A Yes, it . . .
Q And that the two might even meet in battle?
A Yes, yes that’s . . .
Q In fact there was at least one such documented instance, was there not?
A That’s what my . . .
Q Where both were, in fact, slain? In other words, a sort of quirk of history, the kind Shakespeare drew on freely when he needed a plot or a character? He could have pointed to Holinshed and advertised King Lear as based on a true story couldn’t he?
A If he, I suppose so, yes.
Q So that in this action you’re not claiming protection for an idea. What you claim has been infringed here then is not the idea which occurred to you over a period of time.
MR. BASIE: You have not been asked a question. That was a statement.
MR. MADHAR PAI: Please do not interrupt the answer.
MR. BASIE: It was not a question.
MR. MADHAR PAI: I believe it was a question. You object as to form?
MR. BASIE: I’m objecting to the form of the question, yes. It was not a question.
MR. MADHAR PAI: You may object if you want to, but please do not interrupt the answer.
MR. BASIE: Would you read it back, please?
MR. MADHAR PAI: I’d like to clear up this point before we break for lunch. Read it back.
(Question read.)
Q Again, you don’t claim protection for that idea do you?
A I claim protection for the idea too yes, if the . . .
Q You do?
A . . . if the idea is copied in a vulgar, demeaning way.
Q The way it is expressed, is that what you mean? Can we separate the idea from its expression, sir? Do we understand each other?
A Yes, yes we understand each other. When the idea is used in the context of the expression, combined with the expression, then the idea becomes part of the abuse I’m referring to.
Q You don’t claim any proprietary interest in the Civil War, do you?
A No, no, no.
Q In the battle at Antietam, any more than Shakespeare could lay a claim to the siege of Aleppo?
A No.
MR. MADHAR PAI: Let me take a moment to speak to Mr. Smith? Please note for the record that counsel are conferring.
(Counsel confer.)
MR. BASIE: Is it on the record that you took time out?
MR. MADHAR PAI: The difference is that I am not under oath.
MR. BASIE: I didn’t say there was a difference. I said is it on the record that you took time out.
MR. MADHAR PAI: Yes.
MR. BASIE: I would like the record to show that there was no pending question.
MR. MADHAR PAI: We will continue the examination when we reconvene at one o’clock.
AFTERNOON SESSION
1:50 p.m.
OSCAR L. CREASE, resumed the stand and testified further as follows:
MR. BASIE: Before we start, but on the record, I want to say on behalf of Mr. Crease that he expects that this session will be more courteous and more civilized than the last one.
MR. MADHAR PAI: That’s entirely up to you, Harold.
MR. BASIE: That’s not Mr. Crease’s feeling.
MR. MADHAR PAI: I understand that, old sport.
MR. BASIE: Quite often, when I was out of it, I recall that he was not being treated with courtesy.
MR. MADHAR PAI: He felt that he was not treated with courtesy?
MR. BASIE: Yes.
EXAMINATION (cont’d) BY MR. MADHAR PAI
Q Is that right, sir?
A Yes.
Q I’m sorry you felt that way.
We are dealing with the subjective here, and I imagine it is possible that people form different views of things, but I view you with consummate respect, and in doing my job, if you found me abrasive or discourteous, I would appreciate it if you would chalk that up to a misconception of the way I feel, both about you and about my work, which I take altogether seriously. I might note, in evidence of my good faith here, my acquiescence in delaying this afternoon session to accommodate the nap which your condition dictates and which commands my complete sympathy.
Let’s proceed. You are still under oath. Fair enough?
A All right.
Q I am concerned about something. If I understood you, Mr. Crease, I want to clarify something with respect to the idea which led to Defendants’ Exhibit 1 and its expression, which is Defendants’ Exhibit 1, and I ask you again, are you claiming protection for an idea, an idea as separate from that work?
A I thought I’d explained that.
Q I understood a conflict in your answers, that you gave two. That at first you said it was not an original idea . . .
A I gave a clear answer. The idea executed is the idea expressed, transformed into a play, in other words it’s definitely bound to the execution. So there are two things there to talk about. One is the idea and the other is the execution of the idea which is the work, the work we’re talking about, the play. When the idea is tied with the execution, then they are both unique and separable as such and defendable.
Q The idea apart from the work is not protectable and is not claimed as protectable by your . . .
A Anybody can say, ‘Here’s a man who hired two substitutes in the Civil War on both sides and they were both killed in the same battle.’ Anybody can say that’s an idea.
Q I respectfully submit that is not what is expressed in Defendants’ Exhibit 1, that what is expressed in Defendants’ Exhibit 1 as testified by you is a far more egocentric notion than a mere battlefield, that it is heavily laden with symbolic overtones of death and suicide of a moral nature.
MR. BASIE: I must direct you not to respond. You have not been asked a question.
MR. MADHAR PAI: You object as to form?
MR. BASIE: Would you read it, please.
MR. MADHAR PAI: We are going to be a lot more businesslike this afternoon because I am not going to have this again. Read it back.
(Question read.)
Q Do you agree or not agree?
MR. BASIE: Off the record.
MR. MADHAR PAI: Nothing off the record.
Q Do you agree or disagree with that?
A I have to, I’m sorry, I wasn’t listening. You will have to read it again.
MR. MADHAR: Read it back. THE WITNESS: I thought you wanted it read for your own benefit.
(Question read.)
Q Do you agree or disagree with that?
MR. BASIE: I’m sorry, but . . .
MR. MADHAR PAI: Do you have an objection?
MR. BASIE: Yes.
MR. MADHAR PAI: What is your objection?
MR. BASIE: It was a statement. There are a number of statements.
MR. MADHAR PAI: Do you have an objection?
MR. BASIE: Yes.
MR. MADHAR PAI: What is the objection?
MR. BASIE: The objection is that you have made a number of statements . . .
MR. MADHAR PAI: Is it as to form?
MR. BASIE: Yes.
MR. MADHAR PAI: Then let the witness answer.
THE WITNESS: I repeat. There are two things here. One is the idea and the other one is the execution of the idea.
Q Yes.
A Before I wrote the play, when I thought about the idea I had in mind, I could say here’s the story of a man who sends up substitutes to fight in his place on both sides in the Civil War, both of them are killed at Antietam and he survives haunted by a sort of sense of self betrayal, that he’s been slain by his own hand on the field of battle. That’s an idea, anyone can repeat it.
Q Not an original idea, in the sense that someone made it up, created it so to speak, would you agree?
A All right.
Q So that anyone putting it to use would be taking only what the law allows wouldn’t they, wherever they’d found it? In terms of general themes, motives or ideas, they’d be free to go ahead and express it artistically?
A I suppose they could do it their own way if that’s all there was to it, but when I do it my own wa
y that idea is substantial and connected with the execution.
Q So that the execution can be protected?
A And the idea related to the execution. They cannot be divorced because they . . .
Q Then tell me what the idea is that you expressed in Defendants’ Exhibit 1 or Defendants’ Exhibit 6?
A The idea that, what’s Defendants’ Exhibit 6? (Document marked Defendants’ Exhibit 6 for identification as of this date.)
Q Let me direct your attention now to Act I, scene i, page 3. Will you read it, please?
A Yes I, here. ‘His Mother. Is that the place, on your cheek, where you were wounded?’
Q To yourself, please.
A I’ve read it.
Q And on the next page, she goes on to say, ‘You’re thinner and tired, too, now I can see. You might have lost an eye.’ It’s in the prologue to your play, the play titled Once at Antietam that’s the subject of this action, is it not?
A Yes.
Q Now let me read this, and ask you whether it sounds familiar. ‘(Touching the bandage on his head, tenderly) Your head! Does it pain dreadfully? You poor darling, how you must have suffered! (She kisses him).’ Do you recognize that?
A No.
Q Well let me try this. ‘(He wears a bandage on his head high up on his forehead) God, how I’ve dreamed of coming home! I thought it would never end, that we’d go on murdering and being murdered until no one was left alive! Home at last!’ Is that familiar?
A I think it might be the . . .
Q I want you to be certain. Let me ask you to turn to the same scene page 8, at the bottom.
A Where his mother asks, ‘Is that the same uniform you went off in?’
Q And she goes on, yes. ‘I remember when it was new, before you went off, you’d lay a handkerchief over your knee when you crossed your leg up that way, with your soiled boot . . .
A Yes, that’s . . .
Q I haven’t finished. I want to read you this now and ask if you recognize it. ‘Oh, I know what you’re thinking! I used to be such a nice gentlemanly cuss, didn’t I? And now, well, you wanted me to be a hero in blue, so you better be resigned! Murdering doesn’t improve one’s manners.’ Are those lines familiar to you?
A It probably has to be that dreary thing of O’Neill’s.
Q For the record, can you identify it a little more closely?
A A play by Eugene O’Neill called Mourning Becomes Electra, I hope you don’t think I . . .
Q Thank you. It’s a trilogy really, isn’t it. The Civil War is just ended and the character Orin returns home, wounded. His father, General Mannon, comments ‘I’ve made a man of him. He did one of the bravest things I’ve seen in the war. He was wounded in the head . . . a close shave, but it turned out only a scratch.’ Now here in the second scene we have the Major, in Once at Antietam, speaking of his son in law. ‘The battle we fought them up at Ball’s Bluff? Thomas distinguished himself up there, in a company under my command. He’s made us proud to have him in the family here.’ Do you see any similarity between these passages?
MR. BASIE: Excuse me.
MR. MADHAR PAI: Are you objecting?
MR. BASIE: I have a question.
MR. MADHAR PAI: I am asking the questions. Are you objecting?
MR. BASIE: I think you’ve made your point, but what is it?
MR. MADHAR PAI: We spoke of unprofessional conduct, sir, and I must say you exceed all bounds. I am conducting this examination and will make my points when I am ready, without your interference.
MR. BASIE: I’m just trying to help you move things along.
MR. MADHAR PAI: You can help best by refraining from these rude interruptions. They are counterproductive and I wish you wouldn’t do it. Read it back, please.
(Record is read.)
A In a superficial way possibly, yes.
Q All right. The General, Orin’s father in the O’Neill work, describes Orin’s exploit crossing enemy lines, meeting and killing a Reb, and the same thing happening as he returns. Orin then describes it. ‘It was like murdering the same man twice. I had a queer feeling that war meant murdering the same man over and over, and that in the end I would discover the man was myself!’
A But that’s . . .
Q I have not finished. Will you direct your attention to the second act, scene iii of the play Once at Antietam on page 17, the line beginning ‘On that battlefield . . . ’?
A On that battlefield, yes?
Q And tell me if you see a similarity between the O’Neill passage and what follows? Let me read it. ‘. . . when I suddenly knew that the man I saw coming up against me, my opposite in every way . . . that he was not my enemy, but death, that we were fighting together . . . it’s like meeting myself down some dark street . . . and left to fight myself off!’ I repeat, do you find a resemblance?
A As I said, on a superficial level.
Q And in both cases we’re talking about the execution aren’t we? about the expression of the idea?
A About the play, yes.
Q But not the idea?
A Both. About both.
Q And what about the characters, are they an expression of the idea?
A In a manner of speaking I suppose, insofar as there’s a . . .
Q It’s a very simple question. I would like a direct answer.
Read it back, please.
(Question is read.)
A Well they, yes.
Q Take the Major, how do you describe him in your play. ‘The Major, a man in his sixties, is turned out to a fault in military uniform which lends authority to his patronizing manner . . . his forthright lack of imagination or sympathy for all he does not understand, and his distress at anything that threatens to disturb established order.’ All right? Now here’s O’Neill’s General Mannon, who’s also a judge if you remember. ‘His movements are exact and wooden and he has a mannerism of standing and sitting in stiff posed attitudes that suggest the statues of military heroes.’ Do they sound similar, seeing them up there on the stage?
A Yes.
Q Or on the screen?
A I suppose.
Q And as expressions of the idea, they cannot be divorced from it?
A I don’t understand.
Q What is it that you claim not to understand?
A That this isn’t an infringement action between my play and O’Neill’s, is it? I mean are you saying that I took my material, that I took my characters from that sham thing of his?
Q Are you saying that you did not?
A Certainly not!
Q But you have agreed that there are certain similarities?
A I can’t help that.
Q In other words, you agree that similarities can occur without copying?
A Up to a point.
Q Up to what point?
A Well. Appearances, certain appearances, coincidences, facts, historical facts but depending how they’re arranged, how they’re expressed.
Q And that expression is what is protected by law?
A Yes.
Q In a play, would you say that this expression you speak of resides largely in the dialogue?
A Yes. Yes that and the arrangement of it, of the characters.
Q That the dialogue does not just advance the action of the play, but in large measure actually defines the characters?
A Yes, yes you can see that in the passages you just compared, can’t you? I mean you wouldn’t see me writing ‘Does it pain dreadfully? You poor darling, how you must have suffered!’
Q They don’t correspond at all, do they?
A With my play? No.
Q Let me then direct your attention to the second scene in your first act, if I may. Page 30, the dialogue between the Major and a character named Kane. Will you read it, please?
A Starting with the Major? ‘I’ll grant you, even a reasonable man, he won’t bear old age easily in poverty, but the unreasonable man he wouldn’t be at peace even if he was rich.’
Q And then they talk
about money, don’t they, that the ones who care little about it are the ones who haven’t earned it, but those who have take it seriously, and Kane asks what’s the greatest good his wealth has brought him, do you follow that? And then?
A Yes, he goes on, ‘When a man faces the thought he has to die, he begins to see fears and anxieties that haven’t troubled him before. You think of the tales we hear of the next world, how justice is going to be done to those that have done wrong here. We’ve laughed at them before but now they begin to rack your soul. What if they’re true!’
Q Now will you listen to this and tell me if you find some similarity? ‘And to those who are not rich and are impatient of old age . . . to the good poor man old age cannot be a light burden, nor can a bad rich man ever have peace with himself.
’May I ask, Cephalus, whether your fortune was for the most part inherited or acquired by you?
’Acquired! In the art of making money I have been midway between my father and grandfather’ he goes on, they talk about money, and then the greatest blessing he has reaped from his wealth, and he responds as follows. ‘For let me tell you, Socrates, that when a man thinks himself to be near death, fears and cares enter into his mind which he never had before; the tales of a world below and the punishment which is exacted there of deeds done here were once a laughing matter, but now he is tormented with the thought that they may be true . . . ’ Now. Do you find a similarity between those passages?
A Well of course, I . . .
Q I haven’t finished. Here is another passage. They are discussing justice, and suddenly this character Thrasymachus breaks in. ‘What folly, Socrates, has taken possession of you all? And why, sillybillies, do you knock under to one another? I say that if you really want to know what justice is, you should not only ask but answer . . . for there is many a one who can ask and cannot answer.’ And so forth, to the response ‘. . . don’t be hard upon us. Polemarchus and I may have been guilty of a little mistake in the argument, but I can assure you . . . If we were seeking for a piece of gold, you would not imagine that we were “knocking under to one another . . . ” And why, when we are seeking for justice, a thing more precious than many pieces of gold . . . ’ they go on discussing the problem, giving evasive answers, till Thrasymachus loses patience. ‘Listen, then, he said; I proclaim that justice is nothing more than the interest of the stronger. And now why do you not praise me? But of course you won’t.’ Do you recognize that passage?