"For the purpose of this motion, your Honor, I must assume arguendo that Ralph Knowles, the man who wrote the screenplay and directed the film, had access to the play Catchpole, and that the five similarities listed in Plaintiff's Exhibit Number 8, together with the 'eyeglasses' incident which was added today — these six items were copied by Mr. Knowles directly from the play. I submit to your Honor that even assuming access and copying — and access alone means nothing, as your Honor well knows — even assuming both, these six incidents alone do not form the basis for copyright infringement.
"Let us examine them for a moment, if we may, your Honor. They are all as flimsy and as absurd as the man with his foot in bandages, or the far-fetched allusion to marksmanship, both of which claims have already been withdrawn. They are as meaningless, your Honor, as the incident of the eyeglasses, which was added to the list in this courtroom today.
"We are asked to accept as a unique idea, for example, the use of a bayonet as a weapon, your Honor — the use of a bayonet as a weapon — merely because the plaintiff's psychopathic colonel uses one. Never mind the fact that bayonet charges were prevalent during the Korean conflict, and that whereas none were mentioned in the novel, Mr. Knowles made pictorial use of them in the film. Or for example, your Honor, the plaintiff insists that because some soldiers are drinking coffee at one point in his play, and some soldiers in the film also drink coffee, this is another indication of access and direct copying from the play. I don't think I need bring up the other three points which are just as meaningless, and upon which the plaintiff bases his charge of independent infringement by API.
"I submit that the plaintiff's case is lacking in any evidence of infringement of copyrightable material. I call your attention to one of the more prominent plagiarism cases — Morris versus Wilson, cited on page 24 of our brief — in which Judge Weinfeld said, In order to suppose that these authors should have found in the plaintiff's play cues for the farfetched similarities which she discovers, one must be obsessed — as apparently unsuccessful playwrights are commonly obsessed — with the inalterable conviction that no situation, no character, no detail of construction in their own plays can find even a remote analogue except as the result of piracy.' The judge later quoted, poetically, Trifles light as air are to the jealous confirmations strong as proof of holy writ.'
"Your Honor, that's exactly what these six isolated incidents are, trifles light as air. Let us examine the rest of them a moment, if your Honor will allow. There is an enemy soldier being shot at and falling out of a tree, a supposedly unique event in time of war. There is an American soldier bursting into tears when his buddy is killed. And finally, there is a nurse putting on lipstick and using the back of a mess kit for a mirror. Your Honor, I submit that the first two of these alleged similarities are stock incidents to be found in any war film ever made, and that the incident with the nurse and her lipstick is non-copyrightable.
"If you will refer to page 31 of our brief — the case of Rush versus Oursler — Judge Thacher of this court observed, 'When two authors portray the same occurrence in the same setting; presupposing the presence of the same people in the same environment; similarities of incident unaccompanied by similarities in plot are not persuasive evidence of copying. The authors having worked with the same material to construct the environment or setting in which the action is laid, such similarities are inevitable; and the products of such labor are comparable to the paintings of the same scene made by different artists.'
"And a little later on, your Honor, he remarked, Tt may usually be said that such material is so unimportant and so trivial that its appropriation by copying, even if shown, would not be a substantial taking of copyrighted material.' Your Honor, the six incidents upon which plaintiff bases his second cause of action — the enemy shot from a tree, the eyeglasses, and so forth — are likewise not susceptible of copyright.
"I now respectfully submit that there is no evidence at all to support this second claim against API, and I beg your Honor to dismiss it from the case."
"Mr. Brackman?"
"I did not realize, your Honor, that Mr. Genitori was going to read us his entire brief," Brackman said dryly. He rose and walked slowly toward the bench. "Needless to say, I do not agree with him concerning the basis of our complaint, which he seems to have completely misunderstood. We are not claiming that these six incidents alone constitute our claim of infringement. Our complaint is quite clear on that. Our action against API is based on these six incidents plus all of the other similarities of theme, plot, and character which Mr. Constantine enumerated yesterday. It is a simple matter, of course, to label these similarities 'flimsy and absurd,' as Mr. Genitori has done, it is certainly much simpler than trying to explain them. But, your Honor, I feel defendant should and must explain them, especially when we consider Mr. Constan-tine's testimony, which indicates that in 1952 he worked with a man named Matthew Jackson, to whom he submitted a copy of his play Catchpole. This man Jackson…"
"Your Honor," Genitori said, "I only assumed access for the purpose of my motion."
"Yes, we understand that."
"API had access," Brackman said firmly. "There is no question about that. The play was submitted to five people at the studio in 1952, including Mr. Matthew Jackson, who later worked with Ralph Knowles on The Paper Dragon. Carl, may I see that brief a moment, please?" he said, turning to his partner. Arthur, watching him, saw that he was getting angry, and he immediately thought, Good, it's about time. Give it to the bastards.
"I don't like to waste this Court's time reading from cases. There are hundreds and hundreds of cases, as your Honor well knows, and it seems we have already heard a goodly percentage of them from my learned friend." Arthur saw Genitori smile, in spite of the withering glance Brackman directed at him. "But our brief is not exactly destitute of examples, your Honor, and if I may I would like to quote from it at this time."
"Please," McIntyre said.
"I thank your Honor for his indulgence," Brackman said. "In the case of West Publishing Company versus Edward Thompson Company, it was pointed out, and I quote, To constitute an invasion of copyright it is not necessary that the whole of a work should be copied, nor even a large portion of it in form or substance, but that, if so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient to constitute an infringement."
"So you see, your Honor, it does not matter whether we are dealing here with six incidents, or ten incidents, or twelve, or twenty — so long as these similarities have indeed sensibly diminished the value of the original. I'm sure your Honor is familiar with the now famous Teton versus Caddo case, this circuit, Judge Madison presiding, wherein it was claimed — as both Mr. Willow and Mr. Genitori are claiming — that the similarities were insignificant, even though there were a great many of them, a substantial number of seemingly unimportant similarities. There was, however, in the midst of these so-called insignificant similarities, one that was indeed significant, your Honor. I refer, and I'm sure you're ahead of me, to the misspelling of a place name in the original work, and the identical misspelling of that place name in the alleged piracy. This was, your Honor, the misspelling of a town in Michigan, Chippewa, which was spelled with an H at the end of it in both books, C-H-I-P-P-E-W-A-H, Chippewah — the identical error in both books, your Honor. The thief had left behind his fingerprints."