Opinion · District Court, S.D. New York
Rush v. Oursler
Rush v. Oursler, 39 F.2d 468 (District Court, S.D. New York 1930)
- Type
- Opinion
- Court
- District Court, S.D. New York
- Jurisdiction
- New York
- Date
- 1930-03-28
- Topic
- general
THACHER, District Judge (after stating the facts as above). An ordinary observer of the three plays here involved would undoubtedly form the impression that they were of the same type and had utilized the same material — that is, a shooting in a theater and the solution of the crime. But no impartial person would think that anything of importance in “The Spider” had been taken from either of the other two plays. The differences in the plays are more striking than their similarities, which relate only to the actual occurrence of the murder, and not to the solution of the mystery. The inquiry always is: What, if anything,' has been appropriated; and then,, whether the appropriation was of copyrighted material and was substantial.
Citator
UpLaw has not yet analyzed Rush v. Oursler. The absence of a flag is not a finding that it is good law.
- Cited by
- 13 opinions
RUSH v. OURSLER, (S.D.N.Y. 1930)
39 F.2d 468
RUSH et al. v. OURSLER et al. FAYDER et al. v. LEWIS et al.
United States District Court, S.D. New York.
March 28, 1930.
Complaints dismissed.
In Equity. In these two suits, the same defendants, authors and producers of "The Spider," a successful dramatic production, are sued for infringement of several copyrights. In the first suit the plaintiffs allege infringement of a copyright issued to plaintiff Rush on a play entitled "The Murder in the Astor Theatre," and of a copyright subsequently issued to plaintiffs Rush and Hagen on a revision of the same play entitled "The Radio Murder," in which they collaborated. In the second suit plaintiffs Fayder and Kane allege infringement of a copyright issued to them on a play entitled "Eye-Witnessed."Page 469
In 1922 plaintiff Rush copyrighted a one-act play entitled "The Murder in the Astor Theatre." It was rewritten by Miss Rush as a two-act play in 1924, and produced in Hoboken, N.J., in March, 1926, under the title "The Radio Murder." This play was again rewritten by Miss Rush and her co-plaintiff, Hagen, and copyrighted by them as joint authors on September 8, 1926. In the suit which is brought by them they sue jointly, alleging infringement of both copyrights.
Fayder and King, the plaintiffs in the second suit, are the authors of a play entitled "Eye-Witnessed," upon which they obtained a copyright on June 1, 1926.
Defendant Oursler, in 1921, wrote a magazine story entitled "The Man with the Miracle Mind," which was published and copyrighted in that year. "The Spider," which was copyrighted April 21, 1926, was written by defendants Oursler and Brentano, with the assistance of their respective wives, as a dramatic development of the story "The Man with the Miracle Mind." In the writing of the copyrighted script of "The Spider" there could, of course, be no infringement of "Eye-Witnessed" or of "The Radio Murder," which were subsequently copyrighted. Infringement of these copyrights is predicated upon changes made in "The Spider" after they were issued.
In the story of "The Man with the Miracle Mind" (1921), Chatrand, a mindreader in a vaudeville show, as he is about to go on the stage, receives a threatening letter warning him to remain in the center and left aisles of the theater while giving his mindreading exhibition. He goes on the stage, and in performing his act passes up the right aisle among the members of the audience, requesting his blindfolded assistant, who is seated upon the stage, to identify the various articles which members of the audience hand to Chatrand for that purpose. As he approaches her, a girl seated in the audience snatches something from the pocket of her escort which she hands to Chatrand. The escort is enraged. Chatrand hands the object back to him, but turns and asks his assistant on the stage what the object was. As the answer is given, there is an altercation, and all the lights in the theater go out. When the lights go on, it is seen that the girl's escort has been stabbed, and she has disappeared. An Inspector of Police immediately takes charge and announces: "No one is to leave this place until I give permission. This is an order from Police Headquarters." Then, turning to another policeman who has accompanied him: "Herkle, go to the telephone and let the front office know that someone has done for Ace Thorne. Tell them to shoot some men up here. Make the ushers guard the exits until you get back." The officer then proceeds to question members of the audience in an effort to solve the mystery. After examining the dead man, he searches Chatrand, handcuffs him, and places him under arrest. Through a secret code Chatrand calls on his assistant to tell who committed the murder, and in the confusion and excitement which follows identification of a gentleman seated in the audience Chatrand escapes from the theater. The action of the story thereafter is in Chatrand's pursuit of the girl, with whom he is already in love, and his solution of the mystery.
In "The Murder in the Astor Theatre" (1922) the curtain rises upon a boudoir scene. The leading woman and the leading man go through their lines, she distractedly, her attention focussed upon a young man in one of the boxes, whose hand is bandaged — to conceal a gun, as it later appears. The leading man, in the performance of his part, aims and fires a pistol at the leading woman. Almost instantly another shot is heard, and the leading woman is mortally wounded. The police rush in. The young man in the box is accused of the crime and placed under arrest. Every one is directed to remain seated, and the ushers are told to lock all the doors. A doctor is called from the audience to examine the woman. Some one turns off the lights. A young woman, at first unidentified, is found to have in her possession the jewels of the murdered woman. The leading man is suspected, and loaded cartridges are found in his gun. A comic Irish character, Clementine O'Reilly, is dragged from the gallery to tell that she saw a shot fired by an unidentified man, who left by the fire escape when the lights went out. Suspicion is cast first upon one character and then upon another. The young lady who had the jewels is accused by the electrician of turning off the lights. She claims that this was accidental; that she fell against the switchboard. The mystery is finally solved by a confession over the radio by the man who escaped from the gallery, who turns out to be the husband of the murdered woman and the father of the accused girl.
In the deposited script of "The Spider" (April 22, 1926) a prologue is indicated, but the lines are omitted. A prologue had previouslyPage 470been written in which Harrington, the man subsequently murdered in the theater, and the girl accompanying him at the time, were identified as members of the cast. After the prologue, a page boy appears and places signs at either side of the stage reading "Overture." Harrington and Lorraine Lee enter the theater, and conspicuously take their seats in the fifth row on the aisle. The curtain rises, and a vaudeville act is performed. A page boy then announces "Chatrand Alexander." Chatrand proceeds with his act. Alexander, his assistant, is led upon the stage and seated facing the audience. Chatrand blindfolds him, and then passes among the members of the audience. The same "business" is gone through with as in "The Man with the Miracle Mind," but in greater detail. As Chatrand approaches the fifth row, Lorraine Lee removes from her neck a chain and locket, and attempts to pass it to Chatrand. Harrington, her escort, objects, but Chatrand takes it. Harrington, angered, demands its return. Chatrand asks Alexander what the object is. Alexander responds: "It is an object with a curious and bloody history. It is a medallion. It contains a locket. Inside the locket is —" Altercation ensues. The lights are extinguished. A shot is heard. Chatrand calls for the lights, and, as they are thrown on again, Harrington's body is seen on the stage near the footlights. On the top step of the runway is a revolver. Lorraine rushes to Harrington. Chatrand calls a doctor from the audience. The manager of the theater, with an inspector of police, comes down the aisle and the police take charge. No one is allowed to leave the theater. Estelle, a member of one of the vaudeville teams, is dragged on the stage by the electrician and accused of switching off the lights. She explains it was an accident, and that she had fallen. The inspector then proceeds to question Chatrand and others regarding the crime. The gun on the top step is identified as Harrington's but is found to be still fully loaded. A comic character, Mrs. Wimbleton, a member of the audience, who wishes to leave, is introduced. She is not allowed to go home. Estelle is again accused of turning off the lights, and makes the same excuse, which she elaborates with a comic French accent. Inspector Smith is relieved by Inspector Riley, who takes charge, and the usual portrayal of police investigation follows. The action discloses that the police are blunderers, and that Chatrand is the real detective. The copyrighted script discloses no treatment of the intermission such as was introduced before the play was produced.
In "Eye-Witnessed" (June 1, 1926), after the title page, there is printed the regular program with the names of five characters, and an indication that there are various others, followed by a statement that the action takes place in the Van Decker home in Westchester county late on a summer day. A complete program follows, with the note: "To be given with regular program on souvenir postcard in sealed envelope marked `Please don't open till play is over.'" The manager appears before the curtain, announces that he has received an anonymous letter of warning that something may occur to disturb the performance, and reassures the audience by stating that there is nothing to fear, that no one will be in danger, that he has turned the anonymous letter over to the police, and that detectives in plain clothes are seated in the audience and will remain throughout the performance. He indulges in a dialogue with a man in the audience who insists that what he has said is just part of the play. The manager replies that any one is free to take that view, but urges all not to forget his advice not only on behalf of the management but at the request of police headquarters. The curtain rises upon a study in a country home, and dialogue ensues in what appears to be a society drama, which is finally ended by a shot apparently fired from a box on the right. One of the actors is seriously wounded. The other actors at once make it clear that the shot was not part of their play. They reappear on the stage, out of character, with the manager, and two detectives — all crowding around the injured man. Detectives in plain clothes rise in all parts of the theater. One of them directs that the lights be turned on. (This must refer to the house lights, since the play was in progress when the shot was fired and there is nothing to indicate that any lights were turned off.) The curtain begins to descend, and there is an altercation between the manager and one of the detectives as to whether it should be down or up. The man who has assumed to take charge for the police orders everybody to his seat and directs that no one leave the theater until further orders. He sees to it that all the doors and exits are guarded. The manager finally calls for a doctor, who responds from the audience. The detective in charge begins his investigation. It is a tedious process of questioning in an effort to identify the person who fired the shot. Two persons originally seated in the box from which the shot apparentlyPage 471came are found to be missing. Search is made of the audience to find persons fitting their description. Several people in the audience are brought to the stage to be questioned. A systematic examination is made by the detectives of all the ticket stubs in the possession of the people present. A dispute occurs in the gallery between an usher and a lady who cannot find her ticket, and who is occupying a seat which the usher says was vacant when the performance began. A detective is ordered to bring her to the stage. She protests, but is brought notwithstanding, and is at last identified as one of the persons who had been seated in the box. The dialogue between the chief detective and the lady from the gallery continues, from which it appears that she has been divorced from her husband, admits her presence in the box, denies acquaintance with the actor who has been shot, and says she came to the theater alone, and did not know who the other man in the box was. Finally a man from the audience comes forward to admit that he is the missing man, and is the husband of the lady being questioned by the detective. From the husband's account it appears that he and his wife came separately to the theater on the invitation of the injured man, with whom the wife has had a clandestine love affair, but that he left the box before the shooting because his wife objected to his presence. Questioning the members of the audience, the chief detective obtains corroboration of the husband's story. Then the lights are put out by the police, hoping to catch some one fleeing in the dark. When they are turned on again, the chief detective continues his examination of the wife, from which is developed the fact that the man who has been shot was having a flirtation with a girl whom the wife jealously describes in vulgar terms, whereupon a girl who had also been seated in the box with a young man resents the remark, and explains that she knows the girl to whom reference has been made. The detective accuses her of being the girl, and the wife accuses her of firing the shot. The girl faints, and is carried backstage. The chief detective is called to the telephone, the members of the audience are told that they may leave their seats for a smoke, but the curtain is not lowered, the characters remaining on the stage. There is nothing to indicate that during this intermission any members of the audience are detained. When the intermission is over, the questioning continues. The six people who had occupied the box are requested to write their names, addresses, and telephone numbers, and a comparison is made of their handwriting with that on the anonymous letter received by the manager. The chief detective then takes up a tedious examination of the girl, who has recovered from her faint. She admits annoyance at the unwelcome attentions of the actor who was shot, and that she is the daughter of another actor in the play. She is finally accused of the shooting, whereupon her father confesses that he did the shooting by means of an automatic device which is found on a pillar near the box. The performance ends with the father's confession, the taking of flashlight pictures by a press photographer who rushes forward from the audience, and the thanks of the manager for the part that the audience has played in the performance.
"The Murder in the Astor Theatre," as revised and copyrighted by plaintiffs Rush and Hagen September 3, 1926, contains nothing new which bears any similarity to "The Spider" either in its copyrighted form or as it was produced, until the intermission, during which it appears that policemen are stationed at every exit, carrying out the orders of the inspector that no one is to leave the theater. Plain clothes men approach members of the audience asking to see their tickets. Suitable dialogue is provided, and at the end of the intermission the officers direct the members of the audience to return to their seats. None of the dialogue or action during the intermission has any relation to the plot of the play, except to continue the impression that the audience is being held under actual police restraint.
When "The Spider" was put into rehearsal, many changes were made, as is not unusual. The play finally opened in Albany. In a newspaper interview Oursler gives this account of the changes made therein:
"We opened in Albany and the play looked wretched. There were many mishaps. I left a sick bed to attend the Albany opening, and left the theatre that night heart-broken. The principal lesson which we all learned there, however, was that the audience, having been cast for a role in the play itself, resented being left out for the rest of the play. Conferences were held that night in which the leading actors, the authors, Mr. Lewis, the press agent and the Company Manager attended, and changes were suggested by everybody.
"I returned to New York the next day and in twenty-four hours, aided by Mrs. Oursler, had completely rewritten the script. Lewis put it into rehearsal. He suggestedPage 472many bits, changes, ideas, and a new version was shown in Springfield, Mass. It was terrible. Again a conference between John Halliday, the leading performer, Mr. Lewis and myself, and new plans were discussed I agreed to return to New York, make revisions and come back with the goods.
"I lunched that following day with Sam H. Harris at the Hotel Astor. He forbade my going back to Springfield. He preferred to lay off the show and get it right. This was getting on my nerves. We had started to rehearse January 2nd, had played almost three weeks, and still there was no play in sight.
"`Stay here in New York and work,' Mr. Harris said. `They can't disturb you here.'
"That following Sunday morning Mr. Lewis returned here and came to my apartment. The company had closed and nobody knew what would happen. Lewis and I faced each other, desperate. There was the real collaboration of the show. Lewis and I talked over scenes. He said he wanted to get back to the audience as quickly as possible. `Let's go to the dressingroom instead of the manager's office for the second act,' he said. `That's the logical way.' `Alright,' I said, `then let's take them from there back to the stage, and have a spirit seance — with the audience taking part.' He jumped up excitedly. `And the third act in the manager's office, and again back to the audience,' he said. `And repeat the crime,' I said. And thus it was, back and forth, until I jumped to the typewriter and he sat by my side and we set down the entire sequence of scenes for the second and third acts. In twenty minutes it was done. Then into a cab, we jumped down to the Astor Hotel and told Sam H. Harris.
"`Now you've got the show,' he said. He told me to take my own good time to write it."
This account of the revision and rewriting of "The Spider" is confirmed by the testimony, and I have no doubt of its accuracy. The most radical change in treatment was to create the illusion that Harrington and Lorraine were not members of the cast, and that the murder, in appearance at least, was a real murder occurring during a theatrical performance. This obviously necessitated the elimination of any prologue in which these characters were introduced as members of the cast, and for the same purpose two programs were provided, and police business similar to that in "The Radio Murder" was provided during the intermission.
Neither in story or plot nor in the portrayal of principal characters in action or spoken dialogue is there the slightest resemblance or similarity between the plays here in question. In the minor stock characters, policemen, manager, reporter, members of the audience, etc., there are similarities of word and action, but it is not deemed necessary to pick these out and catalogue them as the plaintiffs have exhaustively done with laborious effort to make much out of very little.
Joseph Sterling, of New York City, for plaintiffs Fayder and Kane.
O'Brien, Malevinsky Driscoll, of New York City (Arthur F. Driscoll and Benjamin Pepper, both of New York City, of counsel), for defendants Lewis and Harris.
Hays, St. John Buckley, of New York City (Arthur Garfield Hays and Alan S. Hays, both of New York City, of counsel), for defendant Oursler.
Paul N. Turner, of New York City, for defendant Brentano.
The inquiry always is: What, if anything, has been appropriated; and then, whether the appropriation was of copyrighted material and was substantial. Dymow v. Bolton (C.C.A.)11 F.2d 690. The interruption of a stage performance by a murder in a crowded theater of a person seated in the audience is a dramatic incident which per se is not copyrightable, and no one could by obtaining a copyright withdraw from others the right to portray such anPage 473occurrence in literary or dramatic form. The only right the owner of such a copyright would have is the right to prevent others from copying the form in which the author has chosen to dramatize such an occurrence for production upon the stage. It is not the content of dramatic or literary composition which is protected by copyright, but the form and sequence — "the incidental, yet essential, adornment and trimming." It is not the subject, but its treatment, that is protected.
It follows that all of the parties to this suit, regardless of priority in copyright, were free to write and produce plays in which one of the incidents was the occurrence of such a murder, whether they obtained the idea from one of the other plays or not. This being true, intrinsic evidence of similarities must be of doubtful value in the attempt to prove copying. When two authors portray the same occurrence, in the same setting, presupposing the presence of the same people in the same environment, acting under the same emotions, similarities of incident, unaccompanied by similarities in plot, are not persuasive evidence of copying. The authors having worked with the same material to construct the environment or setting in which the action is laid, such similarities are inevitable, and the products of such labor are comparable to paintings of the same scene made by different artists. Similarities in the one case are of little more significance than in the other. When in such a case similarities are found not in the plot or in its dramatic development or in the lines or action of the principal characters, but only in incidental details necessary to the environment or setting, there is no basis upon which to found a charge of plagiarism, and it may usually be said that such material is so unimportant and so trivial that its appropriation by copying, even if shown, would not be a substantial taking of copyrighted material. The unanimous opinion of the Court of Appeals in Fendler v. Morosco,253 N.Y. 281,171 N.E. 56(March 18, 1930), is an instructive application of these principles.
What has been said is a correct characterization of the evidence offered by these plaintiffs in their efforts to show infringement. For the reasons stated it is thought insufficient to show substantial appropriation of copyrighted material. The defendants have met this proof by positive denials, and have explained most of the similarities as the natural development of their own ideas in the writing and rewriting of "The Spider," which had its origin in "The Man with the Miracle Mind." It is true that in attempting to bring the audience itself into the dramatic action, and to create and continue the illusion of the occurrence of an actual murder during a theatrical performance, similarities in incidental detail were developed in the rewriting of "The Spider." These changes undoubtedly heightened and intensified the dramatic effect, and may fairly be assumed to have contributed largely to the success of the play. But in counting these similarities as proof of infringement there is double confusion — first, in assuming that in contradiction of the oral testimony they were not the natural and original development of a purpose to accomplish that effect; and, second, in assuming that the effect itself is something that can be protected by a copyright.
If in "The Spider" there is anything copied from either of the other two plays (a fact which I do not believe), it was of such insignificant and unsubstantial importance that it cannot be made the basis of a charge of plagiarism. Accordingly, the complaints in these actions will be dismissed, with costs and an allowance for counsel fees of $1,000 in each case.Page 473