"Your Honor, the critical appraisal of Catchpole is of enormous relevance to this case. Mr. Driscoll is said to have plagiarized the play, but the only support for this allegation is a purported similarity between the two works. I ask now why anyone would wish to steal a play that had already been rejected by each and every major motion picture studio, that had been greeted with universally bad notices, and that ran for only twelve days on Broadway."
"Your Honor," Brackman said, "the law books already show that it is the relatively unknown work which most often becomes the target of the plagiarist."
"We could argue that all day, your Honor…"
"Yes, I'm sure we could," McIntyre said.
"… and still not come to an agreement," Willow continued. "Abie's Irish Rose was certainly highly successful, and I'm sure my opponent recognizes it as one of the most prominent plagiarism cases. And whereas there are examples of plagiarism from more obscure properties, I still feel that critical and popular acceptance of a work is relevant to the issue here."
"Mr. Constantine has already testified that the play ran only twelve days," McIntyre said. "This does not indicate, to me at any rate, that it was a hit. Why you would wish to offer additional evidence to that point is beyond me, Mr. Willow. I will not admit it."
"Will you allow it to be marked for identification, your Honor?"
"I will."
"Mark it 'Defendants' Exhibit A for identification,' " the clerk said.
"May we also mark for identification the review that appeared in the New York Herald Tribune on October 15, 1947?"
"Is this another review of Catchpole?"
"Yes, your Honor. Your objection is only to relevance, is it not?"
"It is not admissable."
"I made the offer first in evidence, so that the record will be clear."
"The record will note your exception."
"Mark it 'Defendants' Exhibit B for identification,' n the clerk said.
"Thank you," Willow said. "Mr. Constantine, when did you begin work on your play Catchpole?"
"When I got out of the Army. That was July of 1946."
"And when was the play completed?"
"About three or four months later. Toward the end of the year."
"November or December, would you say?"
"Yes. November, I think it was."
"When did you begin attempting to find a producer for it?"
"In January of 1947. There was no sense trying to do anything during the holidays. I had the play mimeographed shortly before Christmas, and I began sending it around after New Year's."
"Is this customary procedure?"
"Sending the play to producers, do you mean?"
"No. Having copies mimeographed."
"Some authors do, others don't. It depends on how many people you want to reach. And also whether you can afford to have the work done."
"How many people did you want to reach, Mr. Constantine?"
"As many as possible. I wanted my play to be produced."
"How many copies were mimeographed?"
"A hundred, a hundred and fifty, I don't remember the exact amount."
"And I take it the result of all this was that you succeeded in getting a producer?"
"That's right."
"So it would seem to have been a good procedure," Willow said.
"It worked for me."
"To get back, you say you began work on Catchpole shortly after you were discharged from the United States Army. Would you say that your Army experience was still fresh in your mind when you began writing?"
"I would say so, yes."
"Army routine, Army terminology, Army regulations?"
"Yes, all of it."
"As well as the language used by soldiers, of course."
"Of course."
"In your military experience, Mr. Constantine, did you meet many men who used obscene language?"
"I met some."
"Who used obscene language such as Mr. Driscoll uses in his novel, and such as you more discreetly use in your play?"
"Yes, I met some. Mostly uneducated men."
"There were some of these in the Army."
"Is that a question?"
"Yes, it's a question."
"Yes, there were uneducated men who used obscene language."
"Do you think they were rarities?"
"No."
"They were commonplace?"
"They were to be found everywhere in the Army."
"During World War II?"
"Yes, and during the Korean War also, I would imagine. That's where you're leading, isn't it?"
"Do you feel, Mr. Constantine, that the character named Franklin in your play — the man who is addicted to the use of obscene language — do you feel he is a unique creation?"
"I do."
"You feel that a soldier addicted to the use of obscene language is unique?"
"Franklin swears in a specific manner. He uses a specific word as verb, noun, adjective, adverb. I think we know the word I mean."
"Yes, I'm sure we do."
"I changed it to the word bug in my play."
"And you feel that a character who uses this word as verb, noun, adjective, and so on is a unique creation of your own, is that correct?"
"That's correct."
"And not simply a valid fictional representation of a commonplace individual who is to be found wherever there are armies or Army posts or barracks?"
"I consider him unique."
"Would it surprise you, Mr. Constantine, to learn that in a play titled The Eve of St. Mark… do you know the play?"
"Yes, I know it."
"It's by Maxwell Anderson, he's won several awards for playwriting, including the Drama Critics Circle Award and the Pulitzer Prize. I think you may know of him."
"Yes, I know of Maxwell Anderson."
"In his play The Eve of St. Mark there is a sergeant named Ruby, who is addicted to the use of the word ruttin'…"
"Rotten?"
"No, ruttin'. R-U-T-T-I-N-apostrophe, very similar to your use of the words bug or bugging. Does that surprise you, Mr. Constantine?"
"I'm not that familiar with the play."
"It opened at the Cort Theater in New York on October 7, 1942, five years before Catchpole. It ran until June 26th of the following year, and was later made into a motion picture. Do you still maintain that your character Franklin is a unique creation?"
"I do. He is unique in my play."
"But not in someone else's play? He is unique only in your play?"
"I had not seen Mr. Anderson's play, nor was I aware of the sergeant in it. Besides, the word bugging is not the word ruttin'."
"Nor are either of them the actual word Mr. Driscoll uses, isn't that so?"
"It's so, but the intent is the same."
"The same as what?"
"The same as using the word bug, which I had to use for the stage."
"But not the same as the word ruttin', which Mr. Anderson had to use for the stage?"
"I merely said the words bugging and ruttin' were not identical."
"But they are similar?"
"Yes, they are similar."
"In intent?"
"Yes, in intent, too, I suppose. But…"
"Yet you still maintain that your character's use of obscenity is unique?"
"It is unique, yes."
"Thank you. Mr. Constantine, what procedure did you follow in submitting your play for production?"
"I usually mailed it out."
"To whom?"
"To anyone I thought might be interested. This was my first play, and I was new at this sort of thing. I didn't have an agent at the time. I sent it to anyone I thought might help me in getting it produced."