FEINBERG, District Judge.
This is an action for alleged copyright infringement of plaintiffs' plays by the book and motion picture "The Blackboard Jungle," which deal with the problems of a teacher in a New York City vocational high school. Plaintiffs are Morris Bertram Burnett ("Burnett"), a citizen of New York
Plaintiffs are the co-authors of a play entitled "Shadows In The City" ("Shadows"). Plaintiffs deposited a copy of "Shadows" in the Copyright Office in 1943. A Certificate of Registration of a claim to copyright as an unpublished work under 17 U.S.C. § 12 was issued May 20, 1943. Plaintiffs are also co-authors of "Hickory Stick" which they characterize as a "rewritten version" of "Shadows."
Hunter is the author of a novel "The Blackboard Jungle," published in 1954 by Simon and Schuster. In 1955, the novel was reprinted in a paperback edition by Pocket Books, Inc. Approximately two and one-half million copies of the novel were sold. In 1954, a motion picture version of Hunter's book was produced, and, in 1955, exhibited by MGM.
Plaintiffs claim that both Hunter's book and the motion picture version were plagiarized from "Shadows" and "Hickory Stick" and that plaintiffs' statutory and common-law copyright in those works have thereby been infringed.
Before reaching the merits, there is a preliminary question to be considered. Defendants claim that plaintiffs have forfeited any statutory or common-law copyright by making a "general publication" of both "Shadows" and "Hickory Stick." If this contention is correct, that would dispose of the case, since plaintiffs urge no theory in support of their complaint which is not based on copyright law.
With regard to this issue of forfeiture, plaintiff Stephani testified
In Hirshon v. United Artists Corp., 100 U.S.App.D.C. 217, 243 F.2d 640, 644-645 (1957) some 2,000 copies of an unpublished song "were distributed to broadcasting stations and professional musicians for `plugging' purposes." The Court of Appeals for the District of Columbia refused to hold, on a motion for summary judgment, that there was "such general publication as to vitiate appellant's copyright." The court also pointed out that "From the results of the decided cases, the principle is discernible that it takes more publication to destroy a common-law copyright than to perfect a statutory copyright." See American Visuals Corp. v. Holland, 239 F.2d 740, 743 (2 Cir., 1956). In Ilyin v. Avon Publications, Inc., 144 F.Supp. 368, 373 (S.D.N.Y.1956) 100 copies of an uncopyrighted work were distributed "to certain theatrical producers free of charge in an effort to induce them to produce the work." This Court held that this "was not a publication within the meaning of the act." See also Jerome v. Twentieth Century Fox-Film Corp., 67 F.Supp. 736, 739 (S.D.N.Y.1946) aff'd 165 F.2d 784 (2 Cir., 1948). The public performance of "Hickory Stick" in New York in 1944 was not an abandonment of plaintiffs' copyright protection
Plaintiffs' primary claim is that defendant Hunter had access to plaintiffs' plays and that he copied from them. There was an oblique attempt made by plaintiffs to show that Hunter actually saw the play "Hickory Stick" when it was performed in May 1944 in New York City.
The proof urged to show access and copying by Hunter is mainly the allegedly "great number of similarities between the works." It is true that, to substantiate their claims, plaintiffs also point to various other facts, such as that Hunter sought the assistance of sources other than his own experience, that his experience as a teacher in a vocational school was of a limited nature, and that he did not plan to write the book during the period when he was engaged in teaching. Hunter's teaching experience was as follows: during the period from February to June 1950, Hunter taught English as a student teacher at Machine and Metal Trades High School, a vocational high school in the City of New York; during the month of September 1950, he taught English at Bronx Vocational High School, another vocational high school in New York City.
During the months from August 1953 to January 1954, Hunter wrote and created the novel "The Blackboard Jungle." The main character is Richard Dadier, who shares many physical characteristics with Hunter, and much of his personal background as well. In the novel, Dadier is represented as a married Navy veteran of World War II, who lived in the Bronx and attended Hunter College, where he "majored" in English and "minored" in education and performed in amateur plays. Dadier is further described as a student teacher in a trade school who, upon his graduation from Hunter College, secured an "emergency" license to teach and then taught English in a vocational high school. All of this describes Hunter and Dadier with equal accuracy. It is clear that Hunter could have been — as Hunter testified he was
Hunter, since 1954, has become a professional writer of established reputation whose works have sold well. Hunter's writing habits, his methods of research and his manner on the witness stand all demonstrate that he retains and uses his experience as grist for the writer's mill. While his teaching experience in a vocational school was limited, it was vivid and clearly sufficient to provide Hunter, a writer with a receptive mind, with many details that could be incorporated into a novel about a teacher in a vocational school. The "other facts" relied upon by plaintiffs, therefore, do not support plaintiffs' contentions of access and copying. In the last analysis, plaintiffs' claim of "great number of similarities between the works" is the crucial question.
Attached to this opinion as an Appendix is a detailed summary of the plots of the four works in question. Plaintiffs' two plays are essentially melodramas, with a vocational school background, focusing on incidents in the lives
Plaintiffs attempted to substantiate their claim of infringement with detailed charts of 25 "specific similarities" between their plays and Hunter's novel,
Reexamination of the charts only reinforces my conclusion that defendants are entitled to judgment. Hunter did not copy from plaintiffs. Any similarities between plaintiffs' plays and the novel and motion picture involve language that is insignificant or characters or plot ideas that are so general as to be uncopyrightable. It is true that all four works have similarities growing out of the vocational school background. Thus, in each work, there are idealistic teachers, cynical teachers, stupid students, intelligent students and unruly students and relationships between them. Such stock characters and situations are inherent in use of the school as a background and are not copyrightable. The familiar test of copyrightability distinguishes between the "ideas" used by the author and his "expression" of them. Only the latter is said to be copyrightable. Holmes v. Hurst, 174 U.S. 82, 86, 19 S.Ct. 606, 43 L.Ed. 904 (1899). The problem of separating protectible matter from unprotectible matter is often considerable, but resolution of the issue is aided here by the breadth of what plaintiffs claim is theirs. Judge Learned Hand's words in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2 Cir.) cert. denied, 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1930) are apposite:
In the same case, the Court also pointed out (45 F.2d at 122):
Similarly, plot ideas were regarded as not copyrightable in the following cases: Rosen v. Loew's Inc., 162 F.2d 785, 788 (2 Cir. 1947) (burning of Jewish books and hostility of German students toward Jewish teachers in Nazi Germany); Bein v. Warner Bros. Pictures, Inc., 105 F.2d 969, 970 (2 Cir. 1939) (life in a reform school); MacDonald v. Du Maurier, 75 F.Supp. 655, 660 (S.D.N.Y.1948) (second wife living in a home formerly occupied by her husband and his first wife); Rush v. Oursler, 39 F.2d 468 (S. D.N.Y.1930) (murder in theater during a performance).
It is against this background of applicable law that plaintiffs' claims and charts are best assessed. Plaintiffs point to the following, inter alia, as alleged similarities between the works:
(a) the confusion at a teacher's first meeting with his class;
(b) a teacher forming an alliance with the class leader;
(c) discipline through physical punishment;
(d) a teacher showing the importance of English in everyday life;
(e) a reference to the orchestra leader, Harry James;
(f) a reference to football;
(g) an experienced, cynical, uninterested teacher given to physical punishment;
(h) a sneaky, cunning, belligerent student, bitter at the world;
(i) a school principal who is a pompous, stupid man, uninterested in teaching problems.
With respect to language alone, plaintiffs regard as significant evidence of copying, among other things, that a teacher in both plaintiffs' works and in Hunter's novel is referred to as a "cop,"
1. A claimed similarity
Plaintiffs claim that "similar teaching devices" are used in their plays. They rely on the attempt of Kirkland (the main teacher in plaintiffs' plays but by no means the protagonist) to teach his class about O. Henry, characterized as a "writer who didn't like to write." In plaintiffs' plays, at a few places in two pages of the typewritten manuscript of each, one student tells Kirkland O. Henry's birthplace and another student refers to him as a "smart guy." The class is then disrupted by another student's provocation of Kirkland. It is impossible to find evidence of any intent by the authors to endow the subject matter of the lesson with the significance they now attribute to it. The lesson in plaintiffs' plays has no effect whatsoever on class or teacher. In "The Blackboard Jungle," however, nine pages at an important point in the book are devoted to describing what becomes an exhilarating experience for Dadier. It confirms his feeling that the students can indeed be taught and that he can teach them. Moreover, it is based upon an actual teaching experience known to Hunter of using "The Fifty-First Dragon" in a vocational high school English class.
2. Plaintiffs made much at the trial of the fact that the room in which Kirkland teaches in their plays and the room in which Dadier teaches English in "The Blackboard Jungle" are both numbered 206.
Regardless of the difficulty often encountered in defining protectible matter in particular cases, it should be apparent from plaintiffs' highly general "descriptions" of "similarities" that plaintiffs are on the wrong side of the vague boundary between "ideas" and "expression." Moreover, careful analysis of the works
From all of the evidence, therefore, it appears that this action is based upon
I make the following additional findings:
Hunter was the model for the character Richard Dadier in the novel "The Blackboard Jungle" and the character Dadier was not patterned on any character created by plaintiffs. Anita Hunter, Hunter's wife, served as the model for the character Anne Dadier in the novel "The Blackboard Jungle." Various teachers described in "The Blackboard Jungle" are patterned after and based on various teachers known to Hunter who taught at Bronx Vocational High School and at Machine and Metal Trades High School. The school described in the novel "The Blackboard Jungle" as "North Manual Trades High School" is a fictionalized representation of Bronx Vocational High School, and the description of the room 206 and its location in the fictional school in "The Blackboard Jungle" correspond to the actual room numbered 206 and its location in Bronx Vocational High School in the City of New York.
Peter Schwed ("Schwed"), Vice-President and Executive Editor of Simon and Schuster testified at trial. His straightforward testimony, which I believe, was that he was the only officer, employee or representative of Simon and Schuster or Pocket Books, Inc. who suggested to Hunter any revision or change in the manuscript of the novel "The Blackboard Jungle" before it was published. No copy of "Hickory Stick" or "Shadows" was sent to or received or read by Hunter or by Schwed before the novel "The Blackboard Jungle" was published. At the time the play "Hickory Stick" was performed in New York City, Schwed was outside the territorial limits of the United States serving in the armed forces of the United States.
Schwed did not attend any performance of "Hickory Stick," and neither he nor Hunter had any knowledge of the existence of "Shadows" or "Hickory Stick" before the novel "The Blackboard Jungle" was written or before it was published. Defendants Simon and Schuster and Pocket Books, Inc., Hunter and Schwed did not have access to a copy of "Hickory Stick" or "Shadows." The novel "The Blackboard Jungle" was written solely by Hunter with some editorial assistance from Schwed. No part of "Shadows" or "Hickory Stick" was used by Hunter, or copied or considered in the writing, preparation or creation or revision of the novel "The Blackboard Jungle." No part of "The Blackboard Jungle" was copied from or infringes "Shadows" or "Hickory Stick."
The main characters of the novel "The Blackboard Jungle" are dissimilar from the main characters of the plays "Shadows" and "Hickory Stick." The theme, story and plot development of the novel "The Blackboard Jungle" are dissimilar from the theme, story and plot development of "Shadows" or "Hickory Stick." The only similarities between the novel "The Blackboard Jungle" and the plays "Shadows" and "Hickory Stick" are those that would normally follow from the fact that many of the events in the novel and in the plays took place in a vocational high school in New York City.
Plaintiffs also claim that MGM had independent access to their works
To prove MGM's independent copying, plaintiffs rely not only on the similarities already referred to but also on four "similarities in play and movie, not in book."
I have carefully examined these alleged similarities and they range from the merely erroneous or noncopyrightable to the ridiculous. Suffice it to say that the comments above (pp. 331, 332-333, 333-334) regarding alleged similarities between plaintiffs' plays and Hunter's novel apply here as well. I find that Brooks and MGM did not copy from plaintiffs' plays and that the motion picture does not contain any copyrightable material copied from plaintiffs' plays. The motion picture is clearly based upon Hunter's book.
Defendant Simon and Schuster, inter alia, moves to dismiss the complaint as to it so far as "Hickory Stick" is concerned, arguing lack of jurisdiction. It claims that because "Hickory Stick" was never copyrighted, there is no federal question jurisdiction, and diversity jurisdiction is absent because plaintiff Burnett and Simon and Schuster are citizens of the State of New York. Plaintiffs claim that the bulk of "Hickory Stick" is protected by the copyright on "Shadows" so that there is federal jurisdiction even if diversity of citizenship is lacking. There is concededly federal jurisdiction over Simon and Schuster as to the alleged infringement of "Shadows." If plaintiffs' claim were confined to "Shadows" alone, my findings of no copying and no infringement would remain the same. In addition, even if plaintiffs' cause of action relating to "Hickory Stick" were not properly before the Court as against Simon and Schuster, diversity jurisdiction would appear to remain with respect to plaintiffs' claim of infringement of this work as against MGM. In view of these factors and my findings on the merits regarding both plays, I do not believe it necessary or advisable to deal with the complicated subsidiary issue of whether "Hickory Stick" is protected by the copyright on "Shadows" and, if so, to what extent.
Accordingly, based upon all of the evidence in the case, my judgment as to the credibility of witnesses, where appropriate, and my findings of fact already
"Shadows In The City"
"Shadows" is a melodrama based on the violence and insensitivity of slum-reared high school students and deals with the disaster which a deranged student brings upon himself and other students. A teacher, who is unable to prevent the tragedy, is a prominent character, but the protagonists are the students.
In the first scene, the trial begins of Tony Pessolano, a teen-age boy, for the murder of one of his classmates, Steven Ames. After a succession of defiant witnesses, all students, testify, one James Kirkland asks for permission to conduct Tony's defense. Kirkland was the teacher of all of the students who have appeared, and of Ames as well. After declaring that something more than a personal motive was the cause of the murder, Kirkland asks the audience to go back with him to a metropolitan vocational high school. It is there that the remainder of the play's action takes place.
Kirkland, a recently discharged wounded war veteran, begins at the school as an English teacher. He talks with several teachers, among them Lorimer, an earnest young man who speaks in passing of the difficulty of dealing with disciplinary problems in the school, and Walsh, a bantering but cynical man. Walsh advises Kirkland that the school is populated with the most stupid and incorrigible students in the high school system, and that physical punishment is the best means of insuring discipline. Kirkland then meets several of his students-to-be: Tony, a disciplinary problem and the leader of the class; McLemore, a brutish boy who wants Tony's sister, Rita, as his girl; Rita, an attractive seventeen-year old who loves Ames; and Ames, an intelligent boy who is filled with bitterness which he fortifies by reading Housman. In Kirkland's class, these students and their fellows are unresponsive and unruly.
Kirkland recognizes Ames' intelligence. When he attempts after class to discover the reason for Ames' embitterment, he is rebuffed and is told by the boy that his father is a criminal and his mother a madam.
Kirkland's attempt to teach the class is, throughout the play, frustrated by its unresponsiveness and by Tony's trouble-making. This eventually leads to a fight between Tony and a provoked Kirkland. Tony complains to the principal that Kirkland struck him. Kirkland decides to leave of his own accord, in despair at having had to resort to physical force.
The major story in the play is that of Rita's infatuation with the unhappy Ames. Early in the second act, Rita tells Kirkland that she loves Ames and asks for his help, but he refuses. Rita is also concerned about Tony's possession of a gun belonging to their older brother, Joe, who has been sentenced to prison. Afraid that Tony will injure or kill someone with the gun, Rita entreats Ames to help her get it from Tony. Ames is bitter and sarcastic and quotes Housman to Rita. Rebuffed, she begins to cry; Ames attempts to soothe her. They are interrupted by McLemore, with whom Rita exits.
In the final act, Walsh expresses his rage at Tony for complaining to the principal that Kirkland had struck him, and encourages other students to strike Tony under Walsh's approving eye. Walsh is himself about to assault Tony when Lorimer enters to say that Kirkland is leaving but could be induced to remain by an expression from the students that they wanted him to stay. When Kirkland enters, they voice such sentiments, but Kirkland is immediately told by Ames that the students were coerced.
When the room empties, Rita and Ames have their last meeting. She protests her love, but Ames is at first immovable. He complains of his father who deserted his mother, leaving her to bear him in a world of misery. Later, however, he softens, and they talk wildly about running away to marry. He indicates that he wishes to die. He pretends to become passionate towards her, though his real motive is to obtain the gun so that he can kill them both. At that point, Tony enters and Ames goads him into shooting him. He dies laughing. Kirkland closes the play saying Tony and thousands like him are "a product of our social system."
"Hickory Stick" is a rewritten version of "Shadows," with some changes in both dialogue and minor characters. There is no courtroom scene. Kirkland is somewhat more idealistic than he was in "Shadows"; Walsh is the same; Dan Lorimer has become Karen Lorimer, but continues to be a minor character. Again, the major characters are three students — Tony and Rita Pessolano and Ames. Ames is more specifically endowed with a death-wish, and now reads Nietzsche and Schopenhauer, rather than Housman.
A noticeable difference between plaintiffs' two plays is that in "Hickory Stick" Kirkland and Tony become friends. During his war service, Kirkland had become friendly with Tony's older brother, Frank, who was killed in action. After the first class he teaches, in which Tony deliberately creates a disturbance, Kirkland tells Tony that he knew Frank. Tony, producing a letter from Frank, recalls that in it Frank had mentioned Kirkland with warmth. He becomes remorseful and he and Kirkland agree to be friends.
Ames, however, inspires the belief among the students that Tony is currying favor with Kirkland, whom they call a "sissy." Tony, to prove that this is not true, agrees to provoke Kirkland into striking him. After a fight occurs, Ames writes a letter to the principal over Tony's signature, complaining that Kirkland struck him. Also after the fight, Joe Pessolano, Tony's brother and a fleeing criminal, appears and asks Tony to keep his gun. Tony agrees. Later when Tony learns that Ames wrote the letter, he is forced to remain mute out of fear that Ames will expose his possession of the gun.
The other events in "Hickory Stick" substantially parallel those in "Shadows" except that, at the end of the play, after Ames has taunted Tony into shooting him, Kirkland returns. He states that Ames wished to die and announces that he will stand by Tony and all those young men in the vocational school who can turn out "all right" despite the indifference of so many of their teachers.
"The Blackboard Jungle" (the novel)
The protagonist in "The Blackboard Jungle" is Richard Dadier, a young man who was graduated from college after his discharge from the Navy. The major theme of the book is his struggle, as a beginning teacher of English in a vocational high school, to communicate with his students and to avoid becoming a resigned or embittered failure. The novel traces Dadier through a detailed series of frustrations with his students, a transitory classroom success, and, at the end of the book, to a limited victory over the defiance and resentment of his students, and the feeling that he can be useful in his job by "reaching" a few students. A related theme is the effect of the job and the hazards incident to it on his relationship with his wife, Anne, with whom he is deeply in love.
Each of two other beginning teachers is the focus of a subplot of considerable scope. Lois Hammond is a highly attractive young woman who makes repeated attempts to seduce Dadier, which he rebuffs. Joshua Edwards is weak but idealistic; his idealism persists even after he and Dadier are badly beaten by some students one evening. However,
Dadier's students are, at the outset and throughout most of the book, unresponsive if not defiant. Among them are Gregory Miller, a Negro, the leader of the class and obviously equipped with greater intelligence than his fellows; Arthur West, a vicious thug; and Santini, a mentally retarded boy. During Dadier's first meeting with his class, he is threatened, West is openly insulting, and Miller defies him with constant remarks. After his first class, Dadier hypocritically attempts to enlist Miller on his side by flattering him in order to get Miller to cooperate with him and thereby set an example to his classmates.
As the plot unfolds, Dadier prevents Lois Hammond from being raped by a student, whom he forcibly subdues. The students, when they learn that the wouldbe rapist is to be prosecuted, resent and mistrust Dadier. His own class is deliberately obtuse as a gesture of rebellion. Dadier is told of the class' attitude by Miller, who now much resents Dadier's attempt to use him to keep order in the classroom.
Dadier's problem with his students multiply after he and Edwards are beaten by them in a vivid episode: in a class, he attempts to provoke them to write imaginative compositions by acting out the topic he assigns, but is deeply disappointed to find that they merely attempt literal descriptions of his actions in nearly illiterate prose; his attempt to arouse their interest in diction totally fails when Miller encourages one student to speak with his usual obscene vocabulary; Arthur West, who remains vicious, threatening and incorrigible throughout the novel, falsely reports to Mr. Small, the pompous school principal, that Dadier is a bigot, and Dadier must furiously explain that the report is a perversion of the true context of his words.
Dadier fights despair at his failure to communicate with his students. He refuses, however, to surrender to the cynicism of Solly Klein, a veteran teacher with whom he occasionally debates whether and what the students can be taught. Klein constantly tells him that the students cannot and will not learn and that the function of the teacher in a vocational high school is to occupy the students and keep them off the streets, while protecting himself physically as best as he can. Most of the other teachers with whom Dadier discusses his difficulties agree with Klein. Some, such as Captain Schaefer, a minor character who is the physical education teacher, go further and state bluntly that physical force is the only solution.
Dadier finally begins to have rare instances of success: he is deputized to direct the school's Christmas play, and Miller and a group of other boys volunteer to sing. They are cooperative and Dadier and Miller are able to speak frankly to each other at rehearsals, although Miller remains unruly in class. Also, Dadier finally feels that he has "reached" his class when he reads them a story which they excitedly realize is an allegory from which they can learn a message.
However, Dadier is unable to see his successful Christmas play and is unable to capitalize on his success at communicating to the class. His wife Anne has a miscarriage, partially brought on by worry over a series of anonymous letters sent by Arthur West which tell her that Dadier and Lois Hammond are having an affair. This is not true. Dadier is forced to miss a week of school. Upon his return after the Christmas holidays are over, he finds that he must begin again to try to "reach" his students and he is almost totally discouraged. Yet, at the climactic moment of the book, when he is attacked in the classroom and knifed by West, the students, led by Miller, intervene to protect him. The students also understand — again led by Miller — that Dadier must report the incident. The book ends after this incident,
"The Blackboard Jungle" (the motion picture)
The motion picture version of Hunter's novel is quite faithful to the novel, although it picks out the more dramatic scenes in the book and eliminates others. Some of the most noticeable differences are the following: a detective investigating the beating of Dadier and Edwards attempts to induce Dadier to press charges against the attackers; Dadier revisits a former teacher of his and tours an academic high school at which he could teach if he left his job at the vocational school; a group of students, led by West, assault the driver of a newspaper truck and steal the truck; Anne Dadier's child lives; during the period when there is some doubt about whether the child will survive, Dadier decides to quit, and Jim Murdock, who is patterned after Solly Klein in the book, attempts to persuade him not to. Anne Dadier finally persuades her husband to remain at the school.