ROETTGER, District Judge.
Plaintiff recovered for copyright infringement a verdict in excess of $200,000 against defendants and the matter is before the court on defendants' motion for a new trial.
Plaintiff is a reporter with the Miami Herald who has twice received a Pulitzer prize for general local reporting, an accomplishment achieved by no other reporter. The origins of this case spring from his reporting the story of the Barbara Mackle kidnapping, a diabolical crime which occurred at the beginning of the college Christmas vacation in December 1971.
Barbara Mackle, the daughter of a wealthy Florida land development company officer, was attending college in Atlanta. Her abductors took her from an Atlanta
Miller and Barbara Mackle agreed to write the book together about her kidnapping — she was to relate the events to him and Miller was to write it. The book produced was titled 83 Hours Till Dawn. Barbara Mackle assigned her interest in the litigation to plaintiff.
At the close of plaintiff's case the court directed a verdict for defendants on the issues of unfair competition and punitive damages. The issue was submitted to the jury on the question of copyright infringement and the jury returned a verdict of $185,000 for damages — an intriguing amount inasmuch as it exceeded the amount plaintiff requested in closing argument. In addition, the verdict included loss of profits, as follows: against Universal for $16,000.00; ABC for $15,000.00 and defendant Post-Newsweek (TV Channel 10 in Miami) for $750.00. The trial was bifurcated and the same jury, which first determined that infringement by defendants had occurred, heard the evidence on damages and entered an award.
Plaintiff's technique consisted of personal research and interviews with the participants in the drama; he estimated an expenditure of more than 2500 hours in the preparation of the book. The writing technique is similar to that familiar to readers in recent years describing specific crimes: e. g. Truman Capote's In Cold Blood and Thompson's Blood Money. Similar styles are also found in descriptions of historical events, such as Cornelius Ryan's The Longest Day and The Last Hundred Days; Walter Lord's A Day In Infamy and Incredible Victory; among others.
Miller testified as to a number of similarities between his book and both the script and film. Among the similarities, the source of which is found only in his book are the following:
Significantly, the operator who received a call from the kidnapper giving the location of the "coffin" died within three months after the trial; she did not testify at the trial and Miller interviewed her immediately after the trial. His book is the only source as to her version of the events.
Even mistakes made by Miller were copied into the film: the want ad — the medium required to respond to the kidnappers — was located in the same place both in the book and the film although it actually appeared in a different location.
William Frye, a producer for Universal, read Miller's account of the kidnapping in a doctor's office. He thought it would be an excellent television film or movie and circulated the magazine at the studio. In addition, he told plaintiff he was interested in making a movie and that it would be an excellent TV film. He gave a copy of the book to Gerard, the script writer, and never received it back.
In February of 1972, Frye called Miller about purchasing the rights and offered him $15,000.00. Miller refused it and asked for $200,000. Frye indicated he might go as high as $25,000 but no agreement was
The writer, Gerard, read the Readers' Digest article in January or February, 1972 and thought it would be a good story for a movie of the week. He claimed he went to the library and read for one-to-two hours but admitted that he had written a good deal of the script before the transcript of the court proceedings arrived. He used the transcript to check facts. By April 21, 1972 a full run of the script was completed and 150 copies distributed. He admitted he might have looked at the book or the Readers' Digest article even after April 5th to check matters not available elsewhere. He testified he thought a deal had been made with Miller for the rights and he could proceed on that basis.
Particularly damning evidence against defendants was the "smoking gun exhibit", a memo from Gerard to Frye dated March 7, 1972, which states as follows:
Universal's television film, found by the jury to have infringed plaintiff's copyright, was entitled THE LONGEST NIGHT and shown nationally by ABC and locally in the Miami area by local Post-Newsweek station, Channel 10.
The preceding evidence alone would have amply justified the finding of infringement by defendants. In addition, plaintiff introduced other evidence of infringement plus an expert opinion, all amply buttressing the jury's conclusion of infringement. Further, the jury had convincing visual evidence of the writer Gerard's squirming and fidgeting on the witness stand indicating that he had plagiarized plaintiff's book.
Although defendants have listed numerous bases for a new trial
Stripped to its essentials the difference between the court's instruction and defendants' instruction is that the court's statement that research is copyrightable. Therefore, the court's reasons for including this statement will be elaborated.
As the court's instructions make clear, the court, in accordance with defendants' proposed instruction and traditional copyright law, accepts the truism that "historical facts and events in themselves are in the public domain and are not entitled to copyright protection," Lake v. Columbia Broadcasting System, Inc., 140 F.Supp. 707, 708-709 (S.D.Cal.1956). The court does not seek to challenge nor does it see any basis in precedent to challenge the distinction between uncopyrightable fact, Echevarria v. Warner Brothers Pictures, 12 F.Supp. 632, 638 (S.D.Cal.1935), and the copyrightable expression of fact. Holdredge v. Knight Publishing Corp., 214 F.Supp. 921, 923 (S.D. Cal.1963).
The law is clear that research can be copyrightable. Toksvig v. Bruce Publishing Co., 181 F.2d 664 (7th Cir. 1950); Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484, 486 (9th Cir. 1937); H. C. Wainwright & Co. v. Wall Street Transcript Corp., 418 F.Supp. 620, 623 (S.D.N.Y.1976); Southwestern Bell Telephone Co. v. Nationwide Independent Directory Service, Inc., 371 F.Supp. 900, 905 (W.D.Ark.1974); Huie v. National Broadcasting Co., 184 F.Supp. 198, 200 (S.D.N.Y.1960); but see Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 309-310 (2nd Cir. 1966).
The court views the labor and expense of the research involved in the obtaining of those uncopyrightable facts to be intellectually distinct from those facts and more similar to the expression of the facts than to the facts themselves. The Second Circuit said that the distinction in copyright between the expression of an idea and the idea is an attempt "to reconcile two competing
Obviously the same competing principles have resulted in the development of the distinction between the expression of a fact and the fact. As it is necessary to reward the effort and ingenuity involved in giving expression to a fact, it is necessary also, if we are to expect individuals to labor on our behalf, to reward the effort and ingenuity involved in obtaining knowledge of the fact. It further appears to the court that other individuals are not deprived of the opportunity of obtaining knowledge of facts by one individual's copyright of his research of those facts and that therefore the nation may still benefit from further improvements or progress resulting from other individuals' use of those facts. Judge Learned Hand said it best:
To this court it doesn't square with reason or common sense to believe that Gene Miller would have undertaken the research involved in writing of 83 Hours Till Dawn (or to cite another more famous example, that Truman Capote would have undertaken the research required to write In Cold Blood) if the author thought that upon completion of the book a movie producer or television network could simply come along and take the profits of the books and his research from him. In the age of television "docudrama" to hold other than research is copyrightable is to violate the spirit of the copyright law and to provide to those persons and corporations lacking in requisite diligence and ingenuity a license to steal.
The evidence of infringement was clear, convincing and overwhelming. Accordingly, it is
ORDERED AND ADJUDGED that the motion of defendants for new trial or in the alternative for new trial on damages is denied.
Rule 615 is silent on the consequences of noncompliance with an order of sequestration. It is generally held that whether a witness who has violated such an order is to be permitted to testify is "left to the sound discretion of the trial court." U. S. v. Suarez, 487 F.2d 236, 238 (5th Cir. 1973). In light of Holder v. U. S., 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893) and its progeny, see, e. g., U. S. v. Schaefer, 299 F.2d 625 (7th Cir. 1962), it is clear that the court's right to exercise its discretion to exclude a witness is limited to those cases where "the defendant or his counsel have somehow cooperated in the violation of the order [of sequestration]," U. S. v. Tolbert, 496 F.2d 154, 157 (9th Cir. 1974). In the instant case, as stated previously, defendants' counsel have admitted that they cooperated with Professor Sullivan in his violation of the order and indeed they were apparently the primary force in the witness' violation of the order. Defendant invokes an alleged custom allowing such behavior on the part of counsel and asserts a violation of the court's order by plaintiff's expert witness. However, the alleged custom was not established and defendant did not prove a violation of the court's order by plaintiff. The court finds that it acted within its discretion and moreover acted correctly.
The plaintiff has offered evidence that he expended a great deal of effort in researching and writing his book or work. It is important that you understand the legal significance of this evidence.
No matter how great his effort in discovering the facts, plaintiff may not monopolize those facts because they are historical facts and everyone has the right to write about and communicate them to the public. The law encourages later writers to refer to and use earlier writings dealing with the same subject matter and occasionally even to quote directly from such works. This practice is permitted because of the public benefit encouraging the development of historical and biographical works and their public distribution. Writers are not prohibited from referring to prior works because to do would simply result in wasted duplication of effort. The notion that ideas and facts may not be copyrighted is designed to prevent and eliminate the need for just such wasted effort. It is for you to determine what portions of plaintiff's work constitute historical facts and ideas. (Footnotes omitted).