"We are talking now only of those that were not in the book, but which you claim are only in the movie and the play."
"That's right, there are six."
"And do you base your claim upon these six similarities alone?"
"I don't think I understand your question."
"It's perfectly clear, Mr. Constantine. Do you base your claim upon these six similarities alone?"
"No, sir."
"You do not?"
"My claims based on all the similarities that appear in the play, the book, and the film."
"It is our contention, your Honor," Brackman said, "that both James Driscoll and API copied freely from the plaintiff's play. Mr. Genitori's concern at the moment would seem to be API's right to counterclaim should—"
Mr. Brackman," McIntyre said, "I do not see where API's right to counterclaim is a matter for discussion right now."
"The plaintiff is suing for an accounting. API's right to counterclaim later is most certainly before your Honor, if we are to be realistic."
"Your Honor," Genitori said, "my question does not go to the matter of counterclaim, though I would agree this is a consideration. It deals instead with the specific allegations against API."
"You will answer the question, Mr. Constantine."
"What is the question?"
"Do you base your claim against API on these six similarities?" Genitori said.
"I base it on all the similarities," Arthur answered.
"That concludes my cross-examination, your Honor."
"I have no redirect," Brackman said.
"Very well. Thank you, Mr. Constantine, you may—"
"Your Honor, I have one further question."
"Forgive me, Mr. Willow."
Willow walked to the witness chair and, without looking at Arthur, said, "Mr. Constantine, you said yesterday morning that you worked on a film titled Area Seven, is that correct?"
"That's correct."
"In what capacity did you work on that film?"
"I worked on the screenplay."
"You wrote the screenplay?"
"I worked on it together with Matthew Jackson."
Willow suddenly looked up. "Mr. Constantine," he said, "did you receive screen credit for Area Seven?"
"I did."
"As co-author of the screenplay?"
"We worked on it together."
"Did the screen credit state 'Screenplay by Matthew Jackson and Arthur Nelson Constantine'?"
"Screen credits are determined by the Writers Guild. They very often—"
"Please answer the question."
"No, that's not what the credit stated."
"Did it not, in fact, state 'Adaptation by Arthur Nelson Constantine, Screenplay by Matthew Jackson'?"
"Yes, that's what it stated. But 'adaptation' is a word—"
"Thank you, Mr. Constantine."
"Mr. Brackman?" McIntyre asked.
"That is the plaintiff's case, if your Honor please."
"You may step down, Mr. Constantine."
"Thank you," Arthur said. Bewildered for a moment, he began walking toward the jury box on the left of the courtroom, saw James Driscoll and his wife sitting there, started for the benches at the rear, and then responded to Brackman's signal to join him at the plaintiff's table.
Willow was still standing before the bench.
He took off his glasses, pressed his fingers into his eyes, head bent for a moment, and then put the glasses on again, and looked up at the judge.
"May I at this time," he said, "move to dismiss the action on the ground that this court has no jurisdiction with respect to the play Catchpole."
He delivered the words calmly and emotionlessly, startling even Genitori, who looked up in surprise. Arthur immediately turned to Brackman, puzzled, but Brackman rested a reassuring hand on his arm, leaned forward, his attention focused on Willow, and then patted Arthur's arm twice in further reassurance. Arthur did not know why Willow was suggesting that a federal court had no jurisdiction in a copyright case. He sensed intuitively, though, that the motion had been conceived as a result of the trap Willow had set and sprung in his earlier circuitous questioning. Apprehensively, he leaned forward and waited for Willow to continue. The courtroom was silent.
"Section 13 of the Copyright Law," Willow said, "clearly states that no action for infringement may be maintained if copies of the work in question have not been deposited with the Library of Congress."
Brackman was on his feet instantly. "Mr. Willow knows very well that the play Catchpole was copyrighted in August of 1947," he said. "Point of fact, he conceded before trial that it would not be necessary to produce a certificate of copyright, and that…"
"That's on the record, Mr. Willow," McIntyre said. "I'm not sure I understand your motion."
"Your Honor," Willow said, "I believe it was proved today that this work was published a full seven months before any copyright protection was sought."
"May I ask. " Brackman started.
"Publication, your Honor," Willow interrupted, "may be defined as the earliest date of unrestricted sale or distribution of copies. In this case, the first authorized edition of Catchpole was the play Arthur Constantine had mimeographed in December of 1946."
"Your Honor…"
"He distributed copies of that play starting in January of 1947, and continuing through May of that year, when the play was optioned. This mimeographed version was not copyrighted, nor was the play registered with the Copyright Office until August of 1947, seven months after the general distribution."
"Your Honor," Brackman said, "we are engaged in a matter of semantics here. The distribution made by Mr. Constantine was not a general distribution, as my learned friend claims, but rather a limited one to theatrical producers and investors, for the sole purpose of securing production of the play."
"The fact remains, your Honor, that one hundred and twenty copies were, in the witness's own words, 'floating all over the city,' distributed without copyright notice, placing them in the public domain. I cite Section 10 of the Code, which specifies that publication or distribution without the statutory copyright notice constitutes dedication to the public."
"This was neither a publication nor a general distribution," Brackman said. "Under Section 12 of the Code, the common-law protection of a work is perpetual so long as the work remains unpublished. Catchpole, which was a dramatic composition, was 'published,' if you will, on the night the play opened in New York City to paid performances. Until that time…"
"A hundred and twenty copies were printed, your Honor."
"Were mimeographed," Brackman said.
"And generally distributed."
"It was a limited distribution."
"We can argue this forever," McIntyre said. "I will reserve judgment on the motion, Mr. Willow."
"May I then, your Honor, for the defendants Mitchell-Campbell Books and Camelot Books move for dismissal of the complaint under Rule 41, on the ground that on the facts and on the law the plaintiff has not made out a cause for action."
"I will deny that motion," McIntyre said.
"If your Honor please," Willow said, "I have no desire to waste the Court's time, but may I point out that our grounds are set forth in our main brief and in our reply brief?"
"I know that."
"Thank you, your Honor," Willow said.
Genitori rose from behind the API table and walked toward the bench. "May it please your Honor," he said, "Mr. Willow has made a motion to dismiss under Rule 41, and I would now like to join that motion as it refers to the first claim against API. But in addition, I would like to make another motion directed to the second cause of action, which charges independent infringement by API.