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stating that plaintiff's allegations must be accepted despite the answer's denial of their veracity
Summary of this case from Juster Associates v. City of RutlandOpinion
No. 390.
August 18, 1944.
Appeal from the District Court of the United States for the Southern District of New York.
Suit by Edwina Levin MacDonald against Daphne Du Maurier and others for infringement of a magazine story and a book written by plaintiff and protected by copyright. On motion of defendant Doubleday, Doran Company, Inc., for judgment on the pleadings, the complaint was dismissed as against it, and plaintiff appeals.
Judgment reversed and cause remanded.
The following is the opinion of District Judge Bondy, in the District Court:
This is a motion made by the defendant Doubleday, Doran Co., Inc., for judgment on the pleadings dismissing the complaint as against it.
The action was brought by the author of the magazine article "I Planned to Murder My Husband" and the story "Blind Windows," for their infringement by Doubleday, Doran Company, Inc., the publisher of the book "Rebecca," by Daphne Du Maurier, the author thereof, and by the producers, distributors and exhibitors of a motion picture based thereon. Daphne Du Maurier has not been served.
All three stories describe the thoughts, experiences and mental anguish of a young girl who marries a much older man who had previously been married. Misunderstandings lead her to believe that the marriage is unfortunate. An unforeseeable event brings assurance that the husband had lost all affection for his first wife and actually is in love with his second wife.
Plaintiff's magazine article "I Planned to Murder My Husband" and the story "Rebecca" are told in autobiographical style by the second wife. The article is substantially enlarged and embellished by the plaintiff in "Blind Windows." It therefore does not need to be considered separately.
"Blind Windows" tells the story of Wilda Garnett who was brought up on a plantation in Louisiana. At the age of 16 she is introduced by her childhood companion, Ned Turner, who loves her, to Vallon Dupré, a Creole of French descent, 35 years of age, who had divorced his wife. Resenting the intimation by Ned's mother that Wilda is interfering with Ned's preparation for a career which his mother has chosen for him against his will, Wilda tells Ned's mother that she intends to marry Dupré. Notwithstanding that she loved Ned and that her father cautioned her against marrying a much older man and drew her attention to the differences in temperament and character between the Anglo-Saxon and the French, Wilda and Dupré became engaged. She decides to marry him not because she had any real affection for him but principally because she had stated to Ned's mother that she would do so and had promised Dupré to do so, impelled by the Garnett family trait never to violate a promise or revoke a decision. The marriage is hastily arranged so it can take place on the plantation which financial circumstances compel the family to abandon when the cotton gin is destroyed by fire. After a wedding trip spent in New York, Dupré takes his wife to his home in New Orleans. From the day of their arrival misunderstandings arise between them. They grow worse from time to time, and Wilda soon realizes that she has lost her affection for her husband. Being opposed to divorcing her husband she thinks of leaving him. She tells him that she intends to do so after the birth of her child, of which, in a fit of temper, he intimates Ned to be the father. When the child is born Dupré by threatening to kill it, exacts from Wilda the promise that she will never leave him, a promise which she can not break in view of the Garnett family tradition. Separation as well as divorce now being out of the question, the thought comes to Wilda that the only way in which she can free herself from her husband is by murdering him. Wilda gives a ball which she intends to be a farewell party and to be at least as brilliant and memorable as balls given by Dupré's first wife. One night soon thereafter she dreams that she had killed Dupré. Awakening with a scream, she relates her dream to her husband who regards this dream as a clear manifestation of her love for him, and he reveals to her that his first wife was flirtatious, that he procured a divorce from her by questionable means and that he loves Wilda. Realizing that Dupré is sick, Wilda nurses him faithfully through his long illness during which her child dies. She meets the first wife, who appears different from what she had visualized her to be. Dupré, when apparently convalescent, persuades Wilda to visit her family. Parting, she kisses him voluntarily. Overwhelmed, and believing this to be an indication of her love for him, he releases her from her promise. She had hardly left him when he dies. Soon thereafter Wilda and Ned, the companion of her youth, who have always been in love with one another, meet and are happy again.
In "Rebecca," Mrs. Van Hopper while at Monte Carlo introduces a young girl, 21 years of age who is serving as her companion, to Maximilian de Winter, a man 42 years of age who is the owner of the famous Manderley estate, in England. It is generally believed that his first wife lost her life by drowning. Illness of Mrs. Van Hopper enables the young girl and de Winter to meet frequently. When Mrs. Van Hopper suddenly decides to leave Monte Carlo within a hour to go to America, the girl goes to de Winter, whom she loves, to say goodby. He gives her the choice to go to America with Mrs. Van Hopper or to Manderley as Mrs. de Winter. After a civil marriage and a wedding trip to France and Italy, de Winter takes his wife to Manderley. There they are greeted by servants who had been employed by the first wife. Among them is Mrs. Danvers, the housekeeper, who welcomes her with a look of resentment, which the young wife believes is due to her appearance. The house and its environment and the reference by de Winter's relatives, friends and servants to the gayety, charm and brilliance of Rebecca make her mindful of the former wife and create uncertainty in her mind as to whether her husband loves her. Finally Mrs. de Winter decides to leave her husband whom she loves and who she believes does not love her. At the suggestion of the resentful housekeeper Mrs. Danvers, she wears at a fancy dress ball a gown copied from one of the family portraits. When she appears in it her husband becomes enraged and orders her to dress in an ordinary evening gown. Bewildered and frightened she is confirmed in her belief that her husband does not love her. Danvers is elated at the success of her scheming. It is not until de Winter's sister tells Mrs. de Winter that she learns that she wore a gown exactly similar to that worn by the first wife at her last ball. The next day Danvers tells her that de Winter does not love her, that the spirit of Rebecca and not she is mistress of Manderley. As Mrs. de Winter is about to follow the hypnotic suggestion of Danvers to jump from the window and thereby end her life and rid Manderley of her presence, rockets disclose the grounding of a ship in the bay. The harbor master informs Mrs. de Winter that a diver, while examining the stranded ship, discovered Rebecca's boat intact and a skeleton locked in its cabin. Thereafter, when alone with his wife, de Winter explains the reason for his strange behavior at times. He tells her that the body in the boat is that of Rebecca, that Rebecca was sexually promiscuous, that she violated her promise to keep Manderley undefiled, and that knowing how attached he is to Manderley and that he would be too proud to institute divorce proceedings and thereby let the public know his wife's true character, she told him that if she had a child, even if it were the son of another, it would become master of Manderley, that thereupon he shot her, placed the body in the boat and sank it in the bay, that thereafter he falsely identified the body of another woman who had drowned as that of Rebecca. He explains that he did not love Rebecca and loves only Mrs. de Winter. The facts that the cabin was found locked and the sea-cocks of the boat open, lead to a finding at an inquest that Rebecca committed suicide. A lover of Rebecca unsuccessfully endeavors to blackmail de Winter by producing a letter from Rebecca asking him to meet her the night of her death. Fortunately, however, Rebecca's diary reveals that she consulted a physician in London the day of her death. He had informed her that she was dying of cancer. As a result, the suspicion against de Winter is dispelled notwithstanding the letter. When Mr. and Mrs. de Winter drive home, a glow in the sky discloses Manderley in flames. Mrs. Danvers has fled.
The stories are different. Wilda has self-assurance and is willful. Mrs. de Winter is exceedingly shy and submissive. Wilda eventually hates her husband and thinks of ridding herself of him by murdering him. Mrs. de Winter actuated by love thinks of ridding him of herself by killing herself. Dupré is vain, jealous, suspicious and temperamental; de Winter is not temperamental. He is not disclosed to be vain, jealous or suspicious. The first wife in "Blind Windows" is only flirtatious, her counterpart in "Rebecca" is immoral.
Notwithstanding these differences there are many similarities as is shown by the analysis made by the plaintiff, of which the following are illustrative: both the stories are told only from the point of view of the second wife. In each she is young, sensitive, poor and feels embarrassed by her youth; she marries a charming and rich stranger twice her age whom she has known only a short time, during a week or two of which they are together daily; the young girl is cautioned against the marriage; the first wife is mentioned only once before the marriage; the wedding is hastily arranged; after a wedding trip lasting about six or seven weeks the husband takes the wife to his home about which an important part of the story revolves; approaching it they see plants that look like soldiers; they are greeted by well-trained servants who had been in the service of the first wife; household articles, some with monograms, the house and its decorations chosen by the first wife seem to the young wife to express the personality of the first wife and make her mindful of the latter and she feels as though the first wife or her shadow always were present, and as though she herself were an intruder. In each the young wife realizes that the husband is going through an experience he already has had; she is satisfied that the household should be continued as formerly by the servants so that she has little to do; she is introduced to her husband's sister and brother-in-law all of whose interests in life differ from hers; his friends speak of matters of which she has not any knowledge; she does not care for their society but the husband insists upon the necessity of cultivating it; the relatives, friends and servants of the husband continually allude to the beauty, charm, hospitality and brilliancy of the first wife who is described as tall and slim, attractive, expensively dressed and beautiful, whereas the second wife is only pretty; this leads her to believe that the first wife was so superior that she doubts that she is holding the affection of her husband and she imagines he would be happier if he could have the first wife back. In each story the husband presents hair brushes to his young wife, and there is an allusion to the beauty of the hair of the first wife and to a wedding present given at the time of the first marriage; and there is a book with a presentation to the husband in the handwriting of the first wife, and a mirror in which the young wife sees herself reflected and finds herself pale, and in which she imagines the reflection of the first wife. In each story the first wife, and only she, called her husband by a pet name; the books in the library in the house were never read by the first wife or husband. In each the young wife considers leaving her husband and a fortuitous event leads to disillusionment and to an assurance by the husband that he has always loved his young wife. In each the wife, by what is told her, forms a vague picture of the first wife which subsequently develops into a definite picture that finally is found to be inaccurate. In both a ball is described near the end of the story which relates to the life of the husband and wife in their home.
A few of the incidents are similarly expressed. Most, however, are differently expressed. Some of the incidents which plaintiff regards as similar are entirely dissimilar.
This being a motion for judgment on the pleadings, copying by defendant of such parts of the stories as are similar must be assumed. Shipman v. R.K.O. Radio Pictures, 2 Cir., 100 F.2d 533, 538; Collins v. Metro-Goldwyn Pictures Corp., 2 Cir., 106 F.2d 83, 86. Copying, however, does not constitute plagiarism unless a substantial and material part of matter protected by the copyright is lifted. Dymow v. Bolton, 2 Cir., 11 F.2d 690, 691; Eggers v. Sun Sales Corporation, 2 Cir., 263 F. 373, 375. The only issue before the court on this motion accordingly is whether or not the matter copied constitutes a substantial part of the copyrighted material of plaintiff's book.
Ideas or basic plots are not protected by copyright. Holmes v. Hurst, 174 U.S. 82, 86, 19 S.Ct. 606, 43 L.Ed. 904; Dymow v. Bolton, supra, 11 F.2d at page 691; Nichols v. Universal Pictures Corp., 2 Cir., 45 F.2d 119, 121, certiorari denied 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795. Neither are isolated incidents, Shipman v. R.K.O. Radio Pictures, 2 Cir., 100 F.2d 533, 536; Eichel v. Marcin, D.C., 241 F. 404, 409; Rush v. Oursler, D.C., 39 F.2d 468, 472, 473; Seltzer v. Sunbrook, D.C., 22 F. Supp. 621, 628, nor even groups of incidents following necessarily or naturally from the plot or environment. Roe-Lawton v. Hal E. Roach Studios, D.C., 18 F.2d 126, 127; Cain v. Universal Pictures Co., D.C., 47 F. Supp. 1013, 1017; Ornstein v. Paramount Productions, D.C., 9 F. Supp. 896, 901. Such incidents, however, may be selected, arranged and stated in such manner as to constitute the author's expression of his plot or part thereof, and if so, that arrangement and mode of expression is protected by copyright. Daly v. Webster, 2 Cir., 56 F. 483, 486, 487; Dymow v. Bolton, 2 Cir., 11 F.2d 690, 691; Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 81 F.2d 49, 54, 55, certiorari denied 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392.
In my opinion the similar incidents and grouping thereof are suggested by the basic plot and environment. In any case, they do not constitute a substantial and material part of the copyrighted matter in plaintiff's story.
In Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662, the Circuit Court of Appeals for this circuit stated "We doubt the convenience of dividing the trial in this way: the issue of fair use, which alone is decided, is the most troublesome in the whole law of copyright, and ought not to be resolved in cases where it may turn out to be moot, unless the advantage is very plain. At least we should regret seeing the procedure become the custom, as it is apparently tending to become in the Southern District of New York."
Had this suggestion been called to the attention of the court, or had the court been aware of it before the court gave this case long and careful consideration, the suggestion would have been followed.
The complaint accordingly is dismissed as against the defendant Doubleday, Doran Company, Inc.
Charles S. Rosenschein, of New York City (Charles S. Rosenschein and Arthur Leonard Ross, both of New York City, and Herman Schner, of Brooklyn, N.Y., of counsel), for appellant.
Beekman Bogue, of New York City (Benjamin H. Stern, Edward K. Hanlon, and Harry Buchman, all of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and CLARK, Circuit Judges.
This is a suit for infringement of copyright. The plaintiff, appellant here, wrote a story entitled "I Planned to Murder My Husband" which was published in Hearst's International Magazine for October 1924 and copyrighted. Later she expanded the story into a novel entitled "Blind Windows," published and copyrighted in 1927. In 1938 the appellee published a book entitled "Rebecca" of which Daphne Du-Maurier (named as a defendant in the present action but not served with process) was the author. The other defendants, not parties to this appeal, had to do with the production and distribution of a motion picture entitled "Rebecca" based upon the book of the same name. The complaint charging infringement of the plaintiff's copyrighted story and novel was filed on September 15, 1941. There has been no trial of the action. After answering the complaint the appellee moved for judgment on the pleadings. In an opinion which admirably outlines the stories of the two books the district judge granted the motion. His unpublished opinion is appended hereto.
Because of the way the case came on — a motion for judgment on the pleadings — we must assume not only that the author of the book charged with infringing had access to the plaintiff's copyrighted works but also that she actually copied those parts common to both. Dellar v. Samuel Goldwyn, Inc., 2 Cir., 104 F.2d 661, 662; Collins v. Metro-Goldwyn Pictures Corp., 2 Cir., 106 F.2d 83, 86. The complaint alleges that the "book `Rebecca' is in large measure copied from" the plaintiff's story and novel. Upon motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723, this allegation must be accepted despite its denial in the appellee's answer. Hence we are forced to suppose that all common material in the two books was the result of copying by the author of "Rebecca." If so the only answer to the charge of tortious plagiarism must be that the common matter was either in the public domain or was so trifling as not to count. Judge Bondy's opinion sums up all, or at least the greater part, of the similarities which the plaintiff asserts to exist. Even though some of them may be far fetched, for example, the reference to trees looking like sentinels, so many remain that the common matter is not so trifling that it can be ignored. Consequently the question comes down to whether the author's borrowing, although substantial in amount, was a "fair use." That is always a troublesome question. In the case at bar the supposititious borrowings are not in the general outline of plot and character: in "ideas" as opposed to "expression." On the contrary they consist in a series of concrete incidents and details, and if in fact these were all borrowed from the plaintiff, we cannot properly hold that the common matter was outside the protection of the copyright law. That law indeed gives no monopoly of general ideas, but authors, most of all, will be jealous that this exception does not swallow all their rights.
In an infringement suit coming up in this way we believe that a judge unconsciously tends to make a summary judgment which disregards the concession of copying; when upon a reading of the two works it seems unlikely from their relative merits that the common matter could have been borrowed, the judge will hold, without quite saying so even to himself, that it was not borrowed. To do this is to deprive the plaintiff of his day in court; and that is the real vice of the procedure here adopted. It is quite true that if we permitted ourselves to judge from our own perusal of the books whether the author of "Rebecca" had used the plaintiff's literary material, we should have little doubt that she did not. But we know nothing about the author's access to that material or about what evidence the plaintiff can produce in support of her assertion of copying; and both of those issues the appellee has conceded in the plaintiff's favor. Accepting that concession, as we must, we hold that it was error to dismiss the complaint.
This does not mean that the suit must necessarily go to trial. Upon a motion for summary judgment under Rule 56, supported by the author's deposition or perhaps even by her affidavit, it might be satisfactorily established that there was neither access nor copying. But a motion for judgment on the pleadings asks the court to determine the issue of infringement with these facts conceded. This precludes us from saying that "Rebecca" — even though we regard it as immeasurably superior to "Blind Windows" — could not have been borrowed in respect to the common material. While we agree that dispatch in litigation is highly desirable, it should not be pressed to the point where it shuts out an adequate examination of the merits. Little as we expect any other ultimate result than dismissal of the complaint, we think that it has been prematurely reached by a forbidden path.
Judgment reversed.
I fear that an expression by this court of a preference for full and formal trial of plagiarism issues in Dellar v. Samuel Goldwyn, Inc., 2 Cir., 104 F.2d 661, 662 — though the actual decision there supported the result reached below here — is now being pressed into a rule of decision for this Circuit, which, with deference, I must conclude is as contrary to the provisions, as well as the spirit, of the new civil rules as it is admittedly opposed to the realities of authorship and of literary thievery. Procedure should be viewed simply as a means of doing justice, not as an end in itself or as something which requires vindication without respect to results; and the new rules were designed to afford not only speedy and efficient adjudication of actions on the merits, but also, wherever fair and possible, disposition of cases without the time and expense of trial. Of course, the common-law demurrer, too, was devised as a means of avoiding an unnecessary formal trial. Nevertheless, since it attacked only the statement found in the pleadings, it tended to exaggerate the importance of technical allegations which might conceal the merits. The civil rules, therefore, are insistent that the merits be brought out and that the pleadings themselves be kept properly subordinated to that necessity. That objective can, however, be achieved without undue insistence upon formal trials. Hence the rules, unlike all earlier procedural systems in this country or England, make the remedy of summary judgment available for all — not a selected few — civil actions, with the obvious intent that the screening out of cases not appropriate for such disposition should be made by the parties and the trial judge in the light of the particular circumstances, rather than pursuant to an arbitrary general fiat. Moreover, we in common with other circuits have interpreted Rules 12(b) and (c), read in connection with Rules 6(d), 43(e), and 56(e), as freely permitting the use of affidavits to make sure the real issues are before the court, just as Rule 56 itself allows summary judgment on the pleadings alone if the parties choose — a fair, desirable, and rational interpretation of the rules, which is made quite explicit in certain of the pending proposed amendments to the rules. Preliminary Draft of Proposed Amendments to Rules of Civil Procedure, May, 1944, pp. 17-25, 65-69, with notes and cases therein cited.
In this case — as well as in Collins v. Metro-Goldwyn Pictures Corp., 2 Cir., 106 F.2d 83 — the court held itself "in entire accord with the judge's finding that, even though the defendants took from this play all those matters in which the film resembles it, they were within their rights in doing so." What these cases were sent back for was decision of another issue, namely, whether the "continuity" or scenario of the movie presented in the record was actually a reasonably fair synopsis of the film.
3 Moore's Federal Practice 3174, 3177; Clark, Summary Judgments, A.B.A. Jud. Adm. Monographs, Ser. A, No. 5.
Not only because of this, but also because our own recent experience shows by actual count more cases disposed of by the decisive test of comparison of the two texts than by any other means, I do not feel justified in joining in the preference expressed in the Dellar case for the method of adjudication by formal trial. But I would not go to the opposite extreme of saying that adjudication on motion is generally desirable; for to me our experience actually demonstrates what the rules envisage, namely, that the particular circumstances of each case must control and that general admonitions are not to be relied upon.
In short, plaintiff here had just as free choice as defendants whether to rely upon the pleadings and the literary products here in dispute which accompany them or to give more extensive information to the court. Since she chose to rest upon a purely formal allegation of copying, with no specification of actual access, an allegation which stands denied by the defendant book publisher's answer (the author not having been served or appearing), I think it is lifting one's self by one's bootstraps — and in the wrong direction at that — to talk in terms of the old "admission by demurrer" and to say that copying here stands conceded. Actually we know it is not conceded; that issue is not now before us, and we should not consider it or bolster up our decision either way by reference to it. We should bear in mind, too, that the real issue now before us, illegal similarity of the writings, is in no sense a merely formal one presented only by the pleadings, but is necessarily the ultimate issue on the merits involving a comparison of the writings themselves.
Confining myself, therefore, to this issue, for my part I must consider it as bordering rather on the fantastic, as implying callousness towards, if not derision of, real literary talent and skill, to suggest that such trifling and coincidental similarities as a microscopic examination of the two books is thought to bring out here be considered to weigh at all against the sharp differences between them in all matters which really should count — viz., in intended objective and type of reader appeal, in fashioning of the plot and in its progression, in the conception and delineation of characters, in the climax of the story and denouement of the plot, and in the effectiveness and, certainly in part at least, in the literary skill with which the chosen objective is reached. And as to the plaintiff's earlier magazine story, that alone is hardly claimed to have been copied, as obviously it was not. In a manifest desire to state the case most fairly, Judge Bondy emphasized everything which could be said for the plaintiff — a process of selection which results in a perspective quite overfavorable to the plaintiff's claims. Even on his statement, however, I think the dissimilarity too obvious and too controlling to be disregarded, and our duty to reject the suggestion of theft as plain.
On the one hand, we have an attempted psychoanalytical study (in not too successful imitation of a recent vogue in novels) of a young girl through her childhood and down through her unsuccessful marriage to an older man previously married; as might be expected, the biography merely runs on without climax until the book closes sometime after the husband has died and as the heroine seemingly contemplates return to an earlier love. On the other hand, we have a superbly fashioned melodrama — told, it is true, by a second wife — of suspense and horror cleverly combined, wherein the hero's first wife is the villain and the denouement is sharp and unusual, leading directly to the close of the book, with the hero and heroine having lost their home in flames, but obviously about to live happily ever after. Second marriages are too common to erect so large a claim on so small a foundation. I believe the courts do a disservice to literature to encourage the harassment which such a trial means, with its obvious tendency to force settlement of the claim not because it is just, but because contesting it has become too costly or too inconvenient. Here we now compel this publisher to seek at least affidavits — and, to be quite safe, formal depositions — from witnesses as widely separated as England and Hollywood, California, with all the difficulties of present-day communication and travel, in order to reach an end which we confidently foresee and can quite as surely reach right now as later. I regret to see such a failure of procedural resources of the court, particularly when, as it seems to me, the intent of the procedural rules is quite to the contrary.