2

HOLLYWOOD’S GOLDEN AGE OF PLAGIARISM

COPYRIGHT LAW protects original expression. Of course, many critics of copyright law have argued that originality is overrated or that it does not exist at all. But even if we accept uncritically copyright’s claim on originality, we might wonder how the law can regulate the creative output of an industry like Hollywood, which has, throughout its history, actively worked to standardize its products, to keep things relatively unoriginal. Since the earliest narrative films, the majority of movies have been adapted from literature, drama, cartoons, news stories, or some pre-existing idea. Starting in the mid-1910s, Hollywood standardized its film output by cultivating repeatable studio styles, fixed genre tropes, and stable star characters that could all be used across films. The studio system was designed, in other words, to promote predictability and homogeneity and to keep originality in check. All of these systems of standardization and reliability, which were intended to stabilize the film business, carried over relatively seamlessly to television. Although it is not generally recognized, copyright law has been a key force driving the design of the studio system. The legal definitions of originality, creativity, and authorship have been interwoven into both Hollywood film and television style and into the structure of the entertainment industry, from the genre and star systems to the functioning of the talent guilds.¹

To say that copyright law protects originality, however, is only half of the story. Copyright law may protect original expression, but the ideas expressed remain free to be borrowed and used. As Supreme Court Justice Louis Brandeis once famously put it, “the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.” As another justice, Sandra Day O’Connor, once explained, the detangling of ideas from their expression keeps copyright law from hampering free speech. No one can own an idea, only a specific manner of expressing it.² At times, the distinction between ideas and expression can seem as meaningless or arbitrary as the notion of originality. We can, for example, imagine paraphrasing another author’s words to express the same idea differently. But how can anyone decouple the underlying idea of an image or a musical phrase from its expression? Fortunately, like many elements of copyright law, the idea/expression dichotomy does not exist as some Platonic ideal. It is a living concept that changes over time. The idea/expression dichotomy is a sort of valve that responds to the influence of artists, the economy, and popular culture. Like any valve, it can be turned to increase or decrease the flow of creative ideas.

The history of film genres, television formats, and moving image authorship can all be seen as an ongoing attempt to adhere to shifts in the interpretation of the idea/expression dichotomy. In more colloquial terms, Hollywood spent decades defining the limits of film plagiarism. Plagiarism, like piracy, is a term whose definition is bound up with the forging of new media. Borrowing from previous work is essential to any artistic endeavor. As copyright scholar Peter Jaszi sagely describes the creative process, “Some conscious or unconscious borrowing from past works is inevitable, if only because the store of words and phrases available to express particular ideas is finite, and no writer is a truly ‘naïve’ artist…. These are immutable facts of artistic enterprise; only attitudes towards them change.”³ Plagiarism is the barometer we use to understand the legal, ethical, and cultural codes that separate acceptable methods of creative borrowing from illegal and unethical kinds. As a result, the definition of plagiarism is always upset by the introduction of new media, like film or television.

Throughout the twentieth century, the term plagiarism was used frequently in copyright decisions. Plagiarism, however, is a broad ethical and professional category and not a strictly legal one, though it does overlap with copyright law.⁴ Plagiarism can be monitored and punished by extralegal authorities—teachers and contest judges—as well as by court-appointed judges. In the process of defining the codes of plagiarism that govern U.S. film and television, Hollywood used internal methods of policing the creative flow of ideas as well as court battles. Talent guilds, in particular, preempted legal intervention by registering ideas and scripts, negotiating contracts, and settling authorship disputes rather than allowing the courts to intervene.

Hollywood also invested tremendous time and resources in forging new legal doctrines that favored its profligate borrowing from popular culture. During the first half of the twentieth century, as we will see in this chapter, Hollywood studio leaders fought to enlarge the range of acceptable borrowing—of plagiarism—so that film and television producers could freely use the storytelling traditions that preceded the invention of film. The Hollywood studio system was built on plagiarism just as the early film industry had been built on piracy.

BEFORE HOLLYWOOD

Before the invention of film, vaudeville comedians and comic performers had all but given up on using copyright to protect their material. As we saw in the previous chapter, in a series of late-nineteenth-century cases, vaudeville performers attempted and failed to protect the copyrights in their performances. When copyright law proved to be a dead end, vaudevillians began to rely on the self-policing of their industry. Performers and their managers took out ads in trade papers to call out and shame other performers who unabashedly stole their material. Vaudeville theater owners regularly pledged that they would not hire copied acts, although this may have been a sop to performers and managers rather than a real commitment. And a series of short-lived institutions arose to accept documentation about acts or arbitrate disputes. In some cases, these ad hoc copyright offices or grassroots courts would establish royalty-sharing agreements between the original performer and the copycats.⁵

But these were extreme solutions. For the most part, vaudeville performers simply permitted and expected a certain amount of imitation from their peers. Live vaudeville performers could only cover so much territory, so there was more room for duplication. It was very common, for example, for European performers to copy acts they had seen on the American vaudeville circuit and for American performers to repeat acts they had seen in Europe.⁶

Even in instances where performers sought to protect their acts, they often found the task impossible. Celebrated vaudeville dancer Loie Fuller, who was mentioned in the previous chapter, vigilantly protected her performance style. She held patents on her use of color in stage lighting and on her design for a dancer’s skirt frame (fig. 2.1). She sued lithographers, ultimately unsuccessfully, for distributing her image. And in 1892, Fuller attempted, also unsuccessfully, to protect her signature “Serpentine Dance” from imitation in a copyright suit. Fuller v. Bemis is one of the cases in which a judge found a vaudeville act to lack sufficient narrative or drama to be protected by copyright.⁷ As a result of the decision, Fuller could not prevent dozens of dancers from using her Serpentine Dance routine across the United States and Europe. In her autobiography, Fuller recounts several instances in which she thought the presence of emulators or counterfeiters would ruin her career. But she consistently performed her original dance to sold-out crowds even when rivals performed the Serpentine Dance at nearby theaters. There were many stages on which to perform, and audiences were willing to pay in proportion to the dancers’ levels of talent and acclaim. The Serpentine Dance eventually grew into a widely performed genre of dance rather than the property of a single performer, and it remained popular in the United States and in Europe for more than three decades.⁸

FROM VAUDEVILLE TO EARLY FILM

Unlike vaudeville performers, early filmmakers were not content to allow self-policing alone to govern their industry. And in the first years of the twentieth century, legal decisions began to set parameters on imitation and copying in the film industry. Film companies eventually proved to be more successful than vaudeville performers in convincing judges to recognize their copyrights, but the early case law continued to preserve the culture of imitation that pervaded vaudeville.

Market leaders Edison and Biograph initiated most of the early film copyright cases. Frequent rivals in patent disputes, the two firms threatened each other with copyright lawsuits as well. All of these were settled out of court until Edison’s company remade Biograph’s Personal (1904) without permission—a standard practice at the time. Edison and other companies often made their own versions of competitors’ films, which were frequently shot-for-shot copies of the original. But several factors led to the 1904 standoff. First, the case of Edison v. Lubin (1903) had outlawed film duping, the practice of taking a competitor’s film, making a negative from that film, and then striking new prints from the new negative. Now that courts had frowned on duping, remakes became an even more important part of the film business. Also, in 1903–1904, fictional narrative films began to replace reality-based genres such as travel films and films of newsworthy events. With the turn to fictional narrative, remakes suddenly had much more value, and for the first time in a copyright dispute, Biograph’s lawyer, Drury Cooper, and Edison’s, Frank Dyer, failed to come to an agreement after months of negotiations.

FIGURE 2.1  Loie Fuller’s dress frame patent.

Biograph v. Edison asked whether the common practice of remaking a competitor’s film violated copyright law. But how could courts or filmmakers determine if and when remakes took too much from the original?

Biograph’s Personal tells the story of a European nobleman who takes out a personal ad asking potential brides to meet him in front of Grant’s Tomb. When more than one willing prospect arrives at the assigned hour, the nobleman runs. The suitors pursue him until the fastest woman gets her man. The film merged comedy with a chase format, two popular genres at the time. Exhibitors clamored for copies when they read the description of Personal, and Biograph immediately sold the film to its licensed distributors. Following its usual practice, however, Biograph refused to sell the film to Edison’s distributors or to other competitors. Biograph wanted their circuit of licensees to enjoy some exclusivity.

When the Edison Company failed to obtain a copy, the head of production followed standard procedure and instructed the company’s top director, Edwin S. Porter, to remake the film. Edison was not the only company to remake Personal; Siegmund Lubin and the French company Pathé also made their own versions. But Porter’s quickie remake, which the Edison Company entitled How a French Nobleman Got a Wife Through the New York Personal Columns (fig. 2.2), reached the market before Biograph’s original version, and audiences much preferred it to Personal. Biograph’s management was infuriated, and they petitioned the New Jersey District Court for an injunction against Edison, asking that Edison surrender all prints and negatives to Biograph.⁹

In a series of affidavits, Edison’s staff admitted having seen and copied the Biograph film. In Edison’s own testimony, he suggested that they were operating in an extralegal realm. “As far as I am aware,” he told the court, “it has never been considered that a copyright upon a moving picture photograph covers the plot or theme which the exhibition of the moving picture portrays.” Porter, the director, had a more nuanced interpretation of what happened. He saw the Biograph film and immediately recognized it as a genre film, a “chase picture.” Moreover, Personal was not much more than the elaboration of a joke, something so basic that it could not be protected. “It occurred to me after seeing the exhibition of the complainant’s film Personal.” Porter stated for the record, “that I could design a set of photographs based upon the same joke, and which, to my mind, would possess greater artistic merit. My conception of the principal character representing the French Nobleman was entirely different from that of the complainant’s film, as regards costume, appearances, expression, figure, bearing, posing, posturing and action.”¹⁰ Porter had had his own films remade by Biograph and other companies for years. He had, in turn, remade many films. Remakes had been a standard of the industry; improving on another director’s film was how an international industry of filmmakers exchanged ideas and contributed to the growth of their art form. Porter had not duped any scenes—a practice now out of favor and illegal—and he felt entitled to take Biograph’s ideas as long as he expressed them differently.

FIGURE 2.2  How a French Nobelman Got a Wife Through the New York Herald Personal Columns (1904), a non-infringing remake of Edwin S. Porter’s film Personal.

As Porter suggested in his testimony, Personal might best be characterized as the visual representation of a joke. And in the court statements, Edison’s lawyers accused Biograph’s director of having taken the story from a newspaper cartoon, although no one involved in the case was able to produce the original cartoon. The film does have the quality of a live-action cartoon. It sets up a situation that leads to an unexpected result and then turns into a slapstick chase. Like any other work of art, the underlying ideas of jokes, gags, and other kinds of comic routines are part of the public domain, but copyright law may protect the specific expression of a joke. Jokes and gags, however, pose some extra difficulties when one tries to separate the original contributions of individual performers from the underlying ideas that they are building upon.¹¹ Jokes and gags are generally short; they fall into a few broad structural categories; and they often circulate widely. Frequently, jokes and gags respond to cultural trends or political events, and, as a result, jokes come in waves: different comedians often create similar jokes about similar circumstances. Part of Personal’s humor, just for example, came from the fact that it responded to a cultural phenomenon, the trend of European nobility marrying American money. Jokes and gags also tend to draw broad characters in order to remain socially relevant (a rabbi, a priest, and a blonde walk into a bar). Because of their simple structure, broad characters, and brevity, jokes and gags have always been difficult to protect legally.

Both Edison’s and Porter’s testimony indicates that an interpretation of the idea/expression dichotomy guided many early filmmakers’ creative decisions. That did not make the judge’s job any easier. It is always difficult—especially when a medium or genre is new—to separate the generic tropes of an art form from the nuances and individual contributions of a particular work. In 1868, for example, playwright and producer Augustin Daly successfully defended his copyright in the staging of a last-minute rescue from an oncoming train. How would the judge in the Daly case have known that such scenes would become a stock fixture of professional and amateur plays around the world and eventually the stuff of children’s cartoons?¹²

Chase films and comedies were already common by 1904, and filmmakers remade each other’s films regularly. There was no legal or normative consensus about acceptable and unacceptable borrowing. Judge Lanning made his decision by closely analyzing the two films; he even requested a shot-by-shot description of Personal from Biograph. In Judge Lanning’s reading, “the two photographs [as he referred to the films] possess many similar and many dissimilar features.” The plotlines were uncannily similar, but the framing and some of the backgrounds were different. Despite the similarities, Lanning concluded, Porter’s remake “is not an imitation … [he] took the plaintiff’s idea, and worked it out in a different way.”¹³ Moreover, the two films had significantly different titles, so exhibitors and audiences were unlikely to mistake one for the other from the advertisements. An appeals court agreed with Lanning, and as a result remakes remained a common practice of production companies during the early years of narrative film development.¹⁴

The high judicial tolerance for remakes fostered an international culture of creative exchange among filmmakers. This open creative environment, as Jay Leyda and others have shown, allowed the nascent art of narrative film to develop extremely rapidly. In one example, suggested by Leyda and elaborated by Tom Gunning and Charles Musser, D. W. Griffith’s great masterpiece of crosscutting, The Lonely Villa (1909), turns out to have been the result of an international dialogue among writers, dramatists, and filmmakers. Pathé Frères made a film, A Narrow Escape (1908), inspired by a French Guignol play, Au Telephone, about a man who receives a phone call and listens to his family being attacked by robbers. Six months later, Edwin S. Porter made a film, Heard Over the Phone (1908), based either on the English version of Au Telephone or on the Pathé film. The narrative, now too widely circulated to pinpoint the exact chain of influence, was remade and altered by both Russian filmmaker Yakov Protazanov and by Griffith, whose version remains a touchstone of film history.¹⁵

Biograph v. Edison sanctioned an environment of creative exchange in which plots and themes could be repeated, and this environment helped to solidify early film genres. More than twenty years after Biograph v. Edison, Buster Keaton remade Personal—or perhaps he remade Porter’s remake of Personal—as a feature-length comedy, The Seven Chances (1925). Some of the simple ideas in Biograph’s film became the building blocks of film comedy; they were ideas that no one could own.

“LEGALLY UNIQUE”: CHAPLIN VERSUS APLIN

Vaudeville and early film comedians accepted the liberal legal standards of ownership. In the mid-1910s, however, the loose conglomeration of small film companies began to merge into vertically and horizontally integrated film studios (i.e., Hollywood), with more rationalized models of production, distribution, exhibition, and marketing. The star system was one such form of rationalized marketing, and when some of the vaudeville comedians emerged as slapstick film stars in the 1910s, they began to push for much greater protection of their images and their material. Several of the new stars turned to copyright law, and they fought to redefine the idea/expression dichotomy. The case that transformed comic authorship for the age of mass media and finally broke with the imitative cultures of vaudeville and the early film industry involved Charlie Chaplin.

Chaplin had been an unexceptional member of the British music hall and vaudeville troupe Karno’s Speechless Comedians before Mack Sennett invited him to perform in a film in 1911. After that, Chaplin’s star rose quickly in Hollywood, and only six years later he enjoyed an almost unparalleled degree of creative autonomy, having established his own studio where he wrote, produced, directed, and starred in all of his films. After cofounding United Artists in 1919, the multitalented Chaplin had a hand in distributing his films as well and even began scoring them after the adoption of sound. In a collaborative medium, Chaplin enjoyed a degree of individual authorship that only a few other filmmakers have ever achieved.

Chaplin helped to redefine the idea of the filmmaker, giving rise to a mythic conception of the director as lone artist. According to one story, he was known to go off on a short fishing trip in the middle of shooting a film just to look for inspiration in the stillness of a lake or stream. Art and film theorist Rudolf Arnheim helped to propagate the Chaplin-as-solitary-genius myth, describing him as “a man who, in the middle of the Hollywood film industry, where every day in the studio costs thousands and art is produced with a stopwatch, sometimes disappears suddenly and for days paces in solitude with his plans.”¹⁶ Indeed, it became a rite of passage for every modernist cultural theorist in the 1920s and 1930s to write a profile of Chaplin as the exception within the commercial sphere of mass culture, as the artist who could work within the capitalist machine of mass production, at the pinnacle of the system, yet remain apart from it. The Frankfurt School theorists, in particular, seemed determined not to break ranks in their unified defense of Chaplin as the last vestige of a Romantic authenticity. Walter Benjamin, building on an essay by Surrealist writer Philippe Soupault, called Chaplin the “poet of his films.”¹⁷ Siegfried Kracauer, in his own obligatory Chaplin portrait, performed great contortions to argue that money and success had not changed Chaplin. “Rather than letting himself be changed by money, like the majority does,” Kracauer wrote, “he changes it; money loses its commodity character the moment it encounters Chaplin, becoming instead the homage which is his due.”¹⁸ Even the Frankfurt School’s severest critic of Hollywood, Theodor Adorno, who elsewhere described laughter as “a disease” of “the false society,” made Chaplin an exception by celebrating the actor’s imitative genius.¹⁹ As many admirers claimed, Chaplin was simply able to become the characters he mimicked. Only the American cultural critic Gilbert Seldes contested Chaplin’s singularity by putting him “wholly in the tradition of the great clowns” and tracing the origins of his style to his film apprenticeship in Mack Sennett’s Keystone studio. The “Keystone touch,” Seldes wrote, “remains in all [Chaplin’s] work.”²⁰

Was Chaplin a Romantic poet of the screen whose inspiration came only from his own genius? Or was he more like Homer, fixing on film a comic performance style that had been developed over decades or even centuries by court jesters, traveling comics, and vaudeville performers? The question of Chaplin’s originality grew increasingly important as his films gave rise to thousands of professional and amateur Chaplin imitators. Were the imitators taking and remixing the same ideas that Chaplin had himself lifted from other comics, or were they looting his individual expression?

In July 1915 alone, more than thirty New York City movie theaters sponsored Chaplin look-alike competitions (fig. 2.3).²¹ Future professional comedian Bob Hope won one such competition, and Walt Disney, who would draw heavily on Chaplin to create Mickey Mouse, entered dozens of Chaplin impersonation contests, eventually being ranked the second best in Kansas City.²² Professional imitators were also plentiful. The well-known Chaplin imitator Billy West (fig. 2.4) made over fifty films as a Chaplin-like character. Actress Minerva Courtney made three films cross-dressing as Chaplin, and former Chaplin understudy Stan Laurel developed a Chaplin stage act years before his success as part of the film duo Laurel and Hardy. The Russian clown Karandash ultimately had to give up his Chaplin routine because he was overwhelmed by competition from other Chaplin imitators.²³ There were both authorized and unauthorized Chaplin cartoons; the most prominent, Charlie, was animated by future Felix the Cat creator Otto Messmer and had an unofficial nod of approval from Chaplin, who sent ideas to Messmer (fig. 2.5). Even superstar silent comedian Harold Lloyd began as a Chaplin imitator, making fifty-seven films as a Chaplin-like character named Lonesome Luke. Some companies took Chaplin’s image more directly than did the imitators, selling dupes of Chaplin films or taking excerpts from his films and mixing them with stock footage, creating “mashups” (to use an anachronistic term). Other Chaplin mashups mixed footage from Chaplin films with footage of imitators.²⁴

FIGURE 2.3  A Chaplin lookalike contest promoting The Idle Class (November 5, 1922). (Photo by J. W. Sandison; Whatcom Museum, Bellingham, WA)

FIGURE 2.4  An advertisement for Chaplin imitator Billy West.

FIGURE 2.5  Felix the Cat in Hollywood (1923). A parody of Chaplin’s pursuit of impersonators.

Modernist and avant-garde writers, artists, and performers were also obsessed with Chaplin. The Dadaists, the Surrealists, Fernand Léger, T. S. Eliot, James Joyce, Gertrude Stein, and countless others copied Chaplin and his Tramp character in a variety of ways. Critics have made strong cases that Joyce’s Leopold Bloom and several Wyndham Lewis characters were, at least in part, explicitly modeled on Chaplin.²⁵ Eastern European poets used Chaplin and the Tramp character as figures in their poetry during the 1920s and 1930s. The tradition included poems by German-French writer Yvan Goll and by Russians Osip Mandelstam and Anna Akhmatova, the latter imagining herself sitting on a bench in conversation with Chaplin and Kafka. Cubist painter Fernand Léger, who had a deep obsession with Chaplin, illustrated an edition of Goll’s Chaplinade. Léger went on to animate a dancing Charlot—the French diminutive for Chaplin—in his 1924 avant-garde film Ballet mécanique, which premiered in New York on a program with Chaplin’s The Pilgrim (1923).²⁶

FIGURE 2.6  Chaplin in The Champion (1915), which another company mashed up with undersea footage.

Neither Chaplin nor his attorney, the legendary copyright and entertainment lawyer Nathan Burkan, was happy about the massive proliferation of imitators and derivative works. Their first attempt to contain the spread of Chaplin’s image was to go after a company that mixed Chaplin’s film The Champion (1915) (fig. 2.6) with underwater footage to create a new film. (It is difficult to imagine how boxing footage might have been mixed with undersea shots, but that is what the accounts describe: the film isn’t extant.) Chaplin had made The Champion for the Essanay Film Manufacturing Company, and he did not own the copyright. When Essanay failed to take action, Burkan sued the company responsible for the new film, claiming that the filmmakers had unfairly adopted Chaplin’s Little Tramp character.

It was a novel argument at the time, but one would expect no less of Burkan, a pioneering lawyer and lobbyist who had previously led the campaign for compulsory licensing to be included in the 1909 revision of the Copyright Act. The judge in the first Chaplin case eventually rejected the argument that one performer could own a character independent of a particular work, but he did force the Crystal Palace Theatre in New York to stop misleading the public by advertising the film as if it were a real Chaplin film.²⁷ It is not clear, however, that the decision accurately assessed the situation or that it had the intended effect. According to Terry Ramsaye, writing in 1926, the Crystal Palace’s attendance dropped by half when it attempted to pass off a Chaplin imitation as an original, which suggests that filmgoers were not as susceptible to misleading advertising as the judge thought. And if audiences knew the difference between Chaplin and his imitators, devoted fans were nonetheless willing to watch imitators’ work in between the star’s sporadic releases. Despite Chaplin and Burkan’s partial victory, Chaplin biographer Joyce Milton notes, the decision led to even more imitators, who could now legally borrow the Tramp character as long as they did not mislead the public through advertising.²⁸

But Chaplin and Burkan were not deterred. In a lawsuit against Mexican actor Charles Amador, who made several films under the name “Charlie Aplin,” they reprised the argument that Chaplin owned his Little Tramp character. Burkan spent three years trying to settle with Amador before the case went to trial. But Amador and his lawyers were stubborn, maintaining that they had a right to use the comic elements that Chaplin used, too. Hollywood insiders and movie fans paid close attention to the case, which dragged on for six years, garnering dozens of op-ed pieces and occasionally making front page news.²⁹

When the trial court heard testimony in the case in 1925, Amador’s lawyers bravely let the charismatic celebrity take the stand and discuss his creative method. In a later copyright case involving the 1918 film Shoulder Arms, the opposition’s attorney would try to stop Chaplin from swaying the court with his charm and wit.³⁰ But in the Amador case, Chaplin’s testimony may not have helped him. Chaplin adopted an aloof and aristocratic tone. “My inspiration,” he explained to the court,

was from the whole pageantry of life. I got my walk from an old London cab driver, the one-foot glide that I use was an inspiration of the moment. A part of the character was inspired by Fred Kitchen, an old fellow-trouper of mine in vaudeville. He had flat feet.” When Amador’s lawyer, Ben Goldman, cross-examined Chaplin about his costume, Chaplin was dismissive. “Where did you get that hat?” Goldman asked.

“Oh, I don’t know. I just conceived the idea of using it,” replied Chaplin.

“Did you ever see anyone wear pants such as you wear?” Goldman continued.

“Sure,” replied Chaplin, “the whole world wears pants.”³¹

Chaplin’s answers had both a dismissive and a mystical quality. Ideas just came to him, or he extracted them from his observations of life.

Goldman and Amador, however, had another theory. Goldman called a vaudeville reviewer, Joseph Pazen, to the stand, and asked him if Chaplin imitated any of the comics who had preceded him. Pazen named dozens of performers who had used similar elements in their routines. George Beban, for instance, had a similar moustache; Chris Lane had a similar hat; Harry Morris had baggy pants; Billy Watson used the same combination of baggy pants, big shoes, and a glide walk. A member of the Les Petries Brothers used the same makeup and a similar costume in his tramp character. This actor had even performed as a tramp in a film for Chaplin’s old employer, Mutual. As later critics have noted, Chaplin’s costume also invoked circus clowns and real tramps, who rode railway cars and took odd jobs.³²

FIGURE 2.7  Charles Amador (aka Chalie Aplin) outside the courtroom where he defended himself against claims of using Chaplin’s tramp character. (Courtesy Getty Images)

When Amador took the stand, he was as unsympathetic as his opponent, shiftily claiming that his contract engaged him to imitate the Chaplin look-alike Billy West, not Chaplin (fig. 2.7). Amador, however, did have one powerful argument: if Chaplin won, the precedent would create a new monopoly on performance. Amador’s team made the case that Chaplin was only the most famous in a long tradition of comic tramps, and he could not be given a proprietary right in staples of the trade.³³

When Burkan attempted to respond to the specifics of Amador’s criticisms, he fell into rhetorical quicksand, fumbling in the attempt to name Chaplin’s original inventions. Reporters following the case had the same problem as they combed the testimony for some element that Chaplin had contributed to the art of comedy. “Chaplin Pants Real Issue,” read one headline.³⁴ But Burkan stuck to his larger strategy by insisting that Chaplin was a unique genius, endowed with an ineffable quality that people could see for themselves. Chaplin’s genius, Burkan maintained, could not be described or broken down into distinct elements. In one show of courtroom theatrics, he claimed that a clip from a Chaplin film would have to be placed in the court’s decision, because words could not describe him.³⁵ The Romantic vision of the solitary artist is always compelling, but it was a particularly powerful part of the Chaplin myth. In addition to the German theorists mentioned earlier, writers as varied as Winston Churchill, Graham Greene, Edmund Wilson, and Dwight Macdonald had perpetuated the myth of Chaplin as an individual genius—perhaps the sole individual genius—working in the collaborative and commercial Hollywood system.

But the prevailing argument would end up being a humbler, more pragmatic one. In addition to calling for the protection of Chaplin’s unique genius, Burkan argued that the Charlie Aplin name and appearance confused potential filmgoers because they resembled Chaplin’s own name and iconic image too closely. This argument carried more weight with Judge John Hudner, who enjoined the distribution of Amador’s film The Race Track and prohibited Amador from further misleading the public by advertising his films as if Chaplin had made them. By focusing not on the proprietary right in character but instead on the confusion that imitators unleashed in the market, Judge Hudner’s decision itself sowed confusion: the press and the film industry were not sure who had won this round of the case. The Los Angeles Times declared “Chaplin Legally Unique.” The New York Times agreed at first, running the headline “Chaplin Wins Suit to Protect Make-Up.” But after revisiting Judge Hudner’s final ruling with its limited emphasis on Amador’s deceptive intent and advertising, the paper reevaluated its conclusion and ran a new headline, “Chaplin Loses Fight on Exclusive Make-Up.” Chaplin had successfully prevented Amador from using his image, but he had failed to protect his character from imitation.³⁶

Amador’s lawyer, Goldman, claimed victory: “we can continue to produce pictures featuring Amador in the characterization as long as we specifically state in the titles that Amador is playing the character … [Chaplin] has no patent or copyright on the character.”³⁷ The decision raised more questions about originality and ownership than it answered. While Chaplin waited for an appeals court to rule on the Amador case, he was himself sued for copyright infringement—twice. The legal skirmish over the exchange of comic ideas had begun to heat up.

When the appeals court heard the case, it refined Judge Hudner’s decision, giving more weight to the idea that Chaplin owned the Tramp character. As Judge H. L. Preston stated plainly in his decision, “the record reveals that Charles Chaplin … originated and perfected a particular type of character on the motion picture screen.” Elements of Chaplin’s character may have been in the public domain, free to be used by other comics. But Chaplin owned this particular expression of the Tramp character; he was the first to use it on screen; and he could prevent others from confusing the public by adopting his look and actions.³⁸

The appeals court in Chaplin v. Amador did not entirely adopt Burkan and Chaplin’s model of Romantic authorship, but Chaplin had succeeded in forging a new and greatly expanded legal definition of comic authorship and, indeed, of authorship and performance in general. The stated goal of both the trial and the appellate decisions was to protect the public from confusion, and both decisions used copyright to control unfair competition. In his decision in the Chaplin appeal, for example, Judge Preston made it clear that Chaplin had the right to protect his character from “the fraudulent purpose and conduct of [Amador]” and “against those who would injure him by fraudulent means; that is by counterfeiting his role.”³⁹ There is no indication, however, that the existence of counterfeit Chaplins injured the original, at least not by deceiving his audience into misspending their ticket money. In a statement that Chaplin submitted ostensibly in support of his case, Lee Ochs, the former president of the Motion Picture Exhibitors League of the State of New York, told the court that Amador’s film “is very poor and failed to embody the elements of comedy and pathos that so aptly distinguish the Chaplin pictures. Nevertheless, to the casual observer, it might readily be mistaken for a Chaplin picture.” Yet as we saw in the wake of the trial court decision, audiences were not easily deceived. On the contrary, vaudeville had taught theater owners and audiences of popular amusement to expect repetition and imitation. The box-office dips when imitators’ films were shown at the Crystal Palace demonstrate that audiences were well aware of the differences between Chaplin and pseudo-Chaplin films. The limits that Chaplin v. Amador placed on imitation did not serve to clarify the options available to audience members; it only limited their choices.⁴⁰

By protecting Chaplin the great artist from cooptation by average screen comics, both the 1925 and the 1928 decisions made unprecedented levels of protection the reward for reputation and standing. Although the courts did not announce this innovation explicitly in their decisions, it became clear in the cases that adopted Chaplin v. Amador as precedent. Lawyers began to invoke the case, often successfully, to protect performers from defamation, trademark infringement, unfair competition, and lower-echelon imitators who tarnished their clients’ reputations. The Chaplin precedent emerged as a tool for policing performers’ reputations rather than for protecting their originality.⁴¹

Chaplin v. Amador also inaugurated the development of character protection in copyright law, but Chaplin’s Tramp character didn’t resemble the kinds of characters that copyright has since come to protect. As Judge Learned Hand would write in 1930, character copyright protects the specific traits of “sufficiently developed” characters. Chaplin, however, used a stock vaudeville figure, the tramp, and made it his own. Although the individual elements of the Chaplin’s Tramp remained part of the public domain, Chaplin’s global celebrity so identified him with the figure of the Tramp that it became impossible for other performers to play a tramp without evoking Chaplin. As a result, the new precedent of character protection gave a significant advantage to pioneering media stars who drew, as Chaplin did, on centuries of stage tradition to create their characters.⁴²

Chaplin v. Amador signaled a cultural shift from vaudeville to Hollywood, from live to recorded performance, and from local celebrity to global stardom. Many other vaudeville performers, especially comics, were confounded by the new limits on imitation. Former vaudeville stars the Marx Brothers, for example, were mired in lawsuits over comic authorship after they made the transition to film.⁴³ Because film fixed performances permanently on celluloid and circulated exact copies rapidly and globally, the nature of imitation had undoubtedly changed. The vaudeville model of peer policing and tolerance for some degree of imitation no longer provided enough control and protection to satisfy performers, and the courts responded with new tools that constricted the flow of ideas between artists. The casualties of this change were future Bob Hopes, Stan Laurels, and Harold Lloyds, who were no longer free to learn their trade through emulation. The vaudeville circuit could house droves of clowns and tramps, but on film there was room for only one.

HAROLD LLOYD: UNINTENTIONALLY GUILTY?

While the appeals court considered the Chaplin case, former Chaplin imitator Harold Lloyd became embroiled in a copyright dispute of his own. It was the first of several important copyright cases that Lloyd would fight during his career, cases that were pivotal in the larger legal battle being fought over Hollywood authorship and genres.

Like Chaplin’s copyright battles, Harold Lloyd’s cases were about redefining the limits of originality, imitation, and comedy in the age of mass media. Lloyd, however, portrayed himself as a different kind of artist than Chaplin. Where Chaplin thought of himself as a Romantic genius, Lloyd described his process as that of a craftsman. Lloyd freely admitted that his filmmaking process involved collaboration from beginning to end. Lloyd owned his own studio, like Chaplin, but, unlike Chaplin, Lloyd happily acknowledged the teams of writers, gagmen, directors, editors, and many others who all labored in Lloyd’s shop. Lloyd did not find inspiration in a pond, like Chaplin. His films were hammered out along the way. Writers made outlines, but the stories were collectively shaped during filming. The gagmen scripted some gags ahead of time, but many more were discovered while experimenting on the set. Lloyd’s films were often shot in the order of the story’s chronology (a very expensive indulgence), so that the team could develop the character and plot during production. Even after a film was “in the can,” the entire project could be remade in the editing room, where intertitles and dialogue were added and retakes were ordered to ensure story continuity. This collaborative method, in which a team of artists sculpted the film as it progressed, offered a new challenge for the courts.⁴⁴

Lloyd v. Witwer involved Lloyd’s most successful film, The Freshman (1925), the second-highest-grossing film of the silent era after Chaplin’s The Gold Rush (also 1925). In the early1920s, it had not yet become commonplace for every successful film to become the subject of a million-dollar plagiarism lawsuit. But the phenomenon would soon take off. In the next two decades, hits from Cecil B. DeMille’s King of Kings (1927) to Josef von Sternberg’s Marlene Deitrich vehicle Blonde Venus (1932) to the Marx Brothers’ A Day at the Races (1937) to Frank Capra’s Mr. Smith Goes to Washington (1939) were the subject of lawsuits by writers who claimed the studios had stolen their ideas. The phenomenon was novel enough in the 1930s and 1940s that the New York Times reported on dozens of cases in which people submitted story ideas or scripts to studios then sued after the same studio produced a similar film.

The vast majority of these cases were quickly dismissed by courts or never even made it to trial. Not only are ideas unable to be protected by copyright law, but since the days of Edison, studios have taken steps to protect themselves from such suits through contracts. When plagiarism involves the taking of expression in addition to ideas, however, copyright law can become implicated. In Lloyd v. Witwer both sides were willing to pursue a court solution over many years, and, as a result, the case set the terms for future film plagiarism suits.

Lloyd had been considering making a film about football and college life for almost a decade when he asked his writing team to begin working on an outline for the project that would become The Freshman. The writing staff was at work on the story when Lloyd’s uncle arranged for him to meet with H. C. Witwer, a popular writer of the time who had sold many stories to film companies. Lloyd mentioned his current project to Witwer over dinner, and Witwer suggested that Lloyd look at a magazine story he had published called “The Emancipation of Rodney.” The magazine piece tells the story of an academic overachiever, Rodney, who only wants to be a football star. Rodney eventually works hard, achieves success on the field, and gets the girl.⁴⁵

Lloyd never read the story, and when the plot was described to the writing staff they rejected it as not suitable for a Lloyd film. The writers returned to work and completed their own outline. At around the same time, according to one member of the Lloyd production team, playwright Owen David threatened to sue Lloyd over his earlier film Safety Last (1923), which David claimed copied his Broadway hit, The Nervous Wreck (1923). The Lloyd team decided to be cautious with their new project, and before filming they described the outline to Witwer. According to several accounts, Witwer said that the Lloyd team’s outline did not resemble his story, and Lloyd was free to take elements from his story if he wished. Apparently with Witwer’s blessing, Lloyd and his team set off to shoot their “original” film.⁴⁶

When the Lloyd Company finished The Freshman, it told a story similar to Witwer’s, about a boy self-nicknamed Speedy who dreams of being popular in college. Although ridiculed at first, Speedy eventually achieves success on the football field and gets the girl in the end. The film earned $4 million during its initial run, and Witwer had second thoughts about his generosity. He claimed that the story had been changed since the version that had been presented to him, and the final version clearly borrowed too much from his story. Witwer died while his lawyers attempted to settle the case, and his widow took his place as plaintiff. The case finally went to trial in 1930, four years after the initial complaint had been filed and without Witwer to tell his side of the story.

For The Freshman to have infringed on the motion picture rights of “The Emancipation of Rodney,” the Witwer lawyers needed to demonstrate two things: they first needed to prove that the creators of The Freshman had access to the original work, and, second, they needed to prove that the film and the Witwer story were “substantially similar.” Not all material in the original story, it is important to note, could be protected by copyright. The generic and universal elements belonged to the public domain. There have been countless stories of unathletic college students who are thrown in the big game at the last minute and save the day. But determining where the public domain elements ended and the original contributions began was neither clear-cut nor a problem with great historical precedent, at least as it concerned the film industry. Courts had, however, developed a shorthand method for deciding if one work was substantially similar to another. A judge or jury was to assume the position of a common reader, listener, or viewer and deduce whether a lay audience member would be likely to recognize the second work as an infringement—a plagiarism—of the former.⁴⁷

District Court Judge George Cosgrave compared the story and film as he imagined an average audience member might, and he sided unequivocally with Witwer. “From a comparison of the two,” he wrote, “I am convinced that plaintiff’s charge of plagiarism is well founded.” There were, of course, a few differences, but Judge Cosgrave thought them insubstantial. “The humor of Harold Lloyd,” Cosgrave noted, “does not appear in the magazine story, and much is added in The Freshman that furnishes a vehicle for this element.” So, all that Lloyd had added was the comedy! This seems to be an important addition, one that clearly transformed the original story. And, as we will see, this small point of comparison that Cosgrave brushed aside would seem relevant to judges who heard the case on appeal.⁴⁸

Although it seemed clear to Cosgrave that The Freshman was substantially similar to “The Emancipation of Rodney,” the question of access and authorship proved more complicated. Cosgrave could only imagine Lloyd to be the sole author of the film, despite all of the testimony that The Freshman had been a collaborative effort. But Lloyd claimed never to have read the story. Witwer may have given Lloyd a copy of the magazine, but if so Lloyd had misplaced it and never read it. Lloyd had never heard the story description either, although his writers had. Witwer did travel to the Lloyd studio at one point and attempt to tell Lloyd the story, but on that occasion Witwer turned out to be too drunk to assemble coherent sentences. Lloyd was also absent the day that his writers described their plot outline to Witwer—the day that Witwer attested to the great differences in the two stories.⁴⁹

Did Lloyd really have access to the Witwer story? Cosgrave could not find any direct proof. He agreed, “Lloyd personally had no knowledge of the actual plagiarism.” But, nevertheless, there were so many connections that Cosgrave felt sure an exchange of more than ideas had occurred. Because Cosgrave was not willing to acknowledge that The Freshman was a collaborative work with many authors, he had to attribute the copying—if it did occur—to Lloyd. As the Los Angeles Times reported, Lloyd had been found “unintentionally guilty of plagiarism.”⁵⁰

The claim of unintentional plagiarism was not invented for the Lloyd case. Courts had gradually been considering a new doctrine of unintentional plagiarism for a decade and a half before the Lloyd case, but judges and juries had almost unanimously rejected it. Unintentional plagiarism was an idea that seemed particularly relevant to film and popular literature. Films were collaborative endeavors, and with so many authors in the mix it was not easy to tell how ideas and their particular means of expression entered into the final product. Moreover, popular literature, plays, and films circulated widely, and even people who had never read or seen the original book or play might still be familiar with the specifics of its story. New York Judge Emile Lacombe—the same judge who had decided in 1892 that Loie Fuller’s Serpentine Dance could not be protected by copyright because it did not contain drama—first applied the test of unintentional plagiarism. In two cases, one involving a David Belasco Broadway play and the other a Biograph film, Lacombe evaluated works that clearly resembled works of literature. In both cases, it was difficult to prove access and direct copying, and in both cases Lacombe considered the possibility of unintentional plagiarism. In both cases, however, he found that the similarities ran much deeper than the books, plays, and films in question. The stories were all variations on timeless plots and themes, things that copyright did not protect. It was inevitable that the emerging medium of film would take up well-worn plots and themes and give them new visual expression. Even if the ideas had circulated widely in popular literature, the law did not entitle authors to a monopoly on their plots, only on the much narrower original details they had added to the plots. In the majority of subsequent cases in which filmmakers had been accused of unintentional plagiarism, judges looked for deeper similarities of structure and theme.⁵¹

But the Lacombe cases did not stop authors from assuming that filmmakers were taking their stories directly rather than simply drawing on the same basic plots and themes. In a series of cases, filmmakers defended their right to make westerns, Christ stories, comedies about ethnic intermarriage, and other common subjects. In almost every case, judges rejected the notion of unintentional plagiarism in order to stake out filmmakers’ right to retell old stories and use common themes. And in almost every case, judges affirmed that average viewers would not be confused by the similarities between the films and the books or plays they were accused of copying. Audience members, the courts found consistently, are wise enough to see that the similarities between popular works often stem from the fact that they are constructed of the same cultural building blocks.⁵²

The district court’s decision in Lloyd v. Witwer, however, threatened to alter the development of the film industry and formalize a new test for plagiarism—unintentional plagiarism—which could have opened up a torrent of litigation and sent the film industry into a panic of overprotection. How could studios know if their products were the result of unintentional plagiarism?

Commenting on the Lloyd case, popular Los Angeles Times columnist Harry Carr warned of the dangers of plagiarism suits devolving into witch hunts, and he defended the process of borrowing that underlies all art and the Hollywood genre system specifically. “It is absolutely impossible to follow the life story of an idea,” Carr wrote.

Generally speaking all ideas are borrowed. All murder mystery stories are built upon the models of Edgar Allen Poe’s “Gold Bug” or “The Murders in the Rue Morgue.” There never was but one western. Told endlessly.⁵³

When an appeals court reviewed Lloyd v. Witwer three years later, two of three judges on the panel felt the same way as Carr. They analyzed Lloyd’s artistic method and the idea/expression dichotomy in much greater detail than the district court had. The majority opinion and dissent ran close to 200 pages combined, and the document contains extremely detailed, close analyses of the story and the film. The opinion completely reversed the earlier decision, developing a very different account of film authorship and denying the charge of plagiarism, either unintentional or deliberate.

Judge Curtis Wilbur, who wrote the majority opinion, questioned the practice of judges speaking for average viewers. “After having read the critical analysis of the story and the play contained in the briefs and argument,” he wrote, “it is not easy to place oneself in the attitude of a fairly indifferent and disinterested spectator of the moving picture play.” Judge Wilbur went on to analyze the two works with the close eye of a critic rather than lay viewer, and he also interrogated the methodology courts had adopted for dealing with plagiarism in film and literature.⁵⁴

Wilbur reasoned that Lloyd’s filmmaking process made it unlikely that The Freshman could have copied any other work. Lloyd’s films grew organically from start to finish; the story was worked out at each stage of production and revised continuously. Gags, in particular, were not planned, but spontaneous, technical, and site-specific. Moreover, the final film bore little resemblance to the original outline composed by Lloyd’s writers. Wilbur located the lion’s share of authorship in the editing stage; for The Freshman, Wilbur noted, the Lloyd Company had shot over 100,000 feet of film and used only 7,000 feet in the final product. Some of the ideas in the shooting script may have made their way into the final film, but such an improvisational style surely created new forms of expressing those ideas. Finally, Judge Wilbur turned to the money invested in the production for proof. Witwer had sold the motion picture rights of his other stories for approximately $1,000. Lloyd invested $330,000 in The Freshman, including $40,000 paid to his writers. “Men must be judged as reasonable beings in appraising their conduct,” Wilbur stated. And he concluded that no reasonable filmmaker would risk millions to save $1,000.⁵⁵

In fact, the major studios had long made a practice of carefully documenting sources for their films by buying rights to books, newspaper stories, or other source material for just about every film made by Hollywood. By the mid-1920s more than half of Hollywood’s output was ostensible adaptations of works in other media. Lloyd, too, thought he had covered himself by asking Witwer for his approval, but the status of the verbal agreement between writers and filmmakers would not become binding until the 1950s (in a case discussed below).

If any similarities between the magazine story and the final film existed after the Lloyd Company’s arduous process of film production, then the connections would have to be subconscious, Judge Wilbur reasoned. Yet he rejected the idea of subconscious plagiarism—in this case, at least. “There are inherent difficulties,” he wrote, “in the application of this proposition of subconscious memory to the facts in the case at bar.” A much more compelling explanation for the similarities between “The Emancipation of Rodney” and The Freshman is that both stories shared generic plot structures, which are freely available and part of the public domain. “There is nothing novel,” Wilbur summarized the overarching theme of both stories, “in the idea of achieving success or popularity by being true to oneself and avoiding temptation to imitate others who have achieved popularity.” The plot that the two works share is an old one: the story of the college loser who attains success on the sports field. Witwer and the Lloyd Company had given the same basic idea very different expression. And through his drawn-out and expensive defense, Lloyd helped to protect the film industry from the barrage of accusations of plagiarism that would continue to come from playwrights and novelists.⁵⁶

FIGURE 2.8  Harold Lloyd in The Freshman (1925), which courts briefly held to be the product of unintentional plagiarism.

FIGURE 2.9  Adam Sandler in The Waterboy (1998), a film that Harold Lloyd’s daughter unsuccessfully sued for infringing her father’s silent classic.

Lloyd v. Witwer did not stop writers from accusing filmmakers of unintentionally taking their popular stories and plays. But the case proved to be a major legal turning point for courts and for Hollywood. It confirmed the position that had been developing since Biograph v. Edison in 1904: that film plot ideas would be borrowed from literature, vaudeville, and everywhere else and reused again and again by filmmakers. Lloyd v. Witwer gave Hollywood studios both the confidence and the latitude to pursue the cinematic exploration of common narratives and to engage with the stories that make up popular culture. When Harold Lloy’s granddaughter, Suzanne Lloyd, sued the Walt Disney Company for plagiarizing The Freshman in the Adam Sandler vehicle The Waterboy (1998), almost seventy years after the Witwer case, courts could throw the lawsuit out without writing an opinion. The story of the college loser who becomes a football hero was a time-tested subgenre (figs. 2.8 and 2.9). No one owned the idea, and no one should have known that better than Harold Lloyd’s daughter.⁵⁷

JAMES M. CAIN VERSUS JAMES M. CAIN: SCÈNES À FAIR AND THE ORGANIZATION OF WRITERS

Lloyd v. Witwer and the many film plagiarism cases that preceded it pointed to the similar structure that films shared with works of literature, plays, and other films. But judges were still left without any real tools for separating unprotectable genre conventions and themes from the original material in each new film. A decade after the Harold Lloyd trial, another case, this one involving the hard-boiled detective novelist James M. Cain and Universal Studios, introduced one of the most powerful tools that courts have developed for separating common genre elements (ideas) from original contributions (expression): the scènes à fair doctrine.⁵⁸

The case between Cain and Universal began in 1938. In the mid-1930s, James M. Cain wrote several novels that would eventually become Hollywood films, including The Postman Always Rings Twice (adapted to film six times to date) and Serenade. But he was having trouble establishing himself as a Hollywood writer. In 1938, however, Cain had some mild success in the film business. First, independent producer Walter Wanger hired him to work on the dialogue for a few scripts, and then Cain sold an unpublished story, titled “Modern Cinderella,” to Universal to be adapted to film.

FIGURE 2.10  The “church scene” from When Tomorrow Comes (1939). Infringing or just typical?

Cain’s story sat in a drawer for months, which is not unusual in Hollywood. But when another Universal film, Love Affair (1939), found box office success by pairing Charles Boyer and Irene Dunne in a sweeping romance, the studio seized on Cain’s story as a chance to quickly reprise its hit formula. Universal’s director John Stahl turned the Cain story into another Boyer-Dunne vehicle called When Tomorrow Comes (1939) (fig. 2.10).

Film critics immediately recognized the studio’s attempt to repeat a successful formula. One reviewer wrote that, “It is the kind of tale made possible, but not excused, by Charles Boyer and Irene Dunne’s attempt to repeat, for the matinee trade, the type of star-crossed romance more happily expressed a few months back in Love Affair.” The same reviewer went on to call Hollywood studios “mental laggard[s]” for consistently repeating any formula that seems to work at the box office. New York Times critic Bosley Crowther was less kind. He noted in his roundup of the year’s worst films that When Tomorrow Comes attempted “to recapture the beautiful heartbreak of Love Affair, but only succeeded in being silly. Everyone felt most embarrassed for [Boyer and Dunne].” Indeed, When Tomorrow Comes gained the highest honor for an overblown Hollywood weepy when the great auteur of melodramatic camp, Douglas Sirk, remade the film in 1957, the first of two remakes of When Tomorrow Comes.⁵⁹

While the critics recognized When Tomorrow Comes as a new incarnation of the Love Affair formula, Cain thought a different work had been plagiarized. He had the audacity to claim that one scene in this adaptation of his own story infringed a scene in his novel Serenade, which Universal had not paid for the right to adapt to the screen. Cain’s attack on his own work grew out of his and other writers’ frustration with Hollywood’s dismissive treatment of writers, who were paid for their labor but generally cut out of both the creative process and financial rewards of the film industry.

The issue in this case was not access. Many writers, both credited and uncredited, had worked on the film, and at least one of them admitted to having read Serenade when it first appeared. The question that remained was whether the so-called “church scene” in When Tomorrow Comes copied the original expression in the church scene in the novel Serenade. There was of course a paradox that would have complicated the case for an average viewer: the screenwriters of When Tomorrow Comes were creating a Cain-like script based on an original Cain story. The creative genius behind the plaintiff’s novel and the defendant’s film were one and the same. But Judge Leon Yankwich ignored this paradox, and he treated the novel and film as if they were by different James M. Cains.

Judge Yankwich was an influential legal scholar, and he published several widely cited articles on intellectual property law. He knew the difficulties other courts had wrestled with when deciding film adaptation cases. In the Cain case, Yankwich compared the scene in the book and film, which both entailed lovers taking refuge in a church while a storm brewed around them. Yankwich found the two scenes so dissimilar that he could not understand “how anyone could persuade himself that the one was borrowed from the other.” Why did he have this impression? He searched for both an explanation and a broader tool that other courts could use. The details shared by the two scenes—playing a piano, praying, hunger—Yankwich reasoned, were all inevitable outcomes of putting two characters in the same situation. Once two lovers sought refuge from the inclement weather in a church, they were likely to engage in some of the same activities and experience some of the same emotions. Yankwich borrowed a dramaturgical term to explain the phenomenon: scènes à fair.⁶⁰

Judge Yankwich cited the long list of cases that had considered film plots that resembled books, stories, or other films. Courts had consistently concluded that the shared plots and even shared details were not original to any story; they were so old that no one could own them. Yet no decision had yet articulated how judges and juries could separate the age-old elements and inescapable formulas from the original contributions. Drawing on the scènes à fair concept allowed Yankwich to explain the reasons for the similarities: storytelling logic dictated that some genres inevitably contain the same plots, characters, circumstances, and themes. Certain circumstances necessitate specific follow-up scenes. Some scenes demanded that characters experience specific emotions or perform specific actions. Yankwich continued to develop the scènes à fair doctrine in subsequent film cases, and eventually every federal court district adopted scènes à fair as an important test of similarity. Yankwich had helped to define the bottomless terms of genre storytelling for courts and for Hollywood filmmakers, who now had a logical tool for determining if a film took too much from another story.⁶¹

The outcome of the case, however, did not satisfy James M. Cain. Cain and many of his fellow writers continued to feel that they had been treated poorly by both Hollywood and the court system. The relationship between novelists, playwrights, and Hollywood was symbiotic. Hollywood had relied on book and play rights for source material since the Ben-Hur case made the studios liable for infringing the rights of authors. The studios’ demand for pretested stories in the form of popular books and plays to help predict films’ successes only grew larger in the decades between the Ben-Hur and Cain cases. Writers, in turn, had also come to rely on the studios’ largess for support. By 1925, motion picture rights averaged $5,000 for books and $20,000 for plays. Moreover, one third of Broadway financing came from Hollywood, and in most instances, Hollywood deals added up to more than initial book sales and theater returns. Although Hollywood money invigorated Broadway and some sectors of the publishing industry, writers felt that their contributions were undervalued, and in the 1920s and 1930s, authors began to fight for their share of the new Hollywood pot of gold. Writers objected to the standard practice of studios buying film rights outright for one lump sum. The authors lost all of their creative control, and they were unable to cash in if they wrote a hit. Throughout the 1920s and 1930s, playwrights and novelists fought to license their work under terms that would allow them to share in the profits, though very few actually had that chance. Writer-director Preston Sturges was one of the handful of screenwriters to be given a share of the gross profits when he struck such a deal for The Power and the Glory (1933).⁶²

Novelists, playwrights, and screenwriters tried to wrest some control from Hollywood under the auspices of the general writers’ union, the Authors’ League. In 1914, writers formed the Photoplay Authors’ League, which began registering script ideas and publishing screenplays in order to secure copyright protection before the works were sold to the studios. The league also sought to handle grievances without the intervention of the law. In 1926, playwrights struck a large victory when they successfully established a collective licensing agency in what was called the Minimum Basic Agreement. The agreement designated a law firm to negotiate dramatic and motion picture rights, and it even gave playwrights some creative control over casting, direction, and set design. The newly formed Screen Writers Guild (later the Writers Guild of America) took its cue from the Authors’ League and from New York playwrights. The Screen Writers Guild began to set general terms for film rights and screen credit, and allowed writers to register titles, ideas, and scripts in order to preempt the copyright registration system. The Screen Writers Guild also used its registration system and collective power to negotiate disputes between writers or between writers and producers. Like the Production Code Administration, which regulated film content in order to avoid censorship, the Screen Writers Guild regulated disputes about originality in order to avoid the uncertainties and expense of the court system. Today, the Writers Guild of America has an elaborate method for policing writers’ disputes over credit or compensation.⁶³

Despite the steps taken by writers toward collective assertion of their rights, Cain feared that writers were still not receiving their due. After losing his case against Universal, Cain continued to brood about Hollywood’s unjust treatment of writers. His frustration only grew when he witnessed the unauthorized adaptation of his novel The Postman Always Rings Twice by Italian director Luchino Visconti in 1943. Cain also wrangled with studios over the adaptation of several of his novels into a string of films noir, including Double Indemnity (1944), Mildred Pierce (1945), and The Postman Always Rings Twice (1946). As Cain told the Los Angeles Times, his “adversaries are magazine editors, book publishers, radio sponsors, movie producers, the United States Government, the Superior Court of Los Angeles and Judge Leon Yankwich.” As the list suggests, Cain mixed a personal vendetta against Yankwich with an attack on everyone he perceived to be preventing authors from receiving their proper compensation from movie production.⁶⁴

In 1946, Cain began a large-scale lobbying effort to reorganize American writers. He proposed a new organization, the American Authors’ Authority, which would have subsumed the many U.S. writers’ associations and guilds in order to control all publishing and ancillary rights, “DURING THE WHOLE LIFE OF THE COPYRIGHT!” Cain emphasized. He envisioned a central authority like the American Society of Composers, Authors, and Publishers (ASCAP) that would not only control all rights and licenses but would also be able to aggressively protect authors in court. When explaining the motivation for the plan, Cain openly reflected on his days sitting in court before Judge Yankwich and the lack of support he had from other writers. The Writers Guild enthusiastically endorsed the Cain plan, and it seemed poised to reorganize literary copyright and film rights.⁶⁵

In response to Cain’s proposal, the movie studios, publishing houses, and play producers—everyone Cain thought was out to get writers—founded their own organization, the American Writers Association. The group effectively labeled the Cain plan “dictatorial and monopolistic and the brainchild of Communists and their fellow travelers.” Byron Price, a former vice president of the Motion Picture Association of America and an assistant secretary general of the United Nations, called the plan “a dictatorship of copyright” that would require writers to act “precisely as writers did under Hitler.” The red-baiting and fascist-baiting proved successful, and the Cain plan died after months of intense public debate.⁶⁶

This story is familiar in copyright history: two groups with very official-sounding names argue for changes to the system of rights handling, both claiming to speak for authors. But the definition of authorship was precisely the issue at stake, even more than money, credit, and control. Movie producers treated writers as technicians. Until the adoption of a 1932 Code of Practice, screenwriters were regularly listed in the credits with the set decorators and electricians.⁶⁷ The producers bought novels, plays, and screenplays as the raw material on which to build a film. They often hired a dozen credited and uncredited writers to rework the story and dialogue, as Universal did with When Tomorrow Comes. According to this model, writers deserved to be paid once for the labor they put into crafting their initial ideas, which were then turned into something else entirely.

From Cain’s perspective—a perspective shared by many writers—novelists, playwrights, and screenwriters create new and original work; they deserve fidelity to their vision and continued compensation for any creations built on top of their work. From this theory of authorship, a royalty system is preferable to one-time payments. Under this theory of authorship, writers deserve to be compensated for the work built upon their writing, not just the labor that went into producing the initial product.

In the 1930s and indeed even today, the answer arrived at by studios, agents, and writers falls somewhere between the two poles. Most literary works are licensed to producers or studios for a one-time fee. But some authors and their works, if they have enough market value or brand recognition, are able to ask for a share in the success of films based upon their writing. Hollywood authorship exists as a spectrum—one that is constantly in flux and always under siege—rather than as a single, unchanging entity. Significantly, it is a model of authorship that is internally regulated by talent guilds and studios and through collective agreements and union arbitration rather than through the court system. Cain’s specific plan for an all-encompassing and all-powerful writers union may have been squashed by Hollywood, but screenwriters and Hollywood studios did manage to bring the regulation of credit and compensation in-house, as it were, preempting much of the intervention of courts and legislation.

EAST COAST JUDGES AND THE LIMITS OF GENRE

While California courts used cases like Lloyd’s and Cain’s to open the door for film studios to build on familiar plotlines as freely as possible, East Coast courts pushed that door closed with equal force. On the two coasts, we can trace a simultaneous though divergent development of judicial thinking about how to apply the idea/expression dichotomy to film. The Second Circuit Court of Appeals had traditionally been the home of copyright cases that involved New York writers, publishing houses, Broadway, and the early film industry. The judges who sat on the Second Circuit were suspicious of the abundance of film plagiarism suits. On one hand, writers were clearly attempting to capitalize on the Hollywood boom by launching questionable lawsuits. One Second Circuit judge who was tired of hearing weak copyright cases, John Woolsey, liked to boast that he had initiated the practice of making plaintiffs pay the defendant’s legal fees in specious plagiarism cases.⁶⁸ On the other hand, the East Coast judges were concerned that Hollywood was getting away with too much, and it was another judge on the Second Circuit, the storied Judge Learned Hand (fig. 2.11), who continually worked to correct Hollywood’s profligate recycling of literature and drama. As copyright scholar Siva Vaidhyanathan assesses Hand’s influence, “No jurist or legal scholar has had a greater effect on the business and content of American culture than Judge Learned Hand.”⁶⁹ In a series of important copyright cases, Hand and his fellow judges forced film studios to be weary of the use of familiar plots and characters.

In a 1917 case, Learned Hand took his first swipe at other judges’ growing penchant for letting film studios off the hook in plagiarism cases. The Mutual Company attempted to purchase the rights to adapt New York reporter Robert Stodart’s play The Woodsman (1911) to the screen, which two Mutual actors-turned-directors made into the film The Strength of Donald MacKenzie (1916). The only problem with the deal was that Mutual inadvertently bought the rights from someone who had not properly secured them from Stodart. When Stodart sued Mutual, the film company decided that although it had initially sought permission, it did not really need it.

FIGURE 2.11  Judge Learned Hand, whose aesthetic sensibilities helped to introduce more subtlety into film copyright opinions.

Attempting to build on the success of film companies in other plagiarism cases, Mutual’s lawyers argued that the Stodart play and the Mutual film both drew from the same public domain plot elements. Although the play and film were similar, Mutual’s lawyers argued, one was not an adaptation of the other.⁷⁰

Learned Hand seemed to agree that the play’s plot was “trite and conventional in the extreme.” Hand, however, made it a point throughout his career on the bench to defend even the mild originality of the least artistic works. In this case, he found originality added to the plot through “the setting of the scenes, all of which are out of doors and in the supposed local color.” After reading the play and viewing the film, Hand had no doubt that, “the moving picture play is without question a direct copy from this plot almost in its entirety.”⁷¹

In a formula that Hand would rework in other cases, he wrote: “A man may take an old story and work it over, and if another copies, not only what is old, but what the author has added to it when he worked it up, the copyright is infringed.” In this case, Mutual had taken more than the basic plot, which might have been too generic to be protected by copyright. Mutual had also taken Stodart’s minor additions, and the law protected those additions.

In an effort to protect writers from the rapidly growing Hollywood story mill, Hand set the bar of originality much lower than judges who heard similar cases on the West Coast. But when Hand reheard Stodart v. Mutual, he decided to temper his initial decision and reduce the award he had granted Stodart the first time from $900 to $500 with $300 in court fees. Hand wanted to protect writers in this new environment, but he also wanted to accurately gauge the contribution of literature to the films that adapted it.

Now Stodart v. Mutual might seem like an unusual case; it was based on Mutual being swindled into thinking it had acquired the rights to the original play. A malicious deception lay at the bottom of the story. But the case was no aberration in the Second Circuit’s development of its approach to Hollywood storytelling.

In a widely publicized 1930 case, Hand reformulated his position on plots and plagiarism at the same time that California courts were considering the Charlie Chaplin and Harold Lloyd cases. In the case before Hand and the Second Circuit Court of Appeals, playwright Anne Nichols claimed that Universal’s film The Cohens and the Kellys (1926) (fig. 2.12) had plagiarized her successful play Abie’s Irish Rose (1922). Nichols’s play told a story about Jewish and Irish intermarriage, and Hand ultimately took the position that Universal, though possibly encouraged by Nichols’s success with the theme of ethnic intermarriage, merely took the stock characters and situations. Fifteen years later, with Judge Yankwich’s help, Hand might have referred to the characters and situations as scènes à fair.⁷²

On its face, this case reaffirmed the growing defense of Hollywood against the barrage of plagiarism suits. But Hand was careful to point out that this case was the exception not the norm. The Second Circuit, he noted, had a strong history of finding that plagiarists had taken too much from the plots of other writers. Noting a series of cases that included Stodart v. Mutual, Hand declared, “We did not … hold that a plagiarist was never liable for stealing a plot.” “We do not doubt,” he continued, “that two plays may correspond in plot closely enough for infringement…. Nor need we hold that the same may not be true as to the characters, quite independently of plot’ proper.” In Nichols v. Universal, Hand was laying the groundwork for a redefinition of the courts’ methods for comparing literature and film.⁷³

FIGURE 2.12  The Cohens and Kelleys in Atlantic City (1929).

FIGURE 2.13  Joan Crawford in Letty Lynton (1932), a film which has been out of distribution since 1936 when Judge Learned Hand found that it infringed the copyright of the play Dishonored Lady.

Hand finally had a chance to demonstrate how plots could be plagiarized in another high-profile case that he decided in 1936. The case involved an MGM (Metro-Goldwyn-Mayer) film, Letty Lynton, starring Joan Crawford and Robert Montgomery, although the real stars of the film were Crawford’s dresses (fig. 2.13). MGM costume designer Gilbert Adrian’s retro-Victorian gown designs for the film sold half a million imitations in only a few months and began a new romantic Victorian revival among Parisian designers. As one commentator noted, the dresses for the film made Crawford into “the most copied girl in the world.” That is, until Hand had the film withdrawn from circulation.⁷⁴

The film Letty Lynton had many antecedents. It was based in part on a famous nineteenth-century murder case in which a wealthy young woman from Glasgow, Madeline Smith, was accused of murdering her lover. The story was the subject of many newspaper accounts, and later it was the subject of a play, Dishonored Lady (1930), and a novel, Letty Lynton (1931). MGM producer Irving Thalberg first attempted to acquire the rights to the play, but objections to the sexual content from Will Hays and the motion picture Production Code Administration kept MGM from finalizing the deal. Thalberg, however, successfully acquired the rights to the novel, which he then had a team of writers turn into the screenplay for the film Letty Lynton.

In the Letty Lynton case, Hollywood’s model for identifying and protecting ideas was on trial. Clearly the facts of the original murder were in the public domain, and Thalberg could have instructed scriptwriters to create their own original treatment. But for both marketing and legal reasons, the studio sought to acquire the rights to the novel or play. Studio producers like to build on tested material, and studio lawyers prefer a paper trail that demonstrates the origins of the idea in order to discourage copyright lawsuits from alternate sources.

Learned Hand was a great copyright jurist because he had a keen aesthetic sense. In the Letty Lynton case, Hand read the play and novel, and he watched the film closely. In one of the most eloquent and intentionally humorous decisions in copyright history, Hand relished retelling the lascivious and tawdry details of the story as each work related them. He acknowledged that the story of Madeline Smith was in the public domain, but he also noted that the dramatic elements added by the playwright and novelist could be protected by their copyrights. The screenwriters had all seen the play, so access did not need to be proven. Hand found that the film’s writers had taken small but significant elements from the play, elements that did not exist in either the novel or the facts of the historical case. Hand reiterated what Second Circuit decisions had been claiming for years: an author does have a right to the details of his or her plot, and those rights can be (and in this case had been) infringed.⁷⁵

As he did in the Stodart case, however, Hand also made sure to temper his ruling in the Letty Lynton case by carefully weighing the financial penalty for infringement. The 1936 decision was not the end of Letty Lynton’s legal story. The case went on for another four years as courts, including the Supreme Court, weighed the damages in the case. The trial court had awarded the entire profits of the film to playwrights Edward Sheldon and Margaret Barnes, and the court appointed a special representative to take an accounting of the film’s profits. Upon rehearing the case, however, Hand noted that the screenwriters may have plagiarized the play’s plot, but the play was only one of the many creative elements that went into making the film. The stars and the design of the film were also important. According to Hand, they accounted for approximately 80 percent of the value of the film, leaving one-fifth for the writers’ contribution. The Screen Writers Guild and the studios had been haggling over the value of a story for decades, and here they had a legally binding formula.⁷⁶ The Second Circuit had increased the power of writers to protect their works from Hollywood appropriation with one hand, and they limited that new power with the other.

The film Letty Lynton has never been legally distributed since Hand’s 1936 decision. But the story of Madeline Smith continued to be retold. Once Letty Lynton, the unauthorized partial adaptation of Sheldon and Barnes’s play Dishonored Lady, had been removed from circulation, Sheldon was free to sell the rights to another studio. A decade later, Sheldon wrote the screenplay for a 1947 screen version of Dishonored Lady himself. The story of Madeline Smith also remained in the public domain, and David Lean made a film of the historical incident in 1950, Madeline, without acquiring the rights to the play, the novel, or the earlier film. The retelling of Madeline Smith’s tale went on, but Hand signaled that a new era of close textual analysis would determine how works could be adapted. And as we will see in the next section of this chapter, Hollywood took further steps to ensure that the financial stability of its industry would not rest on the aesthetic sensibilities of a few judges, regardless of which coast they resided on.

PROTECTING IDEAS IN HOLLYWOOD

New York and Los Angeles writers, lawyers, and studio executives followed the Letty Lynton trial closely, and every turn in the case drew newspaper headlines in both cities. While the Letty Lynton case wound its way through the court system, Hollywood studios continued to field an onslaught of lawsuits from novelists, playwrights, screenwriters, and anyone who had submitted movie ideas or scripts. In one high-profile case, a magazine writer, Robert Sheets, accused William Faulkner and Twentieth Century Fox of plagiarizing his magazine story when writing the film Road to Glory (1937). The case dragged on for five weeks before the studios demonstrated that they had produced their script before the publication of Sheets’s story and thus could not have plagiarized it. Although the studios generally won similar cases, the plethora of newspaper headlines promising million-dollar rewards in plagiarism cases seemed only to increase the number of lawsuits. Whenever they could, studios intimidated writers into backing down, but in most instances studios continued to settle plagiarism suits out of court. In rare cases, like the Sheets case, the studios fought protracted court battles. Every option, however, proved expensive and unpredictable.⁷⁷

While the studios and writers fought plagiarism lawsuits, they were also engaged in heated and divisive labor disputes. Throughout the 1930s, the Screen Writers Guild continued to build its membership and push for better terms for writers. The Hollywood moguls responded by working equally hard to break up the guild. At one point the studio heads attempted to start their own rival organization, which would have been friendlier to studio terms. Some of the moguls even spread rumors about the guild to foment fears of communist infiltration into Hollywood, going so far as to inform J. Edgar Hoover about links between members of the guild and the Communist Party. The moguls had almost succeeded in crushing the Screen Writers Guild when, in 1937, the National Labor Relations Board (NLRB) rejuvenated it by officially finding that the producers had joined in a conspiracy to suppress the guild.⁷⁸

After Letty Lynton and the NLRB’s report, the tides began to shift in favor of writers, and we can detect interrelated changes in courts’ approaches to plagiarism, in Hollywood labor relations, and in the traffic in stories and ideas. Over the next twenty years, the loose genre system in which filmmakers could liberally build on the storytelling traditions established by writers, dramatists, and other filmmakers was replaced by an environment of extreme caution, circumscribed by a pervasive contract system. Every creative interaction became a careful legal negotiation.

Harold Lloyd—no stranger to copyright suits—launched the case that signaled that California courts would begin to follow the Second Circuit’s lead and examine plot details much more carefully. The legal debates over story and idea protection had generally pitted writers against film studios. The studios functioned as an oligopoly and preferred to settle their internal disputes out of court (there are surprisingly few copyright lawsuits between studios before the 1950s). But Lloyd was an independent producer who owned his own copyrights, and in the early 1940s Lloyd broke the unspoken code and made the unusual decision to launch three lawsuits against Universal for plagiarizing sequences of his films. Like the Letty Lynton case, these new Harold Lloyd cases demanded that judges sift through plots with a fine comb, and in the first case to come to trial, Lloyd won his lawsuit. The three judges who heard the case viewed Lloyd’s film Movie Crazy (1932) and Universal’s film So’s Your Uncle (1943). In a scene that took place in a restaurant, the Universal film clearly used many gags that could also be found in Lloyd’s film. But was this a case of scènes à fair—two comedies that naturally resembled each other because they involved fake identities and restaurants—or was it a case in which the string of gags adhered so closely that one film infringed the other? Thanks to judges Yankwich and Hand, the judges in Universal v. Lloyd had powerful critical tools at their disposal. In this case, they decided that Universal not only used the same gags as Lloyd, but the Universal film used them in the same order. A gag might be difficult to protect, but a sequence of them could be protected. Like Letty Lynton, this was a case of the plot, or a piece of the plot, being copied wholesale. The new Lloyd case announced to Hollywood that the legal interpretation of plagiarism had changed; filmmakers had to be much more careful about how they adapted ideas from literature, theater, and other filmmakers.⁷⁹

The lesson that Hollywood learned from the James M. Cain, Letty Lynton, and Harold Lloyd cases, however, was not aesthetic; it was not about how to read ideas and expression more closely. While the judges in these cases used their decisions to model close reading and to limit the measurement of writers’ contributions, the studios responded by spending the next twenty years revising the procedures they used for accepting scripts, purchasing rights, and dealing with screenwriters. Studios wanted to prevent another Letty Lynton case, not win one. The idea/expression dichotomy had become too fine a legal point on which to risk a major film, and in a new series of cases, studios and writers fought over how they would use contracts to legally traffic in story ideas. These were boom years for Hollywood agents and lawyers.

The first case that signaled the new importance of contracts was really a California sequel to the Letty Lynton case. Letty Lynton’s producer Irving Thalberg died in 1936, shortly after Hand’s first Letty Lynton decision. Thalberg’s treatment of screenwriters, however, was on trial again shortly after his death. This time a California court evaluated Thalberg’s handling of a script that two writers had submitted to him for the Marx Brothers’ film, A Day at the Races (1937). Thalberg and MGM had just lost the Letty Lynton case, and the Day at the Races case was the Marx Brothers’ third plagiarism lawsuit in two years. In this case, we can see the legal protection of writers emerging out of their mistreatment in the old Hollywood system.

Although Thalberg had a reputation as the most literate of Hollywood producers, he did not see screenwriters as writers. More than that, Thalberg led the moguls’ push to suppress the Screen Writers Guild: he actively worked with the FBI to identify the guild’s Communist Party ties; he unofficially blacklisted guild members, refusing to employ them at MGM; and he helped to start the short-lived rival screenwriters union. Thalberg treated writers as laborers mining good ideas to be incorporated into films. Writers, for Thalberg, were technicians, not artists. He had hired five teams of writers to work on the Marx Brothers’ first MGM film, A Night at the Opera (1935), one writing gags, another working on the plot, etc. And Thalberg also hired several teams of writers to work on the Marx Brothers’ next film, A Day at the Races. When Thalberg’s secretary received a potential Marx Brothers’ script from two writers, she gave the script to Thalberg, who kept it in his possession for several months before returning it to the writers. The two writers were neither credited nor compensated for their work on the film, and they sued. The judge found many similarities between the script and the final film, and with lessons learned from Learned Hand’s Letty Lynton decision, he decided the case in favor of the screenwriters. MGM, Thalberg, and the Marx Brothers lost their case. Producers and especially studio secretaries would no longer be so careless about their receipt and handling of stories and ideas.⁸⁰

The post–Letty Lynton legal environment made it especially difficult for Hollywood studios to manage the volume of idea and script submissions. Producer Dore Schary estimated that by the late 1950s a studio typically received 20,000 story ideas a year from which they made twenty films.⁸¹ The new legal environment also complicated the creative process that called on dozens of writers to work on a single script. Studios were forced to refine their methods for receiving and reviewing scripts, and in the 1940s and 1950s Hollywood became enmeshed in a world of contracts. The proliferation of contracts clarified the exchange between writers and studios, and the reinvigorated Screen Writers Guild negotiated to gain better contract terms for writers. But the rise of contracts also brought idea protection into the equation. Although copyright law cannot protect ideas, Hollywood was soon to learn that contracts can.

FIGURE 2.14  Billy Wilder’s Ace in the Hole (1951), which changed contract policies in Hollywood.

The California Supreme Court worked out the contours of idea protection through contracts in the 1940s and 1950s, culminating in a dispute over the idea behind Billy Wilder’s 1951 film, Ace in the Hole (aka The Big Carnival). Ace in the Hole (fig. 2.14) tells the story of miners caught in a cave-in and the ensuing media circus. The plot was ripped from the headlines, based on a real event that took place in the 1920s. Copyright law cannot protect the events and facts of the story or even the idea of making a film based on a real story. But can a contract—even an implied contract—protect an idea? In Desny v. Wilder the court considered the full extent of this rising jurisprudential question.

The Desny case began when fledgling screenwriter and actor Victor Desny called Billy Wilder’s office, wanting to pitch an idea to Wilder based on a true story. Desny described his idea to the secretary, Rosella Stewart, who took it down in shorthand. Before they hung up, Stewart assured the struggling screenwriter that if Wilder used the idea, he would, of course, be compensated. She may have said these things in passing, but the California Supreme Court thought that the conversation equaled an implied contract. The court ruled that Desny had a legal basis for his case to go to trial, and if a trial jury found that Wilder made a film based on Desny’s idea, then he should be compensated as promised. Wilder, Paramount, and several other studios protested in amicus (friend of the court) briefs that ideas were free to be used and could not be protected by a contract. But the court disagreed. Ideas could be taken freely, used, and built upon, but they could also be controlled through contracts. The contractual ownership and control of ideas did not interfere with First Amendment rights or the public interest because other filmmakers were still free to make films based on the idea. The contract did not suppress the idea or give Desny a monopoly on its use; it simply prevented Wilder from using the idea without compensating Desny as his secretary had promised. Only five days before the case would have gone to trial, Wilder and Desny settled out of court. We will never have a court’s opinion about whether Wilder stole Desny’s idea. But the California Supreme Court’s initial ruling in the case established a precedent for film ideas to be controlled through contracts. As Eric Hoyt points out in a detailed account of the case, the Desny decision left an indelible mark on the studio system. The Writers Guild of America incorporated the Desny victory into its 1966 Memorandum of Minimum Basic Agreement, and the Desny case continues to be used widely as precedent in disputes between writers and studios. One popular current guide to copyright law designed for independent filmmakers, Michael Donaldson’s Copyright and Clearance, launches into a summary of the Desny case in the first few pages of the book. The half century of filmmakers freely building on existing art forms and exchanging ideas with other filmmakers had come to an end.⁸²

Idea protection allowed writers some added protection against the studio behemoth. But, for the most part, studio legal departments were able to draft contracts and establish procedures for receiving scripts that protected them against suits like Desny’s. And, of course, studio employees learned not to promise anything over the phone. There are a handful of famous subsequent cases in which writers or studio insiders have successfully defended their rights to ideas. Producer Julian Blaustein, for example, successfully defended his claim that he should be compensated for suggesting that Franco Zeffirelli cast newlyweds Elizabeth Taylor and Richard Burton in a film adaptation of The Taming of the Shrew (1967). And, in 1990, humorist Art Buchwald won a very high-profile lawsuit against Paramount for violating a contract relating to his story treatment for a film idea made into the Eddie Murphy vehicle Coming to America (1988).⁸³ But these are the exceptions—cases in which creators won contract disputes. The attention paid to the few exceptions further demonstrates just how thoroughly the studio system has been able to use contracts to control the flow of ideas in Hollywood.⁸⁴

Copyright law’s hold on American popular entertainment had come full circle.⁸⁵ Before the invention of film, courts shunned vaudeville acts as beneath the law, and vaudeville performers learned to self-police their industry through mutual surveillance and professional ethics. After fifty years of fighting to define the place of film in copyright law, the film industry had similarly learned to avoid courts through a watertight system of exchange based on contracts. The Writers Guild of America also learned to regulate the disputes between its members and between studios and writers. Rather than allowing judges to exercise their aesthetic judgment in copyright cases or leave credit and compensation in the hands of the studios, the Writers Guild instituted a thorough system of peer review to settle disputes over authorship. When two or more authors disagree over the authorship of a particular film, senior members of the guild read successive drafts and determine where and when particular writers’ original contributions entered the script. The reviews are governed by complicated formulae for weighing the original contributions. Dialogue, for example, is weighted more lightly than one might expect; narrative architecture is considered the real work. As Hollywood had responded to the threat of moral and political censorship by regulating itself in the 1920s and 1930s, so the industry subsequently responded to the complications and unpredictability of copyright law, internally regulating authorship and originality though contracts, talent guilds, and collective bargaining.⁸⁶

COPYING CHARACTERS: HOLLYWOOD VERSUS TELEVISION

Media technology and copyright law, however, do not rest for long. And just as the studio system began to fix its methods of managing the flow of ideas in Hollywood, the growth of the television industry in the 1950s upset the Hollywood model of regulating authorship. Today, we think of the television industry as a part of Hollywood, which it is. But in the 1950s, the television and film businesses were distinct, and many Hollywood leaders viewed television as a threat rather than an extension of their industry. The clash between Hollywood and television took place, in part, through disputes over how to regulate the transfer of intellectual property from film to television. And after decades of fighting for the right to draw liberally on traditions of literature and drama, film studios found themselves aggrieved at television shows borrowing from their films.

A deluge of new court cases in the 1950s considered the new area of television formats: police dramas, sitcoms, westerns, etc. But in the end, courts found formats to be very similar to film genres and film ideas. The idea for a detective show or situation comedy could not be protected for the same reasons that literary and film genres could not be protected: they are the building blocks of storytelling, which cannot be owned by anyone. Formats, however, could be protected through contracts. And like the film industry, the early television industry went through a litigious period of determining how to accept and review the tens of thousands of idea and script submissions they received every year in order to insulate themselves from lawsuits.⁸⁷

The advent of television also upset the delicate balance of labor relations in the entertainment industry. The rebroadcasting of films on television reopened the unending debate about artists’ compensation. Writers, musicians, and actors were paid for a particular film, but should they be paid again when their films aired on television? Broadcast rights for new films could be settled in contracts, but what about films made before television? Radio actors had already established contracts for residual payments when their performances were rebroadcast, and Hollywood talent followed their lead. First musicians, then actors, and finally writers reached collective bargaining agreements with studios to receive residual payments when films were aired on television.⁸⁸

Two major areas of copyright law, however, were transformed rather than reinforced by television. Both areas, surprisingly, had been broached in Charlie Chaplin’s lawsuit against imitator Amador—character protection and the limits of comedic imitation. And both areas shifted the balance of plagiarism, turning film studios from defendants into copyright plaintiffs.

To some extent, fictional characters have always moved from original works to sequels and from one medium to another. Endless poets and dramatists have reworked the same gods and heroes of classical literature. Honoré de Balzac linked many of his novels into a singular fictional universe by continually reprising the same characters. The American film industry had been particularly interested in borrowing characters from popular culture and in reusing them across different films. Thomas Edison had been involved in a legal dispute over his licensing of the Buster Brown comic-strip character for a film as early as 1904, and Hollywood studios regularly used contracts to protect characters like Rin Tin Tin, Mickey Mouse, and Frankenstein, which provided the bases for ongoing series. In a typical example of industry policing in the late 1940s, MGM protected its Three Musketeers brand by using legal agreements to prevent other studios and independent producers from making films based on Alexandre Dumas’s public domain story and characters.⁸⁹

Fictional characters took on a new importance with the introduction of television. Hollywood studios were reluctant to show their films on television at first. (It took the threat of an antitrust lawsuit from the Department of Justice to finally convince some of the major studios to release their films to television.) But early on the studios saw television as an outlet for further exploiting their character-based franchises in “crossover” series—series built around characters from films. In 1954, ABC (American Broadcasting Company) began running The Adventures of Rin Tin Tin, featuring the popular canine character from radio and films. The same year, ABC launched Walt Disney’s Disneyland, featuring well-known Disney characters in shorts or excerpts from feature films. The following year, Warner Bros. broke into television production with Warner Brothers Presents. Warner Brothers Presents showcased three series based on its hit films Casablanca (1942), King’s Row (1942), and Cheyenne (1947). Did you ever wonder what happened to Rick and his Café American after Elsa left on the plane to America with Laslo? You could tune in to find out.⁹⁰

Crossover television series flourished because Warner Bros. had laid the legal groundwork for character protection. Warner began to test the legal waters in 1948, although its case was not finally decided until 1954. The case involved a radio rather than a television program, but the case set the parameters for character protection—an area of copyright law that became extremely important for the relationship between film and television.

The Warner Bros. case involved detective novelist Dashiell Hammett and his fictional detective Sam Spade. In 1930, Hammett published The Maltese Falcon with Alfred A. Knopf and proceeded to sell the movie rights to Warner Bros. The studio adapted the novel to film twice, first in a pre-Code 1931 version and later in the famous 1941 version starring Humphrey Bogart as Sam Spade. Of course, Warner Bros. had Hammett and Knopf sign a detailed contract giving Warner the exclusive right to use The Maltese Falcon in movies, radio, and television. Hammett and Knopf, however, did not see any reason why Hammett could not continue to write about the novel’s hero, Sam Spade, and sell further rights to the use of that character. So in 1946, Hammett licensed the Sam Spade character to a subsidiary of the Columbia Broadcasting System (CBS), and CBS began airing a weekly series called The Adventures of Sam Spade. Warner Bros. complained that they had already purchased the radio, television, and film rights to the Maltese Falcon, including the Sam Spade character. Although character licensing in films had gone on since the days of Edison, this was the first case in which a defendant claimed that his or her copyright in a story also protected the characters.⁹¹

Judge Albert Stephens, who wrote the decision in the case, considered the contract between Hammett, Knopf, and Warner Bros. as well as literary traditions. Stephens did not have much case law to draw on. One of the few cases he cited was Learned Hand’s decision in Nichols v. Universal, the Abbie’s Irish Rose case, in which Hand had merely suggested that the possibility of character protection existed. Judge Stephens noted that in this case a major publisher and major film studio had signed a very detailed contract, one that did not mention the Sam Spade character. He noted further that “historically and presently detective fiction writers have and do carry the leading characters with their names and individualisms from one story into succeeding stories.” If Warner wanted to secure the rights to the Sam Spade character, the company needed to specify that in the contract. The character existed apart from the book, and it belonged to the author unless he or she assigned that right to someone else.⁹²

But the case did not end with the reading of the contract. Stephens went on to begin to delineate the scope of character protection. He wrote that in some cases “the character really constitutes the story being told.” In such cases—we can imagine a character portrait like Citizen Kane (1941), although the decision doesn’t provide an example—the right to the story and the character might be one and the same. But in other cases, like The Maltese Falcon, where “the character is only the chessman in the game of telling the story,” the story copyright does not cover the characters as well.⁹³

Thus character protection was born (or rather reborn: the precedents of both Edison and Chaplin are virtually forgotten in the case law). Subsequent cases further defined the area, and decisions about character infringement have generally hinged on the extent to which a character is sufficiently detailed and developed, and therefore embodies particular expression rather than simply evokes a generic character. In one character case, Paramount, the studio that made the Billy Wilder film Stalag 17 (1953), sued the producers of the television show Hogan’s Heroes (1965–1971), claiming that the television Sergeant Schultz was a plagiarism of the film Sergeant Schultz. Despite a common misconception, the television series was not a licensed crossover of the film. In the decision, surprisingly, the television producers won. The court found that the two sergeants had different dispositions and were therefore sufficiently different. They just happened to be identically named characters with similar styles of speaking and dressing who were in comedies about Second World War prisoners trying to escape from German prisoner-of-war camps. Moreover, Hogan’s Heroes took place in stalag 13 not stalag 17. (Important differences, to be sure.) Paramount may have lost the case, but in a typical story of Hollywood conglomeration, the studio won in the end: Paramount ended up owning the DVD rights to Hogan’s Heroes in addition to the rights to Stalag 17.⁹⁴

Despite occasional cases like that of the two Sergeant Schultzes, Hollywood has, on the whole, effectively wielded character protection to facilitate the boom in product tie-ins, franchises, and transmedia brands. Character-protection cases have been used to protect Walt Disney characters, Star Wars characters, and Nightmare on Elm Street’s Freddie Kruger, among many other characters, from imitation on television, in comic-book characters, and as figurines. Character protection has helped consolidate control of storytelling in Hollywood’s hands.⁹⁵

TELEVISION PARODY

To a certain extent, character protection has continued to close off the imitative impulse that helped comics like Stan Laurel and Harold Lloyd learn their craft by imitating Chaplin. But even as many forms of imitation have become endangered, certain types of imitation have thrived. In particular, artists have fought hard to protect imitation that allows critique and comment. In television, as in film, comedians manned the front lines of the battle.

In the early twentieth century, several vaudeville comedians had defended, with varying degrees of success, their right to parody well-known performers. But for almost forty years the parody exception in copyright law lay dormant. The hiatus ended when television shows like The Jack Benny Program (1950–1965) and Your Show of Shows (1950–1954) began to specialize in short parodic sketches, clearing the way for staple television sketch comedy shows. In the mid-1950s, film studios sued both The Jack Benny Program and Your Show of Shows for parodying popular films. The same California judge wrote both decisions; yet the two cases resulted in opposite outcomes. Jack Benny’s parody of the Charles Boyer and Ingrid Bergman adaptation of the stage success Gaslight (1944) was deemed an infringement. Sid Caesar’s sketch on Your Show of Shows parodying From Here to Eternity (1953) was deemed critique and comment and thus fair use. Judge James Marshall Carter, who decided both disputes, recognized these as landmark cases, helping to define the emerging relationship between film and television. What is at stake, he wrote, is “what TV may take from motion pictures for its shorter productions, and what it may not take.” After decades of fighting to protect its right to borrow from literature and theater, Hollywood now aggressively pursued television programs that borrowed from films.

Why did the court come to different conclusions in each case and what was the impact on television and Hollywood?⁹⁶ In the end, both cases came down to balancing the commercial and critical impact of the new medium on the old. Film parody had emerged as a major genre of television expression, and Carter acknowledged that significant portions of original films needed to be borrowed in order to “conjure up” the work being parodied. But he qualified this claim. The parodist could not take more than he or she needed, and the parody could not replace the market for the original.

Sid Caesar’s parody, titled “From Here to Obscurity,” borrowed the main characters, story, and settings of From Here to Eternity, but it then used these elements, according to Judge Carter, as a springboard for “new, original, and different development, treatment, and expression.” Jack Benny’s parody of Gaslight, on the other hand, took too much. At first Benny’s parody, titled “Autolight,” seems more a part of the Hollywood system than Sid Caesar’s. Benny had already established himself as a Hollywood star in such films as Artists and Models (1937) and To Be or Not to Be (1942). Moreover, Loews/MGM studio had already approved an earlier version of Benny’s Gaslight parody. Benny originally aired a version of “Autolight” on the radio in 1945. Not only did Loews/MGM give permission, but the sketch starred Gaslight’s own lead, Ingrid Bergman. The studio apparently viewed the radio parody as publicity for the film. But when Benny revived his parody for television, starring Barbara Stanwyck instead of Bergman, Loews sued.⁹⁷

What had changed in the decade between Jack Benny’s two Gaslight parodies? The explosion of television, which Hollywood now viewed as dangerous competition, was the major shift. After viewing the original film, the radio program, and the television program, Carter found that, unlike Sid Caesar’s parody, Benny’s infringed Loews’ copyright in the film. Where Caesar had taken just enough to conjure the original and built on it, Benny had taken too much and added too little. Carter scolded Benny for taking “the general or entire story line and development of the original with its expression, points of suspense and build up to climax.” Benny, in other words, had told the whole story and made it less likely that viewers would also see the film, which, as Judge Carter noted, movie studios frequently revived every five to ten years. Moreover, and perhaps more importantly, Judge Carter did not think Benny’s version was very funny. He characterized Ingrid Bergman’s performance in the original radio parody as “a travesty upon her original screen role in Gaslight.” Aesthetic judgment remained the stock in trade of judges in copyright cases—an inescapable element of comparing art and entertainment.⁹⁸

Carter weighed the commercial value of the creative exchange between film and television against First Amendment speech protection and the importance of being able to comment on and criticize popular culture. “As for an attack on freedom,” he wrote in his decision,

we confess we have difficulty in visualizing the loss of that freedom if Benny’s activities are curtailed by this decision. Instead, the decision reaffirms a principle inherent in the democratic way of life—the right to own and enjoy one’s own private property without fear of appropriation by another. The concept of private ownership of literary property is equally entitled to protection and is more in danger in this proceeding than are our other freedoms.

As one legal scholar has noted, Carter viewed his job as “protect[ing] the film industry from possible destruction by television.” Carter tried to strike a balance in these two parody cases between legitimate comment that built on an existing film and giving away the best of a popular film to the television audience for free, or at least for the price of watching advertisements. Carter’s two decisions did not entirely clarify the legal definition of parody, but the decisions paved the way for parodic sketch shows, from the Carol Burnett Show to In Living Color.⁹⁹

The young television industry fought to build on the success of the film industry as the young film industry had fought to build on literature and theater. Television benefited from Hollywood’s decades of court battles that broadened the legal and cultural interpretation of genre, theme, and plot. Television producers and writers also benefited from Hollywood’s long struggle to come to terms with writers and talent guilds over authorship and originality. With new precedents that allowed writers to separate their characters from their stories and new (though limited) latitude for parody, the American film and television industry ended a forty-year effort (one that stretched back to the Ben-Hur case) to expand attitudes toward copying, borrowing, and creativity.