
42 F.2d 881 (1930)
BARBADILLO et al.
v.
GOLDWYN et al.
No. N-63-M.
District Court, S. D. California, S. D.
August 21, 1930.
*882 Norbert Savay and A. H. de Tremaudan, both of Los Angeles, Cal., for plaintiffs.
Loeb, Walker & Loeb and Milton H. Schwartz, all of Los Angeles, Cal., for defendant Goldwyn.
Neil S. McCarthy, Earl L. Banta, and Howard P. Hall, all of Los Angeles, Cal., for defendant Coffee.
SAWTELLE, District Judge.
This suit is brought under the copyright laws. Plaintiffs pray for injunctive relief and an accounting. Plaintiffs are the authors and co-owners of the dramatic composition, "The Christ of the Alley," written in 1912, and the copyright thereof.
Defendant Goldwyn is the producer and owner of the moving picture entitled, "The Night of Love," which was produced and shown by him in California and elsewhere during the year 1927, while the plaintiffs' alleged copyright was in effect.
The defendant Coffee at the instance of Goldwyn prepared the greater portion of the scenario and continuity of "The Night of Love." Plaintiffs claim that "during said year, 1927, in violation of their rights in said alleged dramatic composition entitled `The Christ of the Alley,' the defendants caused pictures, commonly called `moving pictures,' to be taken from various scenes, characters and incidents of said dramatic composition, representing the different characters in action, so as to tell the story on the screen told in said alleged dramatic composition, and caused the same to be produced in the United States on a film entitled `The Night of Love'; that the unauthorized production of the latter contains the theme and plot, dramatic character, atmosphere and scenery identical with said dramatic composition, `The Christ of the Alley,' particularly the so-called `miracle scene' in said picture, `The Night of Love.'"
Defendants deny the allegations of the bill and allege that the plaintiffs' said composition is not a dramatic composition within the meaning of the copyright laws of the United States, and is not copyrightable; that the composition is not original and was taken from a common source, etc.
It does not seem necessary to set forth in very great detail the scenario of either "The Christ of the Alley" or "The Night of Love."
"The Christ of the Alley, a Page of Thirteenth Century Spanish History," is a story of Don Pedro, King of Castile, called in history, "The Cruel"; of his love adventures, his struggle with his half-brother Don Enrique over the throne of Castile; and his death at the hand of Don Enrique.
According to the story, Don Pedro, disguised as a minstrel, meets and becomes infatuated with the orphan maiden Isabella, who rejects but later accepts his offer of love, and his promise of marriage. Near a large place at the entrance of a mysterious alley is a large cross upon which is an image of the Christ of natural size. The King repeats his promise of marriage.
"Isabella, turning to the Christ, pointing to Him with her two extended arms: `Then He will be my witness,'
"King, turning to the Crucifix with a movement of surprise, as he does not expect such a witness, with secret reserve * * * raises his hand, extends his arms with royal gesture: `Yes, Isabella, He is my witness. I promise, if you will consent.'"
She consents and the King places a ring upon her finger. Later, the King, in a room in Isabella's house, discovers a portrait of his half-brother, Don Enrique de Trastamara, and is convinced that Isabella is his niece. The day following the discovery, he writes her that their marriage is impossible. Isabella, ignorant of the relationship, appears before the King to demand justice against the minstrel. She there recognizes the King as her lover. He denies her accusation, whereupon she flees from his presence with threats of revenge. The King, much perturbed, consults a famous witch, who advises accusing Isabella of robbery and other crimes, which is accordingly done. Isabella, after a trial, is pronounced by the tribunal guilty of stealing the ring which had been given to her by the King, and is sentenced to imprisonment for life, and to lose her right hand. Isabella, on her way to the scaffold to have her right hand severed, pauses before the image of Christ, which she strikes with her hands, and exclaims: "Lord, Oh Lord, protect me from the power of Hell. Thou art my witness. Thou dost know I am pure, I am innocent." Whereupon, the right hand of the Lord, loosened from the spike, descends *883 upon the head of Isabella. Isabella is rescued by Bertrand du Guesclin, Ambassador of Don Enrique de Trastamara, her father. Don Pedro, his army repeatedly defeated by that of his brother, Don Enrique de Trastamara, took refuge in the castle of Montiel, where he was besieged by his enemies and tormented by the ghosts of those whom he had so brutally murdered, among others, the infant Don Juan of Aragon; Don Juan of Castile, a half-brother; Dona Blanca of France, his wife; and Samuel Levy, his treasurer.
Don Pedro attempts to effect his escape by bribing Bertrand du Guesclin, who informs his master, Don Enrique. The latter arranges for the capture of Don Pedro. The half-brothers meet in a tent and after a heated quarrel engage in a hand to hand struggle. Don Pedro, being the stronger of the two, overcomes Don Enrique. Seeing that the latter was all but dead, Bertrand decided to save him, and:
"Pulling the King by the left leg with titanic force, overthrows him, saying the historic words: `Neither do I make nor unmake the King, but I help my Lord.'"
Don Enrique, freed from the pressure of the hands of the King, grabs a dagger and inflicts upon him mortal wounds.
Don Enrique de Trastamara is proclaimed King of Castile upon the death of his brother. Isabella is returned to her father and becomes a princess.
Similar accounts of the struggle between Don Pedro and his brother Don Enrique, over the throne of Castile, are to be found in numerous Spanish histories.
A very full and interesting account is contained in "Historical Tales," Spanish, under the title, "Peter the Cruel and the Free Companies," by Prof. Charles Morris, published by D. Lathrop & Co. According to this author, successive defeats compelled Don Pedro to retreat to the Castle of Montiel.
Quoting from another author:
"Don Pedro of Castile, first of the name, left behind, in his sobriquet of Cruel, the memory of a Tiberius. His cruelty was constitutional; he had an instinctive thirst for blood; he was an unmanageable voluptuary; and he murdered right and left within the limits of his own family, until he had nearly extirpated it. He died, stabbed to the heart in a fierce struggle with his half-brother Don Enrique, in 1369. * * * He slew the grandmaster of Santiago (his half-brother); the Adelantado of Castile (Garcilaso de la Vega); the mother of his half-brothers; the Infant Don Juan of Aragon; his own aunt Dona Leonora of Aragon; Don Juan and Don Pedro (his half-brothers); and a long list of other relations and friends. * * *
"The story of Don Pedro's death is told in Froissart:
"`In the course of an hour Enrique was apprised that he was taken, and came with some of his followers to the tent of Allan de la Houssaye, where his unfortunate brother had been placed. On entering it he exclaimed, `Where is that whoreson and Jew who calls himself King of Castile?' Pedro, as proud and fearless as he was cruel, stepped instantly forward, and replied, `Here I stand, the lawful son and heir of Don Alfonso, and it is thou that art but a false bastard.'
"The rival brethren instantly grappled like lions, the French knights and Du Guesclin himself looking on. Enrique drew his poniard, and a violent struggle ensued. Enrique fell across a bench, and his brother, being uppermost, had well nigh mastered him, when one of Enrique's followers, seizing Don Pedro by the leg, turned him over, and his master, thus at length gaining the upper hand, instantly stabbed the king to the heart."
History of Spain, by Prof. James A. Harris (D. Lathrop & Co.).
The defendants insist that the so-called miracle scene in "The Christ of the Alley" is not original, but taken from the Zorrilla poem, "A Buen Juez Mejor Testigo" (Poetical works of Don Jose Zorrilla, volume 1, Garnier Brothers Publishing Company, Paris).
They further claim that "the similarity between it and the story told in the script in which the King and the girl plight their troth before an image of the Christ, the statue afterwards miraculously testifying for the girl, is so pronounced as to admit of no doubt the plaintiffs used the old legend."
The Zorrilla poem tells a story of a young soldier, Diego Martinez, who, before the statue of the crucified Christ, promised and swore, upon his return from war, to take his sweetheart, Ines de Vargas, as his wife. Martinez, upon returning, refuses to recognize the girl. She appeals to those in authority for justice. When called upon for the names of her witnesses, she replies, "The Lord is my witness." Thereupon, the notary, with Martinez on one side and Ines on the other, behind him, the Governor with the judges and the guards, advances towards the cross, and after reading in a loud voice the *884 written accusation of Ines, asks Jesus whether he will swear it to be true, as charged by Ines, that one day at His divine feet, Diego Martinez swore to Ines de Vargas to take her as his wife. The lacerated hand came to rest its dried and pierced palm upon the legal document, and there cried a voice, "Yes, I swear." The frightened multitude raised their eyes to the holy image. The notary, trembling, gave attest of his seal, and those who could signed as witnesses, etc.

The Night of Love.
The story, the first part of which was taken from "Beauty and the Beast," by Kathleen Norris, begins with a gypsy marriage festival in Spain. The young girls are dancing in a circle about the figure of the bride. A feast is spread, when suddenly a party of horsemen, richly dressed, bears down in a cloud of dust, Bernardo, Duke de la Garda, in the lead. One of the horsemen reaches over and takes the girl from the bridegroom, Montero's, arms, and swings her across the saddle in front of him. Montero attempts to rescue the girl, but is seized by the Duke's men.
Montero tells him accusingly that the girl is his bride. The Duke only laughs and answers: "You have forgotten the law. I am the Feudal Lord of this domain. * * * When a man takes a bride, the right of the first night is mine!"
The Duke and his followers leave hilariously, calling out to Montero, "We will send her back to you  tomorrow!"
The bride is taken into the Duke's bedroom, where she seizes a dagger and takes her own life.
The body of the bride is returned to the gypsy camp. Montero swears vengeance against De la Garda.
Long after the death of the little gypsy girl is forgotten by the Duke, he brings a bride of his own to the castle. The great hall is filled with men and women of the Duke's court in gorgeous attire, celebrating the wedding of the Duke. The Duke and Duchess (Marie) are escorted to the bridal chamber, where Montero has concealed himself.
Montero's band of outlaws seize the Duke. There is a fierce fight between the Duke's men and those of Montero. Montero, before vanishing into the darkness, calls out to the Duke, "We will send her back to you  tomorrow!"
The next scene is in Montero's ruined castle in the mountains. The Duke, who has also been captured, and his bride are brought into Montero's room. The Duke insists that Marie give herself to Montero to save him. She attempts to escape, and, in the excitement, the Duke himself escapes. Marie is recaptured, but the Duke makes good his departure.
Montero assures Marie that she will not be harmed. She falls in love with him and he with her.
The crucifix which she wears reminds her of her marriage vows, and she prepares to return to the castle and thereafter enter a convent. She is accompanied by Montero to the gates of the castle.
As she approaches the lighted shrine of the Virgin, she stops and drops to her knees before it and prays to the Blessed Virgin. She enters the great hall of the castle, where the Duke is telling how he had defended the Duchess (Marie) and saved his own life. She listens, and then quietly says, "Dismiss these people."
Hot words pass between them, after which she leaves the hall and enters her own room. She sends for a priest to hear her confession. The Duke, himself disguised as a priest, hears her confession of love for Montero. Marie is imprisoned and preparations are made by the Duke to capture Montero, should he attempt to visit Marie. Montero, in response to a letter which he believed was from Marie, approaches the cell where she is confined, and is captured. He is dragged from the corridor into the courtyard, and placed upon an improvised scaffold. Huge faggots are brought to the scaffold and placed around the victim's feet. Marie, who has been watching, with a cry of horror, turns away from the window, as she realizes what they are about to do, and goes toward the stone staircase. Montero, in the presence of a great multitude, is bound to the stake, and the Duke gives command for the torches to be touched to the outer row of faggots that encircle him.
Montero turns his face for a last glimpse of Marie. At the same moment, he stares in the direction of the niche of the Virgin, and recognizes Marie. The young duchess, having approached the life-size statue of the Virgin, prays, "Virgin Mary, show me the way, show me the way."
Suddenly, the robe from the statue falls into her hands, which she holds forth in a gesture of prayer. She is quick to take advantage of the situation, wraps the robe about her, and, to quote from counsel's brief, "enters upon her strange impersonation."
*885 Montero, having noticed Marie's action, and heard a woman cry, "A miracle," and willing to profit by Marie's ruse, and to aid her therein, points to the statue of the Virgin and cries, "I call upon the image of the Blessed Virgin to testify to my innocence." He also asks that the Virgin declare whether he or the Duke is guilty. The hand of Marie, impersonating the Virgin, is raised, moves slowly in a circle until it points to the figure of the Duke, and rests in that position of accusation. With a scream of terror, the Duke falls upon his knees, babbling wildly for forgiveness. He is trampled down by the people and killed. Montero is released by the mob. He takes the mantle from Marie's shoulders and reverently places it again upon the shoulders of the Virgin.
The last scene has no bearing upon the questions involved herein.
Great latitude was allowed plaintiffs in their effort to show access to and use of their composition by defendants, and to show similarity; but a careful consideration of all the evidence leads me to the conclusion that the charge of infringement has not been sustained.
While plaintiffs' counsel does not in express terms concede that the scene known as the miracle scene is the only part of the plaintiffs' composition which the defendants have infringed, I think it safe to say that unless that scene constitutes infringement, none is shown.
Brushing aside the multiplicity of detail with which every dramatic episode must almost necessarily be laden, I find but one crucial alleged similarity between "The Night of Love" and "The Christ of the Alley."
In the former, the purported "testimony" of the Blessed Virgin is in reality a sheer trick of legerdemain performed by Marie. The simple-hearted mob is deceived by the ruse, but the audience know it to be a piece of obvious jugglery and impersonation. On the other hand, in "The Christ of the Alley," the scene is that of a bona fide miracle probably believed in by the author and by the audience, as well as by the multitude.
To say that a spurious miracle was suggested, in a way such as falls within the prohibition of the copyright law, by a genuine one, is to argue that error is copied from truth, black from white, negation from affirmation, nadir from zenith!
A spectator, seeing Marie's palpable sleight of hand in "The Night of Love," could not reasonably assert that the incident was suggested by the solemn and genuine miracle in "The Christ of the Alley," which, as in the Zorrilla episode, accurately reflects the profound religious feeling of the Spanish people  a feeling no doubt shared by the authors of the two genuine miracle scenes, the plaintiffs on the one hand and Zorrilla on the other.
"The Night of Love" seems to me to be wholly devoid of any preconceived plan or theory, and I think this conclusion is borne out by the testimony of the defendant Coffee, who was employed to write the scenario after others had failed. She testified: "You see, this story was patch-work. We (meaning Messrs. Goldwyn and Fitzmaurice, and herself) would take something that was already in there and we would add something, and then go back and take something in the script, then we would strike a bad place and bridge it over. So it was sort of a patchwork." It was a case of "too many cooks." Frankly, I have never witnessed a photoplay, or read the scenario of one, that showed such a lack of real merit and such absence of theme and motivation.
I am not convinced, however, that an ordinary, or even a close, observer, would be led to believe that the defendants modeled their work upon that of the plaintiffs, or that the "films are a picturization of plaintiffs' work"; or that they took any substantial portion of plaintiffs' alleged drama and reproduced it; or that they reproduced it in slightly different surroundings.
"Unless the public is deceived by the pictures, and led to believe that the films are a picturization of plaintiff's literary work (the standard of the ordinary observer being applied) then no infringement is shown." Roe-Lawton v. Hal E. Roach Studios et al. (D. C.) 18 F.(2d) 126, 128; Frankel v. Irwin et al. (D. C.) 34 F.(2d) 142; Nichols v. Universal Pictures Corporation et al. (D. C.) 34 F.(2d) 145; King Features Syndicate v. Fleischer et al. (C. C. A.) 229 F. 533.
In reaching the above findings and conclusions, I am assuming that the plaintiffs' composition is copyrightable, and that it was not taken from common sources to the extent claimed by the defendants' counsel. London v. Biograph Co. (C. C. A.) 231 F. 696; Bachman et al. v. Belasco (C. C. A.) 224 F. 817.
I think there has been no proof of reproduction or appropriation by defendants of plaintiffs' composition, and that there are no real actionable similarities between plaintiffs' *886 composition and the defendants' photoplay. This being so, there can be no infringement, and if there has been no infringement, it would seem unnecessary to consider in this opinion the issue of common sources, common errors, and other questions discussed in the briefs, although I have given them careful consideration before reaching a conclusion in the case.
The briefs in this case were not received until after the jury session of court convened at Tucson, hence the delay in arriving at a decision.
Decree for the defendants.
