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The Idea/Expression Distinction
  • 1 17 U.S.C 102

    1
    § 102. Subject matter of copyright: In general
    2

    (a) Copyright protection subsists, in accord­ance with this title, in original works of author­ship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise com­municated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

    3

    (1) literary works;

    4

    (2) musical works, including any accompany­ing words;

    5

    (3) dramatic works, including any accom­panying music;

    6

    (4) pantomimes and choreographic works;

    7

    (5) pictorial, graphic, and sculptural works;

    8

    (6) motion pictures and other audiovisual works;

    9

    (7) sound recordings; and

    10

    (8) architectural works.

    11

    (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, il­lustrated, or embodied in such work.

    12

    (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2544; Pub. L. 101–650, title VII, § 703, Dec. 1, 1990, 104 Stat. 5133.)

  • 2 Baker v. Selden, 101 U.S. 99 (1879)

    1
     101 U.S. 99 (1879)
    2
    Baker
    v.
    Selden
    3
    Supreme Court of the United States
    4

    APPEAL from the Circuit Court of the United States for the Southern District of Ohio.

    5

    The facts are stated in the opinion of the court.

    6

    Mr. Alphonso Taft and Mr. H. P. Lloyd for the appellant.

    7

    Mr. C. W. Moulton and Mr. M. I. Southard for the appellee.

    8

    MR. JUSTICE BRADLEY delivered the opinion of the court.

    9

    Charles Selden, the testator of the complainant in this case, in the year 1859 took the requisite steps for obtaining the copyright [100] of a book, entitled 'Selden's Condensed Ledger, or Book-keeping Simplified,' the object of which was to exhibit and explain a peculiar system of book-keeping. In 1860 and 1861, he took the copyright of several other books, containing additions to and improvements upon the said system. The bill of complaint was filed against the defendant, Baker, for an alleged infringement of these copyrights. The latter, in his answer, denied that Selden was the author or designer of the books, and denied the infringement charged, and contends on the argument that the matter alleged to be infringed is not a lawful subject of copyright.

    10

    The parties went into proofs, and the various books of the complainant, as well as those sold and used by the defendant, were exhibited before the examiner, and witnesses were examined on both sides. A decree was rendered for the complainant, and the defendant appealed.

    11

    The book or series of books of which the complainant claims the copyright consists of an introductory essay explaining the system of book-keeping referred to, to which are annexed certain forms or banks, consisting of ruled lines, and headings, illustrating the system and showing how it is to be used and carried out in practice. This system effects the same results as book-keeping by double entry; but, by a peculiar arrangement of columns and headings, presents the entire operation, of a day, a week, or a month, on a single page, or on two pages facing each other, in an account-book. The defendant uses a similar plan so far as results are concerned; but makes a different arrangement of the columns, and uses different headings. If the complainant's testator had the exclusive right to the use of the system explained in his book, it would be difficult to contend that the defendant does not infringe it, notwithstanding the difference in his form of arrangement; but if it be assumed that the system is open to public use, it seems to be equally difficult to contend that the books made and sold by the defendant are a violation of the copyright of the complainant's book considered merely as a book explanatory of the system. Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in [101] his own way. As an author, Selden explained the system in a particular way. It may be conceded that Baker makes and uses account-books arranged on substantially the same system; but the proof fails to show that he has violated the copyright of Selden's book, regarding the latter merely as an explanatory work; or that he has infringed Selden's right in any way, unless the latter became entitled to an exclusive right in the system.

    12

    The evidence of the complainant is principally directed to the object of showing that Baker uses the same system as that which is explained and illustrated in Selden's books. It becomes important, therefore, to determine whether, in obtaining the copyright of his books, he secured the exclusive right to the use of the system or method of book-keeping which the said books are intended to illustrate and explain. It is contended that he has secured such exclusive right, because no one can use the system without using substantially the same ruled lines and headings which he has appended to his books in illustration of it. In other words, it is contended that the ruled lines and headings, given to illustrate the system, are a part of the book, and, as such, are secured by the copyright; and that no one can make or use similar ruled lines and headings, or ruled lines and headings made and arranged on substantially the same system, without violating the copyright. And this is really the question to be decided in this case. Stated in another form, the question is, whether the exclusive property in a system of book-keeping can be claimed, under the law of copyright, by means of a book in which that system is explained? The complainant's bill, and the case made under it, are based on the hypothesis that it can be.

    13

    It cannot be pretended, and indeed it is not seriously urged, that the ruled lines of the complainant's account-book can be claimed under any special class of objects, other than books, named in the law of copyright existing in 1859. The law then in force was that of 1831, and specified only books, maps, charts, musical compositions, prints, and engravings. An account-book, consisting of ruled lines and blank columns, cannot be called by any of these names unless by that of a book.

    14

    There is no doubt that a work on the subject of book-keeping, [102] though only explanatory of well-known systems, may be the subject of a copyright; but, then, it is claimed only as a book. Such a book may be explanatory either of old systems, or of an entirely new system; and, considered as a book, as the work of an author, conveying information on the subject of book-keeping, and containing detailed explanations of the art, it may be a very valuable acquisition to the practical knowledge of the community. But there is a clear distinction between the book, as such, and the art which it is intended to illustrate. The mere statement of the proposition is so evident, that it requires hardly any argument to support it. The same distinction may be predicated of every other art as well as that of book-keeping. A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective, would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein. The copyright of the book, if not pirated from other works, would be valid without regard to the novelty, or want of novelty, of its subject-matter. The novelty of the art or thing described or explained has nothing to do with the validity of the copyright. To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters-patent, not of copyright. The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained; and it can only be secured by a patent from the government.

    15

    The difference between the two things, letters-patent and copyright, may be illustrated by reference to the subjects just enumerated. Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writes and publishes a book on the subject (as regular physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he gives that to the [103] public. If he desires to acquire such exclusive right, he must obtain a patent for the mixture as a new art, manufacture, or composition of matter. He may copyright his book, if he pleases; but that only secures to him the exclusive right of printing and publishing his book. So of all other inventions or discoveries.

    16

    The copyright of a book on perspective, no matter how many drawings and illustrations it may contain, gives no exclusive right to the modes of drawing described, though they may never have been known or used before. By publishing the book, without getting a patent for the art, the latter is given to the public. The fact that the art described in the book by illustrations of lines and figures which are reproduced in practice in the application of the art, makes no difference. Those illustrations are the mere language employed by the author to convey his ideas more clearly. Had he used words of description instead of diagrams (which merely stand in the place of words), there could not be the slightest doubt that others, applying the art to practical use, might lawfully draw the lines and diagrams which were in the author's mind, and which he thus described by words in his book.

    17

    The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.

    18

    Of course, these observations are not intended to apply to ornamental designs, or pictorial illustrations addressed to the taste. Of these it may be said, that their form is their essence, [104] and their object, the production of pleasure in their contemplation. This is their final end. They are as much the product of genius and the result of composition, as are the lines of the poet or the historian's periods. On the other hand, the teachings of science and the rules and methods of useful art have their final end in application and use; and this application and use are what the public derive from the publication of a book which teaches them. But as embodied and taught in a literary composition or book, their essence consists only in their statement. This alone is what is secured by the copyright. The use by another of the same methods of statement, whether in words or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of the copyright.

    19

    Recurring to the case before us, we observe that Charles Selden, by his books, explained and described a peculiar system of book-keeping, and illustrated his method by means of ruled lines and blank columns, with proper headings on a page, or on successive pages. Now, whilst no one has a right to print or publish his book, or any material part thereof, as a book intended to convey instruction in the art, any person may practise and use the art itself which he has described and illustrated therein. The use of the art is a totally different thing from a publication of the book explaining it. The copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book. Whether the art might or might not have been patented, is a question which is not before us. It was not patented, and is open and free to the use of the public. And, of course, in using the art, the ruled lines and headings of accounts must necessarily be used as incident to it.

    20

    The plausibility of the claim put forward by the complainant in this case arises from a confusion of ideas produced by the peculiar nature of the art described in the books which have been made the subject of copyright. In describing the art, the illustrations and diagrams employed happen to correspond more closely than usual with the actual work performed by the operator who uses the art. Those illustrations and diagrams consist of ruled lines and headings of accounts; and [105] it is similar ruled lines and headings of accounts which, in the application of the art, the book-keeper makes with his pen, or the stationer with his press; whilst in most other cases the diagrams and illustrations can only be represented in concrete forms of wood, metal, stone, or some other physical embodiment. But the principle is the same in all. The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters-patent.

    21

    The remarks of Mr. Justice Thompson in the Circuit Court in Clayton v. Stone & Hall (2 Paine, 392), in which copyright was claimed in a daily price-current, are apposite and instructive. He says: 'In determining the true construction to be given to the act of Congress, it is proper to look at the Constitution of the United States, to aid us in ascertaining the nature of the property intended to be protected. 'Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries.' The act in question was passed in execution of the power here given, and the object, therefore, was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent, and durable character. The term 'science' cannot, with any propriety, by applied to a work of so fluctuating and fugitive a form as that of a newspaper or price-current, the subject-matter of which is daily changing, and is of mere temporary use. Although great praise may be due to the plaintiffs for their industry and enterprise in publishing this paper, yet the law does not contemplate their being rewarded in this way: it must seek patronage and protection from its utility to the public, and not a work of science. The title of the act of Congress is, 'for the encouragement of learning,' and was not intended for the encouragement of mere industry, unconnected with learning and the sciences. . . . We are, accordingly, of opinion that the paper in question is not [106] a book the copyright to which can be secured under the act of Congress.'

    22

    The case of Cobbett v. Woodward (Law Rep. 14 Eq. 407) was a claim to copyright in a catalogue of furniture which the publisher had on sale in his establishment, illustrated with many drawings of furniture and decorations. The defendants, being dealers in the same business, published a similar book, and copied many of the plaintiff's drawings, though it was shown that they had for sale the articles represented thereby.

    23

    The court held that these drawings were not subjects of copyright. Lord Romilly, M. R., said: 'This is a mere advertisement for the sale of particular articles which any one might imitate, and any one might advertise for sale. If a man not being a vendor of any of the articles in question were to publish a work for the purpose of informing the public of what was the most convenient species of articles for household furniture, or the most graceful species of decorations for articles of home furniture, what they ought to cost, and where they might be bought, and were to illustrate his work with designs of each article he described,—such a work as this could not be pirated with impunity, and the attempt to do so would be stopped by the injunction of the Court of Chancery; yet if it were done with no such object, but solely for the purpose of advertising particular articles for sale, and promoting the private trade of the publisher by the sale of articles which any other person might sell as well as the first advertiser, and if in fact it contained little more than an illustrated inventory of the contents of a warehouse, I know of no law which, while it would not prevent the second advertiser from selling the same articles, would prevent him from using the same advertisement; provided he did not in such advertisement by any device suggest that he was selling the works and designs of the first advertiser.'

    24

    Another case, that of Page v. Wisden (20 L. T. N. S. 435), which came before Vice-Chancellor Malins in 1869, has some resemblance to the present. There a copyright was claimed in a cricket scoring-shett, and the Vice-Chancellor held that it was not a fit subject for copyright, partly because it was not new, but also because 'to say that a particular [107] mode of ruling a book constituted an object for a copyright is absurd.'

    25

    These cases, if not precisely in point, come near to the matter in hand, and, in our view, corroborate the general proposition which we have laid down.

    26

    In Drury v. Ewing (1 Bond, 540), which is much relied on by the complainant, a copyright was claimed in a chart of patterns for cutting dresses and basques for ladies, and coats, jackets, &c., for boys. It is obvious that such designs could only be printed and published for information, and not for use in themselves. Their practical use could only be exemplified in cloth on the tailor's board and under his shears; in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart. Without undertaking to say whether we should or should not concur in the decision in that case, we think it cannot control the present.

    27

    The conclusion to which we have come is, that blank account-books are not the subject of copyright; and that the mere copyright of Selden's book did not confer upon him the exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book.

    28

    The decree of the Circuit Court must be reversed, and the cause remanded with instructions to dismiss the complainant's bill; and it is

    29

    So ordered

  • 3 Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930)

    1
    45 F.2d 119 (1930)
    2
    NICHOLS
    v.
    UNIVERSAL PICTURES CORPORATION et al.
    3
    No. 4.
    4

    Circuit Court of Appeals, Second Circuit.

    5
    November 10, 1930.
    6

     

    7

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

    8

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

    9

    [120] Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

    10

    L. HAND, Circuit Judge.

    11

    The plaintiff is the author of a play, "Abie's Irish Rose," which it may be assumed was properly copyrighted under section five, subdivision (d), of the Copyright Act, 17 USCA § 5(d). 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 plays.

    12

    "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 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.

    13

    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 father, still outraged, seeking to find some way by which the union, thus trebly insured, may be dissolved.

    14

    The last act takes place about a year later, the young couple having meanwhile been abjured 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 folks' home, where they encounter each other, each laden with gifts, one for a boy, the other for a girl. After some slapstick comedy, depending upon the insistence of each that he is right about the sex of the grandchild, they become reconciled when they learn the truth, and that each child is to bear the given name of a grandparent. The curtain falls as the fathers are exchanging amenities, and the Jew giving evidence of an abatement in the strictness of his orthodoxy.

    15

    "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 marry, 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.

    16

    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. [121] 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 some 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.

    17

    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 variations. 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, 171 N. E. 56. When plays are 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 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. 959 (C. C. A. 2); Emerson v. Davies, Fed. Cas. No. 4436, 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, 19 S. Ct. 606, 43 L. Ed. 904; Guthrie v. Curlett, 36 F.(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 [1911-1916], 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.

    18

    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. 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 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 correspond 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 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, as little capable of monopoly as Einstein's Doctrine of Relativity, or Darwin's theory of the Origin 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.

    19

    In the two plays at bar we think both as to incident and character, the defendant took no more — assuming that it took anything at all — than the law allowed. The stories are quite different. One is of a religious zealot [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 his foil. Their difference in race is merely an obbligato 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 a reconciliation.

    20

    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."

    21

    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.

    22

    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 any one 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 defendant's, for while he goes to get his grandchild, it is rather out of 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 any one might borrow, if he chanced not to know the exemplar.

    23

    The defendant argues that the case is controlled by my decision in Fisher v. Dillingham (D. C.) 298 F. 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 any one that the line, whereever 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.

    24

    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, but 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 [123] 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 character.

    25

    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 naïve, 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 identical.

    26

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

    27

    Decree affirmed.

  • 4 A.A. Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980)

    1
    618 F.2d 972
    2
    205 U.S.P.Q. 681, 1978-81 Copr.L.Dec. 25,146,
    6 Media L. Rep. 1053
    3
    A. A. HOEHLING, Plaintiff-Appellant,
    v.
    UNIVERSAL CITY STUDIOS, INC., and Michael MacDonald Mooney,
    Defendants-Appellees.
    4
    No. 692, Docket 79-7704.
    5
    United States Court of Appeals, Second Circuit.
    6
    Argued Feb. 27, 1980.
    Decided March 25, 1980.
    7

     

    8

    [618 F.2d 974] James C. Eastman, Washington, D. C., for plaintiff-appellant.

    9

    Coudert Bros., New York City (Eugene L. Girden, New York City, of counsel), for defendant-appellee Universal City Studios, Inc.

    10

    Peter A. Flynn, and Myron M. Cherry, Chicago, Ill. (Cherry, Flynn & Kanter, Chicago, Ill., Hervey M. Johnson, White Plains, N. Y.), and James J. McEnroe, New York City (Watson, Leavenworth, Kelton & Taggert, New York City), for defendant-appellee Michael M. Mooney.

    11

    Before KAUFMAN, Chief Judge, TIMBERS, Circuit Judge, and WERKER, District Judge.[*]

    12

    IRVING R. KAUFMAN, Chief Judge:

    13

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

    14
    I.
    15

    This litigation arises from three separate accounts of the triumphant introduction, last voyage, and tragic destruction of the Hindenburg, the colossal dirigible constructed in Germany during Hitler's reign. The zeppelin, the last and most sophisticated in a fleet of luxury airships, which punctually floated its wealthy passengers from the Third Reich to the United States, exploded into flames and disintegrated in 35 seconds as it hovered above the Lakehurst, New Jersey Naval Air Station at 7:25 p. m. on May 6, 1937. Thirty-six passengers and [618 F.2d 975] crew were killed but, fortunately, 52 persons survived. Official investigations conducted by both American and German authorities could ascertain no definitive cause of the disaster, but both suggested the plausibility of static electricity or St. Elmo's Fire, which could have ignited the highly explosive hydrogen that filled the airship. Throughout, the investigators refused to rule out the possibility of sabotage.

    16

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

    17

    The final pages of the airship's story marked the beginning of a series of journalistic, historical, and literary accounts devoted to the Hindenburg and its fate. Indeed, weeks of testimony by a plethora of witnesses before the official investigative panels provided fertile source material for would-be authors. Moreover, both the American and German Commissions issued official reports, detailing all that was then known of the tragedy. A number of newspaper and magazine articles had been written about the Hindenburg in 1936, its first year of trans-Atlantic service, and they, of course, multiplied many fold after the crash. In addition, two passengers Margaret Mather and Gertrud Adelt published separate and detailed accounts of the voyage, C. E. Rosendahl, commander of the Lakehurst Naval Air Station and a pioneer in airship travel himself, wrote a book titled What About the Airship?, in which he endorsed the theory that the Hindenburg was the victim of sabotage. In 1957, Nelson Gidding, who would return to the subject of the Hindenburg some 20 years later, wrote an unpublished "treatment" for a motion picture based on the deliberate destruction of the airship. In that year as well, John Toland published Ships in the Sky which, in its seventeenth chapter, chronicled the last flight of the Hindenburg. In 1962, Dale Titler released Wings of Mystery, in which he too devoted a chapter to the Hindenburg.[1]

    18

    Appellant A. A. Hoehling published Who Destroyed the Hindenburg ?, a full-length book based on his exhaustive research in 1962. Mr. Hoehling studied the investigative reports, consulted previously published articles and books, and conducted interviews with survivors of the crash as well as others who possessed information about the Hindenburg. His book is presented as a factual account, written in an objective, reportorial style.

    19

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

    20

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

    21

    Ten years later appellee Michael MacDonald Mooney published his book, The Hindenburg. [618 F.2d 976] Mooney's endeavor might be characterized as more literary than historical in its attempt to weave a number of symbolic themes through the actual events surrounding the tragedy. His dominant theme contrasts the natural beauty of the month of May, when the disaster occurred, with the cold, deliberate progress of "technology." The May theme is expressed not simply by the season, but also by the character of Spehl, portrayed as a sensitive artisan with needle and thread. The Hindenburg, in contrast, is the symbol of technology, as are its German creators and the Reich itself. The destruction is depicted as the ultimate triumph of nature over technology, as Spehl plants the bomb that ignites the hydrogen. Developing this theme from the outset, Mooney begins with an extended review of man's efforts to defy nature through flight, focusing on the evolution of the zeppelin. This story culminates in the construction of the Hindenburg, and the Nazis' claims of its indestructibility. Mooney then traces the fateful voyage, advising the reader almost immediately of Spehl's scheme. The book concludes with the airship's explosion.

    22

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

    23

    After Mooney prepared an outline of his anticipated book, his publisher succeeded in negotiations to sell the motion picture rights to appellee Universal City Studios.[2] Universal then commissioned a screen story by writers Levinson and Link, best known for their television series, Columbo, in which a somewhat disheveled, but wise detective unravels artfully conceived murder mysteries. In their screen story, Levinson and Link created a Columbo-like character who endeavored to identify the saboteur on board the Hindenburg. Director Robert Wise, however, was not satisfied with this version, and called upon Nelson Gidding to write a final screenplay. Gidding, it will be recalled, had engaged in preliminary work on a film about the Hindenburg almost twenty years earlier.

    24

    The Gidding screenplay follows what is known in the motion picture industry as a "Grand Hotel" formula, developing a number of fictional characters and subplots involving them. This formula has become standard fare in so-called "disaster" movies, which have enjoyed a certain popularity in recent years. In the film, which was released in late 1975, a rigger named "Boerth," who has an anti-Nazi ladyfriend, plans to destroy the airship in an effort to embarrass the Reich. Nazi officials, vaguely aware of sabotage threats, station a Luftwaffe intelligence officer on the zeppelin, loosely resembling a Colonel Erdmann who was aboard the Hindenburg. This character is portrayed as a likable fellow who soon discovers that Boerth is the saboteur. Boerth, however, convinces him that the Hindenburg should be destroyed and the two join forces, planning the explosion for several hours after the landing at Lakehurst, when no people would be on board. In Gidding's version, the airship is delayed by a storm, frantic efforts to defuse the bomb fail, and the Hindenburg is destroyed. The film's subplots involve other possible suspects, including a fictional countess who has had her estate expropriated by the Reich, two fictional confidence men wanted [618 F.2d 977] by New York City police, and an advertising executive rushing to close a business deal in America.

    25

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

    26

    In January 1976, Hoehling sought to amend his complaint to include Mooney as a defendant. The district court, however, decided that it lacked personal jurisdiction over Mooney.[3] In June 1976, Hoehling again attempted to amend his complaint, this time to add Mooney's publishers as defendants. Judge Smith denied this motion as well, but granted Hoehling's request to transfer the litigation to the Southern District of New York, 28 U.S.C. § 1404(a), where Mooney himself was successfully included as a party. Judge Metzner, with the assistance of Magistrate Sinclair, supervised extensive discovery through most of 1978. After the completion of discovery, both Mooney and Universal moved for summary judgment, Fed.R.Civ.P. 56, which was granted on August 1, 1979.

    27
    II.
    28

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

    29
    A
    30

    Hoehling's principal claim is that both Mooney and Universal copied the essential plot of his book i. e., Eric Spehl, influenced by his girlfriend, sabotaged the Hindenburg by placing a crude bomb in Gas Cell 4. In their briefs, and at oral argument, appellees have labored to convince us that their plots are not substantially similar to Hoehling's. While Hoehling's Spehl destroys the airship to please his communist girlfriend, Mooney's character is motivated by an aversion to the technological age. Universal's [618 F.2d 978] Boerth, on the other hand, is a fervent anti-fascist who enlists the support of a Luftwaffe colonel who, in turn, unsuccessfully attempts to defuse the bomb at the eleventh hour.

    31

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

    32

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

    33

    Sheldon and Detective Comics, however, dealt with works of fiction,[4] where the distinction between an idea and its expression is especially elusive. But, where, as here, the idea at issue is an interpretation of an historical event, our cases hold that such interpretations are not copyrightable as a matter of law. In Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967), we held that the defendant's biography of Howard Hughes did not infringe an earlier biography of the reclusive alleged billionaire. Although the plots of the two works were necessarily similar, there could be no infringement because of the "public benefit in encouraging the development of historical and biographical works and their public distribution." Id. at 307; accord, Oxford Book Co. v. College Entrance Book Co., 98 F.2d 688 (2d Cir. 1938). To avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots. Learned Hand counseled in Myers v. Mail & Express Co., 36 C.O.Bull. 478, 479 (S.D.N.Y.1919), "(t)here cannot be any such thing as copyright in the order of presentation of the facts, nor, indeed, in their selection."[5]

    34

    In the instant case, the hypothesis that Eric Spehl destroyed the Hindenburg is based entirely on the interpretation of historical facts, including Spehl's life, his girlfriend's anti-Nazi connections, the explosion's origin in Gas Cell 4, Spehl's duty station, discovery of a dry-cell battery [618 F.2d 979] among the wreckage, and rumors about Spehl's involvement dating from a 1938 Gestapo investigation. Such an historical interpretation, whether or not it originated with Mr. Hoehling, is not protected by his copyright and can be freely used by subsequent authors.

    35
    B
    36

    The same reasoning governs Hoehling's claim that a number of specific facts, ascertained through his personal research, were copied by appellees.[6] The cases in this circuit, however, make clear that factual information is in the public domain. See, e. g., Rosemont Enterprises, Inc., supra, 366 F.2d at 309; Oxford Book Co., supra, 98 F.2d at 691. Each appellee had the right to "avail himself of the facts contained" in Hoehling's book and to "use such information, whether correct or incorrect, in his own literary work." Greenbie v. Noble, 151 F.Supp. 45, 67 (S.D.N.Y.1957). Accordingly, there is little consolation in relying on cases in other circuits holding that the fruits of original research are copyrightable. See, e. g., Toksvig v. Bruce Publications Corp., 181 F.2d 664, 667 (7th Cir. 1950); Miller v. Universal City Studios, Inc., 460 F.Supp. 984 (S.D.Fla.1978). Indeed, this circuit has clearly repudiated Toksvig and its progeny. In Rosemont Enterprises, Inc., supra, 366 F.2d at 310, we refused to "subscribe to the view that an author is absolutely precluded from saving time and effort by referring to and relying upon prior published material. . . . It is just such wasted effort that the proscription against the copyright of ideas and facts . . . . are designed to prevent." Accord, 1 Nimmer on Copyright § 2.11 (1979).

    37
    C
    38

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

    39
    D
    40

    All of Hoehling's allegations of copying, therefore, encompass material that is non-copyrightable as a matter of law, rendering summary judgment entirely appropriate. We are aware, however, that in distinguishing between themes, facts, and scenes a faire on the one hand, and copyrightable expression on the other, courts may lose sight of the forest for the trees. By factoring out similarities based on non-copyrightable elements, a court runs the [618 F.2d 980] risk of overlooking wholesale usurpation of a prior author's expression. A verbatim reproduction of another work, of course, even in the realm of nonfiction, is actionable as copyright infringement. See Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730 (1978). Thus, in granting or reviewing a grant of summary judgment for defendants, courts should assure themselves that the works before them are not virtually identical. In this case, it is clear that all three authors relate the story of the Hindenburg differently.

    41

    In works devoted to historical subjects, it is our view that a second author may make significant use of prior work, so long as he does not bodily appropriate the expression of another. Rosemont Enterprises, Inc., supra, 366 F.2d at 310. This principle is justified by the fundamental policy undergirding the copyright laws the encouragement of contributions to recorded knowledge. The "financial reward guaranteed to the copyright holder is but an incident of this general objective, rather than an end in itself." Berlin v. E. C. Publications, Inc., 329 F.2d 541, 543-44 (2d Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964). Knowledge is expanded as well by granting new authors of historical works a relatively free hand to build upon the work of their predecessors.[7]

    42
    III
    43

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

    44

    The judgment of the district court is affirmed.

    45

    ---------------

    46

    [*] Of the United States District Court for the Southern District of New York, sitting by designation.

    47

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

    48

    [2] Mooney, his publishers, and Universal entered into an agreement under which (1) Universal acquired the film rights to Mooney's book, (2) Universal agreed to promote sales of the book, and (3) Mooney would receive a percentage fee, tied to sales of his book. Hoehling claims that because of this arrangement, Universal is vicariously liable if Mooney's book, but not the motion picture, is held to infringe his copyright. In view of our disposition of the appeal, however, we need not address this issue.

    49

    [3] At the same time, Judge Smith denied Universal's motion for summary judgment, concluding it was inappropriate prior to the completion of requested discovery.

    50

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

    51

    [5] This circuit has permitted extensive reliance on prior works of history. See, e. g., Gardner v. Nizer, 391 F.Supp. 940 (S.D.N.Y.1975) (the story of the Rosenberg trial not copyrightable); Fuld v. National Broadcasting Co., 390 F.Supp. 877 (S.D.N.Y.1975) ("Bugsy" Siegel's life story not copyrightable); Greenbie v. Noble, 151 F.Supp. 45 (S.D.N.Y.1957) (the life of Anna Carroll, a member of Lincoln's cabinet, not copyrightable). The commentators are in accord with this view. See, e. g. 1 Nimmer on Copyright § 2.11(A) (1979); Chafee, Reflections on the Law of Copyright: I, 45 Colum.L.Rev. 503, 511 (1945).

    52

    [6] In detailed comparisons of his book with Mooney's work and Universal's motion picture, Hoehling isolates 266 and 75 alleged instances of copying, respectively. Judge Metzner correctly pointed out that many of these allegations are patently frivolous. The vast majority of the remainder deals with alleged copying of historical facts. It would serve no purpose to review Hoehling's specific allegations in detail in this opinion. The following ten examples, however, are illustrative: (1) Eric Spehl's age and birthplace; (2) Crew members had smuggled monkeys on board the Graf Zeppelin; (3) Germany's ambassador to the United States dismissed threats of sabotage; (4) A warning letter had been received from a Mrs. Rauch; (5) The Hindenburg's captain was constructing a new home in Zeppelinheim; (6) Eric Spehl was a photographer; (7) The airship flew over Boston; (8) The Hindenburg was "tail heavy" before landing; (9) A member of the ground crew had etched his name in the zeppelin's hull; and (10) The navigator set the Hindenburg's course by reference to various North Atlantic islands.

    53

    [7] We note that publication of Mooney's book and release of the motion picture revived long dormant interest in the Hindenburg. As a result, Hoehling's book, which had been out of print for some time, was actually re-released after the film was featured in theaters across the country.

  • 5 Alexander v. Haley, 460 F.Supp. 40 (S.D.N.Y. 1978)

    1

    460 F. Supp. 40

    2
    Margaret Walker ALEXANDER, Plaintiff,
    v.
    Alex HALEY, Doubleday & Company, Inc., and Doubleday Publishing Company, Defendants.
    3

    Nos. 77 Civ. 1907 (M.E.F.), 77 Civ. 1908 (M.E.F.).
    United States District Court, S. D. New York.
    September 20, 1978.
    As Amended September 21, 1978.

    4

    [42] Gilbert A. Holmes, New York City, Brown, Alexander & Sanders, Jackson, Miss., for plaintiff; Firnist J. Alexander, Jr., Everett T. Sanders, Jackson, Miss., of counsel.

    5

    Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for defendant Alex Haley; George Berger, New York City, of counsel.

    6

    Satterlee & Stephens, New York City, for defendants Doubleday & Co., Inc., and Doubleday Publishing Co.; Robert M. Callagy, New York City, of counsel.

    7

    OPINION

    8

    FRANKEL, District Judge.

    9

    Defendants' motions for summary judgment were held by the court pending an evidentiary hearing and report by Magistrate Gershon on one possibly material question of fact. The reports and recommendations are now before the court along with comments and objections by the parties. Upon all the original submissions, as thus amplified, the court concludes that defendants' motions should be granted.

    10
    I.
    11

    The plaintiff, Margaret Walker Alexander, initiated twin copyright infringement and unfair competition actions against Alex Haley and Doubleday Publishing Company and Doubleday & Co., Inc., his publishers, based upon alleged similarities between the book Roots, written by Haley, and the novel Jubilee and the pamphlet How I Wrote Jubilee ("HIWJ"), both written by the plaintiff. Jubilee was copyrighted in 1966, and HIWJ in 1972. The copyright for Roots was registered in 1976, although a portion of the material which later became Roots appeared under copyright in The Reader's Digest in 1974.

    12

    Both Roots and Jubilee are amalgams of fact and fiction derived from the sombre history of black slavery in the United States. Each purports to be at least loosely based on the lives of the author's own forbears. Differences in scope are, however, more striking than the similarities. Jubilee is a historical novel which recounts the life of Vyry (described as the author's great grandmother) starting around 1835, from her childhood and early adulthood in slavery, through the Civil War years and into Reconstruction. The novel is divided roughly into thirds, marked out by the beginning and the end of the Civil War. HIWJ, as its title suggests, is an account of the author's career, including her awakening interest in her family's and people's past, her many years of research, her struggle to complete the manuscript amidst other obligations, and an explanation of the mixture of fact and fiction in Jubilee.

    13

    Roots covers a much broader canvas, commencing its narrative in Africa and continuing through multiple generations of a single family, described as the ancestors of the author. The story commences in about 1750 and continues through the birth and life of the author. Well over a fifth of the book is set in Africa, and approximately three-quarters covers a period antedating the time of Jubilee. In the closing pages the author relates the story of his own life, the evolution of his concern with his family's past, his developing interest in writing, his research and the completion of his manuscript. Particular emphasis is placed upon an account of the trail the author says was followed to the unearthing of the African roots of his family tree.

    14
    II.
    15

    The case came before the court initially on defendants' motions for summary [43] judgment. In order to succeed in her claims of infringement plaintiff has the burden of proving two elements: actual copying of her works by the defendant and substantial similarity between the accused work and the original. Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946); Heim v. Universal Pictures Co., 154 F.2d 480, 487 (2d Cir. 1946). Actual copying may be established by direct proof or by proof of access plus a demonstration of similarities or other factors circumstantially evidencing copying. Arnstein v. Porter, supra, 154 F.2d at 468.

    16

    Recognizing that the question of actual copying is not susceptible of resolution on papers, defendants chose to proffer a concession of this element to clear the way for a motion predicated on the argument that the kind of similarities relied upon by the plaintiff are not actionable as a matter of law. Finding the defendants' papers highly compelling, the court was nonetheless reluctant to decide the motion solely on the papers concerning the question of similarity, doubting that this question is necessarily sealed off hermetically from the question of copying on which defendants offered to concede arguendo.[1] Cf. MacDonald v. Du Maurier, 144 F.2d 696, 701 (2d Cir. 1944); Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661 (2d Cir. 1939). As against the proposed concession, plaintiff pressed for an opportunity "to demonstrate the strength of her case on copying." Perhaps out of excessive caution, but believing at any rate that the case should be as ripe as possible for decision here and on appeal, the court concluded that an evidentiary record should be made on that subject. Accordingly, the court declined to adopt the proffered concession and referred the charge of actual copying to Magistrate Gershon pursuant to 28 U.S.C. § 636(b)(1)(B), to hold an evidentiary hearing and report recommended findings and conclusions. The order of reference directed that the Magistrate was to consider only direct proof of access and copying. The court reserved to itself the issue of substantial similarity and the question of whether any similarities supported an inference of actual copying from proof of access, should the latter be established before the Magistrate.

    17
    III.
    18

    The Magistrate has reported that the plaintiff has met her burden of proof as to the defendant Haley's access to Jubilee, but has failed to establish this essential element of her prima facie case as to HIWJ. Both recommended findings are fully supported by the record, and are adopted by the court.[2]

    19

    But this carries plaintiff only a small and totally insufficient way toward the vindication of her claims. Upon the record as a [44] whole, including the helpful Report, if it were necessary to do so, the court would now be prepared to find that Haley did not in fact copy anything, or attempt to copy anything, or inadvertently reproduce anything, from plaintiff's works. But even that is not necessary now to defeat plaintiff's charges. What is decisive is that, after full opportunity to portray the strength of her accusation of copying, plaintiff has failed. She has shown access to her novel, if not her pamphlet, and, as will appear, a catalogue of alleged similarities that is strained, insignificant, and devoid of factual or legal substance. Apart from Haley's wholly credible denials of copying, we are now comfortably past any speculation as to possible interrelations between the issue as to copying and the issue, on which defendants moved, as to substantial similarities. Whether or not these issues can be always and everywhere tightly separated, it is clear now that there is no trace of "spillover" in plaintiff's favor from the claim of copying to the claim of similarities sufficient in law to ground a charge of infringement. If, as is now to be recorded, the court would decide the latter issue, standing alone, for defendants, that ruling is now ripe as a basis for summary judgment without any lurking concern whether a mere "concession" as to copying for the sake of argument might serve to obscure factors pointing toward a different result.

    20
    IV.
    21

    In order to demonstrate the alleged similarity between Roots on the one hand and Jubilee and HIWJ on the other, plaintiff submitted several sets of affidavits and answers to interrogatories setting forth passages from Roots along with passages from the plaintiff's works, with certain portions underscored to highlight the asserted similarities. Plaintiff also submitted an affidavit commenting seriatim on the alleged similarities.

    22

    After consideration of each of the numerous similarities suggested in the plaintiff's submissions, the court concludes that none supports the claim of infringement. By this the court means both that (1) no support is given to the claim of copying by such similarity as is shown,[3] and (2) that the claimed similarities do not, as a matter of law, constitute actionable substantial similarity between the works.[4]

    23

    Substantial similarity is ordinarily a question of fact, not subject to resolution on a motion for summary judgment. Arnstein v. Porter, supra, 154 F.2d at 469. In the instant case, however, defendants' argument is that such similarities as are claimed by the plaintiff are irrelevant because they relate solely to aspects of the plaintiff's works which are not protectable by copyright. The law seems clear that summary judgment may be granted when such circumstances are demonstrated. Gardner v. Nizer, 391 F.Supp. 940 (S.D.N.Y.1975); Fuld v. National Broadcasting Co., 390 F.Supp. 877 (S.D.N.Y.1975); Gethers v. Blatty, 283 F.Supp. 303, 305 (C.D.Cal.1968); Consumers Union Inc. v. Hobart Manufacturing Co., 199 F.Supp. 860, 861 (S.D.N.Y. 1961); Buckler v. Paramount Pictures, Inc., 133 F.Supp. 223 (S.D.N.Y.1955); Millstein v. Leland Hayward, Inc., 10 F.R.D. 198, 199 (S.D.N.Y.1950). Cf. Bevan v. Columbia Broadcasting System, Inc., 329 F.Supp. 601 (S.D.N.Y.1971).

    24

    The court agrees with defendants; each of the similarities asserted by the plaintiff is in one or more of several categories of attributes of written work which are not subject to the protection of the copyright laws.

    25

    Many of the claimed similarities are based on matters of historical or contemporary [45] fact.[5] No claim of copyright protection can arise from the fact that plaintiff has written about such historical and factual items, even if we were to assume that Haley was alerted to the facts in question by reading Jubilee. See Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 309 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); Gardner v. Nizer, supra, 391 F.Supp. at 942; Fuld v. National Broadcasting Co., supra, 390 F.Supp. at 882; Greenbie v. Noble, 151 F.Supp. 45, 65-66 (S.D.N.Y.1957); Lake v. Columbia Broadcasting System, Inc., 140 F.Supp. 707, 708-09 (S.D.Cal.1956).

    26

    Another major category of items consists of material traceable to common sources, the public domain, or folk custom. Thus, a number of the claimed infringements are embodiments of the cultural history of black Americans, or of both black and white Americans playing out the cruel tragedy of white-imposed slavery.[6] Where common sources exist for the alleged similarities, or the material that is similar is otherwise not original with the plaintiff, there is no infringement. Fuld v. National Broadcasting Co., supra, 390 F.Supp. at 877; Costello v. Loew's Inc., 159 F.Supp. 782 (S.D.N.Y.1958); Greenbie v. Noble, supra, 151 F.Supp. at 65. This group of asserted infringements can no more be the subject of copyright protection than the use of a date or the name of a president or a more conventional piece of historical information.

    27

    A third species of the alleged similarities constitutes what have been called scenes a faire. Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir. 1976). These are incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic. Attempted escapes, flights through the woods pursued by baying dogs, the sorrowful or happy singing of slaves, the atrocity of the buying and selling of human beings, and other miseries are all found in stories at least as old as Mrs. Stowe's. This is not, and could not be, an offense to any author. Nobody writes books of purely original content. In any event, the plaintiff misconceives the protections of the copyright law in her listing of infringements by including such scenes a faire.[7] Reyher v. Children's Television [46] Workshop, supra; Fuld v. National Broadcasting Co., supra, 300 F.Supp. at 881; Greenbie v. Noble, supra, 151 F.Supp. at 65, 69; Warshawsky v. Carter, 132 F.Supp. 758, 760 (D.D.C.1955).

    28

    Yet another group of alleged infringements is best described as cliched language, metaphors and the very words of which the language is constructed. Words and metaphors are not subject to copyright protection; nor are phrases and expressions conveying an idea that can only be, or is typically, expressed in a limited number of stereotyped fashions. Reyher v. Children's Television Workshop, supra, 533 F.2d at 91; Bein v. Warner Brothers Pictures, Inc., 105 F.2d 969 (2d Cir. 1939); Richards v. Columbia Broadcasting System, Inc., 161 F.Supp. 516, 518 (D.D.C.1958). Cf. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971). Nor is the later use of stock ideas copyright infringement. Bevan v. Columbia Broadcasting System, Inc., supra, 329 F.Supp. 601, at 606; Burnett v. Lambino, 204 F.Supp. 327, 332 (S.D.N.Y. 1962); Echevarria v. Warner Brothers Pictures, Inc., 12 F.Supp. 632, 635 (S.D.Cal. 1935); Lowenfels v. Nathan, 2 F.Supp. 73, 80 (S.D.N.Y.1934). Plaintiff collides with these principles over and over again as she extracts widely scattered passages from her book and pamphlet, and juxtaposes them against similarly scattered portions of Haley's Roots, only to demonstrate the use by both authors of obvious terms to describe expectable scenes.[8]

    29

    Other alleged infringements display no similarity at all in terms of expression or language, but show at most some similarity of theme or setting.[9] These items, the skeleton of a creative work rather than the flesh, are not protected by the copyright laws. Dellar v. Samuel Goldwyn, Inc., 150 F.2d 612 (2d Cir. 1945), cert. denied, 327 U.S. 790, 66 S.Ct. 802, 90 L.Ed. 1016 (1946). It is only the means of expressing these elements that is protected by the copyright laws. Reyher v. Children's Television Workshop, supra, 533 F.2d at 91; Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co., 509 F.2d 64, 64-65 (2d Cir. 1974).

    30

    Finally, some of the allegations of similarity are seen upon inspecting the books to be totally and palpably devoid of any factual basis. Cf. Arnstein v. Porter, supra, 154 F.2d at 473.[10]

    31

    Every one of the alleged similarities between the plaintiff's two works and the defendants' book falls into at least one of the aforementioned categories of non-actionable material. Many fall into more than one. The review of the alleged similarities points unmistakably to the conclusion that no actionable similarities exist between the works.

    32
    V.
    33

    The plaintiff has advanced claims of unfair competition in addition to her [47] claims of infringement. The facts alleged for the alternative theories are the same and are insufficient for the same reasons. Gethers v. Blatty, supra, 283 F.Supp. at 307; Miller v. Goody, 139 F.Supp. 176, 187 (S.D. N.Y.1956), rev'd on other grounds, 248 F.2d 260 (2d Cir. 1957); Columbia Pictures Corp. v. National Broadcasting Co., 137 F.Supp. 348, 354 (S.D.Cal.1955); Alexander v. Irving Trust Co., 132 F.Supp. 364, 368 (S.D.N.Y.), aff'd 228 F.2d 221 (2d Cir. 1955), cert. denied, 350 U.S. 966, 76 S.Ct. 545, 100 L.Ed. 860 (1956). Consumers Union v. Hobart Manufacturing Co., supra, 199 F.Supp. 860, 862, wherein summary judgment was granted on an infringement claim but denied on an unfair competition claim, is not to the contrary. In Consumers Union there were factual allegations regarding allegedly unfair competitive practices extrinsic to the infringement claimed. No such allegations appear in the instant actions.

    34

    The defendants' motions for summary judgment are granted. The complaints are dismissed.

    35

    It is so ordered.

    36

    --------

    37

    Notes:

    38

    [1] Looking at things from the opposite direction, it is commonplace that similarity may be probative of copying. Arnstein v. Porter, supra, 154 F.2d at 468.

    39

    [2] In objecting to the Magistrate's Report, counsel for plaintiff have deviated more often than they should from fundamental rules of evidence and procedure. Their objections arrived late, and should perhaps be ruled out of consideration altogether, as defendants suggest. Though that drastic course is not followed, other blemishes must be noted and improper portions disregarded. Having had ample opportunity to be at the evidentiary hearing, plaintiff did not testify there. It was indicated that she might appear on rebuttal or be available to defendants if they wanted her. It was never intimated that she wished to testify and could not, or that she might desire an adjournment for such a purpose. Now, with the hearing long closed, she submits an affidavit on the issue of access, observing toward the end: "Because of my husband's illness, I was unable to attend the Evidentiary hearing in this cause." This won't do. She could have been deposed. She could have sought other relief. Her affidavit will be given no weight. If it were weighed, it might have negative impact anyhow. One startling aspect is its verbatim quotation of what is sworn to have been a letter from defendant Haley. No copy is attached.

    40

    In a comparably informal fashion, plaintiff's counsel include in their objections an alleged quotation of the defendant Haley from Playboy Magazine. But this was offered at the hearing, after Mr. Haley had testified, and objected to. The offer was withdrawn.

    41

    Then, the same set of objections appends a purported analysis of another lawsuit in The Village Voice. This was not offered at the hearing. It certainly has no place here now.

    42

    [3] Thus further failing to support the element defendants were willing to concede for this motion.

    43

    [4] So that, in the strict logic defendants pursued from the outset, plaintiff would lose even if she had proved copying. The logic was not unsound. But if the court has proceeded properly, this may be another case of the kind in which logic alone is not enough.

    44

    [5] This category covers a large number of what plaintiff cites as assertedly infringing passages. For instance, the passages from page 32 of Jubilee and page 521 of Roots cited by the plaintiff share only a reference to New Orleans and the women of mixed race found there. Another example reveals only two treatments of the theme of the westward movement and settlement in the United States (Jubilee, p. 43; Roots, pp. 287, 595.) Yet another is based on the historical fact of slave uprisings and the repressive measures taken to combat them. (Jubilee, pp. 51, 83; Roots, pp. 279, 282.) The record is replete with other examples which the court need not discuss. See, e. g., Jubilee, p. 91, Roots, p. 277 (Quakers as abolitionists); Jubilee, p. 146, Roots, p. 282 (process of manumission); Jubilee, p. 184, Roots, p. 626; Jubilee, p. 19, Roots, p. 373; Jubilee, p. 47, Roots, p. 429; Jubilee, p. 82, Roots, p. 387; Jubilee, p. 192, Roots, p. 572; HIWJ, p. 18, Roots, p. 671. This listing, like those that follow, is not intended to be exhaustive. With respect to each category, the court has made the judgment reported — that the instances embraced are non-actionable because they are thus classifiable under at least one such heading.

    45

    [6] One example is the references to laying out the body of a deceased on a "cooling board." (Jubilee, pp. 68-69; Roots, p. 355.) Uncontroverted affidavits show that this is an authentic piece of folk custom. See, also, Jubilee, p. 110, Roots, p. 518 (folk herbal medicines); Jubilee, p. 119, Roots, pp. 562-63 (cockfighting); Jubilee, p. 143, Roots, p. 310 ("jumping the broom" as a folk rite of marriage); Jubilee, p. 285, Roots, p. 644; Jubilee, p. 20, Roots, p. 364; Jubilee, p. 341, Roots, p. 365; Jubilee, p. 339, Roots, p. 247; Jubilee, p. 319, Roots, p. 212; Jubilee, p. 484, Roots, p. 327; Jubilee, p. 39, Roots, p. 383; Jubilee, p. 98, Roots, p. 396; Jubilee, p. 36, Roots, pp. 236, 438; Jubilee, p. 138, Roots, p. 439; Jubilee p. 100, Roots, p. 480; Jubilee, pp. 67, 83, 100, Roots, p. 418.

    46

    [7] Examples include scenes portraying sex between male slaveowners and female slaves and the resentment of the female slave owners (Jubilee, p. 44, Roots, p. 436); the sale of a slave child away from her family and the attendant agonies (Jubilee, pp. 84-85, Roots, pp. 424-26); the horror of punitive mutilation (Jubilee, p. 114, Roots, p. 224); and slave owners complaining about the high price of slaves (Jubilee, p. 113, Roots, p. 397). See, also, Jubilee, p. 145, Roots, p. 403; Jubilee, p. 169, Roots, p. 232; Jubilee, pp. 172-73, Roots, p. 234; Jubilee, pp. 278-280, Roots, p. 644; Jubilee, p. 328, Roots, p. 649; Jubilee, p. 461, Roots, p. 361; HIWJ, p. 12, Roots, p. 664.

    47

    [8] Among the many examples are: "poor white trash" (Jubilee, p. 60, Roots, p. 294), and the fluffiness of cotton (Jubilee, p. 36, Roots, pp. 205, 207, 236). See, also, Jubilee, pp. 25-26, Roots, pp. 204, 221; Jubilee, p. 149, Roots, p. 435; Jubilee, p. 164, Roots, p. 243; Jubilee, p. 199, Roots, p. 628; Jubilee, p. 172, Roots, p. 209; HIWJ, pp. 15-16, Roots, pp. 673-75; Jubilee, p. 22, Roots, pp. 677, 679; HIWJ, p. 24, Roots, p. 686.

    48

    [9] Examples of such alleged similarities include descriptions of puberty (Jubilee, pp. 53-54, Roots, pp. 412-13); hypocrisy in sermons delivered to slaves (Jubilee, p. 123, Roots, p. 451); and sexuality among the young (Jubilee, p. 136, Roots, p. 444). See, also, Jubilee, pp. 71, 80, Roots, pp. 449-453; Jubilee, p. 104, Roots, p. 594; Jubilee, p. 137, Roots, p. 265; Jubilee, p. 290, Roots, p. 219; Jubilee, p. 93, Roots, p. 210; HIWJ, p. 12, Roots, p. 668; HIWJ, p. 19, Roots, p. 682.

    49

    [10] A good example is found in the allegedly similar passages at page 48 of Jubilee and pages 226-227 of Roots. Plaintiff claims that both concern secret organized religious meetings, but the scene in Roots does not portray an organized meeting, nor is the gathering secret or religious in nature. See, also, Jubilee, p. 179, Roots, p. 358; Jubilee, p. 83, Roots, p. 290; Jubilee, pp. 460, 496, 440, Roots, p. 327; Jubilee, pp. 129-130, Roots, p. 358.

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