The opinion of the court was delivered by: MORRIS
The defendant is a motion picture producer and came into existence by a merger between the Fox Film Corporation and Twentieth Century Pictures, Inc., which occurred in July, 1935; so, for convenience, the term "defendant" will be used to designate the Twentieth Century Fox Film Corporation subsequent to July, 1935, and its predecessor, Fox Film Corporation, prior thereto. The defendant produced in 1936 a motion picture entitled "The Road to Glory;" the filming of this picture was completed in March and it was first exhibited to the public in the late summer of that year. Between the time the filming was completed and its first public exhibition, considerable publicity was given to the forthcoming picture, and there appeared in the July issue of a magazine known as "The Silver Screen," published on June 5, 1936, an article giving the story of the picture in a condensed form, slightly modified to emphasize its romantic element, which was thought to have a greater appeal to the readers of that particular magazine than would its war features.
This proceeding is brought by the plaintiff, in which he seeks an injunction, an accounting and other equitable relief, alleging that he, in the month of January, 1935, composed, wrote and submitted to the defendant, for acceptance or rejection, an original scenario entitled "The Road to Glory," which the defendant rejected, but thereafter did make unauthorized use of the scenes, dialogue and other material composed by the plaintiff in the production and exhibition of its motion picture. Attached to the complaint, as Exhibit "B," is a statement of many similarities between the manuscript alleged to have been submitted by the plaintiff and the motion picture produced by the defendant. As shown by this statement, there are many instances in which the dialogue is not only similar, but identical, and this in such unusual phrases and expressions as do not admit of any accidental coincidence.
Prior to January, 1935, the plaintiff had written numerous stories and at least one motion picture scenario. While none of these stories or the scenario, entitled "Jeanne," were accepted or published, there had been newspaper announcement in the Jackson (Tennessee) Sun in October, 1934, to the effect that plaintiff had received a thousand dollar prize award for a scenario entitled "Anne of Westmar Square," submitted to Warner Brothers, motion picture producers. Although the plaintiff explained in his testimony that the newspaper article was in error; that he had never completed the scenario entitled "Anne of Westmar Square;" that he had not received any award or compensation from Warner Brothers, or any other motion picture producer; and that he was not responsible for the article being written, nevertheless this newspaper article did give to him some reputation as a young writer in his home community. The plaintiff submitted to several motion picture producers and to a marketing agency, called "The Universal Scenario Company," in Hollywood, California, the scenario entitled "Jeanne." The Universal Scenario Company wrote to the plaintiff on November 9, 1934, advising him that this scenario was considered by its reading committee to be suitable material for submission to studios and producers in Hollywood, and that the agency would publish a synopsis of the story in their scenario bulletin review for submission to motion picture producers and would act as agent in the marketing of the story upon the receipt of the sum of $25. The plaintiff did not make this remittance, notwithstanding the receipt of numerous other letters urging him to do so. The plaintiff testified that his scenario "Jeanne" was written by him at the request of Mrs. John Muse, of Jackson, Tennessee, who had written on the story hereself, but, as she did not know anything about scenario writing, desired him to see what he could do to make a better story out of it, and that he thereupon rewrote the whole story. This undoubtedly accounts for such difference in the style of writing, between the first three acts and last two of that scenario, that it is quite obvious. The relevance of this scenario "Jeanne" to the present controversy will be discussed at another point in this opinion.
There is no doubt that the plaintiff did write a dramatic composition entitled "The Road to Glory" in January, 1935. This was not only written by the plaintiff, but was produced as a stage play in Jackson, Tennessee, on February 15, 1935, at the Jackson High School, under the auspices of the American Legion, and a subsequent performance within the next few days was given in Bell, Tennessee. This play was directed by Mrs. L. C. Merwin, and among those taking part in the performance of the play were William Miller, Charles Miller, Winifred Deshazo and Roy Hardcastle, all of whom testified as witnesses in this case. There is nothing in common between this play, which, to avoid confusion, will be referred to as the Legion play, and the defendant's motion picture, except the name, which is identical, and the fact that, in certain scenes of each, one of the characters played upon a piano. There is no similarity or identity between the Legion play and the defendant's manuscript, alleged to have been submitted to the defendant, except the title, which is identical; that in certain scenes of each one of the characters plays upon a piano; and a passage occurring near the close of both plays, in which one of the characters in the former is made to say: "Little mother * * * Forgive me if I have caused you a single unhappy moment. Forgive me if my life has not been lived as you'd have had it lived. Darling * * * Isn't the road rugged * * * 'The Glory Road' * * * Its meant so much suffering for both of us, but see the greatness of its harvest." and in the latter, one of the characters is made to say: "Darling * * * Forgive me if I have caused you a single unhappy moment * * * forgive me if I have not lived as you would want me to live. Isn't the road rugged * * * the glory road * * * The price of glory is so great * * *."
The plaintiff insists that the story here in controversy was thought of by him over quite a period of time in the latter part of 1934, and that he made several longhand drafts which culminated in a final longhand draft, designated in this case as plaintiff's Exhibit No. 1. Plaintiff stated that he worked on this longhand draft and on the typewritten manuscript, known in this case as plaintiff's Exhibit No. 2, in the early part of January, 1935, and that this work was done by him in the dormitory room of Charles and William Miller at Lambuth College in Jackson, Tennessee. His purpose was to produce the play, if he could secure a sponsor, but when he discussed the matter with Mrs. Merwin, whom he wished to direct the play, it was ascertained that it was not suitable for production as an amateur stage play; that he had thereupon written the so-called Legion play, which was completed at or about the time rehearsals began on February 1, 1935, of which a typewritten manuscript was also made. The importance of this Legion play in connection with this controversy will be discussed at another point in this opinion.
The plaintiff stated that he mailed the typewritten manuscript, plaintiff's Exhibit No. 2, which is the typewritten manuscript here in controversy, to the defendant on or about January 20th, and about that same time he sent a copy of this scenario to the Universal Scenario Company, the marketing agency which has already been mentioned.
The plaintiff's testimony as to the writing of the longhand manuscript, plaintiff's Exhibit No. 1, and the typewritten manuscript, plaintiff's Exhibit No. 2, is supported by the testimony of Charles Miller, William Miller, Winifred Deshazo and Roy Hardcastle, all of whom stated that, during the period in January, 1935, above referred to, they saw the plaintiff writing on the longhand manuscript and typing the typewritten manuscript in the Miller boys' room on an Underwood Typewriter, Model No. 5, which was owned by the Miller boys, and which is in evidence in this case, designated as defendant's Exhibit No. 12. The testimony of these witnesses with respect to the identity of the typewriter will be discussed more fully at another point in this opinion. The plaintiff's statement with respect to the time at which the story here in controversy was written is further supported by the testimony of Mrs. Merwin, who testified that she read the longhand manuscript and the typewritten manuscript in January of 1935. There is also testimony, by deposition, of Mrs. Florence Pearl Sheets, the plaintiff's mother, to the effect that she saw the typewritten manuscript in January, 1935, before it was mailed to the defendant. Testimony, by deposition, of Mrs. Lorelle H. Love was to the effect that, during the summer of 1935, the plaintiff loaned to her a copy of the story here in controversy, which she read. The plaintiff also introduced in evidence a letter, dated February 7, 1935, received by him from the Universal Scenario Company, in which he is urged to sign an enclosed application and agreement, providing for the payment of $25 in such installments as might suit the plaintiff for the publication of a synopsis and other marketing service. The printed form of agreement attached to that letter has, in the space for the title of the manuscript, the typewritten words "The Road to Glory." The only other typewritten characters on the form are the figures "1250" to indicate the length of the synopsis to be published in the event the agreement should be signed.This is submitted by the plaintiff to corroborate his testimony that the story in controversy was in existence shortly after the time he stated that it was written by him, and that a copy of the story had been sent by him to the Universal Scenario Company. The plaintiff states that he did not execute the agreement nor make the remittance.
The plaintiff, in a deposition taken prior to the hearing in this cause, stated that the typewritten manuscript was sent by him to the defendant by registered mail, but in his testimony taken at the final hearing, he stated this was an error, and that it had been sent by ordinary mail. An investigation at the Post Office in Jackson, Tennessee, disclosed no record of any registered mail from the plaintiff to the defendant. Plaintiff stated that the defendant returned the manuscript to him about three weeks after it had been sent, and that he received from the defendant a letter stating in substance: "Your manuscript 'The Road to Glory,' which we returned to you, is not suited to our present needs. However, we thank you for submitting it." This letter could not be produced by the plaintiff at the hearing in this cause. He stated that, sometime after conferring with his counsel, to whom he had showed the letter, it became lost because he attached no importance to it. Mrs. Florence Pearl Sheets, in her deposition, testified that she had seen the letter returning the manuscript, and stated that its contents were substantially as testified to by the plaintiff.
The defendant, on its behalf, has introduced evidence to the effect that any unsolicited manuscript, which is received, is returned unopened, by registered mail, and that, when any manuscript, for any reason, is not so returned, a record is made of it, showing title, name of author, and certain data respecting the story; that this system was in effect in January, 1935, and for a long time prior and subsequent thereto; that no communication or manuscript was ever received by the defendant from the plaintiff; that the defendant did not have business dealings with the Universal Scenario Company, a manuscript marketing agency that has now ceased operations; and that it never received from that agency any manuscript or material composed by the plaintiff or any other person.
The defendant submitted evidence showing that the production of its motion picture "The Road to Glory" came about as a result of its purchase of a French film entitled "Les Croix de Bois" (Wooden Crosses). This French film had many war scenes, some made from actual combat during the World War of 1914-1918, and it was purchased so that the defendant could make use of such war scenes. Under the general direction of Darryl Zanuck, in charge of production for the defendant, an outline of a story, in which such war scenes would be used, was made by Stephen Morehouse Avery, which was little more than notes on suggested characters, and bears slight resemblance to the final script, from which the motion picture "The Road to Glory" was made. This bears date of September 7, 1935, and is in evidence as defendant's Beverly Hills Exhibit No. 12. Nunnally Johnson, associate producer, assigned Joel Sayre, a writer employed by the defendant, to the task of developing a story somewhat along the lines suggested by Mr. Avery's memorandum. Mr. Sayre's outline is in evidence as defendant's Beverly Hills Exhibit No. 1. Conferences were had with Mr. Zanuck, and the notes of these are in evidence. It was decided that the use of the battle scenes from the French picture required a more serious story treatment than the outlines so far afforded. William Faulkner was employed at the suggestion of Howard Hawks, the director, and with his collaboration a story outline was produced, which, with the suggestions and directions made by Mr. Zanuck, furnished the groundwork for the motion picture story later developed. This outline is in evidence as defendant's Beverly Hills Exhibit No. 2. Mr. Sayre and Mr. Faulkner together developed what was termed the "rough script," which is the first continuity containing full dialogue and directions for dramatic action. That is dated December 31, 1935, and is in evidence as defendant's Beverly Hills Exhibit No. 5. Notes of various conferences on this are in evidence, and the next full-length script, embodying, among others, some of the changes that had been suggested, bears date of January 14, 1936, and is in evidence as defendant's Beverly Hills Exhibit No. 7. The working title of these scripts is "Wooden Crosses." The final, or so-called "shooting script," is in evidence as defendant's Beverly Hills Exhibit No. 9, and in this script there appears certain blue pages, some of which are dated January 25, 1936, others dated January 29, 1936, and others dated February 3, 1936, which blue pages are obviously revisions made after the completion of the final script as originally written and inserted therein. There is testimony to the effect that certain of these blue page revisions were made by Walter Ferris, a writer engaged for that purpose, in which he received some suggestions from his wife, Mrs. Violet Kemble-Cooper Ferris. All of the persons who have been referred to as having performed services for the defendant in connection with this motion picture, performed such services in or near Hollywood, California. The evidence shows that an identical copy of the final script, with revisions, was sent by the defendant to the editor of the Silver Screen Magazine in New York City, who in turn furnished it to Jack Bechdolt, also in New York City, the author of the article appearing in the issue of the Silver Screen Magazine which has been referred to. The script furnished to Mr. Bechdolt is in evidence as defendants Beverly Hills Exhibit No. 23.
Evidently some changes were made in the actual filming of the motion picture, as the evidence does not disclose that any other script was made, but the viewing of the picture and the notes made during that exhibition revealed certain differences in names of characters, dialogue and minor action between the picture and the final script.
The witnesses, Darryl Zanuck, Nunnally Johnson, Stephen Morehouse Avery, Howard, Hawks, Walter Ferris and Mrs. Violet Kemble-Cooper Ferris, all of whom testified by deposition, and Joel Sayre and William Faulkner, who testified in person at the hearing, positively denied having had any knowledge of the plaintiff or any manuscript written by him. Jack Bechdolt, the author of the Silver Screen article, also positively denied having had any knowledge of the plaintiff, or any manuscript written by him, and stated that, with the exception of certain original parts of the article, he had no material from which to write the article other than the final script with the revisions mentioned, which had been furnished to him through the office of the editor of the Silver Screen Magazine.
The evolution of the title of the defendant's motion picture is explained by the use of the name "Wooden Crosses" on account of the French picture as a working title, the use of "Zero Hour" as a tentative title, and the choice of the final title "The Road to Glory" by reason of the fact that in 1926 Howard Hawks, the director of this picture, had directed a picture for the defendant which was released under the name of "The Road to Glory," which he thought was a good title, and one to which he considered the defendant had every right because of its previous use.
The evidence on behalf of the plaintiff and that on behalf of the defendant cannot be reconciled. Although many witnesses may have been honestly mistaken in their recollection as to certain material matters, the defendant has either knowingly made use of material submitted by the plaintiff, or the plaintiff has knowingly, in the writing of his manuscripts, made use of the Silver Screen article. It seems almost incredible that a person would think it possible to successfully commit a fraud by asserting that he had submitted a manuscript for a published motion picture if, in truth, he had not done so. It seems even more incredible that a number of witnesses would testify that they had seen a manuscript a year and a half before it actually was in existence, some of whom, at least, honestly believe their testimony to be correct. And, yet, I am convinced that is the case here.
In view of the preliminary statements of the plaintiff, it is not surprising that, without the knowledge of facts which only a long, critical and adversary trial of the cause has revealed, his counsel, who is of unquestioned integrity, reputable men (who, according to the evidence in the case, are furnishing funds with which to establish the claims of the plaintiff), and certain of his witnesses were fully convinced that the plaintiff had been defrauded by the defendant. I am convinced, however, as a result of this trial, which has consumed more than eight weeks with a record, depositions and exhibits of more than seven thousand typewritten pages, that those parts of the plaintiff's manuscript which are similar to, or identical with, the Silver Screen Magazine article were taken by the plaintiff from that article, and that he did not either write or type his manuscripts until after its publication. I am also convinced that many of the witnesses who testified that they saw or read plaintiff's Exhibits No. 1 and No. 2 in January, 1935, or at any other time prior to June 5, 1936, confused those manuscripts with the Legion play entitled "The Road to Glory," which was written by the plaintiff in January, 1935, and a stage performance of which was given in February, 1935. Their positive statements are to the contrary, but extensive examination has revealed a state of recollection that is in such marked contrast to the uniformity of comment concerning plaintiff's manuscripts in question, that one is forced to the conclusion, in the light of all of the evidence in the case, that their recollection has been sophisticated with suggestion.
It is conceded by both parties that, in plaintiff's manuscript and the Silver Screen article, written in connection with the defendant's motion picture, there are five scenes in which there is such substantial similarity or identity that no explanation is admissible other than that one was taken from the other. These five scenes which constitute the major part of both the plaintiff's manuscript and the Silver Screen article have been, for convenience, referred to as the "first cellar scene," the "hospital scene," the "second cellar scene," the "blind captain scene," and the "barrage scene." Undoubtedly plaintiff's longhand manuscript was written, even though it may not have been completed, before the corresponding parts of plaintiff's typewritten manuscript. It is not claimed that the longhand manuscript was ever submitted by the plaintiff to the defendant. It is claimed that the typewritten manuscript was so submitted. It is difficult to see how Mr. Bechdolt, the writer of the Silver Screen article (who secured his material through the editor of that magazine from the defendant), could have made use of any material appearing in plaintiff's longhand manuscript, which does not appear in plaintiff's typewritten manuscript, even assuming he had the latter, or material taken from it. If, therefore, the plaintiff's longhand manuscript contains matter which identifies it with the Silver Screen article in instances not disclosed by the typewritten manuscript, this circumstance strongly supports the testimony of the witnesses for the defendant; and, if the evidence offered by the defendant, supported by the internal evidence of these manuscripts, is accepted, the inference is inescapable that the plaintiff's longhand manuscript was taken from the Silver Screen article.
It would not be practicable, nor would it serve any proper purpose to undertake in this opinion to analyze every part of the evidence. A comparison of the longhand manuscript with the Silver Screen article discloses many instances where there are expressions in both which do not appear in plaintiff's typewritten manuscript. I shall undertake to point out, as ...