O'Brien,Malevinsky & Driscoll, of New York City (Isaac R. Oeland and M.L. Malevinsky, both of New York City, of counsel), forappellant.

        Siegfried F.Hartman, of New York City (Nathan L. Miller and Siegfried F.Hartman, both of New York City, of counsel), for appellees.

[45 F.2d 120]

         Before L. HAND,SWAN, and AUGUSTUS N. HAND, Circuit Judges.

        L. HAND, CircuitJudge.

        The plaintiff isthe author of a play, "Abie's Irish Rose," which it may be assumedwas properly copyrighted under section five, subdivision (d), ofthe Copyright Act, 17 USCA § 5(d). The defendantproduced publicly a motion picture play, "The Cohens and TheKellys," which the plaintiff alleges was taken from it. As we thinkthe defendant's play too unlike the plaintiff's to be aninfringement, we may assume, arguendo, that in some details thedefendant used the plaintiff's play, as will subsequently appear,though we do not so decide. It therefore becomes necessary to givean outline of the two plays.

        "Abie's IrishRose" presents a Jewish family living in prosperous circumstancesin New York. The father, a widower, is in business as a merchant,in which his son and only child helps him. The boy has philanderedwith young women, who to his father's great disgust have alwaysbeen Gentiles, for he is obsessed with a passion that hisdaughter-in-law shall be an orthodox Jewess. When the play opensthe son, who has been courting a young Irish Catholic girl, hasalready married her secretly before a Protestant minister, and isconcerned to soften the blow for his father, by securing afavorable impression of his bride, while concealing her faith andrace. To accomplish this he introduces her to his father at hishome as a Jewess, and lets it appear that he is interested in her,though he conceals the marriage. The girl somewhat reluctantlyfalls in with the plan; the father takes the bait, becomesinfatuated with the girl, concludes that they must marry, andassumes that of course they will, if he so decides. He calls in arabbi, and prepares for the wedding according to the Jewishrite.

        Meanwhile thegirl's father, also a widower, who lives in California, and is asintense in his own religious antagonism as the Jew, has been calledto New York, supposing that his daughter is to marry an Irishmanand a Catholic. Accompanied by a priest, he arrives at the house atthe moment when the marriage is being celebrated, but too late toprevent it, and the two fathers, each infuriated by the proposedunion of his child to a heretic, fall into unseemly and grotesqueantics. The priest and the rabbi become friendly, exchange tritesentiments about religion, and agree that the match is good.Apparently out of abundant caution, the priest celebrates themarriage for a third time, while the girl's father is inveigledaway. The second act closes with each father, still outraged,seeking to find some way by which the union, thus trebly insured,may be dissolved.

        The last acttakes place about a year later, the young couple having meanwhilebeen abjured by each father, and left to their own resources. Theyhave had twins, a boy and a girl, but their fathers know no morethan that a child has been born. At Christmas each, led by hiscraving to see his grandchild, goes separately to the young folks'home, where they encounter each other, each laden with gifts, onefor a boy, the other for a girl. After some slapstick comedy,depending upon the insistence of each that he is right about thesex of the grandchild, they become reconciled when they learn thetruth, and that each child is to bear the given name of agrandparent. The curtain falls as the fathers are exchangingamenities, and the Jew giving evidence of an abatement in thestrictness of his orthodoxy.

        "The Cohens andThe Kellys" presents two families, Jewish and Irish, living side byside in the poorer quarters of New York in a state of perpetualenmity. The wives in both cases are still living, and share in themutual animosity, as do two small sons, and even the respectivedogs. The Jews have a daughter, the Irish a son; the Jewish fatheris in the clothing business; the Irishman is a policeman. Thechildren are in love with each other, and secretly marry,apparently after the play opens. The Jew, being in great financialstraits, learns from a lawyer that he has fallen heir to a largefortune from a great-aunt, and moves into a great house, fittedluxuriously. Here he and his family live in vulgar ostentation, andhere the Irish boy seeks out his Jewish bride, and is chased awayby the angry father. The Jew then abuses the Irishman over thetelephone, and both become hysterically excited. The extremity ofhis feelings makes the Jew sick, so that he must go to Florida fora rest, just before which the daughter discloses her marriage toher mother.

        On his returnthe Jew finds that his daughter has borne a child; at first hesuspects the lawyer, but eventually learns the truth and isovercome with anger at such a low alliance. Meanwhile, the Irishfamily who have been forbidden to see the grandchild, go to theJew's house, and after a violent scene between the two fathers inwhich the Jew disowns his daughter, who decides to go back with herhusband, the Irishman takes her back with her baby to his own poorlodgings. [45 F.2d 121] The lawyer, who had hoped to marry the Jew's daughter, seeing hisplan foiled, tells the Jew that his fortune really belongs to theIrishman, who was also related to the dead woman, but offers toconceal his knowledge, if the Jew will share the loot. This the Jewrepudiates, and, leaving the astonished lawyer, walks through therain to his enemy's house to surrender the property. He arrives ingreat dejection, tells the truth, and abjectly turns to leave. Areconciliation ensues, the Irishman agreeing to share with himequally. The Jew shows some interest in his grandchild, though thisis at most a minor motive in the reconciliation, and the curtainfalls while the two are in their cups, the Jew insisting that inthe firm name for the business, which they are to carry on jointly,his name shall stand first.

        It is of courseessential to any protection of literary property, whether atcommon-law or under the statute, that the right cannot be limitedliterally to the text, else a plagiarist would escape by immaterialvariations. That has never been the law, but, as soon as literalappropriation ceases to be the test, the whole matter isnecessarily at large, so that, as was recently well said by adistinguished judge, the decisions cannot help much in a new case.Fendler v. Morosco, 253 N. Y. 281, 292, 171 N. E. 56. When playsare concerned, the plagiarist may excise a separate scene Daly v.Webster, 56 F. 483 (C. C. A. 2); Chappell v. Fields, 210 F. 864 (C.C. A. 2); Chatterton v. Cave, L. R. 3 App. Cas. 483; or he mayappropriate 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 copyrightedwork; it is the same question as arises in the case of any othercopyrighted work. Marks v. Feist, 290 F. 959 (C. C. A. 2); Emersonv. Davies, Fed. Cas. No. 4436, 3 Story, 768, 795-797. But when theplagiarist does not take out a block in situ, but an abstract ofthe whole, decision is more troublesome. Upon any work, andespecially upon a play, a great number of patterns of increasinggenerality will fit equally well, as more and more of the incidentis left out. The last may perhaps be no more than the most generalstatement of what the play is about, and at times might consistonly of its title; but there is a point in this series ofabstractions where they are no longer protected, since otherwisethe playwright could prevent the use of his "ideas," to which,apart from their expression, his property is never extended. Holmesv. Hurst, 174 U. S. 82, 86, 19 S. Ct. 606, 43 L. Ed. 904; Guthriev. Curlett, 36 F.(2d) 694 (C. C. A. 2). Nobody has ever been ableto fix that boundary, and nobody ever can. In some cases thequestion has been treated as though it were analogous to lifting aportion out of the copyrighted work (Rees v. Melville,MacGillivray's Copyright Cases 1911-1916, 168); but the analogy isnot a good one, because, though the skeleton is a part of the body,it pervades and supports the whole. In such cases we are ratherconcerned with the line between expression and what is expressed.As respects plays, the controversy chiefly centers upon thecharacters and sequence of incident, these being the substance.

        We did not inDymow v. Bolton, 11 F. (2d) 690, hold that a plagiarist was neverliable for stealing a plot; that would have been flatly against ourrulings in Dam v. Kirk La Shelle Co., 175 F. 902, 41 L. R. A. (N.S.) 1002, 20 Ann. Cas. 1173, and Stodart v. Mutual Film Co., 249 F.513, affirming my decision in (D. C.) 249 F. 507; neither of whichwe meant to overrule. We found the plot of the second play was toodifferent to infringe, because the most detailed pattern, common toboth, eliminated so much from each that its content went into thepublic domain; and for this reason we said, "this mere subsectionof a plot was not susceptible of copyright." But we do not doubtthat two plays may correspond in plot closely enough forinfringement. How far that correspondence must go is anothermatter. Nor need we hold that the same may not be true as to thecharacters, quite independently of the "plot" proper, though, asfar as we know, such a case has never arisen. If Twelfth Night werecopyrighted, it is quite possible that a second comer might soclosely imitate Sir Toby Belch or Malvolio as to infringe, but itwould not be enough that for one of his characters he cast ariotous knight who kept wassail to the discomfort 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, aslittle capable of monopoly as Einstein's Doctrine of Relativity, orDarwin's theory of the Origin of Species. It follows that the lessdeveloped the characters, the less they can be copyrighted; that isthe penalty an author must bear for marking them tooindistinctly.

        In the two playsat bar we think both as to incident and character, the defendanttook no more — assuming that it took anything atall — than the law allowed. The stories arequite different. One is of a religious zealot [45 F.2d 122] who insists upon his child's marrying no one outside his faith;opposed by another who is in this respect just like him, and is hisfoil. Their difference in race is merely an obbligato to the maintheme, religion. They sink their differences through grandparentalpride and affection. In the other, zealotry is wholly absent;religion does not even appear. It is true that the parents arehostile to each other in part because they differ in race; but themarriage of their son to a Jew does not apparently offend the Irishfamily at all, and it exacerbates the existing animosity of theJew, principally because he has become rich, when he learns it.They are reconciled through the honesty of the Jew and thegenerosity of the Irishman; the grandchild has nothing whatever todo with it. The only matter common to the two is a quarrel betweena Jewish and an Irish father, the marriage of their children, thebirth of grandchildren and a reconciliation.

        If the defendanttook so much from the plaintiff, it may well have been because heramazing success seemed to prove that this was a subject of enduringpopularity. Even so, granting that the plaintiff's play was whollyoriginal, and assuming that novelty is not essential to acopyright, there is no monopoly in such a background. Though theplaintiff discovered the vein, she could not keep it to herself; sodefined, the theme was too generalized an abstraction from what shewrote. It was only a part of her "ideas."

        Nor does shefare better as to her characters. It is indeed scarcely crediblethat she should not have been aware of those stock figures, the lowcomedy Jew and Irishman. The defendant has not taken from her morethan their prototypes have contained for many decades. If so,obviously so to generalize her copyright, would allow her to coverwhat was not original with her. But we need not hold this as matterof fact, much as we might be justified. Even though we take it thatshe devised her figures out of her brain de novo, still thedefendant was within its rights.

        There are butfour characters common to both plays, the lovers and the fathers.The lovers are so faintly indicated as to be no more than stageproperties. They are loving and fertile; that is really all thatcan be said of them, and anyone else is quite within his rights ifhe puts loving and fertile lovers in a play of his own, wherever hegets the cue. The plaintiff's Jew is quite unlike the defendant's.His obsession is his religion, on which depends such racialanimosity as he has. He is affectionate, warm and patriarchal. Noneof these fit the defendant's Jew, who shows affection for hisdaughter only once, and who has none but the most superficialinterest 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 thesecommon qualities make up only a small part of their simplepictures, no more than any one might lift if he chose. The Irishfathers are even more unlike; the plaintiff's a mere symbol forreligious fanaticism and patriarchal pride, scarcely a character atall. Neither quality appears in the defendant's, for while he goesto get his grandchild, it is rather out of a truculentdetermination not to be forbidden, than from pride in his progeny.For the rest he is only a grotesque hobbledehoy, used for lowcomedy of the most conventional sort, which any one might borrow,if he chanced not to know the exemplar.

        The defendantargues that the case is controlled by my decision in Fisher v.Dillingham (D. C.) 298 F. 145. Neither my brothers nor I wish tothrow doubt upon the doctrine of that case, but it is notapplicable here. We assume that the plaintiff's play is altogetheroriginal, even to an extent that in fact it is hard to believe. Weassume further that, so far as it has been anticipated by earlierplays of which she knew nothing, that fact is immaterial. Still, aswe have already said, her copyright did not cover everything thatmight be drawn from her play; its content went to some extent intothe public domain. We have to decide how much, and while we are asaware as any one that the line, whereever it is drawn, will seemarbitrary, that is no excuse for not drawing it; it is a questionsuch as courts must answer in nearly all cases. Whatever may be thedifficulties a priori, we have no question on which side of theline this case falls. A comedy based upon conflicts between Irishand Jews, into which the marriage of their children enters, is nomore susceptible of copyright than the outline of Romeo andJuliet.

        The plaintiffhas prepared an elaborate analysis of the two plays, showing a"quadrangle" of the common characters, in which each is representedby the emotions which he discovers. She presents the resultingparallelism as proof of infringement, but the adjectives employedare so general as to be quite useless. Take for example theattribute of "love" ascribed to both Jews. The plaintiff hasdepicted her father as deeply attached [45 F.2d 123] to his son, who is his hope and joy; not so, the defendant, whosefather's conduct is throughout not actuated by any affection forhis daughter, and who is merely once overcome for the moment by herdistress when he has violently dismissed her lover. "Anger" coversemotions aroused by quite different occasions in each case; so do"anxiety," "despondency" and "disgust." It is unnecessary to gothrough the catalogue for emotions are too much colored by theircauses to be a test when used so broadly. This is not the properapproach to a solution; it must be more ingenuous, more like thatof a spectator, who would rely upon the complex of his impressionsof each character.

        We cannotapprove the length of the record, which was due chiefly to the useof expert witnesses. Argument is argument whether in the box or atthe bar, and its proper place is the last. The testimony of anexpert upon such issues, especially his cross-examination, greatlyextends the trial and contributes nothing which cannot be betterheard after the evidence is all submitted. It ought not to beallowed at all; and while its admission is not a ground forreversal, it cumbers the case and tends to confusion, for the morethe court is led into the intricacies of dramatic craftsmanship,the less likely it is to stand upon the firmer, if morenaïve, ground of its considered impressions upon itsown perusal. We hope that in this class of cases such evidence mayin the future be entirely excluded, and the case confined to theactual issues; that is, whether the copyrighted work was original,and whether the defendant copied it, so far as the supposedinfringement is identical.

        The defendant,"the prevailing party," was entitled to a reasonable attorney's fee(section 40 of the Copyright Act 17 USCA § 40).

        Decreeaffirmed.