CITE:  618 F.2d 972
CMON:  March 1980
PLAIN: A. A. Hoehling
DEFND: Universal City Studios & Michael MacDOnald Mooney
COURT: United States Court of Appeals for the Second Circuit 
DATE:  March 25, 1980
Appeal from a summary judgment entered in the United States District Court
for the Southern District of New York, Charles M. Metzner, District Judge,
dismissing appellant's claims of copyright infringement and unfair
competition.   AFFIRMED. 

  Copyright in historical works is narrowly limited to no more than the
  author's original expression of particular facts and theories already
  in the public domain.

JUDGE: KAUFMAN, Chief Circuit Judge
Before KAUFMAN, Chief Judge, TIMBERS, Circuit Judge; and WERKER, District
Judge (of the United States District Court for the Southern District of
New York, sitting by designation).


A grant of copyright in a published work secures for its author a limited
monopoly over the expression it contains. The copyright provides a financial
incentive to those who would add to the corpus of existing knowledge by
creating original works. Nevertheless, the protection afforded the
copyright holder has never extended to history, be it documented fact or
explanatory hypothesis. The rationale for this doctrine is that the cause
of knowledge is best served when history is the common property of all,
and each generation remains free to draw upon the discoveries and insights
of the past. Accordingly, the scope of copyright in historical accounts
is narrow indeed, embracing no more than the author's original expression
of particular facts and theories already in the public domain. As the case
before us illustrates, absent wholesale usurpation of another's expression,
claims of copyright infringement where works of history are at issue are
rarely successful. 


This litigation arises from three separate accounts of the triumphant
introduction, last voyage, and tragic destruction of the Hindenburg, the
colossal dirigible constructed in Germany during Hitler's reign. The zeppelin,
the last and most sophisticated in a fleet of luxury airships, which
punctually floated its wealthy passengers from the Third Reich to the United
States, exploded into flames and disintegrated in 35 seconds as it hovered
above the Lakehurst, New Jersey Naval Air Station at 7:25 p.m. on May 6,
1937. Thirty-six passengers and crew were killed but, fortunately, 52
persons survived. Official investigations conducted by both American and
German authorities could ascertain no definitive cause of the disaster, but
both suggested the plausibility of static electricity or St. Elmo's Fire,
which could have ignited the highly explosive hydrogen that filled the
airship. Throughout, the investigators refused to rule out the possibility
of sabotage. 

The destruction of the Hindenburg marked the concluding chapter in the
chronicle of airship passenger service, for after the tragedy at Lakehurst,
the Nazi regime permanently grounded the Graf Zeppelin I and discontinued
its plan to construct an even larger dirigible, the Graf Zeppelin II. 

The final pages of the airship's story marked the beginning of a series of
journalistic, historical, and literary accounts devoted to the Hindenburg and
its fate. Indeed, weeks of testimony by a plethora of witnesses before the
official investigative panels provided fertile source material for would-be
authors. Moreover, both the American and German Commissions issued official
reports, detailing all that was then known of the tragedy. A number of
newspaper and magazine articles had been written about the Hindenburg in
1936, its first year of trans-Atlantic service, and they, of course,
multiplied many fold after the crash. In addition, two passengers Margaret
Mather and Gertrud Adelt published separate and detailed accounts of the
voyage, C. E. Rosendahl, commander of the Lakehurst Naval Air Station and
a pioneer in airship travel himself, wrote a book titled What About the
Airship?, in which he endorsed the theory that the Hindenburg was the
victim of sabotage. In 1957, Nelson Gidding, who would return to the
subject of the Hindenburg some 20 years later, wrote an unpublished
"treatment" for a motion picture based on the deliberate destruction of
the airship. In that year as well, John Toland published Ships in the Sky
which, in its seventeenth chapter, chronicled the last flight of the
Hindenburg. In 1962, Dale Titler released Wings of Mystery, in which he
too devoted a chapter to the Hindenburg. {n1} 
Appellant A. A. Hoehling published Who Destroyed the Hindenburg?, a
full-length book based on his exhaustive research in 1962. Mr. Hoehling
studied the investigative reports, consulted previously published articles
and books, and conducted interviews with survivors of the crash as well
as others who possessed information about the Hindenburg. His book is
presented as a factual account, written in an objective, reportorial style. 

The first half recounts the final crossing of the Hindenburg, from Sunday,
May 2, when it left Frankfurt, to Thursday, May 6, when it exploded at
Lakehurst. Hoehling describes the airship, its role as an instrument of
propaganda in Nazi Germany, its passengers and crew, the danger of hydrogen,
and the ominous threats received by German officials, warning that the
Hindenburg would be destroyed. The second portion, headed The Quest, sets
forth the progress of the official investigations, followed by an account
of Hoehling's own research. In the final chapter, spanning eleven pages,
Hoehling suggests that all proffered explanations of the explosion, save
deliberate destruction, are unconvincing. He concludes that the most
likely saboteur is one Eric Spehl, a "rigger" on the Hindenburg crew who
was killed at Lakehurst. 

According to Hoehling, Spehl had motive, expertise, and opportunity to plant
an explosive device, constructed of dry-cell batteries and a flashbulb, in
"Gas Cell 4", the location of the initial explosion. An amateur photographer
with access to flashbulbs, Spehl could have destroyed the Hindenburg to
please his ladyfriend, a suspected communist dedicated to exploding the
myth of Nazi invincibility. 

Ten years later appellee Michael MacDonald Mooney published his book, The
Hindenburg.  Mooney's endeavor might be characterized as more literary
than historical in its attempt to weave a number of symbolic themes through
the actual events surrounding the tragedy. His dominant theme contrasts the
natural beauty of the month of May, when the disaster occurred, with the
cold, deliberate progress of "technology".  The May theme is expressed not
simply by the season, but also by the character of Spehl, portrayed as a
sensitive artisan with needle and thread. The Hindenburg, in contrast, is
the symbol of technology, as are its German creators and the Reich itself.
The destruction is depicted as the ultimate triumph of nature over
technology, as Spehl plants the bomb that ignites the hydrogen. Developing
this theme from the outset, Mooney begins with an extended review of man's
efforts to defy nature through flight, focusing on the evolution of the
zeppelin. This story culminates in the construction of the Hindenburg,
and the Nazis' claims of its indestructibility. Mooney then traces the
fateful voyage, advising the reader almost immediately of Spehl's scheme.
The book concludes with the airship's explosion. 

Mooney acknowledges, in this case, that he consulted Hoehling's book, and that
he relied on it for some details. He asserts that he first discovered the
"Spehl-as-saboteur" theory when he read Titler's Wings of Mystery. Indeed,
Titler concludes that Spehl was the saboteur, for essentially the reasons
stated by Hoehling. Mooney also claims to have studied the complete National
Archives and New York Times files concerning the Hindenburg, as well as all
previously published material. Moreover, he traveled to Germany, visited
Spehl's birthplace, and conducted a number of interviews with survivors. 

After Mooney prepared an outline of his anticipated book, his publisher
succeeded in negotiations to sell the motion picture rights to appellee
Universal City Studios. {n2}  Universal then commissioned a screen story
by writers Levinson and Link, best known for their television series,
Columbo, in which a somewhat disheveled, but wise detective unravels
artfully conceived murder mysteries. In their screen story, Levinson and
Link created a Columbo-like character who endeavored to identify the
saboteur on board the Hindenburg. Director Robert Wise, however, was not
satisfied with this version, and called upon Nelson Gidding to write a
final screenplay. Gidding, it will be recalled, had engaged in preliminary
work on a film about the Hindenburg almost twenty years earlier. 

The Gidding screenplay follows what is known in the motion picture industry as
a "Grand Hotel" formula, developing a number of fictional characters and
subplots involving them. This formula has become standard fare in so-called
"disaster" movies, which have enjoyed a certain popularity in recent years.
In the film, which was released in late 1975, a rigger named "Boerth", who
has an anti-Nazi ladyfriend, plans to destroy the airship in an effort to
embarrass the Reich. Nazi officials, vaguely aware of sabotage threats,
station a Luftwaffe intelligence officer on the zeppelin, loosely resembling
a Colonel Erdmann who was aboard the Hindenburg. This character is portrayed
as a likable fellow who soon discovers that Boerth is the saboteur. Boerth,
however, convinces him that the Hindenburg should be destroyed and the two
join forces, planning the explosion for several hours after the landing at
Lakehurst, when no people would be on board. In Gidding's version, the airship
is delayed by a storm, frantic efforts to defuse the bomb fail, and the
Hindenburg is destroyed. The film's subplots involve other possible suspects,
including a fictional countess who has had her estate expropriated by the
Reich, two fictional confidence men wanted by New York City police, and an
advertising executive rushing to close a business deal in America. 

Upon learning of Universal's plans to release the film, Hoehling instituted
this action against Universal for copyright infringement and common law unfair
competition in the district court for the District of Columbia in October
1975. Judge Smith declined to issue an order restraining release of the film
in December, and it was distributed throughout the nation. 

In January 1976, Hoehling sought to amend his complaint to include Mooney
as a defendant. The district court, however, decided that it lacked personal
jurisdiction over Mooney. {n3}  In June 1976, Hoehling again attempted to
amend his complaint, this time to add Mooney's publishers as defendants.
Judge Smith denied this motion as well, but granted Hoehling's request to
transfer the litigation to the Southern District of New York, 28 U.S.C. 
Section 1404(a), where Mooney himself was successfully included as a party.
Judge Metzner, with the assistance of Magistrate Sinclair, supervised
extensive discovery through most of 1978. After the completion of
discovery, both Mooney and Universal moved for summary judgment,
Fed.R.Civ.P. 56, which was granted on August 1, 1979. 


It is undisputed that Hoehling has a valid copyright in his book. To prove
infringement, however, he must demonstrate that defendants "copied" his work
and that they "improperly appropriated" his "expression".  See Arnstein v.
Porter, 154 F.2d 464, 468 (2d Cir. 1946). Ordinarily, wrongful appropriation
is shown by proving a "substantial similarity" of copyrightable expression.
See Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930),
cert. denied, 282 U.S. 902, 51 S. Ct. 216, 75 L. Ed. 795 (1931). Because
substantial similarity is customarily an extremely close question of fact,
see Arnstein, supra, 154 F.2d at 468, summary judgment has traditionally
been frowned upon in copyright litigation, id. at 474. Nevertheless, while
Arnstein's influence in other areas of the law has been diminished, see SEC
v. Research Automation Corp., 585 F.2d 31 (2d Cir. 1978); 6 Moore's Federal
Practice P 56.17(14) (2d ed. 1976), a series of copyright cases in the
Southern District of New York have granted defendants summary judgment when
all alleged similarity related to non -copyrightable elements of the
plaintiff's work, see, e.g., Alexander v. Haley, 460 F. Supp. 40 (S.D.N.Y.
1978); Musto v. Meyer, 434 F. Supp. 32 (S.D.N.Y. 1977); Gardner v. Nizer,
391 F. Supp. 940 (S.D.N.Y. 1975); Fuld v. National Broadcasting Co., 390
F. Supp. 877 (S.D.N.Y. 1975). These cases signal an important development in
the law of copyright, permitting courts to put "a swift end to meritless
litigation" and to avoid lengthy and costly trials. Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980); accord, Donnelly v.
Guion, 467 F.2d 290, 293 (2d Cir. 1972); American Manufacturers Mutual
Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272,
278 (2d Cir. 1967). Drawing on these cases, Judge Metzner assumed both copying
and substantial similarity, but concluded that all similarities pertained
to various categories of non-copyrightable material. Accordingly, he
granted appellees' motion for summary judgment. We affirm the judgment
of the district court. 


Hoehling's principal claim is that both Mooney and Universal copied the
essential plot of his book i. e., Eric Spehl, influenced by his girlfriend,
sabotaged the Hindenburg by placing a crude bomb in Gas Cell 4. In their
briefs, and at oral argument, appellees have labored to convince us that their
plots are not substantially similar to Hoehling's. While Hoehling's Spehl
destroys the airship to please his communist girlfriend, Mooney's character
is motivated by an aversion to the technological age. Universal's Boerth,
on the other hand, is a fervent anti-fascist who enlists the support of a
Luftwaffe colonel who, in turn, unsuccessfully attempts to defuse the bomb
at the eleventh hour. 

Although this argument has potential merit when presented to a fact finder
adjudicating the issue of substantial similarity, it is largely irrelevant to
a motion for summary judgment where the issue of substantial similarity has
been eliminated by the judge's affirmative assumption. Under Rule 56(c),
summary judgment is appropriate only when "there is no genuine issue as
to any material fact." Accord, Heyman v. Commerce & Industry Insurance Co.,
524 F.2d 1317 (2d Cir. 1975). Perhaps recognizing this, appellees further
argue that Hoehling's plot is an "idea", and ideas are not copyrightable as
a matter of law. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54
(2d Cir.), cert. denied, 298 U.S. 669, 56 S. Ct. 835, 80 L. Ed. 1392 (1936). 

Hoehling, however, correctly rejoins that while ideas themselves are not
subject to copyright, his "expression" of his idea is copyrightable. Id. at
54. He relies on Learned Hand's opinion in Sheldon, supra, at 50, holding that
Letty Lynton infringed Dishonored Lady by copying its story of a woman who
poisons her lover, and Augustus Hand's analysis in Detective Comics, Inc. v.
Bruns Publications, Inc., 111 F.2d 432 (2d Cir. 1940), concluding that the
exploits of "Wonderman" infringed the copyright held by the creators of
"Superman," the original indestructible man. Moreover, Hoehling asserts
that, in both these cases, the line between "ideas" and "expression" is
drawn, in the first instance, by the fact finder. 

Sheldon and Detective Comics, however, dealt with works of fiction, {n4}
where the distinction between an idea and its expression is especially
elusive. But, where, as here, the idea at issue is an interpretation of
an historical event, our cases hold that such interpretations are not
copyrightable as a matter of law. In Rosemont Enterprises, Inc. v. Random
House, Inc., 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.
Ct. 714, 17 L. Ed. 2d 546 (1967), we held that the defendant's biography of
Howard Hughes did not infringe an earlier biography of the reclusive alleged
billionaire. Although the plots of the two works were necessarily similar,
there could be no infringement because of the "public benefit in encouraging
the development of historical and biographical works and their public
distribution." Id. at 307; accord, Oxford Book Co. v. College Entrance Book
Co., 98 F.2d 688 (2d Cir. 1938). To avoid a chilling effect on authors who
contemplate tackling an historical issue or event, broad latitude must be
granted to subsequent authors who make use of historical subject matter,
including theories or plots. Learned Hand counseled in Myers v. Mail & Express
Co., 36 C.O.Bull. 478, 479 (S.D.N.Y. 1919), "(t)here cannot be any such thing 
as copyright in the order of presentation of the facts, nor, indeed, in
their selection." {n5} 
In the instant case, the hypothesis that Eric Spehl destroyed the Hindenburg
is based entirely on the interpretation of historical facts, including Spehl's
life, his girlfriend's anti-Nazi connections, the explosion's origin in
Gas Cell 4, Spehl's duty station, discovery of a dry-cell battery among
the wreckage, and rumors about Spehl's involvement dating from a 1938
Gestapo investigation. Such an historical interpretation, whether or not
it originated with Mr. Hoehling, is not protected by his copyright and
can be freely used by subsequent authors. 


The same reasoning governs Hoehling's claim that a number of specific facts,
ascertained through his personal research, were copied by appellees. {n6}
The cases in this circuit, however, make clear that factual information is
in the public domain. See, e. g., Rosemont Enterprises, Inc., supra,
366 F.2d at 309; Oxford Book Co., supra, 98 F.2d at 691. Each appellee
had the right to "avail himself of the facts contained" in Hoehling's book
and to "use such information, whether correct or incorrect, in his own
literary work".  Greenbie v. Noble, 151 F. Supp. 45, 67 (S.D.N.Y. 1957).
Accordingly, there is little consolation in relying on cases in other
circuits holding that the fruits of original research are copyrightable.
See, e. g., Toksvig v. Bruce Publications Corp., 181 F.2d 664, 667 (7th
Cir. 1950); Miller v. Universal City Studios, Inc., 460 F. Supp. 984
(S.D.Fla. 1978). Indeed, this circuit has clearly repudiated Toksvig and
its progeny. In Rosemont Enterprises, Inc., supra, 366 F.2d at 310, we
refused to "subscribe to the view that an author is absolutely precluded
from saving time and effort by referring to and relying upon prior
published material. . . . It is just such wasted effort that the
proscription against the copyright of ideas and facts . . . . are
designed to prevent." Accord, 1 Nimmer on Copyright 2.11 (1979). 


The remainder of Hoehling's claimed similarities relate to random duplications
of phrases and sequences of events. For example, all three works contain a
scene in a German beer hall, in which the airship's crew engages in revelry
prior to the voyage. Other claimed similarities concern common German
greetings of the period, such as "Heil Hitler," or songs, such as the German
National anthem. These elements, however, are merely scenes a faire, that is,
"incidents, characters or settings which are as a practical matter
indispensable, or at least standard, in the treatment of a given topic."
Alexander, supra, 460 F. Supp. at 45; accord, Bevan v. Columbia Broadcasting
System, Inc., 329 F. Supp. 601, 607 (S.D.N.Y. 1971). Because it is virtually
impossible to write about a particular historical era or fictional theme
without employing certain "stock" or standard literary devices, we have held
that scenes a faire are not copyrightable as a matter of law. See Reyher
v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir.), cert. denied,
429 U.S. 980, 97 S. Ct. 492, 50 L. Ed. 2d 588 (1976). 


All of Hoehling's allegations of copying, therefore, encompass material
that is non-copyrightable as a matter of law, rendering summary judgment
entirely appropriate. We are aware, however, that in distinguishing between
themes, facts, and scenes a faire on the one hand, and copyrightable
expression on the other, courts may lose sight of the forest for the trees.
By factoring out similarities based on non-copyrightable elements, a court
runs the risk of overlooking wholesale usurpation of a prior author's
expression. A verbatim reproduction of another work, of course, even in the
realm of nonfiction, is actionable as copyright infringement. See Wainwright
Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977),
cert. denied, 434 U.S. 1014, 98 S. Ct. 730, 54 L. Ed. 2d 759 (1978). Thus,
in granting or reviewing a grant of summary judgment for defendants, courts
should assure themselves that the works before them are not virtually
identical. In this case, it is clear that all three authors relate the
story of the Hindenburg differently. 

In works devoted to historical subjects, it is our view that a second author
may make significant use of prior work, so long as he does not bodily
appropriate the expression of another. Rosemont Enterprises, Inc., supra,
366 F.2d at 310. This principle is justified by the fundamental policy
undergirding the copyright laws the encouragement of contributions to recorded
knowledge. The "financial reward guaranteed to the copyright holder is but
an incident of this general objective, rather than an end in itself."
Berlin v. E. C. Publications, Inc., 329 F.2d 541, 543-44 (2d Cir.), cert.
denied, 379 U.S. 822, 85 S. Ct. 46, 13 L. Ed. 2d 33 (1964). Knowledge is
expanded as well by granting new authors of historical works a relatively
free hand to build upon the work of their predecessors. {n7} 


Finally, we affirm Judge Metzner's rejection of Hoehling's claims based on
the common law of "unfair competition".  Where, as here, historical facts,
themes, and research have been deliberately exempted from the scope of
copyright protection to vindicate the overriding goal of encouraging
contributions to recorded knowledge, the states are pre-empted from removing
such material from the public domain. See, e. g., Sears, Roebuck & Co. v.
Stiffel Co., 374 U.S. 225, 83 S. Ct. 1868, 10 L. Ed. 2d 1050 (1964); Compco
Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S. Ct. 779, 11 L. Ed.
2d 669 (1964). "To forbid copying" in this case, "would interfere with the
federal policy . . . of allowing free access to copy whatever the federal
patent and copyright laws leave in the public domain." Id. at 237, 84 S. Ct.
at 782. 

The judgment of the district court is AFFIRMED. 


{n1}  Titler's account was published after the release of appellant's
book. In an affidavit in this litigation, Titler states that he copied
Hoehling's theory of sabotage. Hoehling, however, has never instituted
a copyright action against Titler. 

{n2}  Mooney, his publishers, and Universal entered into an agreement under
which (1) Universal acquired the film rights to Mooney's book, (2) Universal
agreed to promote sales of the book, and (3) Mooney would receive a percentage
fee, tied to sales of his book. Hoehling claims that because of this
arrangement, Universal is vicariously liable if Mooney's book, but not
the motion picture, is held to infringe his copyright. In view of our
disposition of the appeal, however, we need not address this issue. 
{n3}  At the same time, Judge Smith denied Universal's motion for summary
judgment, concluding it was inappropriate prior to the completion of
requested discovery. 

{n4}  In Sheldon, both works were loosely based on an actual murder
committed by a young Scottish girl. Judge Hand, however, clearly dealt
only with the fictional plots conceived by the respective authors. See
Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.), cert.
denied, 298 U.S. 669, 56 S. Ct. 835, 80 L. Ed. 1392 (1936). 

{n5}  This circuit has permitted extensive reliance on prior works of history.
See, e. g., Gardner v. Nizer, 391 F. Supp. 940 (S.D.N.Y.1975) (the story of
the Rosenberg trial not copyrightable); Fuld v. National Broadcasting Co., 390
F. Supp. 877 (S.D.N.Y. 1975) ("Bugsy" Siegel's life story not copyrightable);
Greenbie v. Noble, 151 F. Supp. 45 (S.D.N.Y.1957) (the life of Anna Carroll,
a member of Lincoln's cabinet, not copyrightable). The commentators are in
accord with this view. See, e. g. 1 Nimmer on Copyright 2.11(A) (1979);
Chafee, Reflections on the Law of Copyright: I, 45 Colum.L.Rev. 503, 511
{n6}  In detailed comparisons of his book with Mooney's work and Universal's
motion picture, Hoehling isolates 266 and 75 alleged instances of copying,
respectively. Judge Metzner correctly pointed out that many of these
allegations are patently frivolous. The vast majority of the remainder deals
with alleged copying of historical facts. It would serve no purpose to review
Hoehling's specific allegations in detail in this opinion. The following ten
examples, however, are illustrative: (1) Eric Spehl's age and birthplace; (2)
Crew members had smuggled monkeys on board the Graf Zeppelin; (3) Germany's
ambassador to the United States dismissed threats of sabotage; (4) A warning
letter had been received from a Mrs. Rauch; (5) The Hindenburg's captain was
constructing a new home in Zeppelinheim; (6) Eric Spehl was a photographer;
(7) The airship flew over Boston; (8) The Hindenburg was "tail heavy" before
landing; (9) A member of the ground crew had etched his name in the
zeppelin's hull; and (10) The navigator set the Hindenburg's course
by reference to various North Atlantic islands. 
{n7}  We note that publication of Mooney's book and release of the motion
picture revived long dormant interest in the Hindenburg. As a result,
Hoehling's book, which had been out of print for some time, was actually
re-released after the film was featured in theaters across the country.