Nichols v. Universal Pictures Corp., 45 F.2d 119 (1930) p.443

SUBJECT

rights under copyright

FACTS

Plaintiff accused defendant of copying his play. Both had similar themese but were expressed differently.

ISSUE

Whether the two plays were similar enough to constitute a copyright infringement.

RULE

The copyright cannot be limited literally to the text. else a plagiarist would escape by immaterial variations. Themes are not copyrightable, original work.

HOLDING

Defendant's play is too unlike the plaintiff's to be an infringement.

RATIONAL

Must apply whether the use is substantial, and therefore not a "fair use" of the copyrgithed work. Plaintiff is unable to prove that there is copying of protected material. He did not prove there was any protected original expression. If anything was copied it was the theme of the plays. There was no illicit copying here. The similarity was in the message between the plaintiff and defendant's work, but the way it was expressed was different, and therefore not tortious.

NOTES

We hope that in this class of cases such evidence (testimony of experts) may in the future be entirely excluded and the case confined to the actual issues. Expert testimony was a waste of time.

Created on: Thursday, September 30, 1999 at 18:53:28 (PDT)