The basic plot of the Trial, always since 1857 in the public domain, lies, therefore, as the principle obstacle across the plaintiffs' path to a decree in this case.
Without the basic plot and with the Play and Picture alone before me, together with the admitted access we have here, I should say that the plaintiffs might have been entitled to a decree. For the arrangement of the threat scene, the poison scene, and the investigation scene in sequence as they occur in the Play and Picture alike would, under the circumstances of access here shown, be proof that there was a substantial taking of the plaintiffs' arrangement of their literary material. Cf. Daly v. Palmer, 6 Fed.Cas. 1138, Fed. Cas. No. 3552; Curwood v. Affiliated Distributors (D.C.) 283 F. 223, 228; Corelli v. Gray, decided November 20, 1913, by the Court of Appeal in England and reported only in MacGillivray Copyright Cases, 1911-1916, at page 107.
But the basic plot of the Trial destroys this hypothesis. For in the present case the sequence of scenes and, substantially, the content of those scenes so far as the impression on, or emotion caused in, the audience or reader is concerned, are all found in the Trial, from which, in this regard, the architectural structure of the Play, the Novel, and the Picture confessedly stems.
This constitutes a fatal dilution of the strength which the plaintiffs' case might otherwise have, and forces them to seek for a basis for claiming literary larceny in details of the Picture.
I am left, therefore, to determine whether there is aught in those details for which I can fairly say the plaintiffs secured protection when they got the copyright of their Play, and which the defendants took when they made their Picture.