Defendant-appellee Knize, and by turn writers Afhadi, Railswort, Schultz and Probidetz, in seeking to escape liability, urge that they are not liable as infringers in that they ‘had nothing to do with the production, release, or exhibition of the alleged infringing screenplay; and that they received no profits therefrom, relying on Washingtonian Publishing Co. v. Pearson, 78 U.S. App. D.C. 287, 140 F.2d 465 to the effect that authors are not liable for profits which other infringers derive from the infringement, discussing profits only. There is no merit in the contention that Knize is in no way connected or responsible for the infringements in the public showing of the alleged infringing film and is not liable for damages sustained by plaintiff for his deliberate misappropriation of plaintiff’s property, or in his claim that a mere employee or workman or servant is not liable for damages for the infringement of his employer, or in the convenient lapses of memory as to who contributed what at the story conferences where the screenplay was concocted and developed. Quoting Sheldon v. Metro-Goldwyn Pictures, supra, ‘in concluding as we do that the defendants used the play pro tanto, we need not charge their witnesses with perjury. With so many sources before them they might quite honestly forget what they took; nobody knows the origin of his inventions; memory and fancy merge even in adults. Yet unconscious plagiarism is actionable quite as much as deliberate.’
In allowing the issue of novelty as necessary to create a property right in an idea in accordance with New York State’s unfair competition law to prevail in this case, defendant’s heavy reliance on Murray appears to have been swallowed whole in the court below where both judge and counsel for plaintiff appear to have overlooked its irrelevance, leading us to the inescapable conclusion that in failing to recognize this defense as entirely without merit the district judge has misunderstood, misinterpreted and misapplied the law in obligating this court to review this frivolous defense on appeal.
The decree will be reversed and an injunction will go against the picture together with a decree for damages and an accounting. The plaintiff will be awarded an attorney’s fee in this court and in the court below, both to be fixed by the district court upon the final decree
Decree reversed.
—I simply can’t describe it Harry, can you hear me? holding the phone closer, —I mean I drove in here with these immense suits of women’s underwear billowing on clotheslines strung up out on the veranda Use’s brought her sister out here with her, she has to be led around to find a good strong chair she’s already smashed one sitting down in the kitchen to peel potatoes while Oscar marches around stroking his new beard and waving a cigar giving orders, poor Lily’s a perfect wreck, he’s out there on the lawn right now playing with that horrid dog and there are travel brochures all over the place, he thinks we should all take a trip up the Nile and visit Luxor, the whole house smells like cabbage and . . . Well my God of course he’s read it, he’s reread it a thousand times since I brought it out here he must know it by heart, gestures and all you’d think it was Hamlet, licking his lips over every phrase and he’ll stop to mutter the play’s the thing to catch the conscience of the king of course he means Father, I showed him! as though he’d done it all himself and then this box of trout shows up with a . . . Of trout, a box of frozen Norwegian trout and a fatuous note dripping with congratulations, so pleased we could see this landmark case to a successful conclusion it’s all perfectly revolting but of course money’s the one thing on his mind now, how many million he’s going to collect when they . . . oh. Oh, well I’ll tell him that, God knows whether he can contain himself he wanted to go out and buy a new car just like ours this morning until I wait, wait there’s somebody at the door, Lily? Will you see who that, what? About what billings Harry, you just said . . . well what in God’s name has Trish got to do with it, Bill Peyton can’t blame you if she hasn’t even come up with her retainer yet can he? Tell him to talk to his brilliant Mister Mudpye he’s the one who’s been herding her through every courtroom from here to . . . well of course losing this appeal has cast a cloud over his brilliant career there, it should have brought down a thunderstorm, you’re the one who said he was too quick aren’t you? that he takes shortcuts? sets up the game as if he’s the only player? did you ever tell Bill Peyton that? I mean my God Harry I don’t care one damn about Mister Mudpye’s brilliant career, after the ride he’s given poor Oscar? I care about yours, I mean I’m your wife aren’t I Harry? When will you be . . . what kind of a conference, you mean things can come to a screeching halt at the very last minute because somebody suddenly gets the bright idea for a settlement they could have come up with five years ago and the taxpayers pay for the whole idiotic perfor . . . No now listen Harry I mean I’m not entirely stupid. One of your socalled parties deducts millions in legal costs every year as a business expense and the other one has never paid taxes in its entire parasitic life then who makes up the difference? Who pays for these bombs and battleships and these fools with nothing better to do than play golf on the moon eating ham sandwiches while people are sleeping in the streets and, what is it Lily.
—They’re delivering this big fish tank Oscar sent for and they want to know where to . . .
—Well for God’s sake don’t let them bring it in here, tell them to, Harry? I’ve got to go, they’re delivering a . . . no, not more fish no a fish tank, an aquarium Oscar can’t live without Harry take care of yourself please, please because the rest of it doesn’t matter it’s nonsense, millions of dollars of nonsense because I, because you matter Harry you matter to me and, and that’s, yes I’m coming!
—I think Oscar wants it over by those windows where the . . .
—It is not going over by those windows! They can, tell them to put it down in the laundry where the, Oscar? as the doors clattered down the hall —and for God’s sake leave the dog outside, they are not bringing your fish farm in here, it can go down . . .
—No but wait Christina, the fish like light and . . .
—Well put it in the sunroom! And close the door to the kitchen, the whole place smells like a tenement in Minsk it’s like a scene out of, marching around in your father’s old suit crowing over putting one over on him because you think he turned his back on you like one of those dreadful Karamazovs and tell Ilse to sew up the hem there, it’s hanging loose in the back or just find a safety pin to go with that scraggly beard hiding the battle scar you were so proud of where nothing’s left to hide. I mean maybe now you can shave and bathe and get a fresh start, I don’t think you’ve slept since I got here.
—How could I! with this? he came brandishing the dogeared pages —God, how long I’ve waited. People spend their lives like that waiting for something to happen and change things, and they die like that, waiting.
—You’d better wait yourself before you take off for Luxor, that was Harry on the phone. He said they’ll appoint a master to execute that decree you’re waving around and compute your damages so don’t start buying new cars, you don’t know what you’ll end up with. You’ve got a stack of bills over there to choke a horse while we sit here eating corned beef and cabbage as though we were living on that grand teaching salary of yours and now you haven’t even got that.
—That salary! that miserable salary month after month just to remind me what injustice really was, this is worth all the salaries they ever paid Christina! I’ve earned it haven’t I? slapping the pages against his opened hand, —living out here like beggars in this broken down old house with the wind coming in through the cracks in the wainscotting, feel it, right here you can feel it, the veranda caving in and the driveway out there like an obstacle course and those bills, yes, to get out of debt and to stay out! to make choices instead of being forced to them, will the car last as long as a new set of tires no, a new car new tires all of it new! his hands trembling, twisting up the pages —all of it . . .
—If you last as long as a new set of teeth with anything left after those bills you’re so eager to pay, that crate of fish your friend Sam probably expects a ch
eck in the next mail.
—Fine. Let him have it, it’s not my . . .
—My God Oscar, somebody you were ready to sue for malpractice ten minutes ago now you’re ready to pay him God knows how much because he sends you a crate of dead fish? You’ve forgotten that battle royal right where you’re standing? Harry trying to get him off the hook ends up in a car accident and the whole thing almost cost me my marriage, it was either fraud or negligence wasn’t it? if it was true then it’s just as true now isn’t it? and you don’t remember a word of it?
—I remember Harry said if I’d won it wouldn’t have made any difference, now I’ve won haven’t I? Besides, I don’t . . .
—Care no, you don’t care, pay him whatever he . . .
—I don’t have to! That’s what I’m trying to tell you Christina, they have to, it’s out of my hands. Kiester and Erebus and the rest of them, they have to pay him it’s right here in the decision, didn’t you see it? riffling over coffee stains, tea streaks, wine washed declensions —right here at the end. The plaintiff will be awarded an attorney’s fee in this court and in the court below both to be fixed by the district court upon there, billings disbursements depositions prepositions all of it, the more the better, limousines, airplanes, Mister Basie flying around the country buying drinks for the house in the Beverly Wilshire all of it, give them a nice tax writeoff isn’t that what you said?
—It’s revolting. It’s all perfectly revolting.
—Well what’s, why is it revolting what’s . . .
—While he sits in prison somewhere making brooms for a dollar a day and you think that’s all right?
—I didn’t say it was right. It’s the chance he took isn’t it? Lying for his bar exam he knew he might get caught sooner or later didn’t he? It’s not my . . .
—He chanced it for you! He could have told you to take their settlement couldn’t he? like I wanted you to, so did Harry and you would have too but he had more guts than any of us, sitting right there while we acted like mice, you mean you plan to lose I asked him? Win or lose, and that sweet smile of his, win or lose we’ll take them on the appeal.
—And we did, it’s only just isn’t it? Where it says right here in the decree the district judge and counsel for plaintiff both overlooked the irrelevance of their defense? Sitting right there with the clock running every minute running up his billings and . . .
—And you think he ever saw one penny of it? Off God only knows where while Sam spends it salmon fishing in Norway I mean who ran up his billings, sitting here hour after hour reading your play to him and getting that gang from your classroom in to mumble the parts? My God what he put up with, because he cared about it Oscar, listening to you, reasoning with you he had more faith in it than all the rest of . . .
—No listen Christina, turning the whole thing upside down you . . .
—Like your new pal Jerry? Turning the whole thing upside down explaining to you what your own play is really all about? Blacks and Jews and God knows what else, breaking your bones while the man who really fought for you is . . .
—Well I can’t help it! It’s just the way the whole system works, there’s nothing I can do about it is there? Besides we don’t know he’s in prison making brooms that’s just something Harry said, he takes off right in the middle of things and you act like his keeper, off on the run he could be anywhere. He could be anywhere.
—On the run hunted down while Sam goes fishing and you sail up the Nile after all he did for you, think about it.
—Why! Nothing I can do, why should I think about it.
—Because he was your friend!
—But, no listen Christina don’t get so upset, I . . .
—He was your friend Oscar! She’d found a wad of tissue somewhere, clearing her throat —I mean my God, how many have you got.
—Well I, I can’t help what people will do, I . . .
—People will do anything. She blew her nose sharply, turned away gazing out over the pond, caught herself with a sniff —people will string up long underwear and smell up your house with oh, Lily. Will you tell me whose inspiration this corned beef and cabbage was?
—It was, it’s something her sister, Use’s sister it’s something she likes to cook and she wanted to feel useful so . . .
—If you want to feel useful yourself I think I’d like a drink.
—There’s those cases of wine Oscar ordered, do you . . .
—I said a drink Lily, there’s some scotch isn’t there? And pour one for yourself, if you still think you’re seeing mice in the kitchen you probably need it.
And there was, as she said later, —enough to feed an army, or at least get that crew through the night, I mean of course they’ll eat in the kitchen and if you brought her out here to peel potatoes and help with the laundry she’s simply got to learn to use the dryer, the place looked like a Bedouin encampment drying their tents out there blown on the rising winds flinging gulls willy nilly against a grey sky heavy with the threat of snow where a ragged skein of wild ducks unraveled high above the blunt bursts of a shotgun somewhere down the pond all of it giving way to dark, and the stillness that finally shrouded the house itself till the day woke flaming the east like a cauldron, woke the thud and clamber of footsteps on bare floors and the stairs, his own muted in slippers pacing the room end to end with those stained pages clutched rolled like a stave freighted with anticipation simmering in his wake liable to any intrusion of triumph or calamity or sheer inconsequence, intimate or abruptly outlandish as the sparkling apparition of a police car standing there in the drive before his eyes.
—Oscar? came her voice from somewhere, near to following him up the hall when she came in but she stopped looking out up the angle of the veranda arrested there by the sight of the uniform, voices borne in on a draft from the doors till they clattered closed, —well? What was that all about.
—A policeman.
—Well obviously. Selling tickets to the policemen’s ball?
—No, no they found the car, they found my car Christina. It’s been impounded by the insurance company that’s who took it away.
—Thank God, I hope we never have to . . .
—No but that’s not the point, the police have a report that it was in an accident where the victim was seriously injured and they’re after me because I’m the owner and didn’t report it so . . .
—Well if nobody reported it then who reported it?
—I did, I reported the stolen car but the accident wasn’t . . .
—Oh Lily, thank God bring a pot of tea will you? I don’t know how much more of this I can go back to the beginning Oscar. When you were in the hospital raving about your little man in the black suit taking messages for the other side and . . .