by NEWMAN LEVY
KIPLING observed a number of years ago that
He’d ’eard men sing by land an’ sea;
An’ what the thought ’e might require,
’E went an’ took-the same as me!
Since Homer’s time authors have been taking pretty freely what they might require; if they hadn’t, the world would have been deprived of many of its most priceless literary treasures. Were the Cinderella story to be suddenly obliterated, I dare say that more than 50 per cent of dramatic literature would be wiped out with it. We speak of the creative process, but literary creation is, to a considerable extent, a matter of collect ing and arranging.
This raises an absorbing question that has been a Source of perplexity and profit to lawyers and judges for many generations. What is literary property? How much of another man’s work may I help myself to without being liable to him for damages?
If I build a house it is unquestionably my house. I may copy the dining room from Buckingham Palace, the bathroom from the Taj Mahal, and place upon the roof a reproduction of the Eiffel Tower, and it still will be my house. If I want to I can sell it.
If I should write a play, however, and include, let us say, the first act of Life with Father, a scene from South Pacific, and the last act of Ibsen’s Ghosts, I might, with some justice, be suspected of plagiarism, and the authors of these plays could prevent me by law from making money out of my product.
Suppose, however, that in the process of assembling these ingredients I altered them and added something that we might call my literary genius. What then? We know that with eggs, butter, flour, and sugar, a cook in a hash house can fashion something barely edible, while the chef at the Ritz with the identical ingredients will turn out a culinary masterpiece.
The problem of determining what is original, or (to put it in more legal language) of ascertaining whether an author possesses an indisputable property right in his work, is one that has filled the lawbooks and has created a body of fascinating and often confusing law.
A number of years ago a play was produced called The Bird of Paradise. It made a lot of money, so a year later a suit was started by the author of a play called In Hawaii, claiming that The Bird of Paradise was a plagiarism. There is a certain inevitability about this. Only the successful plays are victims of plagiarism suits; the failures are guaranteed a stamp of obscure but unassailable authenticity. The law moved with its accustomed speed, and the case came up for trial twelve years later. During that interval, The Bird of Paradise had made a lot more money; and after hearing the evidence, the trial court awarded the plaintiff $750,000 damages.
There were unquestioned similarities. Both plays look place in Hawaii, and both told of the romance of a young American and a native princess. In each play the author depicted Hawaiian customs, religious rites, and songs and dances; and in each there was reference to the disease of leprosy. The language of the New York Court of Appeals reversing the $750,000 verdict, after a dozen or more years of litigation, indicates the usual judicial approach to cases of this sort; —
In spite of the entire dissimilarity of the two plays in theme and story there are many similarities in detail. Perhaps this is inevitable in two plays about Hawaii. The very name Hawaii seems to suggest to Americans the Hula dance and the sport of swimming; flowers and sunshine and music. It suggests, too, the dread disease of leprosy.
In other words, these things are in what lawyers quaintly call “the public domain.” This public domain embraces the sum of all human experience, except those limited areas upon which someone has staked a claim. It is a vast storehouse from which we are all permitted to help ourselves at will. No one has an exclusive ownership in the facts of history or in the facts of life. The words of the dietionary are there for all who have a fountain pen and the urge to write. Even the complete body of literature, including those modern works on which the copyright has run out, is there for those who aspire to authorship.
An eminent legal writer, Augustine Birrell, once wrote: “Ideas, it has always been admitted . . . are free as air. If you happen to have any, you fling them into the common stock, and ought to be well content to see your poorer brethren thriving upon them.” It would seem, therefore, that since ideas are free as air, and the words in the dictionary are equally free, all that an author can legally protect is what he actually contributes: the treatment of the idea and the arrangement of the words. No one, for instance, would question Eugene O’Neill’s right to enjoy exclusively the profits of his great play Mourning Becomes Electra. Yet we know that .Mr. O’Neill took the Greek tragedy Electra, modernized it, and told the story from the viewpoint of psychoanalytic psychology. The drama was Euripides’, the ideas were (many of them) Freud’s, but the play was unquestionably a brilliant original creation ofO’Neili’s.
This illustrates the vague twilight zone that frequently separates an original from a plagiarized work. Suppose Euripides had been a contemporary writer and his play a current copyrighted work. Could O’Neill still have produced his play with impunity?
The courts have endeavored to find a formula to apply to questions of this sort, but in each case the decision has rested finally upon the opinion of the judge or jury after a careful comparison. In a leading English case the court said that to maintain an action for infringement of copyright there must be a taking of a “substantial and material part”; in an early American case the court said that a work must be “a substantial copy, or mainly borrowed from” another work. The word “borrowed” is a pleasant, judicial euphemism. These phrases help, but they do not solve the problem. The words “substantial,”“material part,” and “substantial copy” all clamor for further definition.
A well-known lawyer who specialized in cases of theatrical piracy tried to work out a formula for determining plagiarism. He prepared an elaborate analysis of the characters in the plays involved in a certain case, and tabulated the emotions shown by the various characters under such headings as Love, Anger, Anxiety, Disgust, and so on. By ingenious parallels he sought to establish the existence of common emotional denominators, and thus prove a deliberate copying. But this did not impress the court. “This is not the proper approach to the solution,” said Judge Learned Hand. “It must be more ingenuous, more like that of a spectator, who would rely upon the complex of his impressions of such characters.”
In other words, the tesl adopted by the courts is to place the original and the disputed work side by side, and then just decide whether one was taken from the other — which seems to be about as good a method as any.
In the past it was frequently the practice to call in experts to aid the court in making up its mind. A plagiarism trial resembled a college extension course. Professors of dramatics, professors of literature, critics, and authors would take the stand and parade their learning before a bewildered judge who would eventually take the books home to read, and make up his mind for himself. This practice was pretty well stopped by Judge Hand’s opinion in the Abie’s Irish Rose case, in which he said: “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.” Since that time the cases that have been tried in the Southern District of New York, where most of these suits arise, have been decided, to quote Judge Hand again, upon “the firmer, if more naive ground of its [the court’s] considered impressions upon its own perusal.”
IT is frequently asserled as a defense to cases of this sort that the defendant did not steal from the plaintiff, but that they both took their material from a common source. A little digging into the literature of the past will usually confirm the ancient proverb that there is nothing new under the sun. Mark Twain, who said that there are only seven original jokes, once pointed out that the ancestor of his famous Jumping Frog story could be found in Athenian literature. Research will generally demonstrate that everything was taken from something.
Thus, when Jack London sued the Biograph Company for producing a picture called Love of Gold, which he claimed was stolen from his story Just Meat, Judge Lacombe learnedly stated that both plots were used in Kipling’s story The King’s Ankus, which had apparently been taken from Chaucer’s Pardoner’s Tale, which in turn could be traced to a long line of Oriental tales. So, too, in the celebrated lawsuit between Abie’s Irish Rose and The Cohens and the Kellys, Judge Hand mentioned the obvious resemblance of both plays to Romeo and Juliet.
A few years ago I was one of the lawyers in a suit that was brought, for plagiarism against the authors of the Pulitzer Prize winning satirical operetta Of Thee I Sing. After the show had achieved a phenomenal success the plaintiff, the author of an unknown, privately printed play called U.S.A. with Music, came to the conclusion that, he had been robbed.
There were minor resemblances. Of Thee I Sing, it will be recalled, satirized, among a lot of other things, political meetings, and showed a wrestling bout in progress at a rally in Madison Square Garden while campaign speeches were being made. The plaintiff’s play also had a scene in Madison Square Garden of a political convention at which there was a six-day bicycle race that had something to do with the Sacco-Vanzetti case.
I had a lot of fun writing that brief. I quoted from newspaper accounts of a recent national convention at which vaudeville stunts had been introduced to entertain the audience, and at which the names of Will Rogers and Shirley Temple had been placed in nomination for the Presidency, It was not hard to show that no flights of the authors’ fancy could compare in absurdity with the real thing. In other words, the circus antics of a political convention were in the public domain, and anyone could help himself.
Judge Woolsey — who decided the case in our favor — referred, in his opinion, to “Throttlebottom, who should be remembered as long as men love laughter.”Here, of course, was one touchstone by which originality could be tested. The delineation of vital, rounded characters is often a more creative act than the invention of plots and situations. There were plays about Hamlet before Shakespeare’s immortal tragedy, but no one would suggest that Shakespeare was guilty of plagiarism.
This raises the interesting question of what rights an author retains in the characters he creates. I remember a case some years ago in which a motion picture company was restrained from producing a picture about Sherlock Holmes, although it was not based upon any of Conan Doyle’s stories. On the other hand, Mark Twain was unmolested when he used Holmes as a character in his Double Barreled Defective Story.
When Sir Harry Johnston wrote The Gay-Dambeys he carried on the history of Florence Dombey and Walter Gay where Dickens left off. And in Mrs. Warrens Daughter he used the Shaw characters as the basis of an original novel, although Mrs. Warren’s Profession is protected by copyright. Suppose someone were to write, let us say, The Farther Adventures of Anthony Adverse, could Hervey Allen restrain him? As the Ford Chancellor says in Iolanthe, it’s a nice point.
Where the law of plagiarism gives insufficient protection the law of unfair competition frequently comes to the aid of a defrauded author. Titles cannot be copyrighted, but a title may not be used that infringes upon the rights of someone who has built up a good will in it. For instance, ihe name of the state Oklahoma is in the public domain and there is nothing to prevent me from calling my novel by that name. If I wrote a serious drama and called it Oklahoma, I might possibly gel away with it, but I couldn’t sell it to the movies under that title because of the confusion it would cause in the public mind on account of the tremendous popularity of the Rodgers and Hammerslein show. And I have no doubt that they could easily enjoin me if I tried to produce a musical show called Oklahoma.
In short, there must be no likelihood that the public will be deceived. An Australian case decided that a play called The Wrong Mr. Wright infringed upon The Wrong Mrs. Wright. But in New York it was held that Charley’s Uncle did not infringe upon Charley’s Aunt. This despite the ancient maxim that the law is no respecter of persons. When Robert Benchley published his entertaining book David Copperfield or 20,000 Leagues Under the Sea I doubt if the heirs of Charles Dickens and Jules Verne could have done anything about it,assuming that they had a copyright. But if Benchley had tried to sell it to the movies it would have been quite a different story.
I once tried before Judge Woolsey, who was an expert on the subject, a plagiarism case that involved Edna Ferber’s Cimarron. The book dealt with the opening of Oklahoma Territory, the famous Oklahoma Run in the nineties. The plaintiff was a man who had participated in the run and for a number of years thereafter went around the country lecturing about his experiences.
After Miss Ferber’s story had achieved great success as a novel it was made into a successful motion picture by RKO. The plaintiff, who fell that he would like to share in the profits, waited until the picture had run for several years and then brought suit for heavy damages.
There was no difficulty in demonstrating the tremendous amount of research Miss Ferber had done; she had never heard of the plaintiff; and the story of the Oklahoma Run was a matter of history and unquestionably in the public domain. Judge Woolsey read the plaintiff’s lectures, saw the picture, held court in the RKO projection room, and then threw the case out.
This case illustrates the hazards to which successful writers are exposed. Plagiarism cases are almost invariably brought by obscure authors against successful ones. Judge Woolsey said in his Of Thee I Sing opinion, “In this cause, as is usual in plagiarism causes, obscurity is taking a long shot at success.”Any deluded crackpot who can find a lawyer to take his case — and he generally can — is able to put a successful writer to the burden and expense of a lengi hy lawsuit.
We have traveled a long way from the day when writers like the great Dr. Johnson were treated as menials begging a handout from their aristocratic patrons. Progress has been made since Charles Dickens, more than a century ago, incurred the hostility of the American public by daring to speak up for an international copyright law that would protect the rights of authors in the products of their brains. Authorship is, in many instances, big business, and the law is giving increasing attention to the fact that the creator of a literary work is entitled to the rewards of his efforts.