Now, as above observed, there is not any question but that there was access in this case.
It is common ground that the defendants' employees who wrote the scenario of the Picture and arranged the continuity from which it was made had the acting copy of the Play for some months, had seen the Play on the stage in Los Angeles in May, 1931, and had also read the Treatment thereof made by the plaintiffs in the hope of escaping the Hays' censorship which lay athwart the path of their efforts to sell the moving picture rights of the Play to the defendant interests.
When, therefore, the defendant interests purchased the moving picture rights of the Novel from Mrs. Belloc Lowndes and started to write the scenario for the Picture, they were in a somewhat curious position. They had the rights to use the basic plot by purchase as well as by inheritance from the public domain, if I may so express it, but they had the plaintiffs' method of developing the basic plot in the Play and in the plaintiffs' Treatment more of less freshly impressed on their minds by the public showing of the Play which they had seen, and from their examination of the manuscript thereof and of the Treatment.
The objective of the defendants' scenario writer was a story that would attract modern audiences. That also had been the objective of the plaintiffs. It would not have been astonishing, therefore, to find, even without access, that the basic plot after passing through the medium of the minds of two sets of modern writers showed that coefficients of refraction substantially alike had been in operation on it, and that the results of that refraction differed mainly in so far as the two sets of minds at work differed in their literary skill in dealing with the dramatic situation inherent in the common subject-matter which they had chosen.
But here we have access, and the defendants, balked in their desire to get the motion picture rights to the Play, obviously wished to *842 approach it as nearly as they safely could without infringement of its copyright.
The result naturally was that in the Picture we have something which is much more like the Play than it is like the Novel or like the Trial.
Now, as above observed, there is not any question but that there was access in this case.
It is common ground that the defendants' employees who wrote the scenario of the Picture and arranged the continuity from which it was made had the acting copy of the Play for some months, had seen the Play on the stage in Los Angeles in May, 1931, and had also read the Treatment thereof made by the plaintiffs in the hope of escaping the Hays' censorship which lay athwart the path of their efforts to sell the moving picture rights of the Play to the defendant interests.
When, therefore, the defendant interests purchased the moving picture rights of the Novel from Mrs. Belloc Lowndes and started to write the scenario for the Picture, they were in a somewhat curious position. They had the rights to use the basic plot by purchase as well as by inheritance from the public domain, if I may so express it, but they had the plaintiffs' method of developing the basic plot in the Play and in the plaintiffs' Treatment more of less freshly impressed on their minds by the public showing of the Play which they had seen, and from their examination of the manuscript thereof and of the Treatment.
The objective of the defendants' scenario writer was a story that would attract modern audiences. That also had been the objective of the plaintiffs. It would not have been astonishing, therefore, to find, even without access, that the basic plot after passing through the medium of the minds of two sets of modern writers showed that coefficients of refraction substantially alike had been in operation on it, and that the results of that refraction differed mainly in so far as the two sets of minds at work differed in their literary skill in dealing with the dramatic situation inherent in the common subject-matter which they had chosen.
But here we have access, and the defendants, balked in their desire to get the motion picture rights to the Play, obviously wished to *842 approach it as nearly as they safely could without infringement of its copyright.
The result naturally was that in the Picture we have something which is much more like the Play than it is like the Novel or like the Trial.
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