
12 F.2d 116 (1925)
SIMONTON
v.
GORDON et al.
District Court, S. D. New York.
February 17, 1925.
*117 O'Brien, Malevinsky & Driscoll, of New York City (M. L. Malevinsky and Richard J. Mackey, both of New York City, of counsel), for plaintiff.
W. Herbert Adams, of New York City (Arthur W. Weil and Samuel F. Frank, both of New York City, of counsel), for defendants.
KNOX, District Judge.
In this suit, claim is made that the play White Cargo, of which the defendant Gordon is the author, infringes upon the copyright covering plaintiff's novel, entitled Hell's Playground. The matter was previously before the court upon plaintiff's motion for a preliminary injunction, which came on to be heard before Judge Winslow. 297 F. 625.
After reading the book and the play, together with voluminous affidavits, which were submitted by both parties, and after viewing the production of White Cargo, which was then and is now being played in this city, Judge Winslow came to the conclusion that the issuance of a preliminary injunction was unwarranted. In the opinion then filed in the case, the court said:
"While there are scattered and incidental resemblances between the two works, the court is of the opinion that the complainant has not made that clear and convincing showing which, in this circuit, has been required in order to justify the granting of a preliminary injunction."
The case came on for final hearing before me, and much testimony has been taken upon behalf of both parties. It is upon this record that a decision must now be made.
According to the foreword of the authoress of Hell's Playground, the purpose in writing the novel was to show the primal conditions existing upon the west coast of Africa, and particularly in the French Congo. Life, in this part of the world, as it is portrayed by the book, "lacks the niceties and embroideries and perfumes of civilization. The story," plaintiff says, "is crude and shocking, essentially so. It is of the debauching life of the African tropics, the method of government, the duties and opportunities of the white trader, the nature of the negro savages, and the almost hopeless problem of colonization and Christianization and demoralization which follows the unnatural imposition of the rule of one race over another."
The foreword goes on to say that the climate is so unhealthy "that life is one continuous battle for existence. The best class of white men are not attracted to it. The average white trader and government official, freed from all restraint, deprived of the society of white women and the commonest things to which civilization has accustomed them, breathing the atmosphere of sameness, stagnation and sensuality, early shed the veneer of civilization."
In an author's note, appearing upon the programs and cards distributed to persons attending performances of the alleged infringing drama, White Cargo is described as a vivid play of the primitive. The author then says: "In writing this play, no conscious effort has been made to create or eliminate sensationalism. It is an attempt to portray the struggle for development in a country which steadily defies the encroaching civilization. It is the reaction of an ever-shining sun which breeds inevitable rot  a rot which penetrates, not only the vegetation and inanimate objects, but the minds and hearts of the white men who attempt to conquer it."
The following is a rough outline of Hell's Playground:
Cecil Huntingdon, a member of the English nobility, who is in need of money, and who is in love with a young woman described as Lady Marjorie, decides to go to Africa to make his fortune. To serve this end, he obtains, through the influence of his father, a position with the trading firm of John Hope & Co., which maintains a station at Cape Lopez, in the French Congo. After a perilous trip, Huntingdon reached his destination, where he is greeted by three men, to wit, Smithson, the local agent, whom he was to replace, Moore, the agent of a rival firm, and Sadler, captain of a river steamer belonging to John Holt & Co.
Smithson is a young, slight, nervous, rather refined man, who has been broken by African climatic conditions. Moore, who is likewise young, "is tall and rawboned, and walks with a swagger as confidential as John Bull's own." Both are startlingly pale. Sadler is round, rosy, and jolly. Huntingdon is escorted to the bungalow occupied by Smithson. On being made acquainted with the native servants, he is facetiously described by Sadler as their "Great White King." This remark brings a contemptuous sneer from Moore, who has taken a dislike to *118 the newcomer. He does, however, drink a toast to him.
Thereupon a meal is served, of which Moore, Sadler, Smithson, and Huntingdon partake. The latter is told of the persons with whom he will come into contact, and the talk then turns to the tendency of white men, when subjected to African conditions, to acquire native mistresses. The charms of a particular native woman, named Ndio, who was then living with the French commandant, are related. Moore suggests that it would be an easy task for Huntingdon to displace the commandant in her affection. The thought is disgusting to Huntingdon, but he passes it off. By the time dinner is over, the men have become somewhat under the influence of liquor, and the party finally breaks up in song, Sadler singing a cockney ballad.
The next day Huntingdon, who feels enthusiasm at his prospects in Africa, is taken to visit the local postmaster and the French commandant. He is accompanied by Smithson, who, in the course of the walk, asked him if he ever in all his life saw any place "so dreary, so God-forsaken so end-of-the-earthy as Cape Lopez." In his enthusiasm, Huntingdon declares that he does not believe that he will corrode there; that the country is too new and interesting, and so entirely different from what he has previously known. Smithson then replies: "Enthuse while you can, old man; * * * it'll soon wear off." He continues to dilate upon the adverse conditions of African life, saying that, were it not for the monthly call of the steamers, no man could stand the sameness. Huntingdon, although vividly impressed with Smithson's misery, felt that the same could never come to him. "He was young, strong and healthy; he would put up a stiff fight; he would not go under." Again Huntingdon is told of the attractions of Ndio.
At great length, the novel goes on to tell of French colonial problems, the character of the life among the natives, and the manner of trade, and to detail Huntingdon's success in what he undertakes. While he severely feels the conditions under which he lives, and while it is prophesied again and again that he will take up with a native woman, he fails to do so, sustained by his love for Marjorie, and his determination to lead a clean life. Finally, however, he receives word from Marjorie that she has heard that he has taken a native woman for a mistress, and is told that he cannot expect to marry her. Greatly disheartened at this news, and being deeply depressed by the climate and loneliness of Africa, Huntingdon becomes entirely discouraged. Instead of going back to England to tell Marjorie that her information is incorrect, or otherwise repudiating the slander reported against him, he goes into the interior, and, becoming infected with fever, is taken seriously ill, becoming unconscious. When he recovers his senses, he is in his quarters, where he then learns that his business has been carried on by Ndio, and that she is nursing him back to health. At first, her presence is distasteful, but eventually she makes appeal to him, and he takes her as his mistress. This state of affairs continues for a considerable period of time, throughout which Huntingdon prospers and is satisfied with his life.
Finally, however, word comes to him that Ndio is false, having entered into meretricious relations with one of Huntingdon's servants. In a rage, he sends for Ndio and has her lashed by the servant. Finally, when Ndio falls to the ground, Huntingdon sends for a half-caste native woman, who, as she leaves Huntingdon's bungalow, after spending the night there, is strangled by Ndio. The book then gives an extended narrative, having to do with the animosity aroused among the natives by Huntingdon's action and its settlement, and ends with Huntingdon's marriage to the widow of a missionary and their return to England, where they live happily. Ndio, it may be observed, passes out of the picture through being poisoned by friends of the black girl whom she strangled.
The plot of White Cargo is somewhat as follows:
Langford, a young middle-class Englishman, is sent out to a trading post on the west coast of Africa to take the place of a man named Ashley. The latter has been physically broken by the damp rot and the shining sun of Africa. He is about to start back to civilization on the steamer by which Langford arrives at the river trading station. Ashley's superior at the trading post is a man named Witzel. Under African conditions, the association of the men has become so irksome and intolerable that Ashley can stand it no longer. Witzel is glad that Ashley is going home, but regrets that he is to have a successor, who will have to be broken in, and who, like Ashley, will sooner or later deteriorate, and go the way of Africa. Witzel has been on the west coast for seven years, and under his contract with the company has three more to serve. He is described as a tall, gaunt trader of 40. His movements are languid, his eyes lustreless, and whenever he speaks his voice conveys a *119 sneer. When Langford lands, he is accompanied to the bungalow, where he is to live, by the skipper and engineer of the river boat, by which he has arrived. There he is met by Witzel, the doctor employed by the trading company to treat leprosy among the natives, a missionary, and Ashley. The latter is almost hysterical at the thought of his departure. Langford, who is cleanly dressed in white, and who is highly enthusiastic at the prospects of African life and its opportunities, has hardly been greeted than his associates begin to impress upon him the hardships he will be called upon to endure. The talk then turns to the association of white men and black women, and Witzel, who has taken a dislike to Langford, tells him that it is only a question of time until he, too, takes a native mistress. Langford, disgusted with the thought, declares that he is white and is going to remain white.
The evening comes on and dinner is served in the bungalow. In the course of the meal, the men above mentioned drink to excess, and by the time it is concluded Ashley has become unconscious, and the other men, save Langford, participate in a more or less drunken carouse. Finally the skipper, carrying Ashley, and the engineer depart for the boat. Langford and the doctor then engage in a conversation, at the conclusion of which the doctor starts for his quarters. Left alone, Langford unpacks some of his baggage, looks longingly at a photograph that he has brought with him, and sits down to muse. As he does so, a native half-caste named Tondeleyo, of whom he was told in the course of the evening, appears at the doorway.
The second act is supposed to take place eight months after Langford's arrival, and Africa has begun to tell upon him. No longer is he clean and neatly dressed. Languor has overtaken him, and he has become a victim of damp rot. His eyes are sunken; his voice has lost its brilliancy, and his hands clasp and unclasp spasmodically. He desires female companionship. Tondeleyo is in and about the premises and has been making overtures to Langford. In this act, the doctor comes to visit Langford, and is amazed when Langford tells him that he has made up his mind to marry Tondeleyo, and requests him to send for the missionary to perform the ceremony. At such a turn of affairs, the doctor sends for Witzel. Together, they attempt to persuade Langford that it is not necessary for him to marry Tondeleyo, but that he may take her as a mistress. Langford, who has come to hate Witzel, rejects the suggestion. He wants to be able to say that Witzel's prophesy concerning him should not come true. The missionary finally arrives, and, after much argument upon the part of Witzel not to perform the ceremony, consents to do so. Langford succumbs more and more to damp rot, and within the year which passes Tondeleyo tires of the relationship with him.
The doctor, in an attempt to explain to Tondeleyo the meaning of marriage, says that the relation can be severed only by death. Tondeleyo then forms the idea of killing Langford, who is ill. Under the guise of medicine, she administers a poison. Witzel learns what is taking place, and forces Tondeleyo, of whom he is fond, to drink the poison. She runs off into the bush, presumably to die. Witzel says, however, that, if she does not die, he will take her as his own mistress, having long wanted her. Langford thereafter improves and returns to England as White Cargo.
The plots of the book and the play, as above detailed, are anything but edifying. The play, however, has met with phenomenal success. Over 500 performances have taken place in this city, and six or seven companies are on the road, producing the play, in the United States and England. One of the defenses raised to the complainant's bill is that the story of the plaintiff is lewd and lascivious, and is not entitled to copyright protection. This defense will be treated hereafter.
Upon the trial it appeared that, several years ago, the novel, Hell's Playground, came to the attention of a playright named Leroy Clemens. He, in conjunction with Gordon, had written several plays. Clemens was impressed with the possibilities of a dramatization of Hell's Playground. The book was brought to the attention of Gordon, and he, too, believed the play was suitable for adaptation to the stage. Clemens and Gordon thereupon entered into a contract with plaintiff to dramatize the book. Prior to doing so, Clemens discussed with a theatrical producer the character of the story told in Hell's Playground, and was told that a dramatization of such a story would not be popular, owing to the fact that the theater-going public would not countenance meretricious relations between a white man and an African woman. The contract was allowed to lapse, and something like a year ago White Cargo, as above outlined, made its appearance in a theater in this city.
Obviously the plot of White Cargo and Hell's Playground are somewhat different, *120 but, as it is well known, dramatization of a novel frequently differs from the story on which it is founded, and I have but little doubt that, if the play were represented as being a dramatization of Hell's Playground, it would be so accepted. Of course, given the same subject-matter and the same theme and locale, there will be certain similarities between any two literary works.
But, as I understand the law, a play may fairly be subjected to a charge of piracy, if a substantial number of its incidents, scenes, and episodes are, in detail, arrangement, and combination, so nearly identical with those to be found in a book, to which the author had access, as to exclude all reasonable possibility of chance coincidence, and lead inevitably to the conclusion that they were taken from the book. See Corelli v. Gray, 30 T. L. R. 116. An effort to ascertain whether an infringement here exists will necessitate a rather extended analysis of the similarities existing between the book and the play.
When Langford, the leading character in the play, first appears to the audience, it is, to follow the stage directions, "in a typical African bungalow, somewhere in the dreary expanse of the West Coast. * * * The furnishings of the room in which the action takes place are of the bare necessities; the little niceties of civilization are absolutely absent. * * * There are a few pictures on the walls, but their subjects are practically invisible through the dust, and their only apparent use is as a refuge for the many African insects which roam the tumble-down walls. On the unvarnished sideboard are a number of whisky and absinthe bottles, with their usual accompaniment of glasses, cigar boxes, etc." Langford immediately determines to improve his surroundings, and makes up a list of supplies which he thinks will render the place more habitable, and these he requests the skipper to bring by the next steamer.
Turning to the book, it is seen that Huntingdon, upon his arrival at the station where he is to live, found awaiting him "a wooden bungalow set high on piles and surrounded by a great veranda, * * * furnished with dilapidated steamer chairs and a much-scarred table." The interior of the building "consisted of a great dining and living room, with bedrooms leading off from either side. Ragged grass mats were strewn on the rough, unclean plank floor; a crude sideboard stood with feet in tins of oil and water; open doors and yawning drawers disclosed odds and ends of men's apparel melanged with catsup, mustard, and tobasco sauce, bottles, corkscrews, and drinking glasses. The carpet settee was the saddest looking implement of unrest eyes ever saw; the flat-topped desk, with pigeonholes up the back, was littered with and jammed full of papers; the crude dining table and chairs were survivals of the fittest for many a scar they bore. * * * Huntingdon never before beheld such a drab, uncleanly, depressing human habitation. There was not one redeeming feature, one gentle touch, showing that civilized men dwelt therein. Spiders were everywhere, and the very air reeked with squalor and poverty. He determined to change everything when he was in full charge."
In the play, shortly before the arrival of Langford, Witzel describes Tondeleyo, who is to take such an important part in the drama. He says: "She is the only really good-looking nigger I've ever seen. She may be more than half white, but her instincts are all nigger." According to him, Tondeleyo, who "is the worst kind of a harlot," has "lived on and off with half the traders at the station. She speaks English like a streak, is clever as hell, and does not use trade scent." All of this, together with the susceptibility of white men, when living in the tropics, to the wiles of black women, is told to the missionary immediately before the arrival of the steamer upon which Langford comes to the station.
In the book, the black woman, with whom Huntingdon eventually lives, is described in this fashion: "The commandant has a Gabonaise; Ndio's her name. Gad, but she's a pippin! She can have me, but she looks higher than traders." By another character, Huntingdon is told that Ndio is a savage, seductive creature, not over 16, supple as a tigress, as warm-blooded as Venus Aphrodite herself, and knows no law save that of her emotions, and that she is beautiful. When Witzel tells Langford that he will, after African damp rot sets in, take a native woman as his mistress, he revolts at the suggestion of what it is said awaits him. With much earnestness he declares that no woman, black or white, can make the prophesy come true. He was "white and would stay white."
In addition to what Huntingdon was told concerning native women on the evening of his arrival, he was informed shortly thereafter by another character in the book that the "black woman will get you as sure as I, Le Blanc, the Frenchman, am talking to you. You're in Africa and Africa makes shuttlecocks of white men. You will go down, and *121 when you do, remember Le Blanc." Huntingdon swore "it would never come to him."
In White Cargo, the reason assigned by Witzel for the moral deterioration of men who sojourn in Africa is the "damp rot prevailing upon this God-forsaken strip of hell." Smithson complained to Huntingdon that no place in the world "was so dreary, so God-forsaken, so end-of-the-earthy as Cape Lopez." It will also be remembered that he said that, if it were not for the monthly call of the steamers, no man could stand the sameness.
In the play, it is the periodical call of the steamers that makes life endurable for the doctor, who, it must be conceded, has no definite counterpart in the book. At the conclusion of the dinner given to Langford upon the night of his arrival, Ashley starts to sing "Home, Sweet Home," in which the doctor joins. The skipper of the steamer, displeased at the sentiment of the song, cried out: "Hey, to 'ell with that stuff; sink the sobs." Turning to the engineer, he said: "Here, Ted, give a bleeding dance." Desiring that the dance take place upon the table, the skipper "sweeps the dishes to the floor." A servant who starts to "pick them up is rewarded with a cuff on the head from the skipper's huge hand." The dance takes place amidst much laughter and shouting. The men, however, are soon exhausted from their exertions and lapse into silence. After a bit they revive, and the skipper and engineer prepare to depart for their ship. Ashley, however, who is to be replaced by Langford, is stupefied with drink. Inasmuch as he is to depart for home on the steamer by which Langford arrived, the skipper picks him up, throws him over his shoulder, and starts for the ship, singing: "And we knocked 'em in the old Kent road."
Both dinners take place after darkness has fallen. In White Cargo, the scene is in part described as follows: "The inky blackness of a dark, tropical night has replaced the sun-scorched sand; yet one feels that the heat, if anything, has increased. * * * There is a big oil lamp in the middle of the table, which throws a soft light on the faces of the men, leaving the rest of the room in shadow and the corners in almost total darkness. * * *" In the book, it is said that there is dense darkness without, and that "the light which emanated from a huge oil lamp with a white glass shade suspended low over the dining table was blinding, and it was some seconds before Huntingdon's eyes accustomed themselves to its glare. Then emphasized were the table and its contents." During the course of the meal, of which Huntingdon partakes, Sadler, the skipper, becoming displeased with some act of the attending native servant, raps him viciously over the head.
Reverting for a moment to the song, "Home, Sweet Home," as sung in White Cargo, attention is directed to the fact that on Huntingdon's voyage to Africa the music of that song was played by one of the voyagers, who was deeply impressed by the lonesomeness of his environment. To some of his companions: "It was too much to ask men to hear; too much." In a hoarse voice, one of them, named Hayward, cried: "For Christ's sake, men, something else; something else."
In a speech made to Witzel, Langford says that the London office of his company had told him all sorts of depressing yarns about Africa. "But, hang it all," he adds, "I rather like it; it is not half bad." So, too, Huntingdon was told by his employers that the place to which he was going was monotonous, and the life isolated; that the climatic conditions were unhealthy, and that the natives were treacherous. These matters only whetted his determination to succeed.
In the play, Witzel, when talking to the local missionary, suggested that perhaps he would like a black mistress. Upon the protest made, in response to such statement, Witzel says: "Why not; you're no different from the rest of us, color's only a point of geography, and morals a matter of longitude and lassitude. Black bread is better than no bread at all. We all come to mammy palaver sooner or later."
In the book, "morality" is said "to be a point of view," and in speaking of a bachelor missionary, to whom reference has been made, Moore says: "Bachelor nothing; he has got his black beauty, the same as the rest of us." At this Smithson remarks: "Moore, I would not have your putrid mind for all the revenue in the French Congo."
In White Cargo, the doctor, in replying to one of the insults directed at him by Witzel, says: "I may have lost my self-respect, but, thank God, I have not that rotten bitterness in my soul that you feel towards every man." At the beginning of the second act of the play, as previously noted, Langford has begun to feel the damp rot of Africa. From the stage directions, it appears that he is no longer well groomed; he is heavily tanned and in need of a shave. His movements are languid, and there is a lack of buoyancy in him voice. To look at him, it would seem as if five years had elapsed since his arrival.
*122 The effect of Africa upon Huntingdon, at one stage of his residence there, is said to have been as follows: "He was in no mood for anything save to drop on a divan; to give up to the vampire languor, who gnawed at his very vitals. * * * Huntingdon was going the way of Africa, and it would not be long before he was thoroughly subjugated." While in this condition, he cries to two native servants: "Get out, both of you; fight it out between you; get out of my sight. * * * I am sick of your eternal mammy palaver and greediness." This state of mind in Langford is given expression by Langford, when speaking to Witzel of a native who cannot understand what he is told. "For God's sake, tell the nigger to clear out; he is getting on my nerves, so that I want to scream."
Before Huntingdon comes to feel the effects of Africa he says to Smithson: "I am awfully keen for a hunt, old man." In the course of the same conversation, Smithson says: "Enthuse while you can old man; it will soon wear off, but try to take in the meaning of this desolate beach." In the play, Langford remarks, "I bet you get great hunting here," and is given this answer by Witzel: "Yes; but most of the time you'll be hunting for your boy to cook tiffin and hunting for a spot cool enough to breathe in. Then you'll hunt for mosquitoes that breed in your sleeping net, and above all you'll hunt for something to break the monotony; but you'll never make a kill."
It will be recalled that Huntingdon obtained his position with John Holt & Co. through the influence of his father. In the play, it appears that Langford, through office politics and family pull, was designated as the superior of Witzel at the trading station where he was to be employed. He assured Witzel, however, that he need feel no concern over the designation, and that he could go ahead in the business as before.
The following speech is made to Huntingdon: "And further safeguard yourself by taking a wife; there is something in the air, in the sun's heat, and in the general precipitation of nature that engenders unholy desires in the holiest of men. Do not try to fight them; you will only lose out." In the play the doctor, in answer to Langford's complaint that "damp rot is like a weed, which you keep destroying without killing the root," says: "Don't try, Sonny; compromise with it, but don't try to fight it. It's hopeless."
Again, Le Blanc says to Huntingdon: "You are new, Monsieur Huntingdon; wait until you are out longer, until Africa gets you; you won't be so finicky." In the play, Witzel says to Langford: "Do not tell me you are so green you have never heard of mammy palaver." He is also told: "We all come out with great ideas of what we are going to do, and then end up the same as the other fellow; only a matter of time until damp rot sets in."
In the book, one of the characters observes that in Africa the climate is responsible for most of the shortcomings of the white men. In the play, Witzel, when asked by Langford what caused the timbers of the bungalow to rot so easily, said: "It is the climate, moisture; men react to it in much the same way."
In speaking of Ndio, the book contains this comment: "Other men discarded and changed their mistresses at will. But such commonplace treatment was not for the imperious Gabonaise; 'twas she who did the choosing; 'twas she who discarded." In the play, Tondeleyo, in her endeavor to have Langford take her as his mistress, speaks of her relations with other men in this wise: "I do the picking."
The limitations of time and space make inadvisable a further detailed comparison of the incidents and scenes of the play with those of a similar nature that are to be found in the book. But, even so, attention may profitably be directed to a few more outstanding parallels. The first of these is that the character of Tondeleyo is for all practical purposes identical with that of Ndio. It is true that Tondeleyo is a half-caste, and even in this particular the book, in describing the character Elinda, supplies a source from which Gordon may have conceived the idea of making Tondeleyo a half-breed. It appears that Elinda had been brought up at a mission, as was Tondeleyo. She also knew of the ways of white men, and, like Tondeleyo, "had been wife to a score of white men. * * * She prided herself on it, and she was universally envied by the other women."
The manner and method by which Tondeleyo finally induces Langford to succumb to her charms is substantially the same as that employed by Ndio in her approach to Huntingdon. A more or less insignificant detail will serve to establish how closely in this respect one character approaches the other. I quote from the stage direction of the play: "Tondeleyo * * * eventually curls herself up in a large wicker morris chair. A splinter from the chair penetrates one of her vermillioned bare feet. *123 She gives a little squeal. Langford, startled, goes over to her. She displays the foot to Langford, who removes the splinter. As he kneels to do so, she throws both arms around him, while the rest of her body snuggles up to him." A few moments more, after a bit of stage "business," Langford's "arms are about her, and she is held in a vise-like grip. Slowly their lips meet."
The counterpart of this scene is to be found in Hell's Playground. Ndio and Huntingdon are alone. She is trying to induce his caresses, and in the effort she pulls up her pagne, disclosing a deep scratch just below the knee. She appeared artless as a child." Her male companion begins to show interest, and from the text it appears that "for the first time in months weariness did not possess Huntingdon. It had fled from him. He had something to interest him. He had found companionship." In a moment more Huntingdon's answer to a question of Ndio "was to take her in his arms and press his lips to hers."
One incident of the play which it was much argued differentiated White Cargo from Hell's Playground is the softening of Witzel's manner towards Langford at the time he is fighting the effect of the poison administered by Tondeleyo. In this scene, Witzel sheds a tear of sympathy for Langford, and, thinking aloud, says: "Poor devil." The argument seems to have overlooked the fact that in the book Moore comes to the aid of Huntingdon in his dangerous illness, following his experiences with Ndio. So generous was the task he undertook, so as to enable Sadler to be with Huntingdon in case he should die, that "* * * Sadler looked after him with tears in his eyes, and murmered, `Scratch an Englishman deep enough, and you'll find his heart.'"
But, notwithstanding all that has been said, defendants contend that the marriage between Langford and Tondeleyo shows beyond dispute that White Cargo is not an infringement upon plaintiff's copyright. It must be admitted that in Hell's Playground there is no ceremonial marriage between Huntingdon and a native woman. In the opinion of distinguished experts called by defendants, the marriage in White Cargo is to be reckoned as being of prime importance in support of the claim of noninfringement.
Whatever may be the probative force of this testimony to the complex of the relationship of Langford and Tondeleyo, the fact remains that the book may very well have been the source of the idea. I quote from Hell's Playground: "Secure in her beauty and its power, the Gabonaise was again the imperious belle of the coast, * * * the coveted of all white men, the envied of the native women, the acknowledged wife of Huntingdon, the proud Englishman."
With this suggestion before a dramatist, it would not seem unnatural for him, particularly if he was conscious of plagiarism, to have his two main characters go through the form of a ceremonial marriage. In this connection, one should bear in mind that the insistence of Langford upon a ceremonial marriage was not due to any moral compunctions, but was to thwart the fulfillment of Witzel's prediction that he would "mammy palaver."
Proof of this is to be found in the speeches made by Langford in response to the doctor's entreaties that he live with Tondeleyo without going through the form of a marriage. Langford says: "And see that rotten look of contemptuous triumph on Witzel's face? God, I tell you I couldn't stand it. Even now I can hear him saying: `Well, I told you you'd mammy palaver.' * * * I loathe him; I'd rather die on the rack than give him one inch of satisfaction; get that, I'd rather die."
Under these circumstances, the contention that Langford's morals were superior to those of Huntingdon seems far-fetched. In answer to the suggestion of defendants that Langford wished to teach Tondeleyo the ways of civilization and to raise her to his own level, it may be said that such seems to have been one of the thoughts of Huntingdon with regard to his relationship with Ndio. As to this, the authoress says: "Suddenly it came to Huntingdon that he would like to teach this woman something. She was extremely perceptive, and fascinating, and young. * * *"
The foregoing list of similarities might be extended indefinitely. It is, I think, unnecessary to do so. What has already been set forth is sufficient to convince me that Gordon, in writing White Cargo, deliberately pirated Hell's Playground. Without access to the book, I think it inexplicable that he should have incorporated into his play such a list of similar and parallel incidents, episodes, and scenes. In addition, many of them are presented in language that is hardly more than a paraphrase of the text of Hell's Playground. The difference existing between the novel and the play seems to me to be no more than Gordon believed necessary in order to adapt complainant's story to the limitations of the stage.
*124 In Bachman v. Belasco, 224 F. 817, 140 C. C. A. 263, the Circuit Court of Appeals for this circuit approved the following statement as truly expressing the text of plagiarism: "The paramount question is whether the similarities existing between the two plays are mere coincidences arising because of the development by two playwrights of a central idea taken from a common source, or whether these similarities are such as to overbalance the testimony of the defendant's witnesses and reveal plagiarism, and, further, if there was not piracy, was there such an unintentional infringement of complainants' copyright as to justify the equitable relief which complainants seek?" Applying such test to this suit, I think there is no doubt of complainant's right to relief.
Any one who may take the trouble to read what I have attempted to set forth will, I am sure, be impressed by the fact that neither the book nor the play is elevating. Both are unnecessarily coarse and highly sensual. They nevertheless purport to deal with actual conditions as they are known to exist in tropical countries, and, if such conditions be dealt with in a manner that is not calculated to arouse lust in those who read the book or see the play, it is doubtful if a charge of immorality may successfully be maintained. If the copyright of Hell's Playground is invalid upon the ground of immorality, it augurs ill for many present-day novels and magazines, to say nothing of numerous dramas which now meet with public approval. In Mr. Weil's book on Copyrights, the author has this to say:
"The rule that there can be no copyright in any blasphemous, seditious, immoral, or libelous work rests in sound principles of public policy, and is not deemed overruled by the present statute. Since, however, this principle rests in public policy, cases decided in one age are not a safe guide, on their facts, in subsequent times, and the present tendency, undoubtedly, is to allow much more latitude than formerly to free speech and thought. While the doctrine under discussion is sound in principle, its application is to be extended only to clear cases."
Whatever may be the view of a prudist with respect to Hell's Playground, I think that the book, when judged by the standards of current literature, should not be held to be unentitled to copyright protection.
In any event, so far as morality is concerned, the play is no improvement upon the book, and for such reason I believe that any doubt as to the validity of the defense, based upon the alleged immorality of the book, should be resolved in favor of complainant.
The defense that plaintiff cannot here prevail, for the reason that Moffat, Yard & Co., the publishers of Hell's Playground, were not authorized to take out a copyright in the United States in their own name, seems to me to be without merit, and it will be overruled. See Dam v. Kirk La Shelle, 175 F. 902, 99 C. C. A. 392, 20 Ann. Cas. 1173, 41 L. R. A. (N. S.) 1002.
Complainant may have an appropriate decree. The question as to whether the defendants, other than Gordon, who have participated in the promotion of White Cargo, have subjected themselves to any liability, other than injunction restraint, will be reserved for the settlement of the decree.
