Opposition Brief — Dieckhaus v. Twentieth Century-Fox Film Corp.

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FILE COPY ee

JUN 19 1946

CHARLES ELMORE OROPLEY

OLERK

IN THE

Supreme Court of the United States

OctrospeR TERM, 1945

No. MM 121

MARIE COOPER DIECKHAUS,

Plaintiff-Petitioner,

against

TWENTIETH CENTURY-FOX FILM

CORPORATION,

Defendant.

DEFENDANT’S BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Joun F. Caskey,

/ SamueEL W. Forpyce,

Attorneys for Defendant.

GeorGE T. PRIEsT,

EpwIn P. KI Roe,

Of Counsel.

June 17, 1946.

—

TABLE OF CONTENTS

ASE «6 o.0.kn nance sdncuuesescanensnd Oeauear 4

First: The Circuit Court of Appeals Correctly Ap-

plod tet BERSOGUNE EW. oc 5 once tesivenneees ane 4

Seconpb: The Circuit Court of Appeals Correctly De-

termined the Issue of Access.............eee00: 6

Tuirp: The Circuit Court of Appeals Did Not Misin-

terpret the Missouri or General Law as to Matters

in the Public Domain Being a Defense to Plagiarism 9

FourtH: There Was no Failure by the Circuit Court

of Appeals to Comply with Rule 52.............. 10

FirtH: The Plaintiff Fraudulently Imposed Upon the

District Court and the Defendant............... 11

CN 55-0055 n ws Vey be tekOUR ES 50 ca ROKER ES 13

TABLE OF CASES

PAGE

Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225

SOUND Jk cous AR Kapaa eeaees oe binnekhe hike ved 9

Darrell v. Joe Morris Music Co., 113 F. (2d) 80 (C. C.

ee Pe ee eee er Pe er er eee 10

Hazel-Atlas Co. v. Hartford Co., 322 U. S. 238 (1944) 13

Kurfiss v. Cowherd, 233 Mo. App. 397 (1938)....... 9

Precision Co. v. Automotive Co., 324 U. S. 806 (1945) 13

Ruhlin v. N. Y. Life Ins. Co., 304 U. S. 202 (1938).. 5

U. S. Fidelity Co. v. Bray, 225 U.S. 205 (1911)..... 11

IN THE

Supreme Court of the United States

OcroBER TERM, 1945

No. 1260

MariE CoopER DIECKHAUS,

Plaintiff-Petitioner,

against

TWENTIETH CENTURY-Fox FILM

CoRPORATION,

Defendant.

DEFENDANT’S BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

There is no occasion for this Court to exercise its dis-

cretionary power to review this private litigation. Juris-

diction in the District Court was solely by reason of

diversity of citizenship; no federal statute, no federal ques-

tion nor any novel question of law is involved.

The plaintiff, a resident of St. Louis, is the alleged

authoress of an unpublished manuscript variously entitled

“Love Girl’, “Twisted Hearts” and the “St. Louis

Paganini”.

The defendant, a New York corporation, is the producer

of the motion picture ““Alexander’s Ragtime Band” which

2

starred Alice Faye and Tyrone Power and served as a

vehicle for the singing and playing of twenty-eight of

Irving Berlin’s great songs, including ““Alexander’s Rag-

time Band”, “Oh, How I Hate to Get Up in The Morning”,

“Remember” and “All Alone”.

The idea for defendant’s motion picture was conceived

by its production head, Darryl Zanuck, in the fall of 1936.

He talked to Irving Berlin about a picture which would

serve as a vehicle for Berlin’s songs (R. 385). Berlin

agreed, provided the picture be not biographical (R. 386,

398, 421, 423, 1238) and his suggestion was that the

picture should tell a story of American jazz music in terms

of a band leader (R. 409, 424). Berlin prepared a story

outline (Exhibit T) which was completed and typed in Oc-

tober, 1936 (R. 407, 410). That outline is entitled “Alex-

ander’s Ragtime Band” and is the story of Alexander and

his jazz band. The synopsis of that outline which is in-

corporated in the opinion of the Circuit Court of Appeals

demonstrates that it is the origin and basis of the motion

picture.

The Berlin outline was expanded into a treatment pre-

pared by Berlin and Richard Sherman, a well-known writer.

They worked for three months and their draft was mimeo-

graphed by March 3, 1937. Sheridan Gibney, Lamar Trotti,

Kathryn Scola, writers, Harry Joe Brown, the producer,

and Henry King, the director, all worked on the script.

Darryl Zanuck, the production head, participated in nu-

merous story conferences and contributed much to the

dramatic power of the story. Photography began in De-

cember of 1937, there was a premiere in Los Angeles in

May, 1938, and the picture was first shown in St. Louis in

August, 1938.

3

On May 7, 1941, plaintiff brought this suit charging

that defendant copied from her unpublished novel “Love

Girl” in making its motion picture.

The origin of plaintiff’s novel is obscure. She says she

began to write it in 1925 (R. 112, 114, 211). By January

of 1934, she had two copies of a manuscript which she sent

to Washington under the title “Love Girl”. They were

returned; the manuscript not being published the claim of

copyright could not be registered.

In 1934 plaintiff had Mrs. Mabel Malone, a local writer,

read and criticize the manuscript then extant, but this

manuscript was not produced at the trial. During the next

three years the manuscript was in plaintiff’s possession and

in St. Louis. There were further revisions and much re-

typing.

About January 24, 1937*, plaintiff sent a typed copy

of a manuscript to Mr. Laurence D’Orsay, a literary agent

and critic in Los Angeles who had no connection or

acquaintance with defendant or any of its employees. He

kept it for some time and returned it to her not later than

May 8, 1937, with an extensive ‘etter of criticism. What

she sent him she apparently thereafter revised extensively.

At any rate, what she produced when her deposition was

taken in 1941, was in great disarray (R. 62, 148, 149, 170)

and contains more than 2500 changes from the original

typing (R. 1624).

The trial in December, 1942, and January, 1943, was

devoted largely to reading depositions. The District Court

announced its opinion in favor of plaintiff in March, 1944.

*Three months after Irving Berlin’s outline (Ex. T) had

been finished.

4

On June 28, 1944, defendant filed its motion to reo the

proceedings for additional testimony, and presenteP8*ent

evidence that plaintiff had practiced fraud on the Cot and

the defendant in her documentary evidence. Platiff’s

counsel resisted the charge and did not then seek eMera-

tion. On December 29, 1944, the Court overrul the

motion without opinion, and on the same day sigd the

findings of fact which were prepared by plaintiff’s arney

before the motion to reopen had been made. Theafter,

defendant’s timely motion for a new trial was derd, its

request for findings rejected, and its criticism of thplain-

tiff’s findings ignored.

The Circuit Court of Appeals reversed and dered

judgment dismissing the complaint. Judge Johns, dis-

senting, would have reversed the judgment and reanded

the case for trial and findings on the issue of frd. A

motion for reargument was denied.

ARGUMENT

FIRST: THE CIRCUIT COURT OF APPEAL‘ COR.

RECTLY APPLIED THE MISSOURI LAW.

Jurisdiction being based solely on diversity, thplain-

tiff’s manuscript being unpublished, the Missoy Jaw

applied. There being no authoritative statement * that

Missouri law, the Court quite correctly determine from

its own research what it anticipated the SupremCoyrt

of Missouri would do in a like case.

In defendant’s brief in the Circuit Court of Apajs, it

stated (p. 39):

“Since jurisdiction in this case is dendgent

solely on diversity of citizenship, it being xplicit

5

that plaintiff has no claim under the Copyright

Laws of the United States, the District Court should

have determined and applied the Missouri law.

* * »*

“We assume that if the Supreme Court of Mis-

souri were faced with this record it would select

from the vast bibliography available the most

cogent, well reasoned and convincing authorities as

its guide in formulating the Missouri law.”

This is exactly what the Circuit Court of Appeals did,

saying [R. 2037]:

“Although this action is brought in Missouri

under the laws of that state and not for infringe-

ment of federal copyright, the law to be applied to

it is found in the very numerous federal decisions

which have fully expounded the origins, principles

and philosophy governing the ascertainment, defini-

tion and protection of the right of property in liter-

ary productions, and there is nothing in any Mis-

souri decision in conflict therewith. The District

court relied upon them. More than two hundred

of the decisions have been brought to our attention

by the diligence of able counsel and we have consid-

ered them.”

The Circuit Court did not, as is now charged, ignore the

uniform holdings of other courts in formulating its deci-

sion.

In Ruhlin v. N. Y. Life Ins. Co., 304 U. S. 202 (1938),

this Court indicated that it would not ordinarily grant cer-

tiorari to review a decision of a Circuit Court of Appeals

on general state law.

a

SECOND: THE CIRCUIT COURT OF APPEALS COR.

RECTLY DETERMINED THE ISSUE OF ACCESS.

6

There was no testimony by anyone that any employee

of the defendant had ever seen or read or copied from plain-

tiff’s manuscript. Everyone connected with the production

of the motion picture testified that he never saw or read

plaintiff’s manuscript and did not copy therefrom.

The unsupported suggestion that defendant might have

had access through Mrs. Malone, who had some manu-

script of plaintiffs for a few days in 1934, is simply

fantastic. Mrs. Malone categorically denied telling anyone

at Twentieth Century-Fox anything about the novel. She

knew no one at Twentieth Century-Fox. No one at Twen-

tieth Century-Fox knew Mrs. Malone. The plaintiff’s

gratuitous suggestion that Mrs. Malone testified falsely is

not proof of access.

Mr. D’Orsay, plaintiff’s literary agent, testified cate-

gorically he knew no one at Twentieth Century-Fox and had

never disclosed the contents of plaintiff’s manuscript to

anyone at Twentieth Century-Fox (R. 342-344, 347, 353).

No one at Twentieth Century-Fox knew Mr. D’Orsay

or learned anything about the plaintiff’s manuscript from

him (R. 385, 406, 1218, 1236, 1250, 1268, 1312, 1356,

1383). Again, speculation that Mr. D’Orsay lied or that one

of his employees could have copied the manuscript and given

it to some unidentified person at Twentieth Century-Fox is

not proof of access. Not even the District Court placed any

reliance upon the “possibility” of access through these facts

(R. 1431-1432):

“The foregoing facts prove no more than that

the manuscript was temporarily out of plaintiff’s

control and was in Hollywood, the same city in

—

_—

7

which defendant’s employees carried on their en-

deavors. We certainly cannot infer from this alone

that defendant’s employees had access to plaintiff's

novel for the purpose of copying.”

In the light of this record, the Circuit Court of Appeals

held (R. 2036-2038) :

“The oral and documentary evidence in the

record therefore establishes the fact that the defend-

ant had no accéss to plaintiff’s book, unless the law

of plagiarism permits the court to draw. an inference

contrary to such proof from its finding of similari-

ties on comparison of the book with the picture.

*x* * * *

“But we are equally convinced that the law of

plagiarism has never been declared to sanction a

determination of access upon a finding of mere

similarities like those here involved in the face of

such probative evidence of independent origination

and of non access as appears in this record. There

is no question here of comparison disclosing any co-

existing identities of substantial originated matter

in the book ‘Love Girl’ and the musical production

‘Alexander’s Ragtime Band’. The book is laid in

part in the same period as the picture but it is about

the loves of the love girl and her several lovers and

there is no note of music in it. The picture’s real

interest and value as to every scene and action in it

are in the music.”

This case does not present the question which plaintiff

urges was incorrectly decided,—Whether the fact of access

may be proved by circumstantial evidence, including in-

ferences from unexplained similarities, in face of direct

evidence to the contrary by the defendant.

8

The plaintiff refers this Court to decisions in other

Circuits where identities in musical phrases or striking

similarities in expression have been said to have probative

force on the issue of access. The alleged similarities here

are trivial and, under the doctrine announced in the authori-

ties cited by plaintiff, they have no probative value at all in

law. The Circuit Court said (R. 2040-2041):

“A number of plagiarism cases that have turned

in the accuser’s favor upon the comparison between

the accused and the accuser’s composition have been

cases where there was access and where the identities

or very great similarities were in original copy-

righted matter of substantial importance in the

accuser’s work which we find lacking here, and even

in those cases we find none analogous to the situa-

tion here where the fact of non access has been

established by evidence of witnesses and documents

which exclude all reasonable probability of access

and leave only the bare possibility that all the wit-

nesses intentionally swore falsely upon the matter

of access of which they had full knowledge.

“After all the long study of the plagiarism cases

we must come back to recognition that the question

in this case is simply whether the circumstantial evi-

dence of the comparison from which one fair reader

may draw one inference and another fair reader

another, and neither can do more than speculate or

suspect, can be held to sustain the plaintiff’s burden

to prove access and copying against the direct evi-

dence of credible unimpeached witnesses and un-

questioned documents that there was no access.”

Here, there simply is no evidence at all, direct or cir-

cumstantial, that anyone in the defendant’s employ ever

saw, much less copied from, plaintiff's manuscript. We

9

believe on this record the Supreme Court of Missouri would

have so held and that the Circuit Court properly so held.

THIRD: THE CIRCUIT COURT OF APPEALS DID NOT

MISINTERPRET THE MISSOURI OR GENERAL LAW AS TO

MATTERS IN THE PUBLIC DOMAIN BEING A DEFENSE

TO PLAGIARISM.

The third question, which plaintiff suggests is presented

here, is thus stated (Petition, p. 4):

“3. Whether, in a suit for common law copy-

right infringement, public domain constitutes a de-

fense to the charge of literary piracy, if defendant

fails to establish that the subject matter involved

was taken from sources in the public domain and

not from plaintiff’s work.”

No such question is presented.

As we understand it, if one resorts to matters in the

public domain and writes an original arrangement or ex-

pression of matters there found, he becomes an author and

has a property right in his original arrangement or expres-

sion.* Another may go*to same matters in the public

domain and even if by chance he writes the same arrange-

ment or expression, he, too, is an author. But the second

may not copy the first’s arrangement or expression. The

Circuit Court of Appeals held nothing to the contrary.

In considering whether the so-called “similarities” were

so striking as to have probative value on the issue of copy-

*The Missouri Court has phrased it that the creator of a

unique intellectual production will be protected from unauthorized

appropriation or conversion. Kurfiss v. Cowherd, 233 Mo. App.

4 (1938) ; Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225

(1944).

10

ing, the Circuit Court noted that the “similarities” related

to stock and commonplace matters in the public domain.

It is well-settled that this fact is material to the issue of

copying, since it serves to fortify the defendant’s denial of

access and copying. Darrell v. Joe Morris Music Co., 113

F. (2d) 80 (C. C. A. 2nd, 1940).

For example, there is the old prohibition “gag” about a

bootlegger concealing bottles of liquor in a baby carriage.

No rational mind is forced to the inevitable conclusion that

the only place defendant could have secured that idea was

from plaintiff’s unpublished manuscript. If others have

written of the same matters without copying from the

plaintiff, there is no reason to infer that the defendant

copied such material from the plaintiff.

FOURTH: THERE WAS NO FAILURE BY THE CIR.

CUIT COURT OF APPEALS TO COMPLY WITH RULE 52.

In this case, neither the plaintiff nor any of the defend-

ant’s witnesses testified in open court. No witness testified

in person at the trial on the issues of access or copying.

Only four “live” witnesses were called by plaintiff. One

Dr. Wieman, a dentist, testified he had read a manuscript

of the plaintiff in 1934 and 1936, and that Exhibit 1 told

the same story as that which he had read five years before,

but he could not and would not say it was the particular

manuscript he had read five years before (R. 78-80). Mr.

Phillips, a local publisher, testified he had read and marked

for printing Exhibit 1—after it came back from California

—and was explicit that when he saw it, it was a clean copy

(R. 87) and not as it was when produced at the trial.

Hubert Bauersachs testified he was plaintiff’s friend and

that he had told her some incidents of his life as a concert

ee

11

violinist. Significantly, he said he had never read the manu-

script (R. 88). The fourth witness, Gissler, only testified

to the acknowledgment of the affidavit accompanying the

plaintiff's manuscript when something was sent to the

Library of Congress in 1934. He never read it (R. 93).

All the rest of the testimony was by deposition and

documentary exhibits. On the main issues, there was no

assessing by the District Court of the credibility of wit-

nesses and acceptance or rejection of their testimony from

their demeanor at the trial. The ultimate question of

whether the defendant’s motion picture is a pictorial repre-

sentation of the plaintiff’s novel and the question of whether

the defendant copied the plaintiff’s mode of expression are

questions for the reviewing Court. U. S. Fidelity Co. Vv.

Bray, 225 U. S. 205 (1911).

Certainly no court would consider itself bound by such

findings of the District Court as the one that the defendant

copied the idea of an Army Show and the singing of “Oh,

How I Hate to Get Up in the Morning” from the plaintiff’s

unpublished novel, rather than from the famous Berlin

show of World War I.

FIFTH: THE PLAINTIFF FRAUDULENTLY IMPOSED

UPON THE DISTRICT COURT AND THE DEFENDANT.

In its motion to reopen the case, filed after the announce-

ment of the District Court’s opinion but before the entry

of judgment, and in its motion for a new trial, the defendant

cogently demonstrated that fraud had been practiced on the

Court and the defendant.

(a) Exhibit 1, the manuscript said to have been

copied from by defendant, was not the same as sent to

Mr. D’Orsay in 1937 (R. 377, 1532, 1534). It con-

ee

12

tains thousands of changes and alterations (R. 1624).

When produced it was in great disarray and its present

form is due to the industry of counsel. Some of it was

typed and many changes in it were made after plaintiff

saw defendant’s motion picture in St. Louis in August,

1938 (R. 63, 143, 1624).

(b) Exhibit 1A, the Government application form

and affidavit for registration of claim of copyright used

by plaintiff in 1934 had been altered by erasure and

addition. f

(c) Exhibit 2, the Government rejection slip sent

plaintiff by the Library of Congress has been erased by

a chemical and a new title inserted.

(d) Exhibit 4, the note inclosed with the sealed

copy is apocryphal. It could not have been written on

the date it bears.

(e) Exhibit 5, the copy said to have been sealed

from January 21, 1937, to June, 1941, contains altera-

tions which conclusively demonstrate that whatever was

in the “sealed” package, it was removed and this docu-

ment inserted. At least 45 pages are on heavier and

different paper from the rest of the volume. No one

of these pages was typed consecutively after the page

which precedes it or immediately prior to the page which

follows it.

(f) The wrapper enclosing the sealed copy was de-

stroyed or lost in plaintiff’s attorney’s office (R. 1418,

1627, 1892).

It is true that at the original hearings in December,

1942, and January, 1943, these matters were not pressed

13

upon the District Court. But they were before any judg-

ment was ever entered, and the District Court should not

have ignored them. Hasel-Atlas Co. v. Hartford Co., 322

U. S. 238 (1944); Precision Co. v. Automotive Co., 324

U. S. 806 (1945). The decision of the Circuit Court of

Appeals dismissing the complaint made it unnecessary for

it to consider these matters.

CONCLUSION

This is simply a litigation between two citizens. No

important question of law has been wrongly decided. There

is no conflict of decisions between Circuit Courts. The

Circuit Court of Appeals has correctly predicted and ap-

plied the Missouri law on every issue. The writ prayed

should be denied.

Respectfully submitted.

Joun F. Caskey,

SAMUEL W. Forpyce,

Attorneys for Defendant.

GrorGE T. PRIEST,

Epwin P. KILRog,

Of Counsel.

June 17, 1946.