The main action of the play commences well after that of the picture, with the hero's return from battle to the news of his inheritance. Rather than marking a difference however, this draws them the closer, since the play's opening dialogue summing up all that has gone before now reads like the scenario written for and played out in the picture. From the mother's bleak recounting of the event, we behold on the screen the hero driving their shabby equipage up the plantation drive 'as if he owned the place' only to be sent on his way by a disdainful black to the dilapidated farm, where their struggle against adversity is depicted in the ensuing montage as a long pantomime of privation with musical flourishes unaided by the spoken word. The first voice we hear is that of the ravishing heiress next door, taking him by surprise while out hunting though from her demeanor and subsequent actions we gather that she is not. In calculated contrast to Thomas' poetic recounting of this scene in the play, where his humiliation out hunting food for the table confronted the girl's wayward loneliness, the man on the screen turns the tanned and perspiring badges of his low estate to advantage bringing her down from her arrogant seat on a pawing stallion to be found in short order undoing his overalls and, in the phrase that has caught currency from its high Joycean literary pedigree, 'making a man of him.' Following a lavish wedding and his installation at Cross Creek with his bride's unsavoury relations, the clouds of war loom over the happy couple, preparing us for the full scale screen spectacle of battle at Ball's Bluff.
We may note that at this point in the picture the main action of the play has not even begun, and nothing has been offered by defendants as evidence taken from the public domain, yet we need only come this far in tracking the picture to the play to arouse our doubts regarding the particular plan, arrangement and combination of materials' in defendants' product in the light of Nutt v. National Institute incorporated for the Improvement of Memory, 2d Circ, 31 F.2d 236, 238 where the court observed, '(c)opying is not confined to a literal representation but includes various modes in which the matter of any publication may be adopted, imitated or transferred with more or less colourable alteration.' The matter of dialogue versus action portrayed, or as alleged in the instant case employed as a blueprint for such portrayal, has enjoyed many variations in infringement actions, quoting the author's description of the infringing scene in Chappell & Co. v. Fields, 2d Circ., 210 F. 864 where '(i)n the plaintiff's play the idea that B was deliberately bound to the track with the intention of having him killed by the train was conveyed by the joint effect of the language spoken and movements performed in accordance with the written directions; while in the defendant's play the same idea was conveyed solely by the language uttered. The action, the narrative, the dramatic effect, the impression created and the series of events in the two scenes were identical.' Thus '(w)e have often decided that a play may be pirated without using the dialogue. (Sheldon v. Metro-Coldwyn Pictures, supra, citations omitted.) Were it not so, there could be no piracy of a pantomime, where there cannot be any dialogue; yet nobody would deny to pantomime the name of drama. Speech is only a small part of a dramatists' means of expression; he draws on all the arts and compounds his play from words and gestures and scenery and costume and from the very looks of the actors themselves.' Yet even as here quoting Judge Hand in their defense, appellees rather strengthen the case for the plaintiff as they have done elsewhere 'by setting out dissimilarities, changes, omissions, additions, and variations… different characters, different dialogues, and different costumes which were used to effect a different purpose. Evidence of these differences is relevant upon the question of infringement, but if such differences are shown to exist, the question remains for the trier of fact to decide the issue.' Pellegrini v. Allegrini, D.C., 2 F.2d 610. Where a grant of summary judgment may be precluded by evidence of substantial differences between two works because such evidence would demand a trial on the issue of substantial similarity, should we follow the procedure of the court below assuming copying we must determine whether there are differences which are not extensive enough to show that there is no substantial similarity between the play and the picture as a matter of law. Thus in Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 2d Circ, 73 F.2d 276, 278, cert, denied 294 U.S. 717, 55 S.Ct. 516, 79 L.Ed. 1250, the court found the test of infringement to be whether the work is 'recognizable by an ordinary observer as having been taken from the copyrighted source. Such is an infringement… Slight difference and variations will not serve as a defense.' As in the case at bar, '(s)urely the sequence of these details is pro tanto the very web of the author's dramatic expression; and copying them is not "fair use…" Again these details in the same sequence embody more than the "ideas" of the play; they are Its very raiment.' And see Chicago Record-Herald C. v. Tribune Association, 7th Circ., 275 F. 797, 799, in which it is said that the unauthorized use, copy or appropriation is not to be neutralized on the plea that it is such a little one.'
if this de minimis defense cannot prevail, then neither can defendants' copious recital of omissions, variations and incidents foreign to both the play and the public domain. The simple handshake transformed on the screen to a heaving ejaculatory introduction between the leading couple is after all classic, in the vulgar sense, 'Hollywood' usage of a property assuming of course that the rights to the context of the handshake have first been secured, just as the picture's entirely gratuitous rape scene is an excusatory contrivance for the obligatory nudity presumably contemplated in the female star's seven figure contract, 'incident springs out of character, and having occurred it alters that character,' writes the English novelist E M Forster, and 'characters, to be real, ought to run smoothly, but a plot ought to cause surprise.' Thus in the play we see plot emerging from character, whereas in the picture the characters are mere puppets of the plot, and defendants will prosper no better with reciting prolonged instances of the play's dialogue which do not occur in the picture, than in pointing the accusing finger at plaintiff for his cavalier lifting of dialogue and even whole scenes from the works of Plato, for as elucidated by Judge Hand in Sheldon v. Metro-Goldwyn Pictures, supra: 'Borrowed the work must indeed not be, for a plagiarist is not himself pro tanto an "author"; but if by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an "author," and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's. (Citations omitted.) True, much of the picture owes nothing to the play… but that is entirely immaterial; it is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate. We cannot avoid the conviction that, if the picture was not an infringement of the play, there can be none short of taking the dialogue.'
It becomes clear beyond peradventure that the district court abused its discretion in granting defendants' motion for summary judgment dismissing a complaint containing triable issues of fact including that of novelty, to which the issue was largely reduced, relying heavily on Murray v. National Broadcasting Company, supra, as argued in defendants' representations of 'fair use' making no finding in the instant case on whether they actually used the play or not. In this connection we again find Pratt C.J., dissenting in Murray, persuasive in his observation that there is no evidence indicating NBC knew anything of the program idea until Murray submitted it' and '(even though plaintiff's idea was in public domain, no evidence that defendant knew about or would have discovered the idea except through plaintiff's proposal; hence the "idea was novel" as far as defendant was concerned.'