The Paper Dragon (23 page)

"I don't remember making that claim."

"Then let's try to be a bit more precise, shall we? This is the transcript of your pretrial examination, and I'm going to read now from page 198, this is you talking, Mr. Constantine: Tn the motion picture, there's a scene between the lieutenant and his commanding officer, and in the background we can see a line of men returning from the front. One of these men has his foot wrapped in bandages. This man was not described anywhere in the novel, but there's a scene in my play where a group of men are waiting for a stretcher, and one of the men has his foot wrapped in bandages.' Did you say that, Mr. Constantine?"

"If it's there, I said it."

"Then I take it you also said, because it's here on page 199, you also said, 'This man is a minor character, and his appearance in the movie can only be explained as an unconscious copying from the play.' Did you say that?"

"I did."

"Do you still feel this similarity indicates copying?"

"It's a minor point," Arthur said, "and I believe it was later withdrawn. That's why it doesn't appear on the chart."

"You no longer claim the man with his foot in bandages as a similarity?"

"That's right."

"Did you also testify during your pretrial examination that marksmanship was discussed in both your play and in the movie?"

"Possibly."

"Well, let's—"

"Probably, as a matter of fact."

"As a matter of fact, Mr. Constantine, I would like to read now from page 211 of the transcript, so that we can see whether it was
possibly
or
probably
or just
what
it was, shall we do that?"

"I'm willing to concede that…"

"On page 211, and I'm quoting from the transcript now, we have the following exchange:

"That's the end of the testimony, Mr. Constantine. Do you remember it now?"

"I remember it."

"Do you still feel a similarity exists here?"

"No, I do not, and again I must say that this claim has already been withdrawn, which is why it does not appear on the chart. If the evidence were all as flimsy as these two examples, the entire case would be absurd. You've picked on two points which have already—"

"These two points are flimsy and absurd?"

"That's why they were withdrawn."

"Mr. Constantine, didn't you also say that another similarity between the play and the movie was the fact that both Private Colman and Corporal Janus wear eyeglasses?"

"I did."

"And that this is another malevolent example of—"

"Did I say malevolent?"

"No, that's my word, Mr. Constantine. But you
do
feel this similarity indicates copying by Ralph Knowles, who wrote the screenplay based on the novel."

"My character Corporal Janus wears eyeglasses. Driscoll's character Private Colman does not wear eyeglasses. Yet in the movie, we have Private Colman wearing eyeglasses. Now if that doesn't indicate…"

"Do you still claim…"

"The similarity exists."

"It's not one of the flimsy and absurd ones?"

"It is an indication of either deliberate or unconscious copying. Alone, it might not be significant. But when we look at the other similarities, the fact that both men are troublemakers, and the homosexual references, and when we add the eyeglasses to that…"

"You're not suggesting that Private Colman is homosexual."

"In the book he is."

"But not in the film?"

"The film has taken my homosexual colonel and used him instead. I believe I've already explained the blending of two characters to form one in the book, and the subsequent separation in the film."

"And you still wish to claim this matter of the eyeglasses as a similarity?"

"I wish it to remain, yes."

"Remain
where
, Mr. Constantine? It does
not
appear on your chart, which you said earlier was a complete list. Do you now wish to add it to that list?"

"Yes."

"Very well. Would you like to add any others, Mr. Constantine. We'd like to be perfectly clear as to what you've alleged."

"No, that's all."

"You do not wish to add any other similarities to this list?"

"I do not."

"I wonder if I might now ask you, Mr. Constantine, why you chose to include in your list several similarities which you regarded as flimsy and absurd?"

"I don't know why. The examination had been going on for a long time. I was tired and…"

"Mr. Constantine, do you remember asking for time to go over your charts and lists in an attempt to determine whether or not you had covered everything?"

"When do you mean?"

"During the pretrial examination."

"I don't remember."

"And after you had studied your charts and lists — I believe you were gone for close to an hour, Mr. Constantine — you came back and said, and these are your exact words which I'm reading from the transcript, 'There are several other similarities I'd like to mention.' One of those similarities was the man in bandages, isn't that so?"

"Perhaps. You and Mr. Willow seemed determined at that point to get me to say this was a complete list, so I…"

"Yes, you said you wanted a chance to study it. Which you did, Mr. Constantine. For close to an hour, isn't that correct?"

"I suppose so, but…"

"Without any pressure from Mr. Willow, or me, or anyone. Isn't that so?"

'It was a very hot day, and everyone seemed to be—"

"Please, Mr. Constantine, I will have my question answered. Were you under any pressure when you reviewed your charts and came back to add the man in the bandages?"

"I've already answered the question."

"You've answered it by saying it was hot and you were tired and Mr. Willow and I were pressuring you."

"I said you seemed determined to have me say it was a complete list. I did not mention anything about being pressured."

"
Were
you being pressured?"

"I was being interrogated."

"Mr. Constantine, I am suggesting that you were
not
being interrogated when you left the room and spent an hour alone with your charts."

"That was merely an extension of the interrogation. I knew the interrogation would be waiting for me when I returned, and you and Mr. Willow had made it clear that if I didn't list each and every similarity at that time, the opportunity—"

"Can you tell me, Mr. Constantine, who decided to withdraw these similarities which you now consider flimsy and absurd?"

"Your Honor," Brackman said, rising, "I fail to see the purpose of this line of questioning. These similarities have been withdrawn. Does Mr. Genitori wish them to be claimed again? The witness has testified that he no longer considers them valid. Why, then, does Mr. Genitori—"

"He is examining as to the witness's credibility," McIntyre said. "I will allow it."

"If your Honor please," Genitori said. "Mr. Constantine, I repeat my question. Who decided to withdraw these similarities which you now consider flimsy and absurd?"

"Your Honor," Brackman said, "those were not the witness's words. He said something about…"

"I said if all the evidence were as flimsy as those two examples—"

"Yes, you did say the examples were flimsy," Genitori interrupted, "
and
absurd."

"I said the
case
would be absurd, the
case
"

"
If
all the examples were as flimsy as these two which have now been withdrawn," Brackman said. "
That
is what the witness said."

"The record will show exactly what he said, Mr. Brackman."

"In any case," Arthur said, "Mr. Brackman and I decided after deliberation to withdraw these specific claims. I think that answers your question."

"Yes, it does," Genitori said. "Now, if I understand this correctly, Mr. Constantine, there are five alleged similarities on Plaintiff's Exhibit Number 8, to which you now wish to add Private Colman and his eyeglasses, which makes a total of six alleged similarities between your" play and the movie."

"Yes. Plus those that appear in the book as well, of course."

"We are talking now only of those that were
not
in the book, but which you claim are only in the movie and the play."

"That's right, there are six."

"And do you base your claim upon these six similarities alone?"

"I don't think I understand your question."

"It's perfectly clear, Mr. Constantine. Do you base your claim upon these six similarities alone?"

"No, sir."

"You do not?"

"My claims based on all the similarities that appear in the play, the book,
and
the film."

"It is our contention, your Honor," Brackman said, "that both James Driscoll
and
API copied freely from the plaintiff's play. Mr. Genitori's concern at the moment would seem to be API's right to counterclaim should—"

Mr. Brackman," McIntyre said, "I do not see where API's right to counterclaim is a matter for discussion right now."

"The plaintiff is suing for an accounting. API's right to counterclaim later is most certainly before your Honor, if we are to be realistic."

"Your Honor," Genitori said, "my question does not go to the matter of counterclaim, though I would agree this is a consideration. It deals instead with the specific allegations against API."

"You will answer the question, Mr. Constantine."

"What is the question?"

"Do you base your claim against API on these six similarities?" Genitori said.

"I base it on
all
the similarities," Arthur answered.

"That concludes my cross-examination, your Honor."

"I have no redirect," Brackman said.

"Very well. Thank you, Mr. Constantine, you may—"

"Your Honor, I have one further question."

"Forgive me, Mr. Willow."

Willow walked to the witness chair and, without looking at Arthur, said, "Mr. Constantine, you said yesterday morning that you worked on a film titled
Area Seven
, is that correct?"

"That's correct."

"In what capacity did you work on that film?"

"I worked on the screenplay."

"You wrote the screenplay?"

"I worked on it together with Matthew Jackson."

Willow suddenly looked up. "Mr. Constantine," he said, "did you receive screen credit for
Area Seven
?"

"I did."

"As co-author of the screenplay?"

"We worked on it together."

"Did the screen credit state 'Screenplay by Matthew Jackson and Arthur Nelson Constantine'?"

"Screen credits are determined by the Writers Guild. They very often—"

"Please answer the question."

"No, that's not what the credit stated."

"Did it not, in fact, state 'Adaptation by Arthur Nelson Constantine, Screenplay by Matthew Jackson'?"

"Yes, that's what it stated. But 'adaptation' is a word—"

"Thank you, Mr. Constantine."

"Mr. Brackman?" McIntyre asked.

"That is the plaintiff's case, if your Honor please."

"You may step down, Mr. Constantine."

"Thank you," Arthur said. Bewildered for a moment, he began walking toward the jury box on the left of the courtroom, saw James Driscoll and his wife sitting there, started for the benches at the rear, and then responded to Brackman's signal to join him at the plaintiff's table.

Willow was still standing before the bench.

He took off his glasses, pressed his fingers into his eyes, head bent for a moment, and then put the glasses on again, and looked up at the judge.

"May I at this time," he said, "move to dismiss the action on the ground that this court has no jurisdiction with respect to the play
Catchpole
."

He delivered the words calmly and emotionlessly, startling even Genitori, who looked up in surprise. Arthur immediately turned to Brackman, puzzled, but Brackman rested a reassuring hand on his arm, leaned forward, his attention focused on Willow, and then patted Arthur's arm twice in further reassurance. Arthur did not know why Willow was suggesting that a federal court had no jurisdiction in a copyright case. He sensed intuitively, though, that the motion had been conceived as a result of the trap Willow had set and sprung in his earlier circuitous questioning. Apprehensively, he leaned forward and waited for Willow to continue. The courtroom was silent.

"Section 13 of the Copyright Law," Willow said, "clearly states that no action for infringement may be maintained if copies of the work in question have not been deposited with the Library of Congress."

Brackman was on his feet instantly. "Mr. Willow knows very well that the play
Catchpole
was copyrighted in August of 1947," he said. "Point of fact, he conceded before trial that it would not be necessary to produce a certificate of copyright, and that…"

"That's on the record, Mr. Willow," McIntyre said. "I'm not sure I understand your motion."

"Your Honor," Willow said, "I believe it was proved today that this work was published a full seven months
before
any copyright protection was sought."

"May I ask. " Brackman started.

"Publication, your Honor," Willow interrupted, "may be defined as the earliest date of unrestricted sale or distribution of copies. In this case, the first authorized edition of
Catchpole
was the play Arthur Constantine had mimeographed in December of 1946."

"Your Honor…"

"He distributed copies of that play starting in January of 1947, and continuing through May of that year, when the play was optioned. This mimeographed version was
not
copyrighted, nor was the play registered with the Copyright Office until August of 1947, seven months
after
the general distribution."

"Your Honor," Brackman said, "we are engaged in a matter of semantics here. The distribution made by Mr. Constantine was not a
general
distribution, as my learned friend claims, but rather a
limited
one to theatrical producers and investors, for the sole purpose of securing production of the play."

"The fact remains, your Honor, that one hundred and twenty copies were, in the witness's own words, 'floating all over the city,' distributed without copyright notice, placing them in the public domain. I cite Section 10 of the Code, which specifies that publication or distribution without the statutory copyright notice constitutes dedication to the public."

"This was neither a publication
nor
a general distribution," Brackman said. "Under Section 12 of the Code, the common-law protection of a work is perpetual so long as the work remains unpublished.
Catchpole
, which was a dramatic composition, was 'published,' if you will, on the night the play opened in New York City to paid performances. Until that time…"

"A hundred and twenty copies were printed, your Honor."

"Were
mimeographed
," Brackman said.