Morse v. Fields , 127 F. Supp. 63 ( 1954 )

  • 127 F. Supp. 63 (1954)

    Arthur D. MORSE, Plaintiff,
    Sidney FIELDS and Hearst Corporation, Defendants.

    United States District Court, S. D. New York.

    December 16, 1954.

    *64 Rosenman & Mandel, New York City, for plaintiff. Philip Mandel, Roslyn, N. Y., of counsel.

    McCauley & Henry, New York City, for defendants. Alfred H. Wasserstrom and Harvey L. Lipton, New York City, of counsel.

    IRVING R. KAUFMAN, District Judge.

    This is an action for damages for copyright infringement which has been tried by the Court without a jury.[1] The plaintiff is the author of an article entitled "`Hopalong' Abramowitz", which appeared in the September 30, 1950 issue of Collier's Magazine. Defendant Fields was the author of a column entitled "H. Hopalong Abramowitz: Cowboy in the Bronx", which was published by the defendant Hearst Corporation on September 17, 1951 in its newspaper, the Daily Mirror. Plaintiff claims that Fields' article infringed his copyrighted article.

    Both articles concern themselves with the life and exploits of Abramowitz. Abramowitz is a very colorful individual who owns a stable in the Bronx which houses a vast array of horses and every conceivable type of carriage and stagecoach, all of which are used for advertising everything from an aspiring politician's candidacy to the opening of a neighborhood delicatessen. Some of the incidents in Abramowitz' life are very homely and humorous and are reflected in both articles.

    The defendants' answer directly puts in issue the originality of plaintiff's work and the procedural regularity of the registration of the copyright on plaintiff's work. Defendants, in addition to a denial of copying, contend that if there was any copying that such copying constituted a fair use of plaintiff's work. They also maintain that the plaintiff is estopped from raising any alleged infringement.

    I shall first dispose of defendants' contention as to the procedural irregularity of the copyright registration which, I believe, has no merit. The defendants admit, and the proof establishes (Plaintiff's Exhibits 5 and 6), that Collier's Magazine obtained a registered copyright in its name on September 25, 1950 for its September 30th issue, and that it assigned all its right, including infringement claims, in plaintiff's article to the plaintiff on October 17, 1951. The nub of the defendants' claim is that plaintiff never assigned all of his rights to Collier's before the latter obtained its copyright. The legal theory of this claim is clear and correct: that only the "proprietor" of a work may copyright it; that a person to whom the right to copyright is assigned is a proprietor, American Tobacco Co. *65 v. Werckmeister, 1907, 207 U.S. 284, 296, 28 S. Ct. 72, 52 L. Ed. 208, but a mere licensee cannot copyright a work. Egner v. Schirmer Music Co., 1 Cir., 1943, 139 F.2d 398. Cf. Mifflin v. R. H. White Co., 1903, 190 U.S. 260, 263, 23 S. Ct. 769, 49 L. Ed. 1040. Moreover, a general copyright in an issue of a periodical (a "blanket" copyright) does not protect the rights in a particular contributed article unless such rights had been previously assigned to the publisher. Mail & Express Co. v. Life Pub. Co., 2 Cir., 1912, 192 F. 899.

    I find here, however, that the plaintiff did assign his right to copyright to Collier's before the latter obtained its copyright. Plaintiff's testimony establishes that the firm of Pritchett and Brandt were his general agents with full power to negotiate the sale of his article to interested publishers and to arrange, by any method deemed feasible to his agents, to grant only first publication rights to such publishers. It is apparent that the method employed and the practice followed by his agents was to assign all rights to Collier's in the first instance under the express condition that, after registration of the copyright in its own name, Collier's would reassign all rights to the plaintiff. This is unequivocally confirmed by the memorandum attached to the check received by plaintiff from Collier's on November 28, 1949 (Plaintiff's Exhibit 7).[2] Ultimately, Collier's formally assigned all rights in the copyright to plaintiff.

    The next contention of the defendants is that the plaintiff's work was not copyrightable because it was not original. Viewing plaintiff's work as a unit, this contention cannot be maintained. Although plaintiff admits that some newspaper articles had been written about Abramowitz prior to his work, it is clear from his testimony that he did not copy these works but that his article was based upon information received from at least fifteen hours devoted to interviewing Abramowitz and upon 35 hours consumed in the actual writing process. The cryptic and laconic notes which plaintiff took during the interviews were received in evidence. (Exhibits 1-A, 1-B and 1-C). A comparison of these notes with plaintiff's finished product as a unit clearly indicates that the plaintiff has implanted his own writing style and form of expression upon the latter. Baker v. Selden, 1879, 101 U.S. 99, 25 L. Ed. 841; Jewelers Circular Pub. Co. v. Keystone Pub. Co., 2 Cir., 1922, 281 F. 83, 88, 26 A.L.R. 571; Gerlach-Barklow Co. v. Morris & Bendien, 2 Cir., 1927, 23 F.2d 159. The defendants urge that the Court should not view the plaintiff's article as a unit in determining its originality but should first consider each part separately and determine whether each particular part is original and copyrightable, and then exclude the unoriginal parts in determining the issue of infringement. In this connection the Court now refers to the Appendix to this opinion which includes, in columns A and B, a parallel column analysis of the parts of plaintiff's work which he claims the defendants infringed.

    It is clear that the copyright laws only protect those parts of plaintiff's work which are original and copyrightable, and that bare facts or "news" are not protected. However, the style and form of their presentation is protected. International News Service v. Associated Press, 1918, 248 U.S. 215, 234, 39 S. Ct. 68, 63 L. Ed. 211; Chicago Record-Herald Co. v. Tribune Ass'n, 7 Cir., 1921, 275 F. 797; see Dymow v. Bolton, 2 Cir., 1926, 11 F.2d 690, 691; Oxford Book Co. v. College Entrance Book Co., 2 Cir., 1938, 98 F.2d 688, 691. And that this should be so is grounded upon sound reason. *66 For, the law seeks to encourage creative minds. The Court has summarized in its Appendix, column D, the defendants' contentions with respect to the designated summaries of plaintiff's assertions carried in column C. On the other hand, it is just as clear that the fact of copying may be proven by similarity between both the protected and unprotected parts of plaintiff's and defendant Fields' work.[3] The Court should reach the problem of eliminating from consideration the unprotected part of a plaintiff's work only if and when it finds that the defendant has copied and the issue of improper appropriation — substantiality or materiality — is properly before it. It will soon be apparent that as a result of the Court's disposition of the present litigation, on the grounds stated, it will not be necessary to rule upon the issue of substantiality or materiality or the other claims of the defendants.[4]

    With respect to the crucial issue of copying, the plaintiff relies upon circumstantial evidence of copying, i. e. access and similarity. Since the parties have stipulated that the national circulation of the September 30, 1950 issue of Collier's was over three million copies, the bare opportunity to copy is not strongly contested. However, the plaintiff has not presented any direct evidence that Fields actually saw plaintiff's work before he wrote his own. The complete availability of plaintiff's work is merely some circumstantial evidence of access, and access is merely circumstantial evidence of copying. Against this double circumstantial evidence, defendant Fields' testimony specifically denying that he ever saw plaintiff's article must be weighed. With the evidence so posited, the plaintiff is entitled to little benefit from the "inverse ratio" rule to the effect that when access is established a lesser degree of similarity is required. See Golding v. R.K.O. Pictures, Inc., Cal. 1949, 208 P.2d 1, 3.

    In respect to similarity as evidence of copying, the plaintiff primarily relies upon the parallel analysis chart which he has prepared and which has been received in evidence, and which purports to show, by comparison of particular parts of plaintiff's and defendant Fields' articles, the similarity between the two. See Appendix, columns A and B. The plaintiff, an experienced and intelligent journalist, was permitted to give expert testimony on the issue of copying and his opinions rendered in court in this respect have been summarized in column C of the Appendix. Such "dissection" of both works by use of a parallel column analysis and expert testimony has been expressly approved in this Circuit when it is utilized in the determination of the issue of copying but not when it is offered with respect to the issue of unlawful appropriation or substantiality or materiality. Arnstein v. Porter, 2 Cir., 1946, *67 154 F.2d 464, 468; Heim v. Universal Pictures Co., 2 Cir., 1946, 154 F.2d 480, 488, note 9.

    I find that the plaintiff has failed to prove copying by a fair preponderance of the evidence. Plaintiff relies upon the similarities shown in his comparison charts (Appendix, columns A and B), his inferences based upon it (Appendix, column C), and the complete availability of his article to potential copiers. Against this circumstantial evidence of copying I must weigh the evidence of the defendants. Fields, although an interested witness, appeared to me to be frank and credible. He specifically denied copying and insisted that he had never seen nor heard of plaintiff's article at any time before his article was published. Plaintiff concedes, and the testimony of Fields and Abramowitz establishes, that Fields personally interviewed Abramowitz on July 26, 1951, for approximately two hours and that Abramowitz related to Fields practically every accused factual component included in Fields' article, and that Abramowitz specifically repeated to Fields many of the phrases which appear in both articles and to which plaintiff claims originality. (See Appendix, columns E, F and H.) Fields took notes during the interview (Defendants' Exhibits E and E-1) which corroborate my finding that all of the factual components and most of the portions of allegedly original language or forms of expression in Morse's article which appear in Fields' article were obtained by Fields in his interview with Abramowitz. (See Appendix, columns A, B, G and H.) It is more probable that Fields used his own notes rather than Morse's article for his recitation of facts. Fields has been writing for the Mirror for over 14 years. He has had vast experience in writing "interview columns" based upon adequate notes recorded during the interview which are then expanded into draft form and later condensed and edited into a final copy of approximately 750 words. Indeed, his specialty is profile or interview columns, and he is widely known for these columns.

    It is contended that the identity between Fields' original notes and his final article resulted from a post litem motam alteration by Fields of his original interview notes, and that Fields' copying occurred at or before the time he wrote his draft and is reflected in the draft. (Defendants' Exhibit G.) Plaintiff seeks to prove by comparisons among plaintiff's final article, Fields' notes, draft and final article[4-A] that Fields' draft has greater similarity to plaintiff's published article than the former bears to Fields' notes; that Fields' draft includes items which are not even hinted at in his notes but are included in plaintiff's article, and that Fields' notes possess greater similarity to Fields' final article than to Fields' draft. Assuming this to be true, we are asked to draw the inference, inter alia, that Fields' draft was copied from plaintiff's article and that Fields, to conceal this copying, altered his notes post litem motam to make them conform more closely to his final article. This contention is incredible and apart from the mere charge I find nothing to substantiate it. It is reiterated, that Abramowitz testified that every incident included by Fields in his article which is alleged to have been copied was related by Abramowitz to Fields. Moreover, common sense would dictate that a highly experienced journalist and interviewer, such as Fields, would have no need to resort to plaintiff's article for his material, if he followed his long-established practice (as he did in the instant case) of taking detailed notes at the time of the interview. The two-hour length of his interview was ample time for the recordation of all that appears in his notes and for the writing of an article of 750 words. It seems probable that if Fields had such a predatory motive he would have destroyed, rather than have offered to the plaintiff, his draft which is the heart of the charge. Plaintiff contends that Fields did not destroy it because he did not appreciate *68 such subtleties. This argument is without weight and is not borne out by the evidence. Fields testified that, at his first conference with his attorney which took place one or two days after he learned of the institution of this action, these issues and alleged inconsistencies were fully explored and recognized by Fields and his attorney.

    The inclusion of certain items by Fields in his draft which are not included in his notes are best explained by the very process Fields uses to write his articles. His cryptic notes are expanded into sentence and paragraph form in his draft. This is a clear example of the use, in everyday life, of memoranda to refresh one's memory. An experienced interviewer records key phrases in his interview notes which, at the time he prepares his draft, refresh his recollection of facts and things said at the interview which have not been fully recorded. In no case are the incidents in the draft or article inconsistent with his notes; the draft and final article merely add color and shadings to the facts and quotations included in the notes.

    Instead, the similarities between plaintiff's article and Fields' article and draft result from the use of a common source by both writers. (See Appendix, columns A through K.) The plaintiff counters, however, with the contention that since Abramowitz has led a full and colorful life, there are a wealth of humorous and interesting incidents upon which Fields could have drawn for his article, and that Fields' selection of the same incidents which plaintiff has included in his article and the similarity of sequence could not have resulted from mere coincidence but only from copying. The Court refers to its factual analysis of this contention in the Appendix, columns J and K. The contention is factually untenable. It will be observed that Fields has included in his article many incidents and facts which are not included in plaintiff's article. (See Appendix, column K, items 4, 5, 7, 8 and 13.) A few of these incidents are given major emphasis by Fields in his article. Similarly, the plaintiff has included many incidents not found in Fields' work. (See Appendix, column J, items 1, 6, 8, 11, 13 and 14.) In fact, one incident which plaintiff includes, and is not included in the Fields article, may be characterized as the major anecdote in plaintiff's article. (See Appendix, column J, item 11.) Moreover, Fields has one incident recorded in his notes which appears in plaintiff's article and was excluded by Fields from his published article. (See Appendix, column J, item 14.) I conclude from this dissective analysis that from the "wealth" of incidents in Abramowitz' life, Fields' selection and emphasis is not so substantially similar to that of plaintiff's when both final articles are compared with each other and when what Fields knew of Abramowitz' life, as evidenced by his interview notes, is compared with Fields' final article, that we are led to the conclusion that there was copying. In addition, the "wealth" of incidents theory of plaintiff is not a substantial one as applied to the facts here. Certain incidents in Abramowitz' life are certainly more "newsworthy" than others, and Abramowitz, who is now an experienced interviewee by reason of the many interviews he has granted to writers, has come to realize which incidents and anecdotes are the most interesting and deserving of repetition and stress. Many of the incidents included in both articles are so much more humorous or interesting than others that it may be assumed that experienced journalists, as Morse and Fields are (specialists in "human interest" stories) would include them, to a greater or lesser degree, with the same salient facts. Moreover, the "common source" of both writers, Abramowitz, cannot be overlooked. Abramowitz had been interviewed by the plaintiff and others before Fields interviewed him.[5]*69 Abramowitz was, in a sense, a public figure before Fields discovered him. It is likely, as I have indicated, that Abramowitz had developed some sort of format or pattern in describing the incidents in his life to reporters, including especially those incidents to which he had previously received highly favorable reactions from reporters,[6] friends, and others, and excluding the obviously banal and trite incidents. This emphasis by Abramowitz of only the highlights of his life would be more probable in a two-hour interview, which Fields conducted, when compared with the series of leisurely interviews which the plaintiff conducted.

    For a plaintiff to establish, as he must, to a reasonable degree of certainty, the charge of piracy by a defendant it is not enough that upon dissection there appear superficial similarity in some instances, where there are compelling reasons to believe that the similarity is the result of the causes already enunciated. "To sustain it * * * more must appear than mere similarity or even identity, of the supposed infringement with the part in question. In this lies the one distinction between a patent and a copyright. One may infringe a patent by the innocent reproduction of the machine patented, but the law imposes no prohibition upon those who, without copying, independently arrive at the precise combination of words or notes which have been copyrighted." Fred Fisher, Inc., v. Dillingham, D.C.S.D.N.Y., 1924, 298 F. 145, 147, L. Hand, J. Such highly circumstantial evidence as has been presented here by the plaintiff cannot suffice to sustain this charge in the face of direct proof to the contrary.

    Judgment is awarded to the defendants dismissing the complaint. In the exercise of my discretion I shall deny counsel fee. 17 U.S.C. § 116. The plaintiff's claim was not capricious or unreasonable and I have reached my conclusion only after a thorough and difficult consideration of the evidence and the multitude of inferences to be drawn therefrom which were strongly advocated by both sides. Cf. Official Aviation Guide Co. v. American Aviation Associates, 7 Cir., 1947, 162 F.2d 541, per Minton, J.

    The foregoing opinion contains my findings of fact and conclusions of law.

    *70 APPENDIX

                     Comparison of Published Articles
               Column A                                Column B
    Morse Article                         Fields Article
    Title: "Hopalong" Abramowitz                     Title: H. Hopalong Abramowitz
    1. The collection, which fills five              1. He has the largest collection of
       lots, includes hundreds of covered               carriages, buckboards, surreys,
       wagons, buckboards, surreys                      phaetons, tally-hos, barouches,
       (with and without fringes),                      landaus, or pony expresses in the
       tallyhos, phaetons, victorias,                   country, if not the world.
       pony traps, broughams, landaus
       and barouches.
    2. Abramowitz himself, in perpetual              2. Hopalong is a stocky, bow-legged
       petual motion among his animals,                 five-feet-four, and always dresses
       is five feet four and pudgy,                     in cowboy clothes * * *
       with a bull neck and bowed legs.                 Even at 63, with three grown
       Since his sixty-second birthday                  children and five grandchildren,
       he has cut his working time at                   his energy is astonishing. Last
       the stable to 20 hours a day,                    year he slowed up; he cut his
       seven days a week.                               working hours down to 18 a day,
                                                        but still labors seven days a
    3. "My horses have never let me                  3. "Quit!" The word was like a
       down, why should I quit on                       slap. "All my life I been around
       them? They got to be fed and                     horses. Born and raised in it.
       watered and who should do it but                 Business or no business, the animals
       Abramowitz?"                                     you got to clean and feed
                                                        and water them. They never let
                                                        me down. Why should I let them
    4. Beginning as a fruit-peddler                  4. After a whirl as a fruit peddler
       * * * (several paragraphs                        he pawned the engagement ring
       later) * * * His bride, the                      of his pretty wife, Fanny, for
       lovely Fanny Busell, agreed that                 $100 and began his horse and
       he should rent a stable, but at                  wagon empire.
       that moment there wasn't a
       penny in the house. Finally
       they made a tearful decision —
       they would pawn Fanny's engagement
       ring. It brought $110,
       of which $100 immediately
       went for a month's rent and a
       month's security on the stable.

    5. "I paid $65,000 cash for a stable,            5. "I forgot to take out fire insurance,"
       but I forgot to take out fire insurance          he says, "and nobody ever
       and the next day the                             invented depression insurance."
       stable burned down. The depression
       and the fire came at the
       same time."
    6. When a rodeo arrived at Yankee                6. Not too long ago a rodeo at
       Stadium the Westerners wanted                    Yankee Stadium needed a covered
       to rent a number of Abramowitz'                  wagon and the proper horses
       carriages. Harry, however                        to go with them. Naturally they
       would not trust cowboys with his                 rented them from Harry "Hopalong"
       stagecoaches; he insisted on                     Abramowitz, the Bronx
       driving them himself; and, with                  Cowboy. Hopalong drove the
       a cowboy hat perched on his                      wagon at racetrack speed around
       balding head, Abramowitz raced                   the stadium to the gaping admiration
       his coaches around the infield at                of cowboys and spectators
       break-neck speed while the cow                   alike. "When it comes to
       hands gaped and the spectators                   big stuff like a rodeo or a parade,"
       applauded the daredevil from the                 Hopalong says, "I don't
       Bronx prairie.                                   trust any driver. I drive myself."
    7. Recently he pushed a donkey up
       five flights of stairs ("It wouldn't          7. "When Dorothy Kilgallen has
       go in the elevator") to a                        a birthday party I got to push
       birthday party for columnist                     a donkey up five flights of stairs.
       Dorothy Kilgallen. "That donkey                  He wouldn't go in the elevator.
       made friends with everybody,"                    But in the party he acts like a
       Abramowitz reported.                             regular gentleman."
       "He went from table to table
       eating the finest foods and he
       was so polite he behaved like a
       real gentleman."
    8. Norma, his widowed daughter,                  8. Yet, with his great love for his
       says he won't admit that during                  animals, he sold one of his best
       the depression he sold one of his                horses so his kids could have a
       best horses to buy a dress for her               set of encyclopedias. He sold
       graduation dance. And Shirley,                   another so one of his daughters
       another daughter, remembers                      could have a new dress for her
       how he parted with another favorite              graduation prom. And he sold
       so the kids would have a                         a flock of his animals to pay
       set of encyclopedias. Louis, the                 three years of college bills for
       son who never liked the stable                   his son. He never said anything
       business, is a successful farmer                 about it. It was like parting
       in Connecticut and his three                     with his own hide.
       years of college were also
       financed by the surreptitious sale
       of the horses and wagons that
       were Harry Abramowitz' life.

    9. The carriages are hired mostly                9. Along with his stock of 25 horses,
       to advertise movies, neighborhood                20 donkeys and ponies, and a
       stores, political candidates                     dozen goats, Hopalong rents
       and products from bread to worsteds              them out to advertise delicatessens,
       * * * "You'll excuse                             supermarkets, movies,
       me now, I got to get a surrey                    political candidates, or English
       ready for a supermarket." * *                    woolens.
       They have lost some of their
       standing in the carriage trade,
       but they're marvelous for announcing
       the Grand Opening of a
               Column C                                Column D
    Plaintiff's Opinion Testimony Summarized         Defendants' Characterization of
    (Column F summarizes the                         Plaintiff's Work (Column A)
    Court's analysis of this)
    1. There are many devices available              1. Bare Facts as related by
       to a writer to express the                       Abramowitz.
       same objective facts. Here, for
       example, a writer might have
       written: "the collection includes
       everything from covered wagons
       to barouches" or "the collection
       includes eleven (or ten or eight)
       types of carriages." That
       Fields used as his device the
       same one plaintiff had used
       (serial listing of the technical
       names of carriages) is evidence
       of copying.
    2. There is similarity in Fields'                2. Bare Facts as related by
       description of Abramowitz'                       Abramowitz.
       height and shape. The sequence
       of ideas is the same: physical
       description, then age, and finally
       working hours. (Fields' separates
       age and working hours by
       one sentence concerning Abramowitz'
       style of dress.) The same
       literary device is used in both
       excerpts (humorous over-statement)
       of characterizing Abramowitz'
       18-20 hour workday as a
       "cutting down" of his working
       time because of advanced age.

    3. Plaintiff admits that Abramowitz              3. Quotation and therefore not subject
       never made this statement                        to copyright. In any event
       to him, and that he merely "fictionalized"       if it is a simulated quote, plaintiff
       or "extended" facts                              is estopped from asserting
       made known to him by Abramowitz                  copyright to this.
       in writing this quotation.
       The formulation of ideas and
       phrases are similar in both articles,
       and the quotation device
       is used by both when describing
       the horses as never "letting"
       Abramowitz "down" and therefore
       he would not "quit" but
       would continue to "feed and
       water" them.
    4. The same incident is described                4. Bare Facts as related by
       in both articles. This is no mere                Abramowitz.
       coincidence because, out of a
       wealth of incidents in Abramowitz'
       colorful life to draw from,
       plaintiff states that he selected
       seven incidents out of sixteen
       known to him for inclusion in his
       article; that Fields included five
       of these seven incidents and two
       new ones in his article; that
       Fields did not include any of the
       nine that plaintiff had excluded.
    5. The device here is similar to that            5. Quotation and therefore not subject
       used in item No. 3. Abramowitz                   to copyright. In any event
       actually said no more than that                  if it is a simulated quote, then
       a fire burned his stable down in                 plaintiff is estopped from asserting
       1930 and that he had no insurance.               a copyright to this.
       Plaintiff only slightly extended
       this by using the quotation
       device, having Abramowitz
       saying that he "forgot to take out
       fire insurance" and connecting
       this with the "depression".
       Fields uses the same "quote" and
       also connects it with the depression.
    6. Plaintiff, as in item No. 1, relies           6. Bare Facts as related by
       on the "variety of literary device"              Abramowitz, except for the last
       theory. Also, similarity                         half of the second sentence which
       of expression is indicated:                      the defendants admit is "original".
       "breakneck speed", "racetrack
       speed", "gaping" spectators and
       cowboys, "trust" in another's
       driving abilities, and "Bronx
       prairie" and "Bronx Cowboy."

    7. Same device as in items Nos. 3                7. Quotation and therefore not subject
       and 5. Abramowitz actually                       to copyright. In any event
       said everything except that the                  if it is a simulated quote, then
       "donkey made friends with                        plaintiff is estopped from asserting
       everybody" and "behaved like a                   a copyright to this.
       real gentleman".
    8. Similarity of incident, sequence              8. The statements attributed to
       and form.                                        Norma and Shirley are quotations.
                                                        The incident concerning
                                                        Louis is bare fact, related by
    9. Identity in selection of categories           9. The first sentence is bare fact related
       advertised out of the inexhaustible              by Abramowitz. The second
       number of categories                             sentence is a quotation. The
       which Abramowitz actually                        last sentence has no resemblance
       advertised. Especially                           except for isolated words to anything
       significant is the choice by Fields              Fields has written.
       of "English woolens" ("worsteds").
                                           Column E
                                  Abramowitz' Testimony[1]
    1. He actually used the precise technical
       names of each type of carriage in
       both the Morse and Fields interviews.
    2. He told both Morse and Fields that
       he works 18-20 hours a day, seven
       days a week.
    3. He did state to Morse that he would
       not "let" his horses "down".
    4. He used the term "fruit peddler" in
       both the Morse and Fields interviews,
       and discussed the ring incident
       with both.

    5. He described this incident to both
       Morse and Fields and mentioned the
       lack of fire insurance to both.
    6. He fully described this incident to
       both, and mentioned that the stagecoaches
       went as "fast as they could
       go", and that he drove them himself
       because he did not "trust" any other
    7. He described this incident completely
       to both, including all its essential
       components: five flights, elevator,
       birthday party, Dorothy Kilgallen.
       He insisted that he specifically used
       the phrase "a real (or regular)
       gentleman" in describing the donkey
       to both.
    8. He fully described this incident in
       all its essential details to both Morse
       and Fields.
    9. He related each of the categories included
       in both articles to both Morse
       and Fields and specifically stressed
       the clothing category ("worsteds" or
       "English woolens") because there is
       a distinct and colorful story revolving
       about this category which he related
       to both.
    Factual Components of Plaintiff's Article and the Protected Residue
                                              Column F
    Factual Components                               Protected Residue
    1. The specific names of each type               1. "The collection, which fills five
       of carriage (e. g., "phaetons",                  lots includes hundreds * * *
       etc.)                                            (with and without fringes)
                                                        * * * (only the word "collection"
                                                        appears in Fields' article).
    2. Five feet four, twenty hours a                2. "in perpetual motion among his
       day, seven days a week.                          animals", "pudgy", "bull neck
                                                        and bowed legs", and the connection
                                                        between the age of 62 and
                                                        "cutting down" of working time.
    3. Extreme loyalty of Abramowitz                 3. Exact phrasing of the quotation
       to his horses.                                   (But see column H, item 3 and
                                                        compare with item 3 in columns
                                                        A and B.)
    4. Fruit peddler, wife Fanny,                    4. "lovely" (But see column H, item
       pawning of ring, price received,                 8, first sentence and compare
       purpose of the pawning.                          with item 4, columns A and B,
                                                        "but at that moment there wasn't
                                                        a penny in the house. Finally
                                                        they made a tearful decision —",
                                                        and last sentence.) (Everything
                                                        but the first word [in another
                                                        form] fails to appear in Fields'
    5. Failure to take out fire insurance,           5. Form of quotation. (But see
       depression.                                      column H, items 4 and 5 and
                                                        compare with item 5 in columns
                                                        A and B.)

    6. Rodeo, Yankee Stadium, need for               6. All connective phrases and descriptions.
       equipment, failure to "trust"                    (But see column H,
       others, fast driving.                            item 6 and compare item 6 in
                                                        columns A and B.)
    7. Five flights, elevator impractical,           7. Remaining quotations and the
       birthday, Dorothy Kilgallen, donkey              "pushing" of the donkey "up"
       acted like a "real" (or regular)                 the stairs. (But see column H,
       "gentleman".                                     item 7 and compare with item 7
                                                        in columns A and B.)
    8. Norma, sale for graduation                    8. Arrangement of these facts and
       dress, Shirley, encyclopedia,                    their specific phrasing. (But
       Louis, three years of college,                   see Column H, item 8 and reference
       Abramowitz' failure to admit his                 to his farmer-son "in
       actions.                                         Conn." in column H, item 2 and
                                                        compare with item 8, columns A
                                                        and B.)
    9. Use of carriages for advertising              9. Humorous phrasing of the quotations
       movies, stores, politicians, clothing,           and phrase "from bread
       delicatessen.                                    to worsteds". (But see column
                                                        H, item 9 and compare with
                                                        item 9, columns A and B.)
                            Comparison of Fields' Notes and Article
               Column G                                                Column H
    Article                                          Notes
    1. He has the largest collection of              1. I'm only one who has old-fashioned
       carriages, buckboards, surreys,                  carriages — more than anyone
       phaetons, tallyhos, barouches,                   in N. Y. I got four places —
       landaus, or pony expresses in the                all the Bronx, (p. 1.) Hiring
       country, if not in the world.                    out all kind of wagons, carriages,
       His collection even includes a                   ponies, donkeys, goats. (p. 1.)
       horse trolley and a German funeral               So many carriages I can't count
       coach.                                           them. Pony expresses. Stage
                                                        coaches. Wells fargo — buckboards
                                                        covered wagons — barouches
                                                        so many who could remember
                                                        the names of them.
                                                        Tallyhos — phaetons, surreys, victorias,
                                                        broughams. (pp. 1, 2.)
                                                        Even has a horse trolley. This
                                                        I'll not hire out — she's just a
                                                        relic. (p. 3.) Most I paid for
                                                        one was $850 for a German funeral
                                                        coach. (p. 4.)
    2. Hopalong is a stocky, bow-legged              2. For Mule Train Hopalong got
       five feet four, and always dresses               dressed in his cowboy outfit —
       in cowboy clothes. When necessary                I got plenty of them. (p. 2.) Besides
       he'll draw on his wide assortment                cowboy outfit dresses with
       of derbies and high                              derbies when necessary — a hi hat

        hats and outfit himself properly                — English coachman's hat — I
        booted and spurred as an English                don't know myself how many.
        coachman. Even at 63, with                      (p. 3.)
        three grown children and five
        grandchildren, his energy is                    A short stocky man (p. 1) 5'4" —
        astonishing. Last year he                       stocky bald gentle soft spoken.
        slowed up; he cut his working                   (p. 2.)
        hours to 18 a day, but still labors             Has 3 children and 5 grandchildren
        seven days a week.                              —one daughter a widow.
                                                        (p. 3.) One son — 2 dauters —
                                                        son runs a farm in Conn. (p. 4.)
                                                        I'm active 20 hrs/day — 7 days a
                                                        week. (p. 2.)
    3. Well, why don't you quit?                     3. Why do you stay in it? It's only
       "Quit!" The word was like a                      one line I know. Business or no
       slap. "All my life I have been                   business there's animals you got
       around horses. Born and raised                   to take care of them. They got
       in it. Business or no business,                  to be clean, feed and watered.
       the animals you got to clean and                 Never they let me down. (p. 2.)
       feed and water them. They                        All my life was around horses
       never let me down. Why should                    born and raised in it. (p. 1.)
       I let them down?"                                A man is born and raised in
                                                        horses how can he stop. (p. 5.)
    4. After a whirl as a fruit peddler              4. Started business with my Fanny's
    &  he pawned the engagement ring                 &  $100 ring. I pawned it.
    5. of his pretty wife, Fanny, for                5. (p. 1.) Once I own garage houses
       $100 and began his horse and                     $300,000 worth but fire
       wagon empire. He ran his $100                    cleaned me out. (p. 1.) Years
       ante up to almost $300,000 worth                 back I used to have close to 300
       of wagons, horses, stables, plus                 horses. (p. 2.) When fire I
       some real estate. But he lost                    forgot to take out insurance &
       it all in a fire and a depression.               no depression insurance. (p. 2.)
       "I forgot to take out fire insurance,"           When fire cleaned him out nobody
       he says "and nobody ever                         invented depression insurance.
       invented depression insurance."                  (p. 5.)
    6. Not too long ago a rodeo at                   6. Once at rodeo in the stadium
       Yankee Stadium needed a covered                  they needed a covered wagon
       wagon and the proper horses                      with the rt horses — who they ask
       to go with them. Naturally                       Hopalong. Naturally. I drive
       they rented them from Harry,                     wagon like I'm on a racetrack all
       "Hopalong" Abramowitz, the                       ard stadium — everybody cowboys
       Bronx Cowboy. Hopalong drove                     the people everybody claps and
       the wagon at race-track speed                    their mouths is open they admire
       around the stadium to the gaping                 a good rider. (p. 4.) (p. 5).
       admiration of cowboys and spectators             I drive myself I don't trust any
       alike. "When it comes to                         driver when it comes to big stuff
       big stuff like a rodeo or parade,"               rodeo or parade. There isn't any
       Hopalong says, "I don't trust any                good drivers." (p. 3.)
       driver. I drive myself."

    7. "Ah," he adds with a sigh, "years             7. yrs back they used to hire them
       back they hired them only for                    for pleasure. (p. 1.) But crazy
       pleasure. Now * * * it's                         stunts too. (p. 2.) Long ago
       all crazy. When Dorothy Kilgallen                they hire carriages only for
       has a birthday party I got                       pleasure — now it's real crazy—
       to push a donkey up five flights                 stunts all stunts. Dorothy Kilgallen
       of stairs. He wouldn't go in the                 has a party she wants a
       elevator. But in the party he                    donkey. The donkey is stubborn.
       acts like a regular gentleman."                  He doesn't want to go in
                                                        elevator. So I got to push him
                                                        up five flights stairs. But in the
                                                        party he's no disgrace. He acts
                                                        like a regular gentleman. (p. 5.)
    8. Yet, with his great love for his              8. Talked to wife Fanny a pretty
       animals, he sold one of his best                 woman tho a grandmother.
       horses so his kids could have a                  Told how he loves his animals
       set of encyclopedias. He sold                    when fire cleaned him out — nobody
       another so one of his daughters                  invented depression insurance
       could have a new dress for her                   so Harry she sd sells a
       graduation prom. And he sold                     horse to buy the kids encyclopedias.
       a flock of his animals to pay three              When my daughter
       years of college bills for his son.              graduates he sells more to buy
       He never said anything about it.                 her a dress. He has 300 horses
       It was like parting with his own                 once but he sold lots to put our
       hide.                                            boy thru college. (p. 5.)
    9. Along with his stock of 25 horses,            9. Rents them out to movies, supermarkets,
       20 donkeys and ponies, and a                     pol rallies hires carriages
       dozen goats, Hopalong rents                      and his donkeys and
       them out to advertise delicatessens,             horses — all the delicatessens
       supermarkets, movies, political                  theeayters TV — junkmen, restaurants.
       candidates, or English                           * * * They go on
       woolens. He also rents them to                   TV, a political campaign * *
       peddlers, junkmen and TV shows.                  to advertise woolens and worsteds
                                                        (p. 1.). Peddlers — junkmen,
                                                        laundry emergencies things
                                                        like that. (p. 2.) mostly to advertise
                                                        movies, supermarkets,
                                                        worsteds to junkmen, peddlers
                                                        rallies, (p. 2.) 25 horses—work
                                                        horses. (p. 2.) Inventory—25
                                                        horses, 20 donkeys and ponies.
                                                        (p. 2.) Hiring out all kinds of
                                                        wagons — carriages ponies donkeys
                                                        goats. (p. 1.)

                  Sequence, Selection and Emphasis of Incidents
                                in Both Articles
                 Column J                                         Column K
    Morse's Article                                  Fields' Article
    1. An incident concerning the                    1. Yankee Stadium incident. (No.
       transportation of a frog by                      12 in Morse sequence, column J.)
       Abramowitz in a stagecoach                       (See column B, item 6.)
       along Fifth Avenue. Not included
       either in Fields' notes or
    2. Types of carriages included in                2. Types of carriages included in
       collection (Column A, item 1.)                   collection. (See column B, item
    3. Advertising categories. (Column               3. Advertising categories. (See
       A, item 9.)                                      column B, item 9.)
    4. Physical description, age and                 4. An incident emphasized by
       workday. (Column A, item 2.)                     Fields concerning a television
                                                        appearance of one of Abramowitz'
                                                        donkeys. This is not included
                                                        in Morse's article.
    5. "Letting down" quote. (Column                 5. Hayride business of Abramowitz.
       A, item 3.)                                      Not included in Morse's article.
    6. Fruit peddler phrase, then incident           6. Kilgallen party. (No. 15 in
       concerning wholesaling of                        Morse sequence, column J.)
       apples by Abramowitz. The                        (See Column B, item 7.)
       wholesaling incident is not included
       either in Fields' notes or
       article. (Column A, item 4, first
    7. Pawning of the engagement ring.               7. An incident concerning former
       (Column A, item 4.)                              Postmaster Goldman. This is
                                                        the major anecdote in Fields' ararticle
                                                        and notes from the standpoint
                                                        of literary emphasis. It is
                                                        not included in the Morse article.
    8. History of how Abramowitz                     8. Physical description, age, clothing
       built up his business on a shoestring            (not included in Morse article),
       by almost simultaneous                           and workday. (No. 4 in
       purchases and sales of horses.                   Morse sequence, Column J.)
       This is a major part of the article.             (See Column B, item 2.)
       It is not included in either
       Fields' notes or article.
    9. An incident concerning a large                9. Fruit peddler phrase. (See Column
       carriage purchase from the                       B, item 4.)
       Vanderbilt estate. Copying is
       not charged as to this.

    10. The stable fire. (Column A,                 10. Pawning of engagement ring.
        Item 5.)                                        (No. 7 in Morse sequence, Column
                                                        J.) (See Column B, item
    11. An incident concerning Mayor                11. Stable fire (No. 10 in Morse sequence,
        LaGuardia and Abramowitz.                       Column J.) (See Column
        This is the major anecdote in the               B, item 5.)
        article. It is not included in
        Fields' notes or article.
    12. Yankee Stadium incident. (Column            12. Sacrifices for children. (No. 16
        A, item 6.)                                     in Morse sequence, Column J.)
                                                        (See Column B, item 8.)
    13. An incident concerning anniversary          13. Discussion of other stable and
        of City of Yonkers. Not included                wagon competitors, repair work,
        in Fields' notes or article.                    and Abramowitz' declining business.
                                                        This is a major sequence
                                                        in Fields' article, and is not included
                                                        in the Morse article.
    14. An incident concerning a Sarah              14. "Letting down" quote. (Column
        Lawrence College portrayal of                   B, item 3.) This made to
        the Nativity. This is cryptically               follow logically from Fields' sequence
        referred to in Fields' notes, but               No. 13 (declining business).
        is not included in his article.                 (See No. 5 in Morse sequence,
                                                        Column J.) Fields'
                                                        quote is substantially included in
                                                        his notes.
    15. Kilgallen birthday party. (Column
        A, item 7.)
    16. Sacrifices for children. (Column
        A, item 8.)


    [1] The parties, by stipulation, agreed to waive a jury and to limit damages, if any, to the statutory limits of no less than $250 and no more than $5,000.

    [2] "Received from (Collier's) the above sum as payment * * * for the * * * work entitled Stagecoach in the Bronx by Arthur D. Morse and all literary property and other rights therein, including complete publication rights and the right to copyright the same in (Collier's) name * * *. After publication, (Collier's) upon request will transfer and assign to the author all rights in and to the copyright secured on said work. (Signed by Pritchett)."

    [3] Although the title of plaintiff's work is not protected, it has been considered by the Court on the issue of copying. The name "Hopalong" appears in both titles but its significance evaporates because, although Collier's itself created this nickname for Abramowitz, ever since the publication of plaintiff's article, Abramowitz personally has widely used the nickname in his business (Defendants' Exhibit F) and he is so listed in the telephone book.

    The importance of permitting a plaintiff to show similarities between all of the parts of his work, both the protected and unprotected parts, and the defendants' work rather than limiting similarity comparisons to only the protected parts of a plaintiff's work is best illustrated by a hypothetical situation. If we assume that there is but one sentence of a plaintiff's work which is both protected and material and the vast residue is unprotected, and the claim is the copying of this one sentence by evasion, obviously a holding which excludes a showing of identity or close similarity between the vast unprotected residue of plaintiff's work and the bulk of a defendant's work would eliminate any possibility of a finding of copying of the one protected sentence.

    [4] These contentions are that certain portions of plaintiff's work are not protected because they are either bare factual recitals or quotations attributed to Abramowitz which, if they are not statements of mere fact, were held out as such by the plaintiff, thereby estopping him from claiming that they are protected. See Appendix, column D.

    [4-A] Plaintiff's Exhibit 10.

    [5] It should be noted in this respect that the potential scope of originality of expression and treatment is far more limited when the subject matter concerns the true life exploits of a contemporary stable proprietor in the Bronx and the primary purpose of the works is human interest reporting for mass-media periodicals than when a play, poem or novel is to be created out of whole cloth and the prospective authors are presented with infinite choices as to time, setting, characters, theme, dialogue and intellectual depth of treatment. Therefore, evidence of similarities between works of the former class must necessarily be far more striking than the similarities between works of the latter class before the Court can from a fair preponderance of the evidence find that copying as to the former class has occurred. Any current play which centers upon Hamlet's Elsinore and the irresolution of the Prince of Denmark treads on insecure ground; a writing which treats of a current Hollywood personality always walks free unless its footprints are revealed on a lower step on the pyramid of publicity.

    [6] Indeed, Abramowitz had the benefit at the time of Fields' interview of seeing what incidents and anecdotes Morse, an experienced writer, had thought most interesting, for his article had already been published in Collier's at the time of the Fields interview.

    [1] Plaintiff urges that a perusal of Abramowitz' deposition before trial (Plaintiff's Exhibit 9) indicates that Abramowitz did not relate incidents in the same phrasing to different reporters at the time he was interviewed by each nor was he capable of remembering, at the time he testified at trial, the exact phrasing he used at the time Fields interviewed him in describing some of the incidents. (e. g. Abramowitz' use of the term "real (or regular) gentleman" in reference to the donkey in Item 7: See Plaintiff's Exhibit 9, pp. 36-37 and Defendants' Exhibits E and E-1, p. 14.) Abramowitz insisted at the trial, with convincing sincerity that he used the same phrasing in many instances in relating the incidents to both plaintiff and Fields. Abramowitz is an experienced interviewee, having been interviewed at least four times before the Fields interview and he may well nave substantially stereotyped his descriptions and use of language in talking to reporters. (Compare, for example, Abramowitz' description to the plaintiff, quoted in plaintiff's article (Plaintiff's Exhibit 3), of Abramowitz' statement to the late Mayor of New York City, Fiorello H. La Guardia: "Your honor, you should excuse me but you don't know what's going on in the city of New York", with Abramowitz' description to a New York Times reporter (Defendants' Exhibit C) of the statement: "Your honor you should excuse me but you don't know what's going on in the city.") Although I cannot believe that Abramowitz can now remember the exact phrases in all instances that he used in relating the incidents to Fields (See Plaintiff's Exhibit 9, pp. 24, 25, 28, 33, 34, 36-37), nor did Abramowitz claim at trial that he could so remember, I do believe, as Abramowitz testified at trial and at the time his deposition was taken (Plaintiff's Exhibit 9, pp. 12, 14, 23-25, 34), that he did relate all of the accused incidents published in the Fields article to Fields at the interview, specifically using many of the phrases to which plaintiff claims originality. (e. g. that the donkey acted like a "real (or regular) gentleman", and that he was "pushed up" the stairs.)

Document Info

Citation Numbers: 127 F. Supp. 63

Judges: Irving R. Kaufman

Filed Date: 12/16/1954

Precedential Status: Precedential

Modified Date: 4/8/2017

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