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September 22, 1982

GEORGE DAVIS, Plaintiff,

The opinion of the court was delivered by: WEINFELD


 During the 1970's, both the plaintiff and the defendants in this action produced works about the Vietnam War, and both entitled their stories Coming Home. Plaintiff's work is a novel, published in February 1972; defendants' work is a motion picture released in February 1978. Plaintiff charges defendants with copyright infringement in violation of 17 U.S.C., section 501; false description in violation of the Lanham Act, 15 U.S.C., section 1125(a); and unfair competition in violation of New York law. Defendants move for summary judgment on all claims.

 I. Copyright Infringement

 For purposes of this motion only, defendants concede the issues of access and plaintiff's ownership of the registered copyright in the novel Coming Home. Thus the basic issues that remain are (1) whether there are substantial similarities between the two works as viewed by an ordinary law observer, *fn1" and, if so, (2) whether the defendants improperly appropriated plaintiff's expression. *fn2" If there are no similarities that would end inquiry. If copying is established, then the issue of unlawful appropriation is reached.

 In resisting the defendants' motion for summary judgment, plaintiff raises the usual plea that there are issues of fact as to substantial similarity which require jury determination and relies in large measure upon the oft-quoted language in Arnstein v. Porter that "generally there should be trials in plagiarism suits." *fn3" However, the Arnstein court itself recognized that cases could "arise in which absence of similarities [may be] so patent that a summary judgment for defendant would be correct." *fn4" Unless the summary judgment rule is to become a dead letter, *fn5" it may properly be and has been enforced even in plagiarism suits. *fn6" Where there is no genuine issue of fact with respect to the basic legal matters to be decided, a party should not be put to the heavy burden and expense of time consuming litigation. Courts are required in copyright infringement cases, no less than in other types of litigation, to put "a swift end to meritless litigation." *fn7"

 Plaintiff, in seeking to ward off summary judgment, has submitted the affidavit of a literary expert who opines that the two works share substantial similarities; that in the specific areas of plot, theme, mood, time, character development, setting and pace there are striking parallels between the two works. The Court on this application for summary judgment has not considered the expert's opinion. *fn8" So, too, the Court has not considered the denials by the various defendants of copying plaintiff's work and their statements as to the origin of the thematic concept, character development and dialogue of the motion picture or their references to another lawsuit wherein it was charged that the motion picture here at issue infringed upon a novel by another author and the defendants prevailed. These matters are all irrelevant to the issues presented by this motion. The Court has considered plaintiff's detailed exhibits wherein he has specified his claims of alleged similarities between his writing and the motion picture. *fn9" There is no claim of textual copying.

 In the determination of this motion the Court has confined itself to a word-by-word reading of plaintiff's novel and a critical view of defendant's motion picture. *fn10" The Court finds that there is no similarity between the two works. Indeed, if the Court had read plaintiff's book and seen defendants' motion picture, unaware of this infringement action, it never would have dawned upon it, as an average observer, that there was the slightest connection between the two works other than in the common title and the subject of the Vietnam War. Moreover, even accepting arguendo plaintiff's contention of instances of substantial similarities, these relate to non-copyrightable material. The plots of the two works are as follows:

 The Novel

 Plaintiff's novel is set primarily in Thailand during the Vietnam War. The three major characters are Air Force pilots: Ben, a black Harvard graduate; Childress, another black man of less privileged, more "streetwise" background and somewhat resentful toward Ben because of his Harvard education; and Stacy, a white man who is innocent and conservative or "straight." The story opens at a United States base in Thailand where the three pilots, who are roommates, are preparing for a bombing mission. Childress is going home soon, and since he does not want Ben to inherit his Thai prostitute, he plants communist literature in her room in the hope that the authorities will find the papers and declare the prostitute off limits. Soon after Childress returns to the United States, he has an affair with Rose, Ben's wife, and later kills a policeman who tries to stop him from reading anti-war literature being passed out on the streets.

 In the meantime, Stacy, the white pilot, has found out about the papers which Childress planted before going home. He tries to retrieve them but fails and writes to his girlfriend back home, Roxanne, about the incident. Roxanne learns that Childress is in jail for killing the policeman. Roxanne, then living in Schenectady, New York, and wanting to help, contacts Ben's wife, Rose, in Washington, and both visit Childress in jail. This incident prompts one of Stacy's male friends, a resident of Schenectady, who seeks the favor of Roxanne, to write Stacy implying that Roxanne and Childress are having an affair, although this is not true. The information causes Stacy to become despondent, and during a flying mission he apparently commits suicide by failing to eject himself from a burning plane.

 Ben, the black pilot, does have an affair with Childress' prostitute once Childress has left Thailand. As the novel progresses, Ben becomes more and more disillusioned by the racism which he sees pervading the war in Vietnam and society back home. Eventually, he deserts while he is on R & R in Bangkok.

 The Motion Picture

 Defendants' picture also contains three major characters, all of whom are white: Bob, a Marine officer who goes off to fight in Vietnam; Sally, his wife who stays at home; and Luke, a Vietnam veteran who has been returned home from the war a paraplegic. The movie opens in California when Bob is about to leave for Vietnam. After he is gone, to keep occupied, Sally volunteers in a veterans' hospital where she meets Luke, an old high school classmate. Sally and Luke become friends and, eventually, lovers. Luke, to a degree, overcomes his handicap. He expresses strong sentiments against the war, and to give expression to his views at one point chains himself and his wheel chair to the main gate of a military induction center. Sally, who at the start of the film, is a conservative military housewife, begins to develop independence as a result of her work with the disabled veterans and her relationship with Luke. She becomes involved in Luke's protest activities and befriends a woman named Vi, who lives a more free spirited life style than Sally and who contributes to Sally's new found attitude of independence. At the end of the movie, Bob returns from Vietnam, having been discharged due to an "accidentally" self-inflicted gunshot wound. Sally ends her affair with the paraplegic Luke and stays with Bob, but FBI agents, who have been surveilling Luke and Sally due to their involvement in the anti-war movement, tell Bob about their affair. Bob, already unstable as a result of his war experiences, swims out into the ocean, apparently committing suicide.

 Plaintiff claims that his novel and the picture are similar because both are about the Vietnam War and its effects on people's lives, and both concern love triangles in which the betrayed member of the triangle commits suicide. But these similarities are merely similarities of ideas and general concepts. It is an axiom of copyright law that the protection granted to a work extends only to the particular expression of an idea rather than the idea itself. *fn11" This principle attempts to reconcile two competing societal interests: rewarding an individual's ingenuity and effort while at the same time permitting the ...

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