Whereas the low threshold of originality as opposed to novelty had already been clearly established by this court (See Alfred Bell & Co. v. Catalda Fine Arts, Inc. 191 F.2d 99, 2d Circ. 1951), under the 1976 Copyright Act it is now explicit in the statute that copyright subsists in 'original works of authorship,' and it is the task of this court to determine whether the issue of novelty or originality applies in the case before us.
in an appeal bearing certain striking resemblances to the case at bar, Judge Learned Hand disputed the issue of novelty more than a generation ago in observing at the outset that '(w)e are to remember that it makes no difference how far the play was anticipated by works in the public demesne which the plaintiffs did not use. The defendants appear not to recognize this, for they have filled the record with earlier instances of the same dramatic instances and devices, as though, like a patent, a copyrighted work must be not only original, but new. That is not however the law as is obvious in the case of maps or compendia, where later works will necessarily be anticipated. At times, in discussing how much of the substance of a play the copyright protects, courts have indeed used language which seems to give countenance to the notion that, if a plot were old, it could not be copyrighted.' Sheldon et al. v. Metro-Goldwyn Pictures Corp. et al., 81 F.2d 49, quoting London v. Bio-graph Co. (C.C.A.) 231 F. 696. Defendant-appellees in the instant case have pursued a similar course, and the district court has joined with their pursuit, conjuring up once more this spectre of novelty in arguments relying heavily on citations from a more recent case in which the judge determined this to be the 'sole issue' before the court in granting defendants' motion for summary judgment, and affirmed in the review by the appeals court limiting its decision to whether there was 'no genuine issue as to any material fact' entitling defendants to 'judgment as a matter of law.' Fed. R. Civ. P.56(c). Murray v. National Broadcasting Co. inc., 671 F. Supp. 236 (S.D. N.Y. 1987), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In so arguing, defendants in the case before us have sought and found refuge in a decision embracing property rights in an idea, thus narrowing the issue to those mean constraints which the district court had then proceeded to analyze in light of the New York Court of Appeals decision in Downey v. General Foods Corp., 31 N.Y.2d 56, 334 N.Y.S.2d 874, 286 N.E.2d 257 (1972) Affirmed (1988) establishing the general proposition that '(l)ack of novelty in an idea is fatal to any cause of action for its unlawful use' therewith granting defendants' motion for summary judgment. In tying the case at bar to the Procrustean bed of Murray as refined by further pruning at the hands of this court, plaintiff is disabled from pursuing the triable issue of infringement or a copyrighted work wherein novelty rightly construed is a contributing but not the controlling factor and where, for that matter, we may take notice of Pratt, C.J. dissenting in Murray 'convinced that the novelty issue in this case presents a factual question subject to further discovery and ultimate scrutiny by a trier of fact.'
In deciding Nichols v. universal Pictures Corporation (45 F.2d at 121) Judge Hand stated '(i)t is of course essential to any protection of literary property, whether at common law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations… When plays are concerned, the plagiarist may excise a separate scene (citations omitted); or he may appropriate part of the dialogue (citation omitted). Then the question is whether the part so taken is "substantial," and therefore not a "fair use" of the copyrighted work; it is the same question as arises in the case of any other copyrighted work. (Citations omitted.) But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome.' Further, in Murray, this court has conceded that even novel and original ideas to a greater or lesser extent combine elements that are themselves not novel. Originality does not exist in a vacuum.' And as stated in Edwards & Deutsch Lithographing Co. v. Boorman, 7th Circ, 15 F.2d 35, 36, The materials used are all old and in the public domain, but the selection, the ordering and arrangement, are new and useful, and copyrightable. In deciding the question of infringements, the first and most obvious thing to do is to compare the productions themselves. The copyrightable feature of appellant's production being a particular plan, arrangement and combination of materials, the identity of such plan, arrangement and combination of similar materials, found in appellee's production, not only suggests, but establishes, the claim of copying.' See universal Pictures Co. v. Harold Lloyd Corporation 162 F.2d 354.
The defendants took for their mise en scene the same locale, the same two fragmented families contrasting privilege and penury, the same leading roles and the same protagonist's relationships with them. Both Thomas and Randal are fueled by indignation; both escape their humiliating circumstances through marriage to the plantation heiress next door, whose father is a Confederate major and whose brother takes their place at the battlefront unbeknownst to them; both travel north on the same mission and send substitutes from the mines up in their place, to the same fate and in the same battle; finally, both are saddled by a bleak embittered mother who holds the key to their family injustice in the form of the intestate uncle. The differences are not of character but of dimensions, convenience or mere disguise; thus Thomas is an ambitious young man of intellectual leanings caught at cross purposes and fully aware of the ethical fine points at stake in his demand for justice, whereas Randal is cast in a simpler mould, reflecting the vacant stare of the motion picture audience in its warm acquaintance with greed undiluted by any exercise of the intellect let alone the bewildering thicket of 5ocratic dialogue. Where the play has in mind to edify, the picture sets out to entertain; thus Giulielma, Thomas' touching and desolate bride, finds her tempestuous full bosomed counterpart on the screen composed to arouse those appetites that will find their vicarious reward in the rape scene. Similarly, the sympathetic stage portrait of the Major as a genteel if self serving Southern aristocrat not unfamiliar in the literature, becomes that of a scheming rural drunk familiar from the small screen of television, and his son a mean figure of weakness and spite who is portrayed on the stage as a complex mixture of thwarted and divided love and loyalties. Even the part of Mr Bagby, a study in the business as usual corruption that ushered in Reconstruction and flourishes among us today as the beau ideal, is taken by a comic Italian stereotype reflecting, perhaps, no more than the mirth provoking possibilities provided by each successive wave of immigration, where were the story set in our own time his name would be Jimenez. Only the mother remains the same consistently unpleasant presence from one incarnation to the next, though her message delivered at the opening of the play does not come until later in the picture with its full impact when the two have parted company altogether. The Negro boy at her knee in the play has all but disappeared in the picture, there being no need to explore Rousseau's views on freedom; and Mr Kane of the play is entirely absent from the picture where Crito would be as unhappy a stranger as King Tut.