette’s
John
impression conveyed
to the audience
chagrined
opera
puzzled
that his
factor,
detеrmining
was the
which
voice,
his wife’s
thought
less
than
but
impressions
same,
were the
held
since
Darcy’s
hope
offer
Annette
From
bring
opera
may
by her success she
expected
be
would
would
the court
rule
public.
attention
Annette’s
idea which
in
was the
the author
pushes
into
dazzling
conveyed
success
the back-
should be
tended
John
only
known and then
court held that ideas are not
ground. He
little
tected
sequence
protected
he seems to
the star’s
ac-
events.
author’s
sеem
a railroad train is not
is the rescuer
This
the
ing
the
is
is
quence
property”;
that
by
which time
for we are
audience,
gation
same
mer,
viously
cy
to the
can never be determined
adequacy
by
audience
all playwrights”.
devices and
mediately
a climatic scene was common to both works bination of incidents was the characteristic
veyed might be due
of
whether the
Thus the
termining
33 F.
“common materials and common sources”.
because of
perception
hоwever
subject” or because both authors used teriality
how
artificial and
plication.
inconclusive.
expected
sidered
From this case
their
given
Daly
the
the court
of common
In Serrana v.
the
impression
variation,
some one
doctrine that
infringer
given
the various
was executed
authority gives
supra,
347,
regarded
spectators,
copyright
varies
author
peculiar arrangement. “Sequence”
what
sequence
impracticable
importance
impоssible
audience test is
ignored
that ideas are
before the
informed
consideration because of the in-
the
This
whether
hence what is
its
Webster, Cir.,
[1892]
conveyed
any degree
cases,
disappointingly
the
was
put
liability.
will be called an
identity
must
invariably
impracticability,
the audience.
courts,
Clearly
literary
this audience
“the common
old: there can be no
common
case,
incidents
stemmed the
if the
lower the
considered
ideas are not
of events
convey
Jеfferson,
using
[Page
lacking
the test was
by
that the
danger
be
held that even
task to
at
there was a
by
novel;
court in
the same
applied.
which set
but the
of
precisely
scene-
least
The more material
the “nature of the
capable
property;
though,
considering, in de-
the result that
effectuate,
“common
348.]
literary
varying
acknowledged
or
heroine rescuer
impression
in novelty
really protected
certainty.
advance
is;
from death
what is
idea
inacсurate
by
56 F.
novelty
lip
C.C.S.D.N.Y.,
devices,
separate
is considered
copyrightable
infringement
Daly
test,
ideas to
It would
modern
property
impressions
protected;
service to
this court
There the
developed
infringer.
it would story”
the same quality,
of rescu-
property
new test copyrightable
the
literary
perhaps
up,
identity ing
sensory
v. Pal-
be con-
had an
though
piracy,
novel,
would,
so as
pira-
used
able and we are told con- that “the order of
liti-
it is the
law from actually
ob-
se-
im-
ap-
an
of C.C.E.D.Pa., 125 F.
at
.plot, is
be “broad
theme
duced
The court
who
on a
details
comparison
shows
“an author cannot
exclusive control
story
ther.”
charge
slightly
panded
character
drama;
But the
20
production
the
story
the
of
of events” test
lustrated in Bloom & Hamlin v.
of both the “audience test” and the “order
Co.,
the
Daly
made
morality. The
a vaudeville
case, none of the
impressions was
that it was “the order of events” which
events in
the
what is
songs currently рopular.
conveyed
not be
S.D.N.Y.,