Full opinion text
WILBUR, Circuit Judge. Plaintiff appellee sought to. enjoin the exhibition of a silent photoplay filmed in 1924, entitled “The Freshman,” and to recover all profits therefor derived from its exhibition upon the ground that “The Freshman” infringed the copyright of a story written by H. C. Witwer entitled “The Emancipation of Rodney.” The trial court held that there was infringement, enjoined the further production of the play and ordered an accounting to determine the profits derived from the exhibition of the play alleged by the plaintiff appellee to be $2,300,009, and admitted by the defendants appellants to he over $1,000,000. The story was sold by the author to the publishers of the Popular Magazine for $75 and copyrighted by them in 1915. In 1929 an assignment of the copyright was made to the author, the sufficiency of which is attacked by the appellants, and this action was brought. This appeal is from the interlocutory decree. Before entering upon the legal questions involved, and a comparison of the story and the play for the purposes of determining whether the play infringed the copyright, a general statement of the situation will be of assistance. The thread upon which the story of Rodney is strung, whether we call it plot, sequence of events, or theme, is as follows: A young man goes to college as a freshman, aspires to be popular, meets a girl, falls in love, wins a football game and the approval of the girl. Rodney, the hero, is a young man of mediocre scholastic ability, but so extremely industrious in his studies that he cannot even forget the cube of 206. He achieves great success in his studies at college by reason of his extreme industry and not at all by reason of intellectual brilliancy. He reads Latin and Greek for the pleasure of reading about Julius Gasser’s fights and Hercules’ prowess. His fellow students, however, believe him to be brilliant. They accept him as such. He evokes their respect as well as their scorn. The students stand somewhat in awe of him so that he is not given a nickname. He is not hazed. He stands apart. He feels himself isolated from his fel'low students. However, he despises his intellectual accomplishments, such as they are, and his success as a scholar, and wishes to be thought a dub. He apparently is unable to understand that he could readily achieve this result by ceasing to study so hard. He has to study all night to pass the simplest examination. At the same time he has an intense ambition to be an athlete. In order to achieve success in athletics he purchases text books on athletics, studies them, practices in accordance with their directions; and purchases the uniforms used in different types of sports. Nevertheless he is conscious of his lack of ability. Rodney meets the heroine under most embarrassing circumstances. He is in the woods, believes himself to be alone, has taken off all his elothes except his underclothes, and in accordance with the instructions contained in his text-book on boxing is sparring at a tree, when he is surprised by the heroine. He is, of course, terribly embarrassed, attempts to get into his clothes hastily, and, in his confusion, make's mistakes. Meanwhile the young lady looks on complacently, not at all embarrassed. Rodney, however, in spite of the situation, conceives a liking for the heroine. He later meets her on numerous occasions and endeavors to impress her with stories, of his marvelous athletic prowess. These stories she believes for a time but finally, ascertaining that he is misrepresenting his physical condition as resulting from injuries received in a football game, thus excusing himself from athletics by false pretenses, she cuts his acquaintance. Apparently Rodney’s desire for athletics is for athletics’ sake, or at least for his own sake, until he puts himself in position, by his falsehoods and braggadocio, where he feels he has to make good in the eyes of the heroine by actually playing in a football game in order to regain her interest. The climax of the Rodney story is in the football game in which he earns fame with his schoolmates and becomes a football hero in the annals of the college. Moved by a desperate desire to redeem himself with the heroine Rodney argues for a right to go on the field in the last five minutes of the game when his college is losing, takes advantage of the silence and uneertainy of the coach and rushes on the field to take the place of a disabled player. In his excitement he forgets the signals, although he claimed to the coach to know them. The ball is thrown to him and without passing it, as the signals require, he runs down the length of the field and makes a touchdown, which not only wins the game but the plaudits of his classmates as well. In the play the principal character is Harold Lamb, impersonated by Harold Lloyd, who also goes to college as a freshman, aspires to be popular, plays football, and in the last five minutes of a big football game is sent on the field by the coach and wins the game. There are some marked differences between the story and the play which we will note at the outset, and others which will be discussed later. In the play Harold Lamb, the hero, on his way to college, goes into the diner on the train and is seated next to the heroine, Peggy. She is attempting to solve a cross-word puzzle and Harold helps her. They are interested in trying to find “a name for one you love,” and in his enthusiasm Harold repeats several endearing terms such as “sweetheart, darling,” etc., entirely without reference to the girl and wholly by reason of his absorption in the puzzle. The heroine, equally absorbed, ignores the forwardness of Harold and considers his suggestion. Neither one looks at the other. An old lady passenger, hearing the terms of endearment, makes an audible comment concerning the beauty of love between young people which Harold overhears, and becoming very much embarrassed he rushes frantically from the ear. Later, he rents a room in a cheap rooming house, only to discover that the heroine is the daughter of the landlady. The hero of “The Freshman” presents a different type from Rodney. The play is entirely silent as to Harold Lamb’s mental equipment and his success or lack of it in his studies. It may be inferred from his evident stupidity that he would not be a success in his studies and that his desire for scholastic success would depend upon whether or not in his opinion it would add to his popularity. Harold Lamb does not study the subject of athletics, but does have overpowering confidence in Hs abiEty to achieve success as an athlete. Harold desires to be popular and has ascertained to his satisfaction that one method to achieve popularity is by playing football. He therefore decides to play football. He works hard and suffers much in order to get on the team. He believes himself to have accomplished this. The coach, however, and aU members of the football team, consider him a nuisance and believe that he has no talent whatever in that Ene, but they deceive him by giving him the impression that he has made the team as a substitute, whereas, it is intended that he should serve as a water tender and for that reason is allowed to sit on the seat with the players. The heroine ascertains that Harold, whom she apparently loves from first sight, is being made a butt of and determines to inform him of this, but refrains from doing so for fear of hurting his feelings. Harold Lamb also goes upon the field in the last five minutes of play when the score is against his team. He makes a touchdown, but instead of one successful play there are eight different plays, in each of which Harold demonstrates to the audience that he is a complete ignoramus and knows nothing about the game. On one play, although unopposed, he puts the ball down within two feet of the goal line on hearing a locomotive whistle, because the referee has told him on a previous play that when the whistle blows he must “down the ball.” Harold Lamb believes in himself, takes his efforts with the utmost seriousness, has no doubt of his abiEty to participate in the game and win it, and actually does win it, but by a fluke, as was obvious to all concerned. Instead of becoming a football hero he is considered a boob and ridiculed as such. Harold’s athletic attempts were predicated entirely upon his desire to be popular and not at all upon a desire to be an athletic success. Whether he knew it or not he had the affection of the girl from the start and there was no reason to believe that his efforts in foot-baU had anything to do with his desire to win or hold the affection of the heroine. Harold got into the game because he beEeved in himself, and Rodney to make good with the girl if it were possible to do so. That there are similarities between the play and the story is manifest and we proceed to consider the legal significance of such similarities. The primary question is whether these similarities resulted from copying the story; if not, the similarities are without legal significance. The secondary question is whether the similarities are themselves so marked as to prove by such circumstantial evidence the fact of copying, in the teeth of a denial thereof by those who produced the play. “There can be no infringement unless there has been a copying either in whole or in part of the copyrighted work. Some copying is necessary to constitute infringement.” 13 C. J. § 277, note 41, and eases. “Since there can be no infringement of copyright without some copying the mere fact of similarity or even identity between two works does not of itself make one an infringement of the other.” 13 C. J. § 278. The rule is well stated by Judge Learned Hand in the case of Fisher, Inc., v. Dillingham (D. C.) 298 F. 145, 147: “To sustain it [an infringement suit], however, more must appear than the mere similarity or even identity, of the supposed infringement with the part in question. In this Ees one distinction between a patent and a copyright. One may infringe a patent by the innocent reproduction of the machine patented, but the law imposes no prohibition upon those who, without copying, independently arrive at the precise combination of words or notes which have been copyrighted.” Judge Hand quotes with approval from a text-book by Drone on Copyright, page 205, which was also cited with approval by the Circuit Court of Appeals-of the Seeond Circuit in Chautauqua School v. National School, 238 F. 151, 153, as follows: “Works alike may be original. — It is not essential that any production, to be original or new within the meaning of the law of copyright, shall be different from another. Whether the composition for which copyright is claimed is the same as or different from, or whether it is like or unHke, an existing one, are matters of which the law takes no cognizance, except to determine whether the production is the result of independent labor or of copying. * * * Two or more authors may write on the same subject, treat it similarly, and use the same common materials in like manner or for one purpose. Their productions may contain the same thoughts, sentiments, ideas; they may be identical. Such resemblance or identity is material only as showing whether there has been unlawful copying. In many cases, the natural or necessary resemblance between two productions, which are the result of independent labor, wiU amount to substantial identity. * * * But, notwithstanding their Ekeness to one another, any number of productions of the same kind may be original within the meaning of the law; and no conditions as to originaEty are impqsed on the makers, except that each shall be the producer of that for which he claims protections.” In an effort to prove copying the plaintiff called as witnesses the following officers and agents of the appellant corporations: William R. Fraser, secretary and general manager of the Harold Lloyd Corporation; Harold Lloyd, president, in charge of the production department, and star actor of the corporation and of the play; John L. Murphy, production manager; Sam Taylor, one of the directors of “The Freshman,” the other being Fred Newmeyer, who was called by the defendants. It is stated in the bill of exceptions that these witnesses were called under section 2055 of the Code of Civil Procedure of California, which permits such witnesses to be called and examined “as if under cross-examination.” “The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence.” Cal. Code Civ. Proe. § 2055. This statute has no application to a suit in equity in the federal courts. In Dravo v. Fabel, 132 U. S. 487, 10 S. Ct. 170, 171, 33 L. Ed. 421, it is stated: “While the plaintiffs were not concluded by their evidence, and might show they • were mistaken, it could not be properly contended by the plaintiffs that they were unworthy of credit. The evidence must be given such weight as, under all the circumstances, it is fairly entitled to receive.” The federal rule is different in actions at law. Ward v. Morrow (C. C. A.) 15 F.(2d) 660. If we accept as true the testimony of the witnesses thus called by the appellee, there was no copying and no infringement. While ordinarily in an appeal from a decree in equity the Appellate Court does not disturb the conclusions of the trial court as to the credibility of witnesses appearing before him except for manifest error, this rule must be relaxed, if not altogether abandoned, where the party is estopped to claim that the witnesses are unworthy of credit by reason of having called them as his own witnesses. We cannot, therefore, assume on this appeal, as we otherwise might, that the trial court rejected the testimony of these witnesses as unworthy of credit, especially as there is nothing inherently improbable in their testimony. The fact that the appellee may have called these witnesses under a mistaken belief as to the applicability of section 2055, Cal. Code Civ. Proc., cannot change the rule that appellee thereby vouched for their credibility. We will proceed to weigh this evidence with the other evidence adduced by the parties to determine the question of infringement. While it was admitted by Harold Lloyd that the magazine containing the story was in his possession, he and all his office force called by the appellee as her witnesses, including those who worked on the scenario or the picture, denied that they saw or read or heard the story. They all testified it was not used at any time in the production of the play. Harold Lloyd testified that Witwer, entirely from memory, gave him the outline of the story which Witwer then stated he did not clearly remember, and that he would furnish'them a copy of the magazine in order that they might determine whether they would use the story, and that he did so. The gist of this testimony offered by the appellee and corroborated by other witnesses called by the appellants, then, is that none of the people connected with the production of “The Freshman,” and particularly none of the scenario staff, ever read or heard the Rodney story other than as told them by Witwer. The only direet evidence opposed to this is the testimony of Mrs. Witwer that one of the writers told her over the telephone, when she inquired about the copy of the magazine which had been left by her husband with Harold Lloyd, that Lloyd had read it. This was hearsay, but admissible as such because it constituted an admission. It appears from the testimony of William R. Fraser, general manager of Lloyd's studios, called by appellee, that he introduced Mr. Witwer to Mr. Lloyd. His testimony in regard to the story as told at that time by Witwer is as follows: “I had known of Mr. Witwer as a writer of clever literature, for perhaps ten years having read quite a number of his stories. “I personally introduced Mr. Witwer to Harold Lloyd, on the same day that Harold and Mr. Witwer and I went to lunch at the Armstrong Cafe on Hollywood Boulevard. I understood Mr. Witwer and Mr. Lloyd had met slightly before that. As nearly as I cam remember the entire talk that we three had at the luncheon consisted of a general conver-., sation, largely about the motion picture industry, current events, and Mr. Lloyd’s pictures. I think there were comments on Mr. Witweris work which led up to Mr. Witwer stating that quite a number of years ago he had written a story which might interest Mr. Lloyd. It had been so long ago that he could not remember all of the details, but he could give us some of the high lights, and he proceeded to describe this young student type who excelled in all of his studies, was just an outstanding marvel, the envy of all his class mates because of the fact that he answered every question correctly, and was particularly proficient in mathematics and history. There was no date in history which he couldn’t recall readily. He could correct his teachers or his professors and excelled in every way in his studies. He, however, had an ambition to be recognized as an athlete but was, however, physically unfit. The conversation was broken at times when Mr. Witwer was trying to recall it, and I don’t recall all of the sequences that followed, except I remember distinctly of his saying that he found one avenue of becoming an athlete or being recognized as such by having developed a formula for winning a football game. And he attempted to convince the coach that this formula would accomplish that. The coach, however, disregarded it. He respected him as a student, but didn’t encourage him in the use of the formula for the team. However, in the final football game of the season with the rival college, when everything looked as though this particular college was about to lose the game, as a last resort the coach in desperation thought of this young student, who was up on the grandstand. They called him into the game and there it developed that he either forgot his formula or didn’t have it, but by a fluke won the game.” Harold Lloyd, as a witness for appellee, testified similarly to the same conversation with Witwer, as follows: “Give us as nearly as you can the statement he made as to a football story that he had written. A. Yes, sir. He had an idea of a very studious youth who was very proficient in his studies, mathematics and history. He was very good on dates, as I remember, this boy being very proficient in that particular branch, but really he longed for other things. He was very desirous of being an athlete, and he took no pride in being able to get up in the class room and answer any question the professors might put to him, which he could answer.- It seems that he couldn’t get on the team, so he devised — he had in his mind a system, and he told the coach he had, whereby he could win football games. -It was a system he had worked out. The coach paid no attention to him at the present time. Later on in one of the large games, when they were losing — I don’t recall whether he went to the coach or just what the circumstances were, but anyway the idea of his system came up, and in desperation they decided to give the boy a chance, thinking that there might be something in this system. When the boy went in to play he didn’t have a system at all; he played merely straight football. That, to the best of my recollection, is the idea Mr. Witwer told me. “Q. Did the boy win or lose the game? A. He must have won the game. That is a point I am not absolutely sure upon. All heroes win the game.” Sam Taylor, one of the directors in the production of “The Freshman,” called as a witness by the appellee, testified that he had never seen the story “The Emancipation of Rodney,” and that all he knew about it was what Mr. Lloyd had told him that Mr. Wit-wer had told him about it. He testified as follows: “Q. What was it that Mr. Lloyd told you about that story? A. Mr. Lloyd told me that Harry Witwer had an idea for a college story. I was interested, because wo were going to make a college story. He said it was the story of a young mathematical genius, a great student, who didn’t want to be a student, who wanted to be a great athlete. So far it appeared very interesting to me. Then he said that he went to college and tried to' become an athlete and tried to malee the football team and was a failure, but that he tried to persuade the coach that ho had a formula to win football games. This he built up to some extent. They all ridiculed it at first but finally on the day of the big game, when the home team was losing, the coach, in desperation, decided to take a chance on this mysterious student who had a marvelous formula for winning football games. Up to this point I thought the story or the idea was very intriguing. So I asked Mr. Lloyd what the formula was. So he'said the boy finally got in the game and his formula was to play straight, football as hard as he could. My idea of that was that it was very poor construction because you were building up something and then didn’t complete it. You were leading the audience to expect some marvelous formula and you gave them nothing. And I discarded it as absolutely impossible and never gave any further thought to any story by Mr. Witwer.” As to the actual use of the Rodney story Mr. Lloyd testified ■ as follows: “Q. Mr. Lloyd, you state, do you, on your oath that you have never read the story of 'The Emancipation of Rodney’ even up to the present moment? A. I positively have never read the story, 'The Emancipation of Rodney’, then or even now, and I would like to state further that a story — a magazine with a story written by Mr. Witwer, or written matter from a magazine in which there is a story by Mr. Witwer, has never been used before or during the making of ‘The Freshman.’ That I am positive of.” The trial court accepted this testimony and found it to be a fact that Harold Lloyd had never read the story, but by implication found that the other members of the organization had done so and copied it. William R. Fraser testified further that it was not the practice of the Lloyd organization to use a seript, and that none was used in the production of “The Freshman.” He stated: “I have absolutely no knowledge of the script. I hardly ever visit the scenario department during the time that stories are being discussed or prepared, and I did not at the time this story was being handled. I am the general manager and handle the financial end and the investment end and the distribution of the picture. I have never, either as to the picture ‘The Freshman’, or as to any other of Mr. Lloyd’s pictures, seen such a thing as a written synopsis, script, scenario or built-up written story,' and there is no file at the studio or elsewhere containing any such papers to my knowledge, nor has there ever been, to my knowledge. I never knew of any seript of ‘The Freshman’. In the scenario department, or group of gag-men, including Mr. Lloyd, there were Mr. Sam Taylor, Mr. Ted Wild, Mr. Fred Newmeyer, Mr. Tim Whalen, Mr. J. L. Murphy and Mr. John Grey, who were recognized by me when ‘The Freshman’ was being made, as the gag men or story builders.” The actual method of making the picture was testified to by Mr. Fred Newmeyer, the codirector with Mr. Sam Taylor of “The Freshman,” when called as a witness by the defendants, as follows: “I am engaged as a motion picture director by the Paramount-Famous-Laskey Corporation. I became connected first with Harold Lloyd in 1913, and continued with him or the Harold Lloyd Corporation till July of ’27 or ’28. I was with Harold Lloyd and the Harold Lloyd Corporation during the period when the motion picture called ‘The Freshman’ was made, as a co-director. The other director was Sam Taylor. “Before ‘The Freshman’ was made I had acted as director for Harold Lloyd in other pictures, ‘Grandma’s Boy,’ ‘The Sailor Made Man,’ ‘Now or Never,’ ‘Never Weaken,’ ‘Safety First,’ ‘Dr. Jack’; I can’t remember all of them. I directed him all the way up from ‘Number, Please,’ but I can’t remember the routine -of them, in fact, all his pictures for close to ten years. Referring to ‘The Freshman’ in particular, the other men engaged beside Sam Taylor and myself in the preparation of the motion picture, were Johnny Grey, Timothy Whalen, Teddy Wild. Harold Lloyd, Sam Taylor and I participated in preparing the story of ‘The Freshman.’ Harold Lloyd was, of course, the star of the picture, and Sam Taylor and I the directors. The other three men, Ted Wild, Timothy Whalen and Johnny Grey, were what we called gag men. That is a name or term for scenario writers, story construction and putting in the business, like their gags. Usually they would sit in and work in the office all day long, and while they were preparing a sequence we would be shooting one. We would be shooting this sequence while they were preparing the next one; and then we would hold a conference after we were through shooting that sequence, and then go out and make the next one. In making ‘The Freshman’ we did not at any time work on a written scenario. Never in the history of Harold Lloyd pictures has there ever been a scenario since I have been with him. “Q. How was the story imparted to the crew that did the shooting of the scenes? A. Well, after we .would get through with a sequence, then we would sit in with them, and then Harold would have the last word. There was no script to shoot from. We would probably put down notes, you know, of this gag or that gag, and then shoot right from them. We have never had a scene number. We always had on our slates ‘O. K.’ or ‘N. G.,’ but no scene numbers at all. It was what we called ‘shooting from the cuff.’ We had a scenario room where this group that I have mentioned would meet and discuss a story, and particularly with reference to ‘The Freshman,’ that is the way we built the story of ‘The Freshman.’ To describe how the story was made, so far as I observed it, Harold’s office is right around the corner from what we call the gag room. We had a long table, and we had chairs around this table, and nothing but scratch ¿pads. We would diagram our football sequence, with our teams lined up, on a big paper. Everything we ever did do — like for instance, if we would go out with an automobile chase, we would put our great big piece of paper out here, and then we would show our automobiles and so on, where they would miss collisions and so on. And that is the way we would do with our football. We would all get together and pick out the formation, like, for instance, the gag of going down the field with a shoestring, we would all diagram that on a big piece of paper, and that would be verified. And when we went out there, we never looked at the piece of paper; we would just go ahead and shoot. A lot of the stuff was ad lib when we were on the sets. I don’t know how to explain anything more, only the boys would work, and we would come in at night and we wouldn’t even see them, they would be gone home, and when we would finish that sequence we would get in a huddle on the next sequence. By getting into a huddle, I mean into conference and talk about what to do next. “I was present when the framework of the story of ‘The Freshman’ was worked up or talked out. That is a long time ago. We decided to make a football picture a long time ago, and we put it off. We went out and made a lot of stock stuff out at Pasadena at a game, and we put it away. And then all of a sudden Harold said, ‘Let’s make a football picture,’ and the first thing we did, we tried to find a gag; and a gag Harold likes, we build from that gag mostly. We get the premise of a boy who wanted to be a hero, wanted to follow the idol of last year — well, a kid that worked his way to popularity in the school by being captain of the football team. We got a very good piece of business, and Harold liked it, and we went on from there. We got the idea that to be a hero— Let’s see, when he got off the train, we figured if we could put — he cut out his picture and put his picture up alongside of him, and then put it under him, and put it over him, and then the wind came in and blew it in the waste-paper basket. So he figured the first thing to do was to pave his way in college by buying ice cream cones, and we built an ice cream set, I mean a parlor, an ice cream parlor, and we threw it out; we made it and threw it out. Now, let’s see, then we had the football practice, and he came with a helmet and he rapped at the door; and we had a bulldog in it, and the bulldog chased him. And we used him for a tackle, because they had broken a leg off of the dummy. And then I can remember he picked up all the paraphernalia — there was a funny gag there, where he thought he had lost his leg — he picked up all the paraphernalia and walked in to the coach and said, ‘We had a great day, Coach,’ and he thinks he is on the ball club, and he isn’t; and the little girl tries to help him. “Q. Now, how did you develop those various ideas? A. Through the boys working them out in the room. “Q. Were they the suggestions of any one particular member? A. No, no. Here is the way you do; one man will get an idea, and if it is good, then somebody else will elaborate on it, and he will say something, and pretty soon maybe it is thrown out altogether, and another germ comes; so finally all those boys agree, and believe it is 0. K. and then they 0. K. it, and then finally call Harold in at the finish of that. Practically at all times he would say, ‘don’t like it,’ or ‘I like it,’ and maybe he will elaborate on it; and if he 0. K.’s it, then we go out and shoot it. But the germs are all formed right in that gag room with those boys. “Q. During the formation of those ideas, did anyone ever mention in the gag room, or anywhere in your hearing, that Mr. Witwer, H. C. Witwer, had written a story on football? A. Not to my knowledge. “Q. Did you ever see in the gag room or on the shooting stage, or anywhere else, while ‘The Freshman’ was being made, a magazine similar to the one I now show you, being a copy of Popular Magazine of November 20, 1915, which is, I believe, a duplicate of the one Mr. Fendler has filed in the Clerk’s office; ' did you ever see this? A. No. “Mr. Fendler. We will stipulate that Complainant’s Exhibit 1 is the magazine, or a copy of the magazine, shown to the witness at that time. “Q. This contains a story at page 120 called ‘The Emancipation of Rodney,’ by H. C. Witwer. Did you ever see that before this very minute, Mr. Newmeyer? A. No, I never saw it; no, sir, I did not. “Q. Did you ever hear Mr. Lloyd or Mr. Taylor or any of the other men whom you have mentioned as connected with ‘The Freshman,’ did you ever hear any one of them mention this story by Mr. Witwer? A. No, I did not. In directing the making of the various scenes, no one had any such magazine on the stage or on the set, that I know of. “Q. As a co-director, you were not then guided in any way by any story such as ‘The Emancipation of Rodney,’ which I have just shown you? A. No, I don’t know a thing about it. “Q. During the production of the picture called ‘The Freshman,’ did you at any time change and abandon any sequences of actions and start on a new line of story? A. Sure. “Q. You mentioned — A. The ice cream sequence was thrown out; and there was another sequence thrown out, and I can’t remember what it was. “Mr. Gortner. I know what it was, and I can suggest it to you, if there is no objection. “Mr. Fendler. That is all right. “A. Just give me a line, and I will tell it to you. “Q. By Mir. Gortner. Well, was there a sequence that you will perhaps recognize as the Lester Laurel sequence? A. Oh, yes. I will tell you what it is. He was following an actor and went into a motion picture theater to see this most popular picture actor, and he came out and got into an automobile and went down the' street, and as he came out of the automobile he asked him to show him that step, a jig step, and that is where he got.the step. We were over footage. It was a good gag, a good plan to show where he got that step, but we couldn’t use it because we were away over footage. “As to what portion of the dory of ‘The Freshman’ was made first, — we went up to Berkeley to shoot some stoek stuff, and took Harold clean down the field with his shoe off; and I don’t know whether we started that football with the practice first; I am not sure. I don’t know where we did start that thing. We used to jump, you know. I swear I couldn’t tell you. At Berkeley, we took Harold up, and just before the game we ran him down the field, and we had the men tackle him, and the only thing he had left was his shoe — I mean he took one shoe off and went on down for a touchdown. I think that was taken out; I am not positive of that. I think that was the Berkeley and Stanford game. “Q. Shooting, according to the records, started October 13,1924. “Mr. Fendler. If it will be of any assistance, the big game was played about the 20th of November. “A. Then I guess we started the football action first; I don’t remember; I couldn’t tell you to save my soul. We did a lot of jumping around, I know. “The titles to ‘The Freshman’ were made up after the picture was finished. That was always the custom with a Lloyd picture. I had nothing to do with writing the titles. The titles include both the written explanatory matter and the dialogue that is thrown in. “Sam Taylor participated in the huddles or conferences among the gag men in making up the story and the various gags more so than I. He was the head of the gag department. I remember that Walter Lundeen and Henry Kohler went out to Pasadena at the time I spoke of to take some football pictures years ago for Harold; they were cameramen. It was before we made ‘Why Worry/ and that' was out on the Roach lot, while Harold Lloyd still worked on the Hal Roach lot in Culver City. At that time I had a conversation with Harold about making a football story. We just said, ‘What will we do next? Have you got any ideas ?’ I don’t know who brought up the subject, but it sounded very good to him, and he smiled. So he said there was a game on out there, and he said, ‘Let’s go out and get stock stuff, because if we do decide to do it, we have got that stoek stuff.’ And then for some reason they changed to ‘Why Worry/ because they had a chance to get this great big giant, and the stock stuff was put away. I don’t know whether it is here, or whether it was burned up; that is a long time ago; but the boys went out and shot an awful lot of that film. “This method of preparation of the story and shooting it ‘from the cuff/ was typical of all of Lloyd’s stories up to that time. No schedule. Harold surrounded himself from the beginning of ‘Grandma’s Boy’ with the best available gag men. He never believed in a scenario; in fact, if he did have a scenario, he would never follow it. He said to me when I came back on my last trip, he wanted to know if I had finished a picture yet. I said. ‘I have finished three of them/ since I had seen him last. He said to me, ‘Do you think 1 would gain anything by shooting from a scenario?’ I said, ‘No, you would just waste your time and throw it away/ because he won’t follow one of those things; if he did go out there, he would change it on you; he couldn’t do it, it is impossible. “Q. Did he keep this staff of gag men year after year? A. Yes.” Cross-examination by Mr. Fendler: “Mr. Lloyd made plenty of suggestions. I really couldn’t tell you anything that he suggested in connection with ‘The Freshman/ That is a long time ago. Mr. Murphy would sit in and listen, but he never opened his mouth. He never contributed anything. Mr. Taylor was the head of the gag department; that corresponds to the scenario department in other studios. , I never knew of a story that ever got to the gag department.” It appears from the evidence that after the scenario writers in the Lloyd organization had formulated the general story, or sequence, upon which they were to proceed in making the moving picture, Harold Lloyd and Sam Taylor again got in contact with Witwer. Lloyd was interested in ascertaining more about the football incident in the story with a view of determining whether it could be used, he having conferred with Taylor on that subject, and the magazine containing the story having been misplaced. In this conversation with Witwer which occurred in October, 1924, before production had started, Harold Lloyd did not get more details of the magazine story from Mr. Witwer. Taylor was present at a later interview with Mir. Witwer. He was more interested in the question of copyright infringement than in Wit-wer’s story, for he knew, as he testified, that the Rodney story was a college story, and a college story was already developed in the outline of the play “The Freshman.” He testified that at the time of his second interview with Witwer some of the details of the play had been developed. We quote his testimony in that regard: “A. We had decided that Harold was to be a small town boy. And the first sequence was to be — none of the gags were in this, you understand; they were all, or mostly all, interpolated later — Harold was to be a small town boy who was graduating from high school and was all wrapped up in the idea of going to college. He was to have read books, all about the college, read all of the college magazines and the college annual.' He was to have met and followed up the career of a moving picture hero called Lester —I forget the name. He was to have met this moving picture actor at a public appearance of the actor and have asked him to advise him on how to become a great college hero, such as he was in the films. The actor, realizing the boy was an unsophisticated youth, showed him a funny little step which he did in the films when he was introduced to anyone and shook hands with them. This funny little step was part of the picture in which this college hero appeared. And under this picture on the posters was the caption ‘Step right up and call me Speedy/ In other words, this moving picture actor was called Speedy in the films. Then the boy was to set out for college. That was the first sequence, you understand, and gags were to be hung on that. We did photograph that sequence and eliminated it later and it is not now in the picture. The next sequence was to show the boy’s arrival at college, all bedecked in gay paraphernalia, with a college letter on his sweater, a guitar and all that sort of thing; and there was to be a routine of gags at the station, showing the college atmosphere, such as slapping the dean of the college on the back and riding off in his car by mistake and -such things as that. The next sequence upon which gags were to be hung, which we had at that time, was with reference to the address of the dean in the college hall, in which Harold stumbled onto the stage by mistake and generally made a fool of himself, at which time he did his funny little step and said, ‘Call me Speedy/ That sequence was to finish with the suggestion that the boy had become in a way the'college boob. “Q. This was all before you started photographing, Mr. Taylor? A. This outline was, but none of the gags. “The next sequence was to show the boy’s next step toward fame and college and that was trying for the football team. The actual physical action of the sequence was to be football training. We had a few of the gags, although most of them were put in later, where he was used as a tackling dummy, and so forth, who displayed marvelous stamina and drew the admiration, and also the pity, of the coach. There was to be a dialogue between the captain and the coach to the effect that he had tried so hard and it was a shame to tell him he couldn’t make the team; the captain was to suggest to let him think he had made the team and use him as a water boy. The boy was then to go home and tell the girl that he had made the football team. The next step as an advance toward fame in college was to be the final one. As I told you before, all we knew about that was there was to be one grand splurge, in which he was to make a tremendous effort to appear the most popular man in college, which was his one ideal. And in the middle of this he was to realize they were making a fool out of him and he was to crash to earth which, as you know, is the usual dramatic construction, to build them up to their greatest heights and then knock them down. This was accomplished when the heavy, or villain, another college boy, told him that they were only making a fool of him. And he there had a scene with the girl in which he broke down' and cried and realized he was a failure and they had made a fool of him. And she said, ‘You should only be yourself and you would accomplish what you want.’ He said, ‘There is one chance left— the big game tomorrow. And, if I can get in that, I will show you.’ And the girl looked at him in sympathy. Then we show the big game. Naturally, it was going against the home team and all the substitutes were hurt. And, finally, there was no alternative and they had to send this boy in. And, with a series of comedy gags, he won the game. And at the finish of the game he was really proclaimed the hero and the whole college took up his funny little jig step which they had ridiculed earlier in the picture. That was the general outline we started on. “ * * * I subsequently saw Mr. Wit-wer; I don’t remember the exact date but it was at the time we had completed our rough outline such as I told you, and were getting ready for production — before production started. Mr. Murphy, Mr. Witwer and myself were present, and at that time I told Mr.-Witwer the story we had outlined up to that point. * * * “Q. Did you ever have a discussion, Mr. Taylor, with Mr. Lloyd or Mr. Murphy with reference to having Mr. Witwer come out to the studio for the purpose of avoiding an infringement action which Mr. Witwer might bring against the Lloyd Corporation for unauthorized use of his material in the picture ‘The Freshman’ 9 A. I believe that was the idea of the second conference. To be more explicit, we realized that Mr. Witwer had told Mr. Lloyd an idea for a college story and that we had ourselves written a college story. The very fact that he had told him a college story we knew was a dangerous proposition; and decided to get Mr. Witwer out to the studio and lay our story before him exactly as we had it lined up and let him judge whether it was in any degree similar to his story. This we did. * * * “A. After I outlined to Mr. Witwer the story of ‘The Freshman’ as we had it at the time, he said that it was nothing like his story; in fact, to his mind it was much better than his; and that if we wanted to use any of the gags in his story, we were perfectly welcome to do so. This conversation was prior to the commencement of any actual photographing of ‘The Freshman.’ “Q. State whether or not at that time it was possible to change ‘The Freshman’ story as you had it outlined. A. It is possible to change the story at any time. “Q. Did you rely on the entire statement he had made to you that there was no similarity, and if you wanted to, you could use any of his gags? A. No, sir. When that conference with Mr. Witwer was completed he dropped completely out of my mind, and I never gave him or his story any thought until this case came up. * * * ” Cross-examination by Mr. Fendler: “I have a most vivid recollection of that conference, especially of Mr. Witwer’s words, ‘you can use any gags in my story if you see fit,’ because to my mind it clearly indicated what was in Mr. Witwer’s mind at the time, which later events proved to be true. I mean by that that I was very fully convinced that Mr. Witwer intended to do exactly what he did do at that time; that is, to allow us to produce the story of ‘The Freshman’ and later sue for plagiarism. “I was convinced when he made that statement that was what he had in mind. I believe the purpose of asking Mr. Witwer to come to the studio was to avert infringement. I was convinced at the time he made that statement that he was going to sue for infringement. I did not communicate that conviction to Mr. Lloyd. I didn’t say I kept it a secret, I may have discussed it with a few outsiders. I don’t remember whether I discussed it with anyone at the studio. “Q. At the time, as you say, you told the story of ‘The Freshman’ to Mr. Witwer, the details of that story hadn’t been worked out, had they? A. What do you mean by ‘details’? “Q. Exactly what you meant when -you testified a few days ago. A. If you mean ‘gags,’ no they had not. v “Q. I call your attention to your testimony on page 74 of your deposition, Kne 3: ‘Q. When you started the production of the picture in October, 1924, were all the details of the picture then completed? A. Certainly not. If I gave you that impression, I certainly did not word my statement very well.’ Did you so testify? A. Yes. I just repeated it. “The Court. What is the precise date? Has it been fixed in the testimony? I mean the date of this interview. “Mr. Gortner. I think it is stated as about ten days or something like that before actual photographing started, and that started on October 13, 1924.'- “The Court. About the first part of October, 1924? “Mr. Gortner. It would be about the first part of October. At this conversation I described especially the outline and as many of the gags as had then been worked out. When I finished telling him what I did he said in substance or effect: ‘That is nothing like my story; it is much better than my story. If you want to use any gags out of my story, you are perfectly welcome to them.’ Mr. Murphy was present at that conversation. He told Mr. Witwer that I would tell him the story, as I was possibly more familiar with it than Mr. Murphy was. That was the extent to which he took part in the conversation.” As to the same conversation, John L. Murphy, appellant's production manager, testified as follows: “I am production manager of the defendant Harold Lloyd Corporation and have been such about seven years. * * * Mr. Witwer was asked to come to the studio on that occasion by me. The purpose of his being asked to come over to the studio at that time was to tell him our story. Mr. Taylor was correct in testifying yesterday that the purpose of that meeting was so that Mr. Taylor should be told Mr. Witwer’s story. Mr. Lloyd wanted Mr. Taylor to hear Mr. Witwer’s story from Mr. Witwer himself; but the purpose I had in getting Mr. Witwer out was to let him also hear our story. I wanted Mr. Witwer to hear our story because the magazine had been lost and all those months had intervened, and we were much concerned over the loss of it; and being that many other producers had been worked into very embarrassing situations innocently, we wanted Mr. Wit-wer to hear our story, and if by any chance we had unconsciously paralleled his material, we wanted him to state so and to change it then and there. My purpose was not to avert an action for infringement by Mr. Wit-wer. It was to la.y our cards right on the table and let Mr. Witwer know what our story was before we started photographing, and if he felt there had been any similarities or any parallels, we were ready to change it. As I remember, this was in the early part of the month, and it was before the photographing of ‘The Freshman’ commenced, and after we had completed an outline of the story. We had the story substantially set when I sent for Mr. Witwer. By the story being ‘set’ I mean after these various story conferences between Mr. Taylor and Mr. Lloyd and Mr. Grey, myself, Mr. Newmeyer, Mr. Whalen and Mr. Wild, and after they had agreed upon a story. We had been working on it six or eight weeks, I believe. The story was in the form of little scratch notes that Mr. Taylor used to keep, and I believe, a typewritten outline of about two pages which Mr. Taylor made up for his own personal guidance. I did not nor did the other gag men have a copy of that outline. Mr. Taylor used to keep those notes for himself. “Q. I call your attention now to that portion of your deposition which was taken in my office in Hollywood on March 12, 1929, and ask you to read that portion of your deposition commencing about page 42, line 3, and reading as follows: ‘When we got our story lined up we thought it was a good idea to have Mr. Witwer come out and listen to our story and let him see that we had in no way used his material. Q. What made you think of that? A. For the simple reason we had a case simmering for a couple of years against us by Owen Dams in regard to “The Nervous Wreck,” and we didn’t want to have any repetition; and we had Mr. Witwer come out. Q. Had you used Owen Davis’ material ?’ Then there is an objection by your counsel and your answer: ‘A. I can answer that, anyway. At that time I was not connected directly with Mr. Lloyd. I was connected with Hal Roach, so I know nothing about it, anyway. Q. Whose idea was it that you might be using some of Mr. Witwer’s material in “The Freshman”? A. It was nobody’s idea in particular, but owing to the fact that we had one question with Davis, we thought the fair and upright thing would be to come out in the open and lay our cards on the table, and if we had in some way unconsciously used any of his material, why, we would change it.’ Did you so testify? A. Yes, sir. I don’t know the date, but Mr. Fraser spoke to me about making search for the magazine, Plaintiff’s Exhibit 1, and said that they had looked over Mr. Lloyd’s home and hadn’t been able to find it; and we just thought possibly in some way it might have found its way into Mr. Lloyd’s dressing room; and as a last resort, because Mr. Fraser and Mr. Lloyd were very much put out, I had his dressing room looked over. I did it myself, alone. To the best of my memory, no one else made the search with me in the dressing room at the studio. “Q. I call your attention to the portion of your deposition taken at my office last year. ‘We were just about ready to start “The Freshman” and previous to that there had been two or three calls I believe from Mrs. Witwer and Mr. Witwer regarding the loss of the magazine and Mr. Lloyd tried to find it and Mr. Fraser spoke to ine about it. We hunted all over Lloyd’s dressing room for it.’ To whom did you refer when you said ‘We hunted all over Mr. Lloyd’s dressing room’ immediately following your statement that Mr. Fraser spoke to you about it? A. Possibly one of the boys, — maybe Mr. Lloyd’s personal secretary, or any one of the boys— helped me move the furniture in case it had -dropped behind something.” Cross-examination by Mr. Seligsberg: “Mr. Fendler asked you whether Mr. Wit-wer told you or attempted to tell you the story of ‘The Emancipation of Rodney’? A. Yes, sir. “Q. There was a story he told you, but do you know whether it was the story of ‘The Emancipation of Rodney’ or not? A. No, I do not. “Q. Have you ever read ‘The Emancipation of Rodney’ ? A. No, sir. “Q. By the Court. Did you say that Mr. Witwer did attempt to tell the story at this meeting in October of 1924? A. Yes, your Honor. I was the one who asked Mr. Witwer to come to the meeting, and 'my purpose was so that the Harold Lloyd story might be told to him. “Q. Who else were parties to that intention? That is, did you and Mr. Lloyd and Mr. Taylor agree that that was the purpose of having Mr. Witwer come there? A. That was, I believe, my idea, your Honor. * » •» Mr. Murphy recalled. Direct examination: “I have been on the stand before and was present in court several days ago when Sam Taylor, as a witness called by Mr. Fend-ler, detailed a conversation at the studio of the Harold Lloyd Corporation between Mr. Taylor, myself and Mr. Witwer, in which Taylor stated that he outlined to Witwer quite at length the story of ‘The Freshman’ as it was then prepared. I was present at that conversation. It was early in October, 1924, in the afternoon. We had Mr. Witwer come out, and explained to him his purpose in coming out, and Mr. Taylor started to tell the story, which was the story that he repeated here on the witness stand the other day. He outlined to him a story of a small-town boy who was getting ready to go to college and got off on the wrong foot by virtue at following the antics of a motion picture actor, from whom he got the idea that.he wanted to be the most popular man in college. On his way to college he met the girl. Then he, on being taken out to the assembly hall where the student body was waiting for the dean to make the opening address, the upper classmen framed him so that he made a fool of himself in front of the entire student body. Then they told him, as one of the ways to become popular, that he would have to be a good fellow, whereupon they all lined him up to go over to the ice cream parlor where they made a fool out of him, spending his money. Later on he read where the previous popular fellow in college had been the captain of the football team, and he decided to go out for the football team, where he was rousted about and made a fool of. He was so sincere, however, that they decided not to tell him. Believing that he was on the squad by virtue of his ability, he told the girl o£ his success. Later he decided to throw the junior prom or the party of the year, which he did. At the end of the party the realization was brought home to him by the girl that he was j'ust making a fool of himself and that, if he wanted to attain his aim, he should just be himself, and be natural. This dropped him away down, broken hearted. His one remaining chance to make good was in the big game, which, of course, he did. “In addition Taylor told Witwer possibly two or three gags in,the big football game and that Mr. Lloyd won the game, thereby achieving his aims. “When Taylor got through telling him that story, Witwer said that it was a very good story, in fact that it was better than his, and mentioned that, if there were any gags he had told us that we wanted to use, it was perfectly okay. We replied that we didn’t need any of his gags and that we carried a staff of our own gagmen throughout the picture. With that Witwer shook hands, wished us good luck and left. “Q. Did you report that conversation and what Mr. Witwer had said to Harold Lloyd ? A. Yes, sir. “Q. Did you believe that Mr. Witwer was in earnest? A. Absolutely. “Q. Did you go ahead in reliance on Mr. Witwer being in earnest and produce ‘The Freshman’? A. Yes, sir. Actual photographing started, to the best of my knowledge, about a week after that conversation, and continued, I believe, until about March, 1925. “Q. If Mr. Witwer had said to you and Taylor that your story was like his in any respect, would you have gone ahead and made the picture regardless of that? “Mr. Fendler. That is objected to as calling for a conclusion of the witness and suggestive and leading and outside of any issue in the case. “The Court. I think that objection should be sustained. “Mr. Gortner. May we have an exception to this ruling, your Honor, and to the previous one on the same line? “The Court. Yes, sir. “Referring to the testimony of Mrs. Wit-wer that she had a conversation with me by telephone some time in November, 1928, and that in that conversation I said ‘to tell Mr. Witwer to come to the studio to meet Sam Taylor because he was the man who was going to direct the picture,’ I did not say that to Mrs. Witwer. Also it is not true as testified by Mrs. Witwer that in a conversation ■with me in November or December, 1923, I said I wanted Mr. Witwer to come to the studio to discuss changes in the story. The only recollection I have of a conversation with Mrs. Witwer over the telephone was after Mr. Fraser spoke to me about looking, as a last resort, in Mr. Lloyd’s dressing room to see if the magazine might have found its way out there. And at that time I remember calling up Mrs. Witwer and telling her that we had been unable to locate it. But at no time did I ever have, any conversation with Mrs. Witwer on either the subject of having Witwer meet the man who was going to direct the picture or having him come to the studio to discuss changes in the story. “Referring to the time that Mr. Witwer came to the studio in October of 1924, just before production started, and to Mrs. Wit-wer’s testimony in which she said that I either called at her home, or called her home and said to tell Mr. Witwer that I wanted him to come to the studio and that they wanted to read him their story, this testimony is correct in so far as calling him is concerned, but I don’t think I used the word ‘read.’ I think I said ‘tell him our story. * * * ’ “Yes, I testified to an outline which Mr. Taylor gave to Mr. Witwer upon a subsequent occasion. * * * My recollection as to what Mr. Taylor said upon that occasion is just about as I repeated here a few minutes ago. It is pretty hard to remember that far back just the exact gags that he was told, but that was the general outline of the story that Mr. Taylor told Mr. Witwer. To the best of my knowledge everything I have outlined here, Mr. Taylor did tell Mr. Witwer upon that occasion. “Mr. Witwer said to Mr. Taylor and me when Mr. Taylor had completed this outline, that he liked the story very much, that he thought it was even better than his, and that if we wanted to use some of his gags, it was okay with him. “Q. Was that all he said upon that occasion? A. I am just giving you the speech as I remember it. Then we replied to that that we had our own staff of gagmen which we carried throughout the picture to supply all the material we needed in the form of gags. The gags referred to were those which he told in a very sketchy manner the previous Saturday' afternoon in a very haphazard, incoherent manner. And about the only thing that I can remember that he told was about the boy out practicing hurdling, and I believe he was practicing in his B. V. D.’s, and the girl came up and caught him doing it. That is the only thing by Mr. Witwer that I remember. As I say, he told it in a very, very slipshod manner. That is the only gag I remember. He possibly told about three or four. As I say, it was hard to follow him in his manner of speech. I don’t remember the other gags he told us about that afternoon. He did not mention the title of the story ‘The Emancipation of Rodney’ upon that Saturday afternoon that I remember, nor did he mention the title of any story on that Saturday afternoon to my knowledge; no, sir. “Q. Did you or did Mr. Lloyd or did Mr. Taylor upon that occasion ask him to tell any story to you? * * * A. I believe having Witwer come to the studio for the purpose of hearing our story was my idea and I think Mr. Lloyd also wanted Mr. Taylor to hear Mr. Witwer’s story from Mr. Witwer direct. I believe I first suggested Mr. Witwer coming to the studio on that occasion. I wouldn’t say it wasn’t Lloyd’s idea as it has been quite a while. But to the best of my recollection it was my idea. I had no discussion with Taylor before Witwer came to the studio upon that occasion, other than I think I told him I was having Mr. Witwer out that afternoon, and to regulate his time so he would be sure and be there. Taylor did not tell me at that time, that I remember, that Uoyd had previously told him the Witwer story or something about the Witwer story and that he didn’t like the idea. * * * “Mr. Witwer told me in substance at that time, immediately after Mr. Taylor had completed his outline, that the story which Mr. Taylor had told him was nothing like his story. But what left a memory on my mind was his statement that it was a better story than his story. I don’t remember just his exact words, but the general impression was conveyed that there was no similarity, and he thought our story was better adapted