December 16, 1954.
Rosenman Mandel, New York City, for plaintiff. Philip Mandel, Roslyn, N. Y., of counsel.
McCauley Henry, New York City, for defendants. Alfred H. Wasserstrom and Harvey L. Lipton, New York City, of counsel.
This is an action for damages for copyright infringement which has been tried by the Court without a jury. The plaintiff is the author of an article entitled "`Hopalong' Abramowitz", which appeared in the September 30, 1950 issue of Collier's Magazine. Defendant Fields was the author of a column entitled "H. Hopalong Abramowitz: Cowboy in the Bronx", which was published by the defendant Hearst Corporation on September 17, 1951 in its newspaper, the Daily Mirror. Plaintiff claims that Fields' article infringed his copyrighted article.
Plaintiff urges that a perusal of Abramowitz' deposition before trial (Plaintiff's Exhibit 9) indicates that Abramowitz did not relate incidents in the same phrasing to different reporters at the time he was interviewed by each nor was he capable of remembering, at the time he testified at trial, the exact phrasing he used at the time Fields interviewed him in describing some of the incidents. (e. g. Abramowitz' use of the term "real (or regular) gentleman" in reference to the donkey in Item 7: See Plaintiff's Exhibit 9, pp. 36-37 and Defendants' Exhibits E and E-1, p. 14.) Abramowitz insisted at the trial, with convincing sincerity that he used the same phrasing in many instances in relating the incidents to both plaintiff and Fields. Abramowitz is an experienced interviewee, having been interviewed at least four times before the Fields interview and he may well nave substantially stereotyped his descriptions and use of language in talking to reporters. ( Compare, for example, Abramowitz' description to the plaintiff, quoted in plaintiff's article (Plaintiff's Exhibit 3), of Abramowitz' statement to the late Mayor of New York City, Fiorello H. La Guardia: "Your honor, you should excuse me but you don't know what's going on in the city of New York", with Abramowitz' description to a New York 'Times reporter (Defendants' Exhibit C) of the statement: "Your honor you should excuse me but you don't know what's going on in the city.") Although I cannot believe that Abramowitz can now remember the exact phrases in all instances that he used in relating the incidents to Fields (See Plaintiff's Exhibit 9, pp. 24, 25, 28, 33, 34, 36-37), nor did Abramowitz claim at trial that he could so remember, I do believe, as Abramowitz testified at trial and at the time his deposition was taken (Plaintiff's Exhibit 9, pp. 12, 14, 23-25, 34), that he did relate all of the accused incidents published in the Fields article to Fields at the interview, specifically using many of the phrases to which plaintiff claims originality. (e. g. that the donkey acted like a "real (or regular) gentleman", and that he was "pushed up" the stairs.)
Both articles concern themselves with the life and exploits of Abramowitz. Abramowitz is a very colorful individual who owns a stable in the Bronx which houses a vast array of horses and every conceivable type of carriage and stagecoach, all of which are used for advertising everything from an aspiring politician's candidacy to the opening of a neighborhood delicatessen. Some of the incidents in Abramowitz' life are very homely and humorous and are reflected in both articles.
The defendants' answer directly puts in issue the originality of plaintiff's work and the procedural regularity of the registration of the copyright on plaintiff's work. Defendants, in addition to a denial of copying, contend that if there was any copying that such copying constituted a fair use of plaintiff's work. They also maintain that the plaintiff is estopped from raising any alleged infringement.
I shall first dispose of defendants' contention as to the procedural irregularity of the copyright registration which, I believe, has no merit. The defendants admit, and the proof establishes (Plaintiff's Exhibits 5 and 6), that Collier's Magazine obtained a registered copyright in its name on September 25, 1950 for its September 30th issue, and that it assigned all its right, including infringement claims, in plaintiff's article to the plaintiff on October 17, 1951. The nub of the defendants' claim is that plaintiff never assigned all of his rights to Collier's before the latter obtained its copyright. The legal theory of this claim is clear and correct: that only the "proprietor" of a work may copyright it; that a person to whom the right to copyright is assigned is a proprietor, American Tobacco Co. v. Werckmeister, 1907, 207 U.S. 284, 296, 28 S.Ct, 72, 52 L.Ed. 208, but a mere licensee cannot copyright a work. Egner v. Schirmer Music Co., 1 Cir., 1943, 139 F.2d 398. Cf. Mifflin v. R. H. White Co., 1903, 190 U.S. 260, 263, 23 S.Ct. 769, 49 L.Ed. 1040. Moreover, a general copyright in an issue of a periodical (a "blanket" copyright) does not protect the rights in a particular contributed article unless such rights had been previously assigned to the publisher. Mail Express Co. v. Life Pub. Co., 2 Cir., 1912, 192 F. 899.
I find here, however, that the plaintiff did assign his right to copyright to Collier's before the latter obtained its copyright. Plaintiff's testimony establishes that the firm of Pritchett and Brandt were his general agents with full power to negotiate the sale of his article to interested publishers and to arrange, by any method deemed feasible to his agents, to grant only first publication rights to such publishers. It is apparent that the method employed and the practice followed by his agents was to assign all rights to Collier's in the first instance under the express condition that, after registration of the copyright in its own name, Collier's would reassign all rights to the plaintiff. This is unequivocally confirmed by the memorandum attached to the check received by plaintiff from Collier's on November 28, 1949 (Plaintiff's Exhibit 7). Ultimately, Collier's formally assigned all rights in the copyright to plaintiff.
"Received from (Collier's) the above sum as payment * * * for the * * * work entitled Stagecoach in the Bronx by Arthur D. Morse and all literary property and other rights therein, including complete publication rights and the right to copyright the same in (Collier's) name * * *. After publication, (Collier's) upon request will transfer and assign to the author all rights in and to the copyright secured on said work. (Signed by Pritchett)."
The next contention of the defendants is that the plaintiff's work was not copyrightable because it was not original. Viewing plaintiff's work as a unit, this contention cannot be' maintained. Although plaintiff admits that some newspaper articles had been written about Abramowitz prior to his work, it is clear from his testimony that he did not copy these works but that his article was based upon information received from at least fifteen hours devoted to interviewing Abramowitz and upon 35 hours consumed in the actual writing process. The cryptic and laconic notes which plaintiff took during the interviews were received in evidence. (Exhibits 1-A, 1-B and 1-C). A comparison of these notes with plaintiff's finished product as a unit clearly indicates that the plaintiff has implanted his own writing style and form of expression upon the latter. Baker v. Selden, 1879, 101 U.S. 99, 25 L.Ed. 841; Jewelers Circular Pub. Co. v. Keystone Pub. Co., 2 Cir., 1922, 281 F. 83, 88, 26 A.L.R. 571; Gerlach-Barklow Co. v. Morris Bendien, 2 Cir., 1927, 23 F.2d 159. The defendants urge that the Court should not view the plaintiff's article as a unit in determining its originality but should first consider each part separately and determine whether each particular part is original and copyrightable, and then exclude the unoriginal parts in determining the issue of infringement. In'this connection the Court now refers to the Appendix to this opinion which includes, in columns A and B, a parallel column analysis of the parts of plaintiff's work which he claims the defendants infringed.
It is clear that the copyright laws only protect those parts of plaintiff's work which are original and copyrightable, and that bare facts or "news" are not protected. However, the style and form of their presentation is protected. International News Service v. Associated Press, 1918, 248 U.S. 215, 234, 39 S.Ct. 68, 63 L.Ed. 211; Chicago Record-Herald Co. v. Tribune Ass'n, 7 Cir., 1921, 275 F. 797; see Dymow v. Bolton, 2 Cir., 1926, 11 F.2d 690, 691; Oxford Book Co. v. College Entrance Book Co., 2 Cir., 1938, 98 F.2d 688, 691. And that this should be so is grounded upon sound reason. For, the law seeks to encourage creative minds. The Court has summarized in its Appendix, column D, the defendants' contentions with respect to the designated summaries of plaintiff's assertions carried in column C. On the other hand, it is just as clear that the fact of copying may be proven by similarity between both the protected and unprotected parts of plaintiff's and defendant Fields' work. The Court should reach the problem of eliminating from consideration the unprotected part of a plaintiff's work only if and when it finds that the defendant has copied and the issue of improper appropriation — substantiality or materiality — is properly before it. It will soon be apparent that as a result of the Court's disposition of the present litigation, on the grounds stated, it will not be necessary to rule upon the issue of substantiality or materiality or the other claims of the defendants.
Although the title of plaintiff's work is not protected, it has been considered by the Court on the issue of copying. The name "Hopalong" appears in both titles but its significance evaporates because, although Collier's itself created this nickname for Abramowitz, ever since the publication of plaintiff's article, Abramowitz personally has widely used the nickname in his business (Defendants' Exhibit F) and he is so listed in the telephone book.
The importance of permitting a plaintiff to show similarities between all of the parts of his work, both the protected and unprotected parts, and the defendants' work rather than limiting similarity comparisons to only the protected parts of a plaintiff's work is best illustrated by a hypothetical situation. If we assume that there is but one sentence of a plaintiff's work which is both protected and material and the vast residue is unprotected, and the claim is the copying of this one sentence by evasion, obviously a holding which excludes a showing of identity or close similarity between the vast unprotected residue of plaintiff's work and the bulk of a defendant's work would eliminate any possibility of a finding of copying of the one protected sentence.
These contentions are that certain portions of plaintiff's work are not protected because they are either bare factual recitals or quotations attributed to Abramowitz which, if they are not statements of mere fact, were held out as such by the plaintiff, thereby estopping him from claiming that they are protected. See Appendix, column D.
With respect to the crucial issue of copying, the plaintiff relies upon circumstantial evidence of copying, i. e. access and similarity. Since the parties have stipulated that the national circulation of the September 30, 1950 issue of Collier's was over three million copies, the bare opportunity to copy is not strongly contested. However, the plaintiff has not presented any direct evidence that Fields actually saw plaintiff's work before he wrote his own. The complete availability of plaintiff's work is merely some circumstantial evidence of access, and access is merely circumstantial evidence of copying. Against this double circumstantial evidence, defendant Fields' testimony specifically denying that he ever saw plaintiff's article must be weighed. With the evidence so posited, the plaintiff is entitled to little benefit from the "inverse ratio" rule to the effect that when access is established a lesser degree of similarity is required. See Golding v. R.K.O. Pictures, Inc., Cal. 1949, 208 P.2d 1, 3.
In respect to similarity as evidence of copying, the plaintiff primarily relies upon the parallel analysis chart which he has prepared and which has been received in evidence, and which purports to show, by comparison of particular parts of plaintiff's and defendant Fields' articles, the similarity between the two. See Appendix, columns A and B. The plaintiff, an experienced and intelligent journalist, was permitted to give expert testimony on the issue of copying and his opinions rendered in court in this respect have been summarized in column C of the Appendix. Such "dissection" of both works by use of a parallel column analysis and expert testimony has been expressly approved in this Circuit when it is utilized in the determination of the issue of copying but not when it is offered with respect to the issue of unlawful appropriation or substantiality or materiality. Arnstein v. Porter, 2 Cir., 1946, 154 F.2d 464, 468; Heim v. Universal Pictures Co., 2 Cir., 1946, 154 F.2d 480, 488, note 9.
I find that the plaintiff has failed to prove copying by a fair preponderance of the evidence. Plaintiff relies upon the similarities shown in his comparison charts (Appendix, columns A and B), his inferences based upon it (Appendix, column C), and the complete availability of his article to potential copiers. Against this circumstantial evidence of copying I must weigh the evidence of the defendants. Fields, although an interested witness, appeared to me to be frank and credible. He specifically denied copying and insisted that he had never seen nor heard of plaintiff's article at any time before his article was published. Plaintiff concedes, and the testimony of Fields and Abramowitz establishes, that Fields personally interviewed Abramowitz on July 26, 1951, for approximately two hours and that Abramowitz related to Fields practically every accused factual component included in Fields' article, and that Abramowitz specifically repeated to Fields many of the phrases which appear in both articles and to which plaintiff claims originality. (See Appendix, columns E, F and H.) Fields took notes during the interview (Defendants' Exhibits E and E-1) which corroborate my finding that all of the factual components and most of the portions of allegedly original language or forms of expression in Morse's article which appear in Fields' article were obtained by Fields in his interview with Abramowitz. (See Appendix, columns A, B, G and H.) It is more probable that Fields used his own notes rather than Morse's article for his recitation of facts. Fields has been writing for the Mirror for over 14 years. He has had vast experience in writing "interview columns" based upon adequate notes recorded during the interview which are then expanded into draft form and later condensed and edited into a final copy of approximately 750 words. Indeed, his specialty is profile or interview columns, and he is widely known for these columns.
It is contended that the identity between Fields' original notes and his final article resulted from a post litem motam alteration by Fields of his original interview notes, and that Fields' copying occurred at or before the time he wrote his draft and is reflected in the draft. (Defendants' Exhibit G.) Plaintiff seeks to prove by comparisons among plaintiff's final article, Fields' notes, draft and final article that Fields' draft has greater similarity to plaintiff's published article than the former bears to Fields' notes; that Fields' draft includes items which are not even hinted at in his notes but are included in plaintiff's article, and that Fields' notes possess greater similarity to Fields' final article than to Fields' draft. Assuming this to be true, we are asked to draw the inference, inter alia, that Fields' draft was copied from plaintiff's article and that Fields, to conceal this copying, altered his notes post litem motam to make them conform more closely to his final article. This contention is incredible and apart from the mere charge I find nothing to substantiate it. It is reiterated, that Abramowitz testified that every incident included by Fields in his article which is alleged to have been copied was related by Abramowitz to Fields. Moreover, common sense would dictate that a highly experienced journalist and interviewer, such as Fields, would have no need to resort to plaintiff's article for his material, if he followed his long-established practice (as he did in the instant case) of taking detailed notes at the time of the interview. The two-hour length of his interview was ample time for the recordation of all that appears in his notes and for the writing of an article of 750 words. It seems probable that if Fields had such a predatory motive he would have destroyed, rather than have offered to the plaintiff, his draft which is the heart of the charge. Plaintiff contends that Fields did not destroy it because he did not appreciate such subtleties. This argument is without weight and is not borne out by the evidence. Fields testified that, at his first conference with his attorney which took place one or two days after he learned of the institution of this action, these issues and alleged inconsistencies were fully explored and recognized by Fields and his attorney.
Plaintiff's Exhibit 10.
The inclusion of certain items by Fields in his draft which are not included in his notes are best explained by the very process Fields uses to write his articles. His cryptic notes are expanded into sentence and paragraph form in his draft. This is a clear example of the use, in everyday life, of memoranda to refresh one's memory. An experienced interviewer records key phrases in his interview notes which, at the time he prepares his draft, refresh his recollection of facts and things said at the interview which have not been fully recorded. In no case are the incidents in the draft or article inconsistent with his notes; the draft and final article merely add color and shadings to the facts and quotations included in the notes.
Instead, the similarities between plaintiff's article and Fields' article and draft result from the use of a common source by both writers. (See Appendix, columns A through K.) The plaintiff counters, however, with the contention that since Abramowitz has led a full and colorful life, there are a wealth of humorous and interesting incidents upon which Fields could have drawn for his article, and that Fields' selection of the same incidents which plaintiff has included in his article and the similarity of sequence could not have resulted from mere coincidence but only from copying. The Court refers to its factual analysis of this contention in the Appendix, columns J and K. The contention is factually untenable. It will be observed that Fields has included in his article many incidents and facts which are not included in plaintiff's article. (See Appendix, column K, items 4, 5, 7, 8 and 13.) A few of these incidents are given major emphasis by Fields in his article. Similarly, the plaintiff has included many incidents not found in Fields' work. (See Appendix, column J, items 1, 6, 8, 11, 13 and 14.) In fact, one incident which plaintiff includes, and is not included in the Fields article, may be characterized as the major anecdote in plaintiff's article. (See Appendix, column J, item 11.) Moreover, Fields has one incident recorded in his notes which appears in plaintiff's article and was excluded by Fields from his published article. (See Appendix, column J, item 14.) I conclude from this dissective analysis that from the "wealth" of incidents in Abramowitz' life, Fields' selection and emphasis is not so substantially similar to that of plaintiff's when both final articles are compared with each other and when what Fields knew of Abramowitz' life, as evidenced by his interview notes, is compared with Fields' final article, that we are led to the conclusion that there was copying. In addition, the "wealth" of incidents theory of plaintiff is not a substantial one as applied to the facts here. Certain incidents in Abramowitz' life are certainly more "newsworthy" than others, and Abramowitz, who is now an experienced interviewee by reason of the many interviews he has granted to writers, has come to realize which incidents and anecdotes are the most interesting and deserving of repetition and stress. Many of the incidents included in both articles are so much more humorous or interesting than others that it may be assumed that experienced journalists, as Morse and Fields are (specialists in "human interest" stories) would include them, to a greater or lesser degree, with the same salient facts. Moreover, the "common source" of both writers, Abramowitz, cannot be overlooked. Abramowitz had been interviewed by the plaintiff and others before Fields interviewed him. Abramowitz was, in a sense, a public figure before Fields discovered him. It is likely, as I have indicated, that Abramowitz had developed some sort of format or pattern in describing the incidents in his life to reporters, including especially those incidents to which he had previously received highly favorable reactions from reporters, friends, and others, and excluding the obviously banal and trite incidents. This emphasis by Abramowitz of only the highlights of his life would be more probable in a two-hour interview, which Fields conducted, when compared with the series of leisurely interviews which the plaintiff conducted.
It should be noted in this respect that the potential scope of originality of expression and treatment is far more limited when the subject matter concerns the true life exploits of a contemporary stable proprietor in the Bronx and the primary purpose of the works is human interest reporting for mass-media periodicals than when a play, poem or novel is to be created out of whole cloth and the prospective authors are presented with infinite choices as to time, setting, characters, theme, dialogue and intellectual depth of treatment. Therefore, evidence of similarities between works of the former class must necessarily be far more striking than the similarities between works of the latter class before the Court can from a fair preponderance of the evidence find that copying as to the former class has occurred. Any current play which centers upon Hamlet's Elsinore and the irresolution of the Prince of Denmark treads on insecure ground; a writing which treats of a current Hollywood personality always walks free unless its footprints are revealed on a lower step on the pyramid of publicity.
Indeed, Abramowitz had the benefit at the time of Fields' interview of seeing what incidents and anecdotes Morse, an experienced writer, had thought most interesting, for his article had already been published in Collier's at the time of the Fields interview.
For a plaintiff to establish, as he must, to a reasonable degree of certainty, the charge of piracy by a defendant it is not enough that upon dissection there appear superficial similarity in some instances, where there are compelling reasons to believe that the similarity is the result of the causes already enunciated. "To sustain it * * * more must appear than mere similarity or even identity, of the supposed infringement with the part in question. In this lies the one distinction between a patent and a copyright. One may infringe a patent by the innocent reproduction of the machine patented, but the law imposes no prohibition upon those who, without copying, independently arrive at the precise combination of words or notes which have been copyrighted." Fred Fisher, Inc., v. Dillingham, D.C.S.D.N.Y., 1924, 298 F. 145, 147, L. Hand, J. Such highly circumstantial evidence as has been presented here by the plaintiff cannot suffice to sustain this charge in the face of direct proof to the contrary.
Judgment is awarded to the defendants dismissing the complaint. In the exercise of my discretion I shall deny counsel fee. 17 U.S.C. § 116. The plaintiff's claim was not capricious or unreasonable and I have reached my conclusion only after a thorough and difficult consideration of the evidence and the multitude of inferences to be drawn therefrom which were strongly advocated by both sides. Cf. Official Aviation Guide Co. v. American Aviation Associates, 7 Cir., 1947, 162 F.2d 541, per Minton, J.
The foregoing opinion contains my findings of fact and conclusions of law.
Comparison of Published Articles -------------------------------- Column A Column B -------- ------- Morse Article Fields Article ------------- -------------- Title: "Hopalong" Abramowitz Title: H. Hopalong Abramowitz
1. The collection, which fills five 1. He has the largest collection lots, includes hundreds of covered of carriages, buckboards,
wagons, buckboards, surreys surreys, phaetons, tally-hos, (with and without fringes), barouches, landaus, or pony tallyhos, phaetons, victorias, expresses in the country, if pony traps, broughams, landaus not the world. and barouches.
2. Abramowitz himself, in perpetual 2. Hopalong is a stocky, motion among his animals, bow-legged five-feet-four, and is five feet four and pudgy, always dresses in cowboy with a bull neck and bowed legs. clothes * * * Even at 63, with Since his sixty-second birthday three grown children and five he has cut his working time at grandchildren, his energy is the stable to 20 hours a day, astonishing. Last year he seven days a week. slowed up; he cut his working hours down to 18 a day, but still labors seven days a week.
3. "My horses have never let me 3. "Quit!" The word was like a down, why should I quit on slap. "All my life I been them? They got to be fed and around horses. Born and raised watered and who should do it but in it. Business or no business, Abramowitz?" the animals you got to clean and feed and water them. They never let me down. Why should I let them down?"
4. Beginning as a fruit-peddler 4. After a whirl as a fruit * * * (several paragraphs peddler he pawned the later) * * * His bride, the engagement ring of his pretty lovely Fanny Busell, agreed that wife, Fanny, for $100 and began he should rent a stable, but at his horse and wagon empire. that moment there wasn't a penny in the house. Finally they made a tearful decision — they would pawn Fanny's engagement ring. It brought $110, of which $100 immediately went for a month's rent and a month's security on the stable.
5. "I paid $65,000 cash for a stable, 5. "I forgot to take out fire but I forgot to take out fire insurance," he says, "and insurance and the next day the nobody ever invented depression stable burned down. The depression insurance." and the fire came at the same time."
6. When a rodeo arrived at Yankee 6. Not too long ago a rodeo at Stadium the Westerners wanted Yankee Stadium needed a covered to rent a number of Abramowitz' wagon and the proper horses carriages. Harry, however to go with them. Naturally they would not trust cowboys with his rented them from Harry
stagecoaches; he insisted on "Hopalong" Abramowitz, the driving them himself; and, with Bronx Cowboy. Hopalong drove a cowboy hat perched on his the wagon at racetrack speed balding head, Abramowitz raced around the stadium to the his coaches around the infield at gaping admiration of cowboys break-neck speed while the cow and spectators alike. "When it hands gaped and the spectators comes to big stuff like a rodeo applauded the daredevil from the or a parade," Hopalong says, "I Bronx prairie. don't trust any driver. I drive myself."
7. Recently he pushed a donkey up five flights of stairs ("It 7. "When Dorothy Kilgallen has wouldn't go in the elevator") a birthday party I got to push to a birthday party for columnist a donkey up five flights of Dorothy Kilgallen. "That donkey stairs. He wouldn't go in the made friends with everybody," elevator. But in the party he Abramowitz reported. acts like a regular gentleman." "He went from table to table eating the finest foods and he was so polite he behaved like a real gentleman."
8. Norma, his widowed daughter, 8. Yet, with his great love for says he won't admit that during his animals, he sold one of his the depression he sold one of his best horses so his kids could best horses to buy a dress for her have a set of encyclopedias. He graduation dance. And Shirley, sold another so one of his another daughter, remembers daughters could have a new how he parted with another dress for her graduation prom. favorite so the kids would have a And he sold a flock of his set of encyclopedias. Louis, the animals to pay three years of son who never liked the stable college bills for his son. He business, is a successful farmer never said anything about it. in Connecticut and his three It was like parting with his years of college were also own hide. financed by the surreptitious sale of the horses and wagons that were Harry Abramowitz' life.
9. The carriages are hired mostly 9. Along with his stock of 25 to advertise movies, neighborhood horses, 20 donkeys and ponies, stores, political candidates and a dozen goats, Hopalong and products from bread to rents them out to advertise worsteds * * * "You'll excuse delicatessens, supermarkets, me now, I got to get a surrey movies, political candidates, ready for a supermarket." * * or English woolens. They have lost some of their standing in the carriage trade, but they're marvelous for announcing the Grand Opening of a delicatessen.
Column C Column D -------- -------- Plaintiff's Opinion Testimony Defendants' Characterization of Summarized (Column F summarizes the Plaintiff's Work (Column A) Court's analysis of this) ----------------------------------- ------------------------------- 1. There are many devices available 1. Bare Facts as related by to a writer to express the Abramowitz. same objective facts. Here, for example, a writer might have written: "the collection includes everything from covered wagons to barouches" or "the collection includes eleven (or ten or eight) types of carriages." That Fields used as his device the same one plaintiff had used (serial listing of the technical names of carriages) is evidence of copying.
2. There is similarity in Fields' 2. Bare Facts as related by description of Abramowitz' Abramowitz. height and shape. The sequence of ideas is the same: physical description, then age, and finally working hours. (Fields' separates age and working hours by one sentence concerning Abramowitz' style of dress.) The same literary device is used in both excerpts (humorous over-statement) of characterizing Abramowitz' 18-20 hour workday as a "cutting down" of his working time because of advanced age.
Column C Column D
3. Plaintiff admits that Abramowitz 3. Quotation and therefore not never made this statement subject to copyright. In any to him, and that he merely event if it is a simulated "fic tionalized" or "extended" quote, plaintiff is estopped from facts made known to him by asserting copyright to this. Abramowitz in writing this quotation. The formulation of ideas and phrases are similar in both articles, and the quotation device is used by both when describing the horses as never "letting" Abramowitz "down" and therefore he would not "quit" but would continue to "feed and water" them.
4. The same incident is described 4. Bare Facts as related by in both articles. This is no mere Abramowitz. coincidence because, out of a wealth of incidents in Abramowitz' colorful life to draw from, plaintiff states that he selected seven incidents out of sixteen known to him for inclusion in his article; that Fields included five of these seven incidents and two new ones in his article; that Fields did not include any of the nine that plaintiff had excluded.
5. The device here is similar to 5. Quotation and therefore not that used in item No. 3. subject to copyright. In any Abramowitz actually said no event if it is a simulated quote, more than that a fire burned his then plaintiff is estopped from stable down in 1930 and that he asserting a copyright to this. had no insurance. Plaintiff only slightly extended this by using the quotation device, having Abramowitz saying that he "forgot to take out fire insurance" and connecting this with the "depression". Fields uses the same "quote" and also connects it with the depression.
6. Plaintiff, as in item No. 1, 6. Bare Facts as related by relies on the "variety of Abramowitz, except for the last literary device" theory. Also, half of the second sentence similarity of expression is which the defendants admit is indicated: "breakneck speed", "original". "racetrack speed", "gaping" spectators and cowboys, "trust" in another's driving abilities, and "Bronx prairie" and "Bronx Cowboy."
Column C Column D -------- -------- 7. Same device as in items Nos. 3 7. Quotation and therefore not and 5. Abramowitz actually subject to copyright. In any event said everything except that if it is a simulated quote, then the "donkey made friends with plaintiff is estopped from everybody" and "behaved like a asserting a copyright to this. real gentleman".
8. Similarity of incident, 8. The statements attributed to sequence and form. Norma and Shirley are quotations. The incident concerning Louis is bare fact, related by Abramowitz.
9. Identity in selection of 9. The first sentence is bare fact categories advertised out of related by Abramowitz. The second the inexhaustible number of sentence is a quotation. The categories which Abramowitz last sentence has no resemblance actually advertised. Especially except for isolated words to significant is the choice by anything Fields has written. Fields of "English woolens" ("worsteds").
The parties, by stipulation, agreed to waive a jury and to limit damages, if any, to the statutory limits of no less than $250 and no more than $5,000.
1. He actually used the precise 3. He did state to Morse that technical names of each type he would not "let" his horses of carriage in both the Morse "down". and Fields interviews.
2. He told both Morse and 4. He used the term "fruit peddler" Fields that he works 18-20 in both the Morse and Fields hours a day, seven days a interviews, and discussed the ring week. incident with both.
5. He described this incident the phrase "a real to both Morse and Fields (or regular) gentleman" and mentioned the lack of in describing the donkey fire insurance to both. to both.
6. He fully described this 8. He fully described this incident to both, and incident in all its essential mentioned that the details to both Morse stagecoaches went as "fast and Fields as they could go", and that he drove them himself because 9. He related each of the he did not "trust" any other categories included in both driver. articles to both Morse and Fields and specifically 7. He described this incident stressed the clothing category completely to both, including ("worsteds" or "English woolens") all its essential components: because there is a distinct five flights, elevator, birthday and colorful story revolving party, Dorothy Kilgallen. He about this category which insisted that he specifically he related to both. used
Factual Components of Plaintiff's Article and the Protected Residue ---------------------------------------------------------------------
Column F ---------
Factual Components Protected Residue ------------------ ------------------
1. The specific names of each type 1. "The collection, which fills five of carriage (e. g., "phaetons", lots includes hundreds * * * etc.) (with and without fringes) * * * (only the word "collection" appears in Fields' article).
2. Five feet four, twenty hours a 2. "in perpetual motion among his day, seven days a week. animals", "pudgy", "bull neck and bowed legs", and the connection between the age of 62 and "cutting down" of working time.
3. Extreme loyalty of Abramowitz 3. Exact phrasing of the quotation to his horses. (But see column H, item 3 and compare with item 3 in columns A and B.)
4. Fruit peddler, wife Fanny, 4. "lovely" (But see column H, item pawning of ring, price received, 8, first sentence and compare purpose of the pawning. with item 4, columns A and B, "but at that moment there wasn't a penny in the house. Finally they made a tearful decision —", and last sentence.) (Everything but the first word [in another form] fails to appear in Fields' column.)
5. Failure to take out fire 5. Form of quotation. (But see insurance, depression. column H, items 4 and 5 and compare with item 5 in columns A and B.)
Factual Components Protected Residue ------------------ ------------------ 6. Rodeo, Yankee Stadium, need for 6. All connective phrases and equipment, failure to "trust" scriptions. (But see column H, others, fast driving. item 6 and compare item 6 in columns A and B.)
7. Five flights, elevator, 7. Remaining quotations and the impractical birthday, Dorothy "pushing" of the donkey "up" Kilgallen, donkey acted like a the stairs. (But see column H, "real" (or regular) "gentleman". item 7 and compare with item 7 in columns A and B.)
8. Norma, sale for graduation 8. Arrangement of these facts and dress, Shirley, encyclopedia, their specific phrasing. (But Louis, three years of college, see Column H, item 8 and Abramowitz' failure to admit his reference to his farmer-son "in actions. Conn." in column H, item 2 and compare with item 8, columns A and B.)
9. Use of carriages for advertising 9. Humorous phrasing of the movies, stores, politicians, quotations and phrase "from bread clothing, delicatessen. to worsteds". (But see column H, item 9 and compare with item 9, columns A and B.)
Comparison of Fields' Notes and Article --------------------------------------- Column G Column H -------- --------
Article Notes ------- ------ 1. He has the largest collection of 1. I'm only one who has carriages, buckboards, surreys, old-fashioned — more than phaetons, tallyhos, barouches, any-one in N. Y. I got four landaus, or pony expresses in the places — all the Bronx, country, if not in the world (p. 1.) Hiring out all kind of His collection even includes a wagons, carriages ponies, horse trolley and a German donkeys, goats. (p. 1.) funeral coach. So many carriages I can't count them. Pony expresses. Stage coaches. Wells fargo — buckboards covered wagons — barouches so many who could remember the names of them. Tallyhos — phaetons, surreys, victorias, broughams. (pp. 1, 2.) Even has a horse trolley. This I'll not hire out — she's just a relic. (p. 3.) Most I paid for one was $850 for a German funeral coach. (p. 4.)
2. Hopalong is a stocky, bow-legged 2. For Mule Train Hopalong got five feet four, and always dressed in his cowboy outfit dresses in cowboy clothes. When — I got plenty of them. (p. necessary he'll draw on his wide 2.) Besides cowboy outfit dresses assortment of derbies and high with derbies when necessary — a hi hat hats and outfit himself properly — English coachman's hat booted and spurred as an English — I don't know myself how coachman. Even at 63, with many. (p. 3.) three grown children and five grandchildren, his energy is A short stocky man (p. 1) astonishing. Last year he 5'4" — stocky bald gentle slowed up; he cut his working soft spoken. (p. 2.) hours to 18 a day, but still Has 3 children and 5 labors seven days a week. grandchildren — one daughter a widow. (p. 3.) One son — 2 dauters — son runs a farm in Conn. (p. 4.) I'm active 20 hrs/day — 7 days a week. (p. 2.)
3. Well, why don't you quit? 3. Why do you stay in it? It's only "Quit!" The word was like a one line I know. Business or no slap. "All my life I have been business there's animals you got around horses. Born and raised to take care of them. They got in it. Business or no business, to be clean, feed and watered. the animals you got to clean and Never they let me down. (p. 2.) feed and water them. They All my life was around horses never let me down. Why should born and raised in it. (p. 1.) I let them down?" A man is born and raised in horses how can he stop. (p. 5.)
4. After a whirl as a fruit peddler 4. Started business with my Fanny's he pawned the engagement ring $100 ring. I pawned it.
5. of his pretty wife, Fanny, for 5. (p. 1.) Once I own garage houses $100 and began his horse and $300,000 worth but fire wagon empire. He ran his $100 cleaned me out. (p. 1.) Years ante up to almost $300,000 worth back I used to have close to 300 of wagons, horses, stables, plus horses. (p. 2.) When fire I some real estate. But he lost forgot to take out insurance it all in a fire and a no depression insurance. (p. 2.) depression. "I forgot to take When fire cleaned him out nobody out fire insurance, " he says invented depression insurance. "and nobody ever invented (p. 5.) depression insurance."
6. Not too long ago a rodeo at 6. Once at rodeo in the stadium Yankee Stadium needed a they needed a covered wagon covered wagon and the proper with the rt horses — who horses to go with them. Naturally they ask Hopalong. Naturally. they rented them from Harry, I drive wagon like I'm on a racetrack all ard stadium "Hopalong" Abramowitz, the — everybody cowboys Bronx Cowboy. Hopalong drove the people everybody claps and the wagon at race-track speed their mouths is open they admire around the stadium to the gaping a good rider. (p. 4.) (p. 5). admiration of cowboys and I drive myself I don't trust any spectators alike. "When it comes driver when it comes to big stuff to big stuff like a rodeo or rodeo or parade. There isn't any parade," Hopalong says, "I don't good drivers." (p. 3.) trust any driver. I drive myself."
Column G Column H -------- -------- Article Notes ------- ------ 7. "Ah," he adds with a sigh, 7. yrs back they used to hire them "years back they hired them for pleasure. (p. 1.) But crazy only for pleasure. Now * * * stunts too. (p. 2.) Long ago it's all crazy. When Dorothy they hire carriages only for Kilgallen has a birthday party pleasure — now it's I got to push a donkey up crazy — stunts all stunts. five flights of stairs. Dorothy Kilgallen has a He wouldn't go in the elevator. party she wants a donkey. The But in the party he acts like donkey is stub-born. He doesn't a regular gentleman." want to go in elevator. So I got to push him up five flights stairs. But in the party he's no disgrace. He acts like a regular gentleman. (p. 5.)
8. Yet, with his great love for 8. Talked to wife Fanny a pretty his animals, he sold one of his woman tho a grandmother. best horses so his kids could Told how he loves his animals have a set of encyclopedias. He when fire cleaned him out — sold another so one of his no-body invented depression daughters could have a new insurance so Harry she sd sells dress for her graduation prom. a horse to buy the kids And he sold a flock of his encyclopedias. When my daughter animals to pay threeyears of graduates he sells more to buy college bills for his son. He her a dress. He has 300 horses never said anything about it. once but he sold lots to put our It was like parting with his boy thru college. (p. 5.) own hide.
9. Along with his stock of 25 9. Rents them out to movies, horses, 20 donkeys and ponies, supermarkets, pol rallies hires and a dozen goats, Hopalong carriages and his donkeys and rents them out to advertise horses — all the delicates-sells, supermarkets, delicatessens theeayters TV movies, political candidates, — junkmen, restaurants. or English woolens. He also * * * They go on TV, a political rents them to peddlers, junkmen campaign * * to advertise and TV shows. woolens and worsteds (p. 1.). Peddlers — junkmen, laundry emergencies things like that. (p. 2.) mostly to adertise movies, supermarkets, orsteds to junkmen, peddlers allies, (p. 2.) 25 horses — work horses. (p. 2.) Inventory — 25 horses, 20 donkeys and ponies. p. 2.) Hiring out all kinds of agons — carriages ponies doneys goats. (p. 1.)
Sequence, Selection and Emphasis of Incidents in Both Articles
Column J Column K -------- ---------
Morse's Article Fields' Article --------------- ---------------
1. An incident concerning the 1. Yankee Stadium incident. (No. transportation of a frog by 12 in Morse sequence, column J.) Abramowitz in a stagecoach (See column B, item 6.) along Fifth Avenue. Not included either in Fields' notes or article.
2. Types of carriages included in 2. Types of carriages included in collection (Column A, item 1.) collection. (See column B, item 1.)
3. Advertising categories. (Column 3. Advertising categories. (See A, item 9.) column B, item 9.)
4. Physical description, age and 4. An incident emphasized by workday. (Column A, item 2.) Fields concerning a television appearance of one of Abramowitz' donkeys. This is not included in Morse's article.
5. "Letting down" quote. (Column 5. Hayride business of Abramowitz. A, item 3.) Not included in Morse's article.
6. Fruit peddler phrase, then 6. Kilgallen party. (No. 15 in incident concerning wholesaling Morse sequence, column J.) of apples by Abramowitz. The (See Column B, item 7.) wholesaling incident is not included either in Fields' notes or article. (Column A, item 4, first phrase.)
7. Pawning of the engagement ring. 7. An incident concerning former (Column A, item 4.) Postmaster Goldman. This is the major anecdote in Fields' ar article and notes from the stand point of literary emphasis. It is not included in the Morse article.
8. History of how Abramowitz 8. Physical description, age, built up his business on a clothing (not included in Morse shoe string by almost article), and workday. (No. 4 in simultaneou spurchases and Morse sequence, Column J.) sales of horses. This is a (See Column B, item 2.) major part of the article. It is not included in either Fields' notes or article.
9. An incident concerning a large 9. Fruit peddler phrase. (See Column carriage purchase from the B, item 4.) Vanderbilt estate. Copying is not charged as to this.
Column J Column K --------- ---------- Morse's Article Field's Article --------------- --------------- 10. The stable fire. (Column A, 10. Pawning of engagement ring. Item 5.) (No. 7 in Morse sequence, Column J.) (See Column B, item 4.)
11. An incident concerning Mayor 11. Stable fire (No. 10 in Morse LaGuardia and Abramowitz. sequence, Column J.) (See This is the major anecdote Column B, item 5.) in the article. It is not included in Fields' notes or article.
12. Yankee Stadium incident. 12. Sacrifices for children. (No. 16 (Column A, item 6.) in Morse sequene, Column J.) (See Column B, item 8.)
13. An incident concerning 13. Discussion of other stable and anniversary of City of wagon competitors, repair work, Yonkers. Not included in and Abramowitz' declining Fields' notes or article. business. This is a major sequence in Fields' article, and is not included in the Morse article.
14. An incident concerning a Sarah 14. "Letting down" quote. (Column Lawrence College portrayal of B, item 3.) This made to the Nativity. This is follow logically from Fields' cryptically referred to in sequence No. 13 (declining Fields' notes, but is not business). (See No. 5 in Morse included in his article. sequence, Column J.) Fields' quote is substantially included in his notes.
15. Kilgallen birthday party. (Column A, item 7.)
16. Sacrifices for children. (Column A, item 8.)