Lowenfels v. Nathan

2 F. Supp. 73 (1932)

LOWENFELS
v.
NATHAN et al.

District Court, S. D. New York.

December 28, 1932.

Maurice B. & Daniel W. Blumenthal, of New York City (Daniel W. Blumenthal and John J. Wildberg, both of New York City, of counsel), for plaintiff.

Hays, Hershfield, Kaufman & Schwabacher, of New York City (Wolfgang Schwabacher and James M. Grossman, both of New York City, of counsel), for defendants Kaufman and Knopf.

Greenbaum, Wolff & Ernst, of New York City (Morris L. Ernst and Newman Levy, both of New York City, of counsel), for defendants Ryskind and Knopf.

O'Brien, Malevinsky & Driscoll, of New York City (Arthur Driscoll, of New York City, of counsel), for defendants Harris and Berlin.

WOOLSEY, District Judge.

The motion to dismiss the complaint is granted with costs which will include an allowance for counsel fees to all the defendants, in whose behalf this motion is made, in the amounts hereinafter fixed and allocated respectively to each of them.

I. This is a suit by the author of what is described as an operatic tragedy and is called "U. S. A. With Music" which he alleges was composed by him between 1924 and 1930, inclusive, published on or about January 13, 1931, and copyrighted on February 17, 1931, in the United States.

It is claimed that the defendants Kaufman, Ryskind, and Ira Gershwin, as authors, and the other defendants as composers, producers and publishers of "Of Thee I Sing," a musical satire burlesquing politics in this country, have infringed the plaintiff's copyright in that the defendants' play parallels the second act of the plaintiff's tragedy which it is alleged has unique originality and excellence and contains novel scenes unlike any known to have been produced before.

The thirteenth paragraph of the complaint alleges that the defendants Kaufman, Ryskind, and Ira Gershwin falsely represented themselves to be the authors of the themes and main features of the play entitled "Of Thee I Sing," although they knew that they had plagiarized, pirated, and copied it from the second act of the plaintiff's operatic tragedy "U. S. A. With Music."

The complaint prays for the usual injunction against the defendants and for an accounting by them of their profits and the plaintiff's damages.

On September 6, 1932, an order was entered on stipulation by the counsel herein amending the complaint so that there should be annexed to the complaint in book form as schedules thereto and parts thereof, a copy of the plaintiff's play "U. S. A. With Music," and of the defendants' play "Of Thee I Sing."

II. The annexation of these two books to, and their incorporation in, the bill of complaint was apparently arranged by counsel in order to enable the court conveniently to deal with this cause by such a motion as has been herein made. That purpose is achieved because the annexation of these two books to the complaint prevents this motion to dismiss from being involved in any awkward admissions of conclusions of fact, such as the above mentioned allegations of plagiarism and copying by the authors of "Of Thee I Sing" from the second act of "U. S. A. With Music," because the annexation of the two books constitute an amendment to the complaint which supersedes by the realities the allegations of conclusions of fact which I have mentioned.

The procedure followed is bold and intelligent and, it seems to me, constitutes an appropriate method of dealing with a copyright suit of this kind for it enables me, on the record before me, to decide this cause by following the pragmatic method of comparing the two books, cf. Nichols v. Universal Pictures Corporation, 45 F.(2d) 119, 123 (C. C. A. 2); and in view of the time which is saved by avoiding a trial under the procedure adopted, I think that it should become the usual method of dealing with copyright suits, unless, owing to nice questions of originality or access, oral evidence is indicated as necessary.

III. A comparison of the two plays by means of the following summaries, which I have based on summaries made by counsel for the defendants and submitted at the time of the argument, will well illustrate the essential difference in their respective treatment of the American scene from which each is drawn.

A. "U. S. A. With Music," the plaintiff's play is fairly summarized as follows:

Act I. The play opens in Kinneltown, a boom town that has sprung up in Kentucky because Arthur Kinnel has been entombed for days in a cave by a landslide which has closed the entrance thereof.

The atmosphere is like that of a carnival or a circus. Concessionaires are operating noisily. Real estate lots are being sold.

The attempted rescue of Kinnel, the entombed man, is carried on to the accompaniment of every instrument of modern publicity.

Newspaper men rush around barking out the latest developments in terms of future headlines. News of the progress of the rescue and of all other current happenings are broadcast by an announcer to the waiting crowds, who are under the direction of trained cheer leaders. Among other items of information, an announcer reads a bulletin from Brinkle-Dinglebat murder trial to the effect that a character referred to as the Goose Girl, who herself appears in the latter acts, has given birth to a nine-pound boy whilst on the witness stand, and, consequently, had to retire therefrom. There is speculation on the effect of this unusual occurrence on the murder trial.

A Committee on Investigation investigates the State Commission on Rescue. Rescuers resign and are supplanted. The Happiness Boys are made rescuers.

Rumors are rife that the whole thing is a publicity stunt, that Kinnel is not really buried. Movie rights for the rescue of the dying man and the publication rights of his diary, if any, are being traded in.

In all the hysterical activity, the only person who is really interested in Kinnel's fate is his brother, Alfred, who is almost insane with indignation because of the indifference and callousness that is at the bottom of all this commercial exploitation of his brother's danger.

Among the concessionaires is a Mr. Zero, who is running a stand at which one may throw baseballs at bums, three shots for a quarter. However, his bums are not alive; they are the ghosts of sixteen of the thirty nonunion men who were slain during the coal strike at Herrin, Ill., in 1922, and were buried unidentified in a ditch.

Zero is convinced that the country will never be right until these Herrin dead are decently buried and their ghosts thus laid. Zero's mission is to sell this idea to the country. He is at Kinneltown because the interest of the country is focussed upon it now, and he can get the attention of all of the 120,000,000 people of the country. He explains that the center of the population shifts very quickly these days, that it shifts with the news, with Lindbergh, with a big murder trial, or with a deadlocked political convention at Chicago.

Among the visitors to Kinneltown are Henry and Mary Patterson and their daughter Mabel. Zero explains his purpose in life to her; her interest quickly deepens into love; they decide to get married. Zero is a member of the society for companionate marriage and must have a trial marriage for a year. Mabel is willing to marry Zero and her parents are agreeable until they learn of the companionate marriage plan, and to this they object violently.

Zero and Mabel flee to Chicago where a political convention is in progress.

In the meantime, Kinnel had been found dead by a dynamiter named Jim, who managed to blast his way into the cave.

Act II. The setting of the second act is in the Coliseum at Chicago, where the deadlocked National convention of the Demopublican party has been suspended for a week in order that a six-day bicycle race may take place.

This race is no ordinary sporting event. It is the hopeless struggle of Sacco and Vanzetti for their lives against the commonwealth of Massachusetts. Even the score which is carried on a board draped in black, is figurative; it is Massachusetts, 120,000,000; Sacco and Vanzetti, 2. As the curtain rises the race is drawing to a close.

Consequently, the convention will resume soon and the leading delegates are discussing the need of a candidate and an issue.

An announcement is made of the flight of Zero and Mabel, and one of the delegates, out of a clear sky, decides that Zero shall be their dark horse and that his platform should be companionate marriage.

Mabel arrives followed by Zero; they are both being pursued by the Ku Klux Klan, urged on by Mabel's father.

Zero is willing to be the nominee, but he wants his ghosts as part of his platform in addition to companionate marriage. Adams, one of the delegates, refuses this suggestion and wants companionate marriage as the sole issue.

Mabel's parents arrive and also the Klansmen. Against the five Klansmen, Zero has as his protection five bobbed haired bandits, who have come from Kinneltown also.

Adams does not like the Klan business and wants Zero to give up Mabel and companionate marriage, and offers to take on the ghosts as an issue.

During the discussion, the Goose Girl arrives with her witness-stand baby. She runs to Zero and says, "It's you." Zero denies ever having seen her. Then she says, "It's your ghosts. They are the father of my child." Zero denies responsibility and refuses to give up Mabel.

Adams says Zero must run for president as a companionate bachelor, but Mabel, who apparently is expecting to have a baby and does not want to be mother to a fatherless child, says Zero must marry her.

Zero announces that the Goose Girl is right, the ghosts of the sixteen dead men are in him, in her, in all of them. A prayer meeting for them is necessary and he leads the crowd in prayer. The end of the race of the commonwealth of Massachusetts against Sacco and Vanzetti gets nearer.

Kinnel, the surviving brother, enters, distracted because no one tries to save these men.

Dynamite Jim comes in. He has struck oil in Kinneltown and is wealthy. He objects to Zero for president, as being too radical. His candidates are the Happiness Boys.

Adams immediately tells Zero he will not be nominated and the boom for the Happiness Boys for president begins.

There is a parade of hooded ghostly sandwich men advertising on their boards ghost cigarettes, apparently one of Zero's methods of publicizing his ghosts.

Immediately after that the announcement is made that the race is over; Sacco and Vanzetti have lost. No one cares that they are dead except Kinnel.

The recommencement of the convention is announced.

Zero is arrested but makes his escape with Mabel. Her father disowns them. A ghost enters and exits pursuing Zero with a gun.

Act III. In the third act, we find Zero and Mabel with their baby living in poverty in New York. Zero has failed to make any success with his ghosts or with any of his other ideas. His only chance of getting money now is to win a prize in a crossword puzzle contest which he has entered.

Mabel's mother comes and tries to induce her to give up her baby. Mabel and Zero refuse, although the child is almost starving and the situation is so desperate that Mabel has threatened to go on the street.

Kinnel comes to tell Zero that ever since his brother died and since the Sacco-Vanzetti execution, it has occurred to him that Zero is right and he must help Zero to get the ghosts of the Herrin miners buried. Zero is unimpressed. He says it is too late. His only mission now is to eat, not talk about ghosts.

Mabel goes out to solicit in the streets and brings back a man. The man makes advances to her, but turns out to be an agent of the Society for the Suppression of Vice and is repulsed by Mabel.

Just then Zero comes in, and, in his rage upon discovering the man shoots at him. His bullets, however, do not penetrate, and the man leaves unharmed. At first Zero and Mabel think he was one of the ghosts, but, later, they learn that he is advertising bullet proof vests, one of which he wears. While Zero is talking gloomily of suicide, he learns that he is a millionaire, having won first prize in a Million Dollar Crossword Puzzle Contest.

Act IV. In the fourth act, Zero and Mabel are celebrating their bettered condition at the roof garden of the Hotel Ritz, and are being waited on by the Happiness Boys who have changed from presidential candidates to waiters. Mabel's parents are there trying to effect a reconciliation with her. Zero rebuffs them directly; Mabel more subtly with the aid of instructions from an etiquette book which she carries with her.

Dynamite Jim, the oil king, offers Zero the job of contact manager for him. Kinnel had the job but was fired for inefficiency because the chief duty of Jim's contact manager is to keep him out of jail, and Kinnel had become soft and wanted Jim to go to jail. Zero accepts the job seeing at last a real chance to use his ghosts.

News comes that Kinnel has tried to kill himself but is only badly wounded, blinded for life. Mabel feels that they are responsible for this because Zero let him down. But Zero is not affected and tells Mabel she cannot go back on him now.

Zero then makes a radio address boasting of his success and announcing to the world that Dynamite Jim had decided to build a tabernacle for homeless ghosts — a billion dollar tabernacle as a retreat where the good word "Success" can be preached.

The speech brings an extraordinary response from the public and money flows in from all over the country. Mabel then forgets her previous gloom about Kinnel.

A ghost comes in, but this ghost is really a walking delegate for union labor which is trying to suppress all the talk about the dead Herrin scabs. Zero buys him off by a large bribe.

The Goose Girl enters and starts quietly shooting the guests until, at last, Mabel, Zero, and the Goose Girl are left alone on the roof. Mabel is frightened. Zero reassures her, feeling certain that he can protect her. He sits down at a piano and succeeds in soothing the Goose Girl by singing to her, and at last reduces her to weeping as the final curtain falls.

Zero's song is:

"There's a new moon coming by and by, So don't look blue, my dear, nor sigh. What's the use of seeing things the way they are? Look the other way and never say die. There's a star spangled banner in the sky. There's a new moon behind every star What's the use of seeing things the way they are? Look the other way and never say die. America, we love you best of all. Don't cry, little girl, don't cry, In the spring and summer, winter and fall, Look the other way and never say die."

B. "Of Thee I Sing," the defendants' play, may be fairly summarized as follows:

Act I. The first scene of the first act is a political parade in any city in America for the presidential nominee, John P. Wintergreen. The paraders carry innumerable banners with slogans very similar to, but much funnier than usual, while they tunefully announce the virtues of their candidates. The vice president's name remains in shadow.

The second scene shows a meeting of the National Campaign Committee, which, having nominated its candidates, Wintergreen for President — nobody can remember just who was nominated for Vice President — is trying to determine how it can get him elected.

The committeemen's deliberations are interrupted by a timid, friendly little stranger, whom they discover to be Alexander Throttlebottom, the vice presidential nominee. He wants to resign because he is afraid his mother will find out what has happened to him, but is reassured on being told that no one will ever know about his nomination.

Though satisfied with their candidates, the politicians are, however, worried about the party record; they regret especially having sold Rhode Island during a previous administration. After discussing and rejecting various standard issues, such as the party record of 1776 and the Civil War, they ask a chambermaid what she cares more about than anything else in the world. Her first answer "money" is unsatisfactory, for it brings up Rhode Island. Her second answer is "love," to meet a nice fellow, to go out with him, to get engaged, and get married.

One of the committeemen decides that, if people will steal for love and kill for love, they will vote for love, and that Wintergreen must fall in love with a typical American girl and make love to her from then until Election Day.

As there is no one with whom Wintergreen is in love, they decide to hold a nation wide contest of beautiful girls at Atlantic City and from these to select Miss White House. Wintergreen is very reluctant, but the plan is put through.

The third scene is at Atlantic City and the beauty contest is in full swing. The most beautiful girl from every state is there. One of them is to be selected as Miss White House.

Throttlebottom is there also, but is first ordered, and, finally, shoved off the stage as it is deemed highly irregular for a Vice President ever to be seen in public.

Wintergreen is very nervous about having to make love and marry, merely because she is beautiful, some girl completely unknown to him, and is especially nervous because one Diana Devereaux, a beauty from Louisiana, with an over-honied Southern accent, and an incredible amount of inane chatter, seems likely to be the winner.

Wintergreen explains to Mary Turner, the efficient secretary of the contest, that he wants a girl who can cook, sew, and make a home, and not merely a beauty. Mary tells him any girl can cook, and to prove it gives him some corn muffins which she had made. These win his heart completely. From regret that Mary has not entered the contest, he swings into a sudden determination that he will marry her anyway, and tells her she must marry him.

The beauties come back. Miss Devereaux has been chosen. Wintergreen declares that he cannot marry her; that he is in love with Miss Turner because she can make corn muffins. Miss Devereaux admits she cannot. The Committee samples Mary's corn muffins and are overwhelmed with delight at them.

In the fourth scene, the last political rally of the campaign is being carried on in Madison Square Garden. The slogans displayed are "Woo with Wintergreen" and "Lovers: Vote for John and Mary!"

While a Senator named Jones is making a political speech about the magnificence of our national history, in order to amuse the crowd two wrestlers engage in a championship match below the speakers' stand.

Then after some trouble with Throttlebottom, who tries to make a speech and is ejected, Wintergreen and Mary Turner come on. In the presence of the crowd Wintergreen makes love to Mary, reminding her of the time when they were together on the Boardwalk in Atlantic City, in the cornfields of Kansas, and in the caves of Kentucky. Finally he proposes, and Mary promises to marry him if he is elected President.

Wintergreen quickly turns to the crowd and asks if it can keep Mary and him apart and let their romance end unhappily by not electing him. The response of the crowd is terrific. They promise to go to the polls and show the whole world that the United States of America stands first, last and always for love. The scene closes with Wintergreen singing the campaign song "Of Thee I Sing, Baby."

Next we see the election returns displayed on the screen. In spite of the huge vote in Hollywood for Gloria Swanson's first husband and for straight whisky in Kentucky, Wintergreen is elected, after himself casting the last four decisive votes.

Wintergreen is inaugurated as President in Washington and is married to Mary Turner at one and the same ceremony. The joy of the celebration is marred for a time, however, by the appearance of Miss Devereaux with a summons against Wintergreen for breach of promise of marriage. She demands justice.

The question of whether justice is more important than corn muffins is put up to the Supreme Court. The Supreme Court decides for corn muffins, and Miss Devereaux retires for the time being discomfited.

Act II. In the first scene of the second act, we see Wintergreen, as President, receiving delegations in the White House, answering mail, opening institutions by electric button, and, with Mary, worrying over how he can afford to buy enough lamb chops for all the guests.

The Vice President Throttlebottom spends his time quite differently. We see him in a group of Washington sightseers, attempting to get a glimpse of the inside of the White House. In the White House he learns that it is his job to preside over the Senate and after learning where the Senate meets rushes out to assume his duties.

Wintergreen and his cabinet are troubled chiefly by the fact that public sentiment is veering towards Miss Devereaux's claim. Wintergreen manages, however, temporarily to stave off trouble by announcing tunefully to the reporters at a press conference that he still loves Mary and Mary loves him, and that is all that matters.

However, the French Ambassador arrives and announces that France is interested in the affair, as Miss Devereaux is an "illegitimate daughter of an illegitimate son of an illegitimate nephew of Napoleon." France demands that Wintergreen's marriage to Mary be annulled and that Wintergreen marry Miss Devereaux. The question of the possible affront to France because Wintergreen will not accede to this demand becomes so important that we learn in the second scene that Wintergreen is to be impeached.

In the third scene we find Throttlebottom presiding over the Senate. He is agog with a mixture of apprehension, excitement, and importance as it has suddenly occurred to some one that, after all, he is Vice President, and must preside over the impeachment, and, if the President is removed, will become the next President.

The Senate session starts. Throttlebottom tries to hurry through all the unfinished business, such, for example, as the pension earned by Paul Revere's horse Jenny, and to get down to the matter of the impeachment of Wintergreen in which he has come to be deeply interested.

The evidence of the French Ambassador and Miss Devereaux is so strong that the senators proceed to vote Wintergreen guilty until they are interrupted by Mary's dramatic entrance and announcement that she is expecting a baby. Miss Devereaux, who had suddenly become very French, aptly remarks: "It eez a fine countree — I am compromised and she has ze babee."

Then, as no expectant father has ever been impeached by the Senate, Wintergreen is promptly and unanimously acquitted and everybody becomes joyous in the light of the impending event because, as they happily sing in chorus, "Posterity is just around the corner."

In spite of the difficulty that may possibly arise, because of the rejection of the compromise offered in the fourth scene by the French Ambassador — that France will consent to Mary's having the baby provided the baby is given to France — the birth of the baby in the fifth scene is a very happy occasion.

The Supreme Court, whose function it is stated is to decide such matters, determines the sex of the child and holds that it is a boy. Then unexpectedly, the court has at once to decide another similar case, this time it finds the child is a girl.

All present are very happy except Wintergreen who is somewhat nonplussed by twins.

The French Ambassador, regarding France as thus doubly insulted, severs diplomatic relations and threatens war because of the failure of the President of the United States to fulfill his duty to Miss Devereaux. This threat gives Wintergreen an inspiration. Under the Constitution, as he points out, when the President of the United States is unable to fulfill his duties they devolve on and must be performed by the Vice President, and Throttlebottom, therefore, as Vice President, must marry Miss Devereaux. This solution of the difficulty pleases everybody, even the French Ambassador, and the final curtain falls to the music of "Of Thee I Sing, Baby":

"Of thee I sing, baby, Summer, autumn, winter, spring, baby You're my silver lining, You're my sky of blue, There's a love light shining, All because of you. Of thee I sing, baby, You have got that certain thing, baby, Shining star and inspiration, Worthy of a mighty nation, Of thee I sing!"

IV. The approved inquiry which must be answered by the trier of the facts in every copyright case, cf. Dymow v. Bolton et al., 11 F.(2d) 690, 692 (C. C. A. 2); Rush v. Oursler (D. C.) 39 F.(2d) 468, 472, is:

(1) What was appropriated by the defendant from the plaintiff, and (2) if anything was appropriated, whether such appropriation was of copyrightable matter, and, if so, (3) whether it was a substantial appropriation.

V. The plaintiff's play was obviously written in a white heat of resentment against the social injustices displayed in some aspects of life in the United States. It is described by its author as an operatic tragedy, and it is dedicated to "An Associated Press Despatch."

As might be expected from this dedication, it deals with a series of episodes, not intelligibly articulated with each other. Each episode involves certain of the least attractive characteristics of life in this country, such as, for example, the tendency to publicize tragic events like the Kentucky cave incident of some years ago, to exalt supersalesmanship in every connection, and to show indifference to the tragedy often implicit in many incidents of our economic life.

The satire throughout is bitter. Reading the plaintiff's play, however, does not leave me with any real sense of tragedy but rather with the feeling that I have been looking into a kaleidoscope of head lines clipped from sensational newspapers, or reading an anthology of exhibitions of bad taste. But it is obviously a sincere and certainly a trenchant indictment of some of our contemporary tribal mores.

The defendants' play, "Of Thee I Sing" belongs to an entirely different species of dramatic composition. It may properly be called, as I have called it above, a musical satire burlesquing politics in the United States. It is a good natured satire, however, without a trace of bitterness, which, importing legal phraseology into literary comment, fairly may be said to sound in Gilbert & Sullivan. For example, Throttlebottom, who should be remembered as long as men love laughter, the French Ambassador and his song, and all the episodes involving the Supreme Court, are quite within that delightful tradition.

If, as it may, I think, be truly said, the spectrum of dramatic composition shades from tragedy at one end through drama, comedy, and burlesque, to farce at the other end, the two plays here involved have almost the length of that spectrum between them.

It would be expectable, therefore, that, even if there were identic episodes in both plays — as there are not — the treatment thereof in the defendants' play would not trespass on what is copyrightable in the plaintiff's play.

I find that this expectation is justified and that there is not any such trespass.

My opinion might, perhaps, stop here, but I feel that in a cause which has been so earnestly argued and so carefully briefed I should deal somewhat further with the contentions of the parties.

VI. It is, I think, fairly observable that the plaintiff has, by what he calls his "Advertisement," dated at Paris, 1930, admittedly put the material involved in "U. S. A. With Music" into the zone of what is commonly called in copyright law, the public domain.

He says, "The material used is common property, the sort that anyone could take and put together, that is, anyone having access to American newspaper files since the war. The material is conventional. * * * The author serves merely as a focusing point to project a viewpoint through the disposition of the common stuff. The same viewpoint might have been projected through an entirely different set of characters and situations; on the other hand, the material actually employed could have been manipulated for quite another purpose."

He then proceeds to explain that his play is an operatic tragedy written against the background of the burial, without identification, of certain nonunion miners who were killed in labor troubles at Herrin, Ill., in 1922.

It is unnecessary, again to go into the details of Act II of the plaintiff's play which it is claimed is infringed by the defendants' play. It is sufficient to observe that, if one had read the plaintiff's play and then some time afterwards read the defendants' play, the only bell that might have been rung in one's memory would perhaps have been that in the plaintiff's play there was incidental mention of a presidential political convention and that therein it had been momentarily proposed that Zero should run for President on a platform of companionate marriage.

Certainly, a presidential political convention is most clearly within the public domain, as is also companionate marriage.

What was protected by the plaintiff's copyright was only that which was original to him, i. e., the grouping of incidents in such manner that his work presented a new conception or a novel arrangement of events, cf. Stevenson v. Harris (D. C.) 238 F. 432, 436.

The most earnest advocate of the plaintiff's side of this cause could not, I think, possibly find any structural grouping of incidents in the defendants' play paralleling in any way the structural grouping of incidents in the second act of the plaintiff's play or in any part thereof.

If, on reading the defendants' play, one who had read the plaintiff's play were reminded of incidents therein, such, for example, as that of the bulletin board and of the six day bicycle race, those incidents are found to be entirely in the public domain. Consequently, no claim of copyright infringement by the defendants could properly be predicated on the use of them even if they had been used. Cf. Alexander v. Theatre Guild (D. C.) 26 F.(2d) 741, 742. But they were not used.

VII. As is common in all cases of this kind I am faced with page after page of alleged parallelisms of phrase. Obviously, the plaintiff cannot claim a copyright on words in the dictionary, such as the names of the seasons in the principal lyrics, or on the usual English idioms, or on ideas; therefore, the alleged parallelism of phrase does not infringe anything that was copyrightable in the plaintiff's play and the plaintiff's contention to this effect may be entirely disregarded. Cf. Lewys v. O'Neill (D. C.) 49 F.(2d) 603, 611; Birrell, Copyright in Books, Chapter VI, Literary Larceny, p. 169.

VIII. Section 40 of the Copyright Act of March 4, 1909, now title 17 United States Code, § 40 (17 USCA § 40), provides: "In all actions, suits, or proceedings under this title, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs."

In this cause, as is usual in plagiarism causes, obscurity is taking a long shot at success. Having failed to reach its mark, the plaintiff must be made to pay for the expense to which he has put the defendants.

Accordingly, under the statutory power given to me, I hereby fix reasonable attorneys' fees to be allowed to the several defendants who have participated in this motion as follows: To the defendant Kaufman, $1,000; to the defendant Ryskind, $1,000; to the defendants Harris, Berlin, and Knopf, $500 each, making a total of $3,500. These allowances are to be recoverable against the plaintiff and are to be included, in accordance with the provisions of title 17 United States Code, section 40 (17 USCA § 40), as part of the costs to be taxed severally to the defendants in the final decree.

After the costs are taxed, a final decree dismissing the complaint on the merits, with costs, may be presented for signature on notice.