There is no dispute as to the amount which has been paid to the plaintiff, but there is no way of telling from the record before us whether the amount thus paid is 20 per cent of the amount received by defendants, without any deductions therefrom. Such fact can be ascertained, however, upon the accounting. My conclusion, therefore, is that the judgment appealed from should be modified, as above indicated, without costs to either party. The order to be entered herein, which will be settled on notice, should contain the necessary modifications of the findings. All concur. [160 New York Supplement, pp 109-111.] BACHMAN et al. v. BELASCO. (District Court, S. D., New York. July 9, 1913.) COPYRIGHTS-INFRINGEMENT-DRAMATIC COMPOSITION. Bachman Belasco, July A producer of a play held not chargeable with infringe- 9, 1913. In equity. Suit by Amelia Bachman and George L. Charles O. Maas, of New York City, for complainants. A. J. Dittenhoefer and Dudley F. Phelps, all of New York City, for defendant. MAYER, District Judge. This suit for infringement of Page 816. copyright exemplifies the practical value of the new equity rules-especially in the opportunity to see and hear the witnesses. Nothing in the briefs submitted has changed the conclusion stated at the close of the trial. The evidence is complete and satisfactory that Mr. Locke wrote "After Many Days" (subsequently called "The Case of Becky") without any knowledge of the existence of Miss Bachman's "Etelle." The writing of the play by Mr. Locke was the natural outcome of his interest in themes dealing with hypnotic influence and multiple personality, and when he was attracted by "How One Girl Lived Four Lives" by John Corbin, in the Ladies' Home Journal and Dr. Prince's book, he was at work on "The Climax "-a play in which hypnotism or mental suggestion is the predominant feature. I am also satisfied beyond any doubt that Mr. Belasco never saw, read, or heard of "Etelle" prior to his acceptance of Locke's play. It is entirely clear that the correspondence and conversations of Mr. Stillman (Mr. Belasco's play reader) with Miss Bachman, constituted a polite method of declining manuscript. Miss Bachman testified that her play had its foundation in the ideas suggested by John Corbin's article. That being so, and the facts found by me being as above stated, it follows that complainants had no case. (Harper & Bros. v. Kalem, 169 Fed. 61, 94 C. C. A. 429, affirmed 222 U. S. 55, 32 Sup. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285; Glaser v. St. Elmo Co., Inc. (C. C.) 175 Fed. 276.) It is not necessary to go any further to warrant the dismissal of the bill, but it may be remarked that "The Case of Becky" is in substantial respects different from "Etelle." It is to be expected that two playwrights working independently from a common source may develop similarities in their plots and in their lines, but "The Case of Becky" displays the skill of the experienced playwright in a number of important particulars and details not to be found in "Etelle." It is unnecessary to set forth these differences at length, but any one interested may find an elaborate analysis in the appendix which forms part of defendant's brief. The bill is dismissed, but without costs, because the Stillman correspondence undoubtedly led Miss Bachman into the belief that her manuscript had been read by defendant. Settle decree on notice. [224 Federal Reporter, pp. 815–816.] BACHMAN et al. v. BELASCO. (Circuit Court of Appeals, Second Circuit. May 12, 1915.) No. 143. Bachman v. 1. COPYRIGHTS-INFRINGEMENT Belasco, May 12, 1915. SIMILARITY. A dramatic composition, having a dual personality for its motif, held not an infringement or plagiarism of complain ants' copyrighted play, having the same motif; the mate- 2. COPYRIGHTS-INFRINGEMENT SITUATIONS TAKEN FROM COMMON SOURCE. The person first presenting, in a copyrighted play, situations naturally suggested by a common source, can not prevent others from also presenting such situations, provided they get the idea from a common source, and not from the copyrighted play. Appeal from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing the bill in a suit to enjoin alleged infringement of copyright. Affirming decree in 224 Fed., 815. Charles O. Maas, of New York City (Tupper & Kavanagh, of New York City, of counsel), for appellants. Dittenhoefer, Gerber & James, of New York City (A. J. Dittenhoefer and Dudley F. Phelps, both of New York City, of counsel), for appellee. Before Lacombe, Coxe, and Ward, Circuit Judges. LACOMBE, Circuit Judge. [1] The complainant Bachman wrote and duly copyrighted a dramatic composition entitled "Etelle." The keynote of the play was dual personality, a phenomenon which had been exploited by Dr. Morton Prince in a book detailing his scientific study of the case of a lady, whom he calls Miss Beauchamp (not the real name of his patient), and by John Corbin in a story published in the Ladies' Home Journal, entitled "How One Girl Lived Four Lives." Miss Bachman sent her play to defendant; it remained in the possession of his reader for six weeks, and was then returned with a letter stating that defendant had read the play, but regretted that it was not available. The testimony shows that this was what the district judge describes as a polite way of declining the manuscript." Defendant and his reader both testified that Mr. Belasco did not read the play. Mr. Edward Locke wrote a dramatic composition called "After Many Days" with the same motif—a dual personality-which was accepted by defendant and per- Page 818. formed on the stage of his theater, the name being changed to "The Case of Becky." Locke testified that he did not see or know of Miss Bachman's play when he wrote his own. Plaintiff's contention is that the similarities between the two are such as to demonstrate the "Case of Becky" was a plagiarism from "Etelle." Appellant's brief fairly states the issue as follows: The paramount question is whether the similarities existing between the two plays are mere coincidences arising because of the development by two playwrights of a central idea taken from a common source, or whether these similarities are such as to overbalance the testimony of the defendant's witnesses and reveal plagiarism, and, further, if there was not piracy, was there such an unintentional infringement of complainant's copyright as to justify the equitable relief which complainants seek? We have read Corbin's story, have looked over Dr. Prince's book, and have read both plays, and have reached the conclusion that in the story and the book there is enough to suggest the plot, incidents, situations, and dialogues of both plays, without any mutual assistance, the one from the other. We find no similarities between the two plays sufficient to suggest plagiarism by the author of the later one. The parallel columns in the brief of appellant are not only unpersuasive, but in many parts silly. For instance, the statements that the action of both plays begins "in the morning" with "one man on the stage"; that in one play the leading lady says to her fiancé, "I'm so glad to see you," in the other, "I am so pleased to see you"; that in one play a physician says of the heroine, "She is in a highly nervous condition," in the other a similar character says of the villain, "He will probably be in a highly nervous state"; that in the one play a comic character says "Ain't it awful, sir?" and in the other a serious character says, "Oh, it is awful." The first of these phrases, changing merely the last word to "Mabel," was common property here when both plays were written. There are several pages of these inconsequential similarities. [2] As to the similarities of any real importance, all of them are readily accounted for by reference to the common source. We see no reason to doubt the testimony of Mr. Locke, the writer of the second play, that he had never seen or heard of plaintiff's play, when he wrote his own. The common source naturally suggests to anyone particular situations; for instance, the prominent one in both plays, that an attractive young lady with a dual personality, one serious and conventional, the other frisky and highly unconventional, may find herself placed in situations calculated to injure her reputation. BENTLEY v. TIBBALS. (Circuit Court of Appeals, Second Circuit. March 1. COPYRIGHTS-STATUTORY PROVISIONS. The exclusive right of multiplying and vending copies of an intellectual work is of purely statutory origin. 2. COPYRIGHTS-INFRINGEMENT EQUITABLE RELIEF. An alien and subject of Great Britain, who secured in 1906 a copyright under the laws of the United States for a book entitled "Bentley's Telegraph Cyphers," and who subsequently published in London a larger book, entitled "Bentley's Complete Phrase Code," and secured for that work a British copyright, on the title page of which appeared the statement that the copy included the "Telegraph Cyphers" entered under act of Congress, and who, prior to and subsequent to 1910, sold copies of the later work in the United States printed from type set up in London, in violation of Copyright Act March 4, 1909, ch. 320, 35 Stat. 1075, was not guilty of misconduct justifying denial to him of an injunction restraining the publication and selling of his book, copyrighted under the laws of the United States, within the maxim that one coming into equity must come with clean hands, for the maxim is limited to misconduct connected with the matter of litigation, and does not apply to misconduct which is unconnected therewith, for the unlawful importation and vending of the book is not so connected with the subject-matter of the suit as to justify the application of the maxim; the offense committed being against the United States, and one of which it alone may take cognizance. 3. EQUITY-PLeading of DEFENSES-NECESSITY. The maxim that one who comes into equity must come with clean hands need not be pleaded to be available, and where the evidence discloses the unconscionable character of a transaction, equity will of its own motion apply the maxim and deny relief. |