CITE:  45 F.2d 119
CMON:  November 1930
PLAIN: Anne Nichols
DEFND: Universal Pictures Corp., Carl Laemmle and Harry Pollard
COURT: Circuit Court of Appeals, Second Circuit
DATE:  November 11, 1930

Appeal from District Court for the Southern District of New York.

JUDGE: L. HAND, Circuit Judge
Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.

  The structure of a play is its characters and sequences of incidents.


The plaintiff is the author of a play, "Abie's Irish Rose," which it may 
be assumed was properly copyrighted under section 5, subdivision (d) of
the Copyright Act. The defendant produced publicly a motion picture play,
"The Cohens and the Kellys", which the plaintiff alleges was taken from
it. As we think the defendant's play too unlike the plaintiff's to be an
infringement, we may assume, arguendo, that in some details the defendant
used the plaintiff's play, as will subsequently appear, though we do not
so decide. It, therefore, becomes necessary to give an outline of the two

"Abie's Irish Rose" presents a Jewish family living in prosperous
circumstances in New York. The father, a widower, is in business as
a merchant, in which his son and only child helps him. The boy has 
philandered with young women, who, to his father's great disgust, have
always been Gentiles, for he is obsessed with a passion for that his
daughter-in-law shall be an orthodox Jewess.

When the play opens, the son, who has been courting a young Irish Catholic
girl, has already married her secretly before a Protestant minister, and
is concerned to soften the blow for his father, by securing a favorable
impression of his bride, while concealing her faith and race. To accomplish
this he introduces her to his father at his home as a Jewess, and lets it
appear that he is interested in her, though he conceals the marriage. The
girl somewhat reluctantly falls in with the plan; the father takes the bait, 
becomes infatuated with the girl, concludes that they must marry, and
assumes that, of course, they will, if he so decides. He calls in a rabbi,
and prepares for the wedding according to the Jewish rite.

Meanwhile the girl's father, also a widower, who lives in California, and
is as intense in his own religious antagonism as the Jew, has been called
to New York, supposing that his daughter is to marry an Irishman and a
Catholic. Accompanied by a priest he arrives at the house at the moment
when the marriage is being celebrated, but too late to prevent it, and the
two fathers, each infuriated by the proposed union of his child to a
heretic, fall into unseemly and grotesque antics. The priest and the rabbi
become friendly, exchange trite sentiments about religion, and agree that
the match is good.

Apparently out of abundant caution, the priest celebrates the marriage for
a third time, while the girl's father is inveigled away. The second act
closes with each other's father, still outraged, seeking to find some way
by which the union, thus trebly insured, may be dissolved.

The last act takes place about a year later, the young couple having
meanwhile been adjured by each father, and left to their own resources.
They have had twins, a boy and a girl, but their fathers know no more than
that a child has been born. At Christmas, each led by his craving to see
his grandchild, goes separately to the young folk's home where they
encounter each other, each laden with gifts, one for a boy, the other
for a girl.

"The Cohens and the Kellys" presents two families, Jewish and Irish, living
side by side in the poorer quarters of New York, in a state of perpetual
enmity. The wives in both cases are still living, and share in the mutual
animosity, as do two small sons, and even the respective dogs. The Jews
have a daughter, the Irish a son; the Jewish father is in the clothing
business, the Irishman is a policeman. The children are in love with each
other, and secretly married, apparently after the play opens.

The Jew, being in great financial straits, learns from a lawyer that he has
fallen heir to a large fortune from a great-aunt, and moves into a great
house, fitted luxuriously. Here he and his family live in vulgar ostentation,
and here the Irish boy seeks out his Jewish bride, and is chased away by
the angry father. The Jew then abuses the Irishman over the telephone and
both become hysterically excited. The extremity of his feelings makes the
Jew sick, so that he must go to Florida for a rest, just before which the 
daughter discloses her marriage to her mother.

On his return the Jew finds that his daughter has borne a child; at first
he suspects the lawyer, but eventually learns the truth and is overcome
with anger at such a low alliance. Meanwhile, the Irish family, who have
been forbidden to see the grandchild, go to the Jew's house, and after a
violent scene between the two fathers in which the Jew disowns his daughter
who decides to go back with her husband; the Irishman takes her back with
her baby to his own poor lodgings.

The lawyer, who had hoped to marry the Jew's daughter, seeing his plan
foiled, tells the Jew that his fortune really belongs to the Irishman,
who was also related to the dead woman, but offers to conceal his
knowledge, if the Jew will share the loot. This the Jew repudiates, and,
leaving the astonished lawyer, walks through the rain to his enemy's house
to surrender the property.

He arrives in great dejection, tells the truth, and abjectly turns to
leave. A reconciliation ensues, the Irishman agreeing to share with him
equally. The Jew shows interest in his grandchild, though this is at most
a minor motive in the reconciliation, and the curtain falls while the two
are in their cups, the Jew insisting that in the firm name for the
business which they are to carry on jointly, his name shall stand first.

It is, of course, essential to any protection of literary property, whether
at common law or under the statute, that the right cannot be limited
literally to the text, else a plagiarist would escape by immaterial 
variation. That has never been the law, but as soon as literal appropriation
ceases to be the test, the whole matter is necessarily at large, so that,
 as was recently well said by a distinguished judge, the decisions 
cannot help much in a new case (Fendler v. Morosco, 253 N. Y. 281, 292).

When plays are concerned, the plagiarist may excise a separate scene
(Daly v. Webster, 56 F.Rep. 483, C.C.A. 2); Chappell v. Field, 210 F.Rep.
864 (C.C.A. 2); Chatterton v. Cave, L.R. 3 App. Case 483); or he may
appropriate part of the dialogue (Warne v. Seebohm, L. R. 39 Ch. D. 73).
Then the question is whether the part so taken is "substantial", and,
therefore, not a "fair use" of the copyrighted work; it is the same question
as arises in the case of any other copyrighted work (Marks v. Feist,
290 F.Rep. 959 (C.C.A. 2); Emerson v. Davies, 3 Story 768, 795-797).

But when the plagiarist does not take out a block in situ, but an abstract
of the whole, decision is more troublesome. Upon any work, and especially
upon a play, a great number of patterns of increasing generality will fit
equally well, as more and more of the incident is left out. The last may,
perhaps, be no more than the most general statement of what the play is
about, and at times might consist only of its title; but there is a point
in this series of abstractions where they are no longer protected, since
otherwise the playwright could prevent the use of his "ideas", to which,
apart from their expression, his property is never extended (Holmes v. Hurst,
174 U.S. 82, 86); Guthrie v. Curlett, 36 Fed. (2d) 694 (C.C.A. 2).

Nobody has ever been able to fix that boundary, and nobody ever can. In some
cases the question has been treated as though it were analogous to lifting
a portion out of the copyrighted work (Rees v. Melville, MacGillivray's
Copyright Cases (1911-16), 168); but the analogy is not a good one, because 
though the skeleton is a part of the body, it pervades and supports the
whole. In such cases we are rather concerned with the line between
expression and what is expressed. As respects plays, the controversy 
chiefly centers upon the characters and sequence of incident, these
being the substance.

We did not in Dymow v. Bolton, 11 F.2d 690, hold that a plagiarist was
never liable for stealing a plot; that would have been flatly against
our rulings in Dam v. Kirke La Shelle Co., 175 F.Rep. 902, and Stodart
v. Mutual Film Co., 249 F.Rep. 513, affirming my decision in 249 F.Rep.
507, either of which we meant to overrule. We found the plot of the
second play was too different to infringe, because the most detailed
pattern common to both, eliminated so much from each that its content
went into the public domain; and for this reason we said "this mere
subsection of a plot was not susceptible of copyright".

But we do not doubt that two plays may correspondent in plot closely enough
for infringement. How far that correspondence must go is another matter.
Nor need we hold that the same may not be true as to the characters, quite
independently of the "plot" proper, though, as far as we know, such a case
has never arisen. If "Twelfth Night" were copyrighted, it is quite possible
that a second comer might so closely imitate Sir Toby Belch or Malvolio as
to infringe, but it would not be enough that for one of his characters 
he cast a riotous knight kept wassail to the disco fort of the household,
or a vain and foppish steward who became amorous of his mistress.

These would be no more than Shakespeare's "ideas" in the play, as little
capable of monopoly as Einstein's Doctrine of Relativity, or Darwin's
Theory of the Mutation of Species. It follows that the less developed the
characters, the less they can be copyrighted; that is the penalty an
author must bear for marking them too indistinctly.

In the two plays at bar we think both as to incident and character, the
defendant took no more - assuming that he took anything at all - than the
law allowed. The stories are quite different. One is of a religious zealot
who insists upon his child's marrying no one outside his faith; opposed by
another who is in this respect just like him, and his foil. Their difference
in race is merely an obligato to the main theme, religion. They sink their
differences through grandparental pride and affection.

In the other, zealotry is wholly absent; religion does not even appear. It
is true that the parents are hostile to each other, in part because they
differ in race; but the marriage of their son to a Jew does not apparently
offend the Irish family at all, and it exacerbates the existing animosity
of the Jew, principally because he has become rich, when he learns it. They
are reconciled through the honesty of the Jew and the generosity of the
Irishman; the grandchild has nothing whatever to do with it. The only
matter common to the two is a quarrel between a Jewish and an Irish father,
the marriage of their children, the birth of grandchildren, and

If the defendant took so much from the plaintiff, it may well have been
because her amazing success seemed to prove that this was a subject of
enduring popularity. Even so, granting that the plaintiff's play was wholly
original, and assuming that novelty is not essential to a copyright, there
is no monopoly in such a background. Though the plaintiff discovered the
vein, she could not keep it to herself; so defined, the theme was too
generalized an abstraction from what she wrote. It was only a part of
her "ideas."

Nor does she fare better as to her characters. It is, indeed, scarcely
credible that she should not have been aware of those stock figures, the
low comedy Jew and Irishman. The defendant has not taken from her more
than their prototypes have contained for many decades. If so, obviously
so to generalize her copyright, would allow her to cover what was not
original with her. But we need not hold this as matter of fact, much as
we might be justified. Even though we take it that she devised her figures
out of her brain de novo, still the defendant was within its rights.

There are but four characters common to both plays, the lovers and the
fathers. The lovers are so faintly indicated as to be no more than stage
properties. They are loving and fertile; that is really all that can be
said of them, and anyone else is quite within his rights if he puts loving
and fertile lovers in a play of his own, wherever he gets the cue.

The plaintiff's Jew is quite unlike the defendant's. His obsession is his
religion, on which depends such racial animosity as he has. He is
affectionate, warm and patriarchal. None of these fit the defendant's 
Jew, who shows affection for his daughter only once, and who has none but
the most superficial interest in his grandchild. He is tricky, ostentatious
and vulgar, only by misfortune redeemed into honesty. Both are grotesque,
extravagant and quarrelsome; both are fond of display; but these common
qualities make up only a small part of their simple pictures, no more than
anyone might lift if he chose.

The Irish fathers are even more unlike; the plaintiff's a mere symbol for
religious fanaticism and patriarchal pride, scarcely a character at all.
Neither quality appears in the defendants, for while he goes to get his
grandchild, it is rather out for a truculent determination not to be
forbidden than from pride in his progeny. For the rest he is only a
grotesque hobbledehoy, used for low comedy of the most conventional sort,
which anyone might borrow, if he chanced not to know the exemplar.

The defendant argues that the case is controlled by my decision in
Fisher v. Dillingham, 298 F.Rep. 145. Neither my brothers nor I wish
to throw doubt upon the doctrine of that case, but it is not applicable
here. We assume that the plaintiff's play is altogether original, even to
an extent that in fact it is hard to believe. We assume further that,
so far as it has been anticipated by earlier plays of which she knew 
nothing, that fact is immaterial.

Still, as we have already said, her copyright did not cover everything
that might be drawn from her play; its content went to some extent into
the public domain. We have to decide how much, and while we are as aware
as anyone that the line, wherever it is drawn, will seem arbitrary, that
is no excuse for not drawing it; it is a question such as courts must
answer in nearly all cases. Whatever may be the difficulties a priori,
we have no question on which side of the line this case falls. A comedy
based upon conflicts between Irish and Jews, into which the marriage of
their children enters, is no more susceptible of copyright than the
outline of "Romeo and Juliet".

The plaintiff has prepared an elaborate analysis of the two plays, showing
a "quadrangle" of the common characters, in which each is represented by
the emotions which he discovers. She presents the resulting parallelism as
proof of infringement. The adjectives employed are so general as to be quite 
useless. Take, for example, the attribute of "love" ascribed to both Jews.

The plaintiff has depicted her father as deeply attached to his son, who is
his hope and joy; not so, the defendant, whose father's conduct is throughout
not actuated by any affection for his daughter, and who is merely once
overcome for the moment by her distress when he has violently dismissed
her lover. "Anger" covers emotions aroused by quite different occasions
in each case; so do "anxiety", "despondency" and "disgust." It is
unnecessary to go through the catalogue for emotions are too much colored
by their causes to be a test when used so broadly. This is not the proper
approach to a solution; it must be more ingenuous, more like that of a
spectator, who would rely upon the complex of his impressions of each

We cannot approve the length of the record, which was due chiefly to the
use of expert witnesses. Argument is argument, whether in the box or at
the bar, and its proper place is the last. The testimony of an expert
upon such issues, especially his cross-examination, greatly extends the
trial and contributes nothing which cannot be better heard after the
evidence is all submitted.

It ought not to be allowed at all; and while its admission is not a ground
for reversal, it cumbers the case and tends to confusion, for the more the
court is led into the intricacies of dramatic craftsmanship, the less likely
it is to stand upon the firmer, if more naive, ground of its considered
impressions upon its own perusal. We hope that in this class of cases such
evidence may in the future be entirely excluded, and the case confined to
the actual issues; that is whether the copyrighted work was original, and
whether the defendant copied it, so far as the supposed infringement is

The defendant, "the prevailing party", was entitled to a reasonable
attorney's fee (Section 40 of the Copyright Act).

Decree affirmed.