40 F.Supp. 534 (1941)


District Court, S. D. New York.

July 10, 1941.

Attorney(s) appearing for the Case

Dwight, Harris, Koegel & Caskey, of New York City, for defendants Samuel Goldwyn, Inc., and Samuel Goldwyn.

David L. Podell, of New York City, for defendant Eddie Cantor.

GALSTON, District Judge.

This action involves the alleged infringement of a copyrighted play entitled "Oh Shah", and also of an uncopyrighted adaptation of such play, owned by the plaintiff. The issue having been raised, the defendants moved to dismiss the complaint on the ground that from an inspection and comparison of the complainant's play and the defendants' scenario and continuity, there was no substantial similarity between the two works, and asserting thaat the defendants' picture "Roman Scandals" does not infringe complainant's play "Oh Shah" or uncopyrighted adaptation thereof, and is not a plagiarism thereof. This motion was granted, Eisman v. Samuel Goldwyn, Inc., D. C., 23 F.Supp. 519, 520. The opinion recites: "I hold that there clearly has not been any such unfair use of the plaintiffs' work as would justify a decree in their favor. I cannot really see any foundation whatever for their case. So far as I am concerned, therefore, that is the end of the matter."

On appeal, the order dismissing the complaint was reversed, 2 Cir., 104 F.2d 661, 662, on the sole ground that the District Court had not seen the actual motion picture, and that there was no showing that the scenario or continuity correctly represented the motion picture. The court said: "The procedure adopted was not permissible. When the defendants produced and filed their `continuity', the plaintiffs were not bound to accept it as correct, even if it could be deemed a part of the answers. * * * At some stage in the proceedings they were entitled to try out the issue whether it did faithfully represent the film. For this reason the decree must be reversed."

However, the court added this significant passage: "In the case at bar we see no reason why, if the `continuity' really is a reasonably fair synopsis of the film in words, the judge should see the film, though he may find it easier to test that issue by direct view. Should it turn out to be a faithful representation, the appeal should be dismissed; for we have read all three documents and are 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."

It appears that the plaintiffs Eisman and Shayon have withdrawn from the suit, leaving Clara Dellar as the sole plaintiff.

Thereafter the defendant moved, pursuant to Rule 42(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for a separate and preliminary trial whether the continuity filed by them is a reasonably fair synopsis of the film in words. That motion was granted and the order entered thereon provides that a separate trial be had, and the issues limited to the determination as set forth in that order:

"(a) as to whether or not the scenario or continuity of the motion picture "Roman Scandals", heretofore filed by defendants Samuel Goldwyn, Inc. and Samuel Goldwyn with the Clerk of this Court and referred to in the opinion of the Circuit Court of Appeals, constitutes a reasonably fair synopsis of said motion picture in words; and

"(b) if there be any differences between said scenario or continuity and said film, whether or not said differences are material to the extent that there is sufficient similarity between plaintiffs' play entitled `Oh Shah' and defendants' motion picture `Roman Scandals' to justify a trial of other necessary elements of plaintiffs' cause of action."

Accordingly the question for determination at this trial is whether the continuity or scenario of the defendants' motion picture "Roman Scandals" is "a reasonably fair synopsis of the film in words". At the trial the motion picture was viewed by the court in the presence of counsel; and there was also filed what was designated as a released script, transcribed from the actual film and showing the dialogue and action in every detail.

It cannot be said that everything that is found in the scenario which was before Judge Woolsey is reproduced in the moving picture; nor can it be said that everything that is in the moving picture appears in that scenario. But despite those differences it can be stated that the script is a reasonably fair synopsis of the moving picture; and if there were the slightest doubt about that conclusion there would be none in holding that the differences which exist do not justify a trial of the other necessary elements of plaintiff's cause of action.

However, to avoid undue protraction of litigation, proof was taken on all the material issues of the litigation. I read the plaintiff's copyrighted play and the uncopyrighted adaptation and found, on a comparison with the picture "Roman Scandals", no similarity in plot or theme, nor in the scenes or other sequences; nor is there any copying of the dialogue. The characters are quite dissimilar. Even if access to the plaintiff's play be conceded, general ideas are in the public domain. Nichols v. Universal Pictures Corporation, 2 Cir., 45 F.2d 119; Shipman v. R. K. O. Radio Pictures, 2 Cir., 100 F.2d 533. Nothing has been abstracted from the plaintiff's play.

The copyrighted version of plaintiff's play "Oh Shah" is a play in two acts. The setting is in an imaginary kingdom on the Persian Gulf; the time the present. Scene 1 of Act I discloses a harem room in the Shah's palace, where a rehearsal is staged for the ceremonies welcoming the Shah on his return from America. He returns by airplane and descends by parachute. All this is most amazing to his subjects who are entirely ignorant of western civilization. During the welcoming scene two Americans enter the harem room through windows, having just escaped from a fruit dealer from whom they have taken a bunch of bananas. They are not aware that they have invaded the precincts of the Shah's harem, but are enlightened by one of the Shah's wives. As the Shah is about to enter, the wife hides the Americans in the palace. During the singing of a song the Shah, throwing off his cloak, is found to be clad in a golf suit. As the ceremonies proceed he talks about the wonders of New York. Then the two Americans are discovered. The Shah desires to have them beheaded but on the intercession of Omar, one of his wives, who suggests that they would be able to aid the Shah in modernizing his kingdom, they are permitted to remain. The scene ends with the two leading the wives and the slave girls in a dance number.

Scene 2 discloses the cave headquarters of the magicians' union, which it will not be necessary to describe in detail.

Scene 3 is of a partly modernized harem room of the Shah's palace two weeks later. Here various evidences of so-called modern civilization are about — radio, the dresses of the girls; even divorce is adopted by the Shah. For some reason the two Americans are cast into jail.

Act II, Scene 1, discloses a rebels' camp in the forest, to which the two Americans have escaped. The rebels invite them to join their band, which the latter agree to, without, however, understanding the nature of the rebellion. On learning what the rebels purpose to do, the Americans decide to depart for the palace and warn the Shah. This scene includes various song numbers.

Scene 2 shows the forest a few moments later and affords opportunity for further songs with two couples trying to find their way out of the forest.

Scene 3 again shows the harem and the Shah's palace. The wives have returned, disillusioned with their domestic and monogomous existence. Telephones have been installed. The orchestra plays off-stage, buzzers ring, a stock ticker operates, and the wives demand that the divorce decrees be revoked. At about this time the two Americans return with the news of the rebellion. The rebels enter and announce that the Shah is to be deposed for his modernism. A court scene then follows. One of the Americans suggests that the Shah become a Mormon to settle the issue of the divorces, etc.

The later uncopyrighted version of "Oh Shah" in film, is not unlike that of the copyrighted play, and though there are differences of detail it will not be necessary to set them forth since, as will later appear, the motion picture is in all essential respects wholly different from either the copyrighted or the uncopyrighted adaptation thereof.

"Roman Scandals" is a film picture disclosing at first scenes in West Rome (i. e. some small city in the United States). A group of officials and teachers enter a museum. They are welcomed by the mayor, who introduces one Warren Fenwick Cooper, donor of this museum of Roman art, as the first citizen of the city. As they proceed on their tour of inspection they find a man's hat on the head of a statue of Venus; a man's coat is draped on the statue of Mercury; shoes are found on his feet. Presently a line suspended between statues is found on which laundry is hung. As the group moves off in bewilderment the sound of an alarm clock is heard and the character Eddie is found resting on one of the statues under a sheet. The boy is well known in the town and apparently selected the museum because he had no other place in which to sleep. The scene is one wholly of comedy elements, with the local boy correcting the mayor in his explanation of the statues of Valerius and the Princess Sylvia, his British captive.

It appears that Eddie is employed by the local grocer, and while driving in a delivery wagon, is hit by the mayor's car in which the mayor, Cooper and the chief of police are riding. As a result of the collision, the chief accidentally drops a check which had just been handed to him by Cooper as part of the "spoils" arising from real estate transactions of Cooper with the city. The chief wants to arrest Eddie for reckless driving but the mayor intercedes, saying, "Eddie's harmless. He really never had a chance."

A street scene follows disclosing an eviction of many people of the city with their furniture in the streets, for the city has purchased the property from Cooper for the construction of a new jail, a scheme in which Cooper, the mayor and the police chief are involved. Eddie dominates the scene in the singing of a song, "Build A Little Home".

Cooper attempts to put a stop to the dancing and singing and altercation follows between Eddie and Cooper. Eddie is led from the scene and taken to the city limits. From that point on his clothes change to Roman vestments and the scene is shifted to ancient Rome, in the days of the Emperor Valerius. Not realizing the significance of his environment, Eddie is much amazed at finding himself in such a setting. A succession of comedy scenes follows, leading to the sale of Eddie as a slave. He is purchased by Josephus, "friend of the people". A comedy conflict occurs between Eddie (now Oedipus) and the emperor's major domo.

The triumphal procession of the emperor returning from the war on Britain is next shown. Behind the emperor's chariot the British Princess Sylvia walks in chains. A love attachment develops between Sylvia and Josephus. This is complicated by the emperor's own attachment to the princess.

The Empress Agrippa, who has been seeking to poison Valerius, has failed in her various plots. More comedy scenes follow and the emperor, suspicious of Oedipus, appoints him Food Taster. Again the food poisoning plot fails in the environment of a succession of comedy scenes. Oedipus entertains the emperor and the empress with anecdotes about America and teaches them the game of dice.

At one time Oedipus works his way into the royal baths in order to warn the Princess Sylvia of the plot of Valerius against Josephus, and of Josephus's plan of escape. To follow the picture in further detail would be of no particular moment. The escape scene is colorfully presented. The emperor learns that Oedipus too has escaped and that he has evidence of the emperor's bribe to two of the senators. Chariots are dispatched in pursuit and as Oedipus is about to be captured by the emperor's soldiers he wakes up in his own modern clothes and his employer the grocer is found explaining to him that the accident was not serious. Eddie finds himself with Cooper's check to the chief of police. Indictments, trial and conviction of the malefactors lead to Eddie's being acclaimed by the people of West Rome as a hero, as he again sings "Build A Little Home".

The plaintiff in a comparison of the continuity as filed, with the film as screened, lists in Exhibit 1 fifty-seven items of difference. To quote some of these is to show how utterly unimportant they are in respect to the questions submitted.

                                          FROM PLAINTIFF'S EXHIBIT 1.

                 CONTINUITY AS FILED                                       FILM AS SCREENED
                          5                                                        5
In the museum, Eddie removes a sheet from a                In the film, a hot-water bottle is used instead of
statue and reveals her with a toothbrush in her            a toothbrush. (P. 4.)
hand. (P. 9.)

                                          FROM PLAINTIFF'S EXHIBIT 1.

              CONTINUITY AS FILED—Cont'd                                FILM AS SCREENED—Cont'd

                         11                                                        11
The scene in the adjoining column is not in the            Eddie in a scene with a wagon, Julia, the horse,
continuity. (See page 18.)                                 and dice, says: "Look at that, Julia, four sevens
                                                           in a row. I owe myself $2.65. This is my lucky
                                                           day!" (P. 5.)

                         12                                                       12
The lyrics and the description of the action of            In the film, this is the first production number,
the "Build A Little Home" production number is             occupies several hundred feet of film, and an impression
omitted. Scenes 24-56. (P. 22.)                            is set forth which cannot be received by
                                                           the brief mention made of it in the D. C. (See page

                         14                                                       14
The dialogue in the adjoining column is not contained      The cops are ejecting Eddie from West Rome.
in the continuity. (See page 24.)                          Cop: "Well here we are."
                                                           Eddie: "Where am I going? Where will I live?"
                                                           Cop: "Why don't you go back to ancient Rome.
                                                            You're always talking about it."
                                                           Eddie: "That's right. They don't throw people
                                                            out there."
                                                           Cop: "Send us a telegram sometime. Get going."
                                                            (P. 8.)

                         20 A                                                    20 A
Further, the description of the "No More Love"             In the film see pp. 14-15 for the lyrics and complete
number in the D. C. is contained in four short             description of the action of the "No More
lines, "The whole slave market number now follows,         Love" number.
ending on the closeup of Piggi in Olga's
arms at the bottom of the Pedestal." The lyrics
of the song are not given, and the action which
takes several hundred feet of film is completely
left out. (See pp. 46, 47.)

                         27                                                       27
In the dungeon, Eddie and the torturers:                   In the same spot in this film, this is changed as
Torturer: "Come on, you!"                                  follows:
Eddie: "Please, fellows. Don't be rough with me.           Eddie: "You boys leaving? (As two torturers
 I'm delicate. I can't stand much pain." (P. 77.)           come to him) Nice development!" He feels the
                                                            muscle of one.) (P. 22.)

                         29                                                       29
In the throne room: Eddie is entertaining the Emperor      In this spot in the film Eddie's speech is greatly
and Agrippa with stories about America.                    elaborated and includes subjects not mentioned in
He speaks briefly of the radio, and croons. (P. 83.)       D. C., such as traffic, speakeasies, gangsters, etc.
                                                           (P. 24.)

                         31                                                       31
The action in the adjoining column is not in the           Eddie plays dice with the Emporer, and wins the
D. C. (P. 85.)                                             Coliseum, Forum, the Major Domo, and money.
                                                           (Pp. 24, 25.)

                         36                                                       36
The Empress to Eddie, in her boudoir:                      In the same scene this dialogue is changed to:
Empress: "Oedipus, he has designs on her."                 Eddie: ". . listen, Mrs. Valerius. Of course, it
Eddie: "You mean he's had her tatooed? Oh,                  is not any of my business, but you are not being
 that's terrible." (P. 94.)                                 a very good wife."
                                                           Empress: "You dare?"
                                                           Eddie: "Your husband works hard all day to give
                                                            you a nice house, nice clothes. At night he
                                                            comes home tired and hungry, and what does he
                                                            get? Poison." (P. 29.)

                         39                                                       39
The speech in the adjoining column is not in the           Major domo to a guard in the garden:
D. C. (Pp. 100, 101.)                                      Major domo: "You were told never to let anyone
                                                            in these gardens. I warn you * * * don't let
                                                            it happen again. To your post." (P. 31.)

                         40                                                       40
The entire scene in the adjoining column is not            Eddie, the Major domo and a guard are in the
in the D. C. (See page 101.)                               garden. Eddie tells the domo that certain black
                                                           magic words will make him immune to pain. The
                                                           domo strikes him. He strikes the domo, etc. (Pp.

                                          FROM PLAINTIFF'S EXHIBIT 1.

              CONTINUITY AS FILED—Cont'd                                FILM AS SCREENED—Cont'd

                         44                                                       44
Eddie to Sylvia, inside her room in the royal baths:       In the film:
Eddie: Don't eat anything at the Emporer's banquet."       Eddie: "Don't eat anything at the Emporer's banquet.
                                                            Lay off the food. I'll bring you an ice-cream
Sylvia: "Why not?"                                          soda later." (P. 34.)
Eddie: "Never mind. Just lay off the food. I'll
 bring you a sandwich later. (P. 107.)

                         46                                                       46
The production number "Young and Beautiful" is             For lyrics and complete description of this production
mentioned only by name in the D. C. (P. 112). Its          number, which is one of the major sequences
lyrics and entire action, which take up several            of the film, see pages 34-36.
hundred feet in the film, are omitted.

                         52                                                       52
On P. 126 of D. C. the action of Eddie trying to           In the film Eddie actually sings an entire song
avoid eating the nightingales is described as follows:     called "Put a Tax on Love", the lyrics of which
"Eddie goes into `I'll be Glad When You're                 are not given in the D. C. (See page 40.)
Dead, You Rascal, You'" and dances to curtain
which conceals Empress, singing, "Both of them
have got parsley."

                         54                                                       54
As Josephus and Sylvia are about to escape Josephus        In the film this dialogue is omitted. (See page 43.)
says: "I cannot leave Oedipus. Sylvia, you
go with Lucius. I will wait here."
Sylvia: "If you stay, Josephus, then I stay with
Olga: "You both must go. You can do nothing. I
 will try to help him if I can."
Josephus: "She is right, Sylvia. We are powerless."
 (Pp. 130, 131.)

The variations between the original shooting script and the moving picture, or the script "as released" may be summed up as disclosing at most a difference in minor dialogue, and the omission from the shooting script of the details of the dance numbers and songs, including the production number in the chariot chase toward the end of the picture. Also there are certain parts of the shooting script that are not embodied in the picture, but certainly such omission cannot be charged to infringement. The omissions in no way affect the theme or treatment of the theme, the sequence of plot or the treatment thereof.

In conclusion I find the following facts and conclusions of law:

1. That the continuity of the motion picture "Roman Scandals" as originally filed by the defendants with the clerk of the court as indicated in paragraph (a) of the order of June 30, 1939, constitutes a reasonably fair synopsis of the motion picture in words;

2. That the differences between the continuity and the film are not material to the extent that there is sufficient similarity between plaintiff's play entitled "Oh Shah" and defendants' motion picture "Roman Scandals" to justify a trial of other necessary elements of plaintiff's cause of action.

3. That the motion picture "Roman Scandals" is not an infringement of plaintiff's copyrighted play "Oh Shah".

4. That defendants' motion picture "Roman Scandals" is not a piracy of plaintiff's play "Oh Shah".

The complaint will be dismissed.


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