In July, 1931, Mrs. Schley, a literary agent and play broker, spoke to Mr. Thalberg, who was the vice president in charge of production of the Metro-Goldwyn-Mayer Corporation, about the Novel which Mr. Stromberg, as above noted, had apparently read in January, 1931, and suggested that it would make a good photoplay for Miss Joan Crawford, who later acted the part of the heroine in the Picture.
Finally, after some negotiations through Mrs. Schley, the novel was purchased on December 4, 1931, from Mrs. Belloc Lowndes for the sum of $3,500.
Mr. Stromberg has testified that he first read the Trial of Madeleine Smith in November, 1931, and apparently work began on the scenario for the picture on December 1, 1931, when, although there had been negotiations for the purchase of the Novel, it had not as yet actually been purchased.
The Picture was produced between February 21 and March 28, 1932. What we have called at the trial and argument Continuity No. 1 was used in the photographing thereof. That continuity was changed from time to time during the process of production, and the completed Picture, which obviously can alone be challenged by the plaintiffs as a possible infringement of their Play, was finally represented by what we have called herein Continuity No. 2.
The Picture was released on April 28, 1932.
IV. As there was admitted access in this case, the oral evidence is not of great importance; so I shall not deal with the criticism *840 by the plaintiffs' counsel of the fact that the defendants examined their California witnesses by commission on written interrogatories and cross-interrogatories otherwise than to say that plaintiffs' counsel consented to that method of examination when, it seems to me, if they wished a chance for an oral cross-examination, they might have insisted on having depositions de bene esse taken under the statute.
[1] Headnote Citing References V. For a long period, as I worked from time to time on the case, I considered making summaries of the Trial, the Play, the Novel, and the Picture, but after drafting some such summaries, I made up my mind that they would merely extend this opinion to undue length, without adding anything to its value as an expression of my reasons for deciding the case in the defendants' favor.
I finally decided, therefore, to deal with this case on the basis of what may be called perhaps the common denominator of the four different works here involved, observed against the background of their common origin, the actual trial of Madeleine Smith, which has always been entirely in the public domain.
[2] Headnote Citing References VI. If access were an issue herein, the plaintiffs' so-called external evidence of copying by the defendants, such as the similarity of the still photographs, the similarity of the advertising of the Play and the Picture, and other details of alleged resemblances, might be of value as showing that there had been access. But as none of the elements mentioned in the so-called external evidence were protected by copyright, the external evidence does not I think add anything to the plaintiffs' case. Certainly it is not a basis for a claim of infringement.
The plaintiffs' so-called Treatment, written in an endeavor to get around the Hays censorship, is admittedly an entirely different story from that of the Play.
The Treatment was not copyrighted. It was submitted to the defendants some time in November, 1930, as above noted. It has in it a shipboard courtship. It has in it a young polo player. It has a scene in which Madeleine stabs Moreno to protect her honor on her wedding eve. Finally, the next day she flies to an old friend for help, marries him, and then they start together for Japan. There is not any poison scene, or any investigation scene in the Treatment.
It seems probable that when the scenario of the Picture came to be written some types of scenes possibly suggested by the Treatment may have been included, but as the Treatment was not copyrighted, the use of such scenes does not constitute an infringement of the Play.
Furthermore, all the scenes are obviously matters in the public domain which anybody can use, so the Treatment, if it has any relevancy whatever, can only be relevant in connection with the so-called external evidence, which itself, as above stated, has become valueless in view of the fact that access is admitted.
So we must now turn to a consideration of the Play and the Picture to determine whether any infringement of the plaintiffs' copyright has occurred.