CITE:  533 F.2d 87
CMON:  April 1976
PLAIN: Rebecca Reyher and Ruth Garnett
DEFND: Children's Television Workshop and Tuesday Publications
COURT: United States Court of Appeals for the Second Circuit
DATE:  April 5, 1976
Appeal from an order of the District Court for the Southern District of
New York, John M. Cannella, Judge, dismissing plaintiffs' copyright
infringement complaint after trial without a jury.   AFFIRMED.

  States that thematic concepts are not protectable by copyright, but
  also considers the "total concept" and sequence of steps (a process)
  to be protectable (process also not be protectable by copyright).

JUDGE: MESKILL, Circuit Judge
Mulligan, Oakes and Meskill, Circuit Judges.


Plaintiffs below, Rebecca Reyher and Ruth Gannett, appeal from an order of
the District Court for the Southern District of New York, John M.  Cannella,
Judge, dismissing their copyright infringement complaint after a two day
trial without a jury. We affirm the district court's disposition of this
case on the ground that there was no substantial similarity between the
two works as to copyrightable matter.

Appellants Reyher and Gannett are the author and illustrator respectively
of a children's book entitled My Mother Is The Most Beautiful Woman In
The World which was published with notice of copyright on August 24, 1945.
Appellee Children's Television Workshop ("CTW") is the producer of the 
educational children's television program known as "Sesame Street" and
the publisher of Sesame Street Magazine. Appellee Tuesday Publications,
Inc. ("TPI") is the publisher of a monthly periodical known as Tuesday
At Home, which is distributed by several newspapers across the country.

The complaint alleges that CTW and TPI infringed and are continuing to
infringe plaintiffs' copyright by publishing an illustrated story entitled
"The Most Beautiful Woman In The World," which plaintiffs claim was
copied from their book without their knowledge or consent.  The plaintiffs
further assert that CTW infringed their copyright by producing,
performing, taping, and televising, without knowledge or authorization,
a television skit entitled "The Most Beautiful Woman In The World."

The defendants deny any infringement of plaintiffs' copyright.  They contend
that a thematic idea is not protected by copyright and further, that as a
"retold" folk tale, the story line involved here is in the public domain.
A two day trial was held before Judge Cannella.  The three key witnesses
were appellant Reyher, Jon Stone, author of the allegedly infringing script
and executive producer and head writer for "Sesame Street", and Tibor
Gergely, the artist who illustrated the script for Sesame Street Magazine.

Reyher testified that her book My Mother Is The Most Beautiful Woman In The 
World had its genesis in a story told to her as a child in Russian by her
Russian mother.  While she could not repeat this story verbatim, she stated
that she had "taken a storyline . . . [and] adapted it . . . . [It was her]
treatment . . . even though it was [her] mother's story." Later in her
testimony, Reyher said she had only "assumed" that the story was a
Russian folktale known to others.

Stone testified that he remembered the theme used in his script from a story
told to his younger sister more than 20 years ago.  Denying that he had ever
seen appellants' work in any form, Stone stated that he used no source for
his script other than his memory.  Tibor Gergely, the artist who had
sketched the allegedly infringing illustration of the reunion scene
between mother and child, testified that he had referred to no outside
materials when illustrating the story, although he remembered the story
from a book read during his childhood in Europe; further, he stated that
since he had never seen appellant Gannett's illustrations, any similarity
in the drawings of the reunion scene was coincidental.

Judge Cannella dismissed the infringement claim.  He noted that there was
substantial similarity between the two works because "[while] defendants'
rendition of the story takes place in a different locale and is told with
fewer frills . . . both stories present an identical sequence of events."
He concluded, however, that since Reyher testified that the story line in
her book was "substantially taken from, if not identical with, the story
told to her by her mother" and since she failed to show that she had
added anything to the story or changed it in any significant way,
Reyher's book was a derivative work, i.e., one "substantially copied from
a prior work in the public domain".  Reyher's copyright thus protected
only her original product, which did not include the plot. The court
found no textual copying. {n1}  In comparing the two illustrations, the
district court concluded that the differences between them were so
substantial as to preclude a finding of infringement. 387 F. Supp. 869
(S.D.N.Y. 1975).

Initially we feel that we must note our grave doubts about the district
court's characterization of Reyher's book as a derivative work.  In
addition to the classes of works eligible for copyright protection
under 17 U.S.C. Section 5, Section 7 of Title 17 permits copyrighting
"adaptations, . . . translations, or other versions of works in the
public domain," so long as the contributions made by the author to
the previously existing work are not merely trivial. The protection
afforded by Section 7, however, is limited solely to the author's
additions to the prior underlying work.  Generally, "[a] work is not
derivative unless it has substantially copied from a prior work.  If
that which is borrowed consists merely of ideas and not of the expression
of ideas, then although the work may have in part been derived from
prior works, it is not a derivative work."  1 M. Nimmer on Copyright
Section 39 at 166-167 (1975) (hereinafter "Nimmer").  This statement
presents, we think, the proper perspective from which to evaluate
Reyher's book.

Reyher admittedly borrowed the "idea" embodied in the story from her mother.
The basic plot of this children's book is very simple.  See discussion infra.
Reyher's presentation of the story line was entirely her own.  Aside from
its theme, she could neither recall the exact story her mother told nor
the precise language used.  More importantly, no tangible or intangible
prior work was proved with sufficient detail to enable a court to judge
either whether substantial copying of anything other than the idea of
the prior work had occurred or which part of her adaptation constituted
her own new, and thus protected, material.  In light of the absence of
such evidence, to characterize Reyher's work as derivative merely because
she used memories of her mother's story would create problems in
protecting any literary endeavor as well as exacerbate the difficulty
in determining the protection to be afforded a particular effort.

Although we disagree with the district court's "derivative work" rationale,
we nevertheless affirm its dismissal of this case on the ground that any
similarities between the two works related only to non-copyrightable matter.
In reaching this conclusion, we must overturn the trial court's factual
finding that there were substantial similarities between the two works.
While we recognize that our appellate function usually does not include
factfinding, where, as here, the determination of similarity rests solely
on a comparison of the works in issue rather than on credibility of
witnesses or other evidence only for the factfinder, "we are in as good
a position as the trial judge" to determine the issue.  Soptra Fabrics
Corp. v. Stafford Knitting Mills, Inc., 490 F.2d 1092, 1093 (2 Cir. 1974);
Concord Fabrics, Inc. v. Marcus Brothers Textile Corp., 409 F.2d 1315,
1317 (2 Cir. 1969) (per curiam); Millworth Converting Corporation v.
Slifka, 276 F.2d 443, 445-446 (2 Cir. 1960); cf. Orvis v. Higgins,
180 F.2d 537, 539 (2 Cir.), cert. denied, 340 U.S. 810 (1950).
See 1 Nimmer Section 140 at 607.

In an infringement action, a plaintiff must establish ownership of the
copyright and copying by the defendant.  McGraw-Hill, Inc. v. Worth
Publishers, Inc., 335 F. Supp. 415, 419 (S.D.N.Y. 1971); 1 Nimmer Section
141 at 611.  As was done in the instant case, ownership is commonly
proved by production of the copyright registration certificate. Because
of the inherent difficulty in obtaining direct evidence of copying, it
is usually proved by circumstantial evidence of access to the copyrighted
work and substantial similarities as to protectible material in the two
works.  Arnstein v. Porter, 154 F.2d 464 (2 Cir. 1946); Bevan v. Columbia
Broadcasting System, Inc., 329 F. Supp. 601 (S.D.N.Y. 1971). "If there
are no similarities, no amount of evidence of access will suffice to
prove copying." Arnstein v. Porter, supra, 154 F.2d at 468.

It is an axiom of copyright law that the protection granted to a
copyrightable work extends only to the particular expression of an idea
and never to the idea itself.  Mazer v. Stein, 347 U.S. 201, 217 (1954);
Baker v. Selden, 101 U.S. 99, 102-103 (1879). This principle attempts
to reconcile two competing societal interests: rewarding an individual's
ingenuity and effort while at the same time permitting the nation to
benefit from further improvements or progress resulting from others' use
of the same subject matter.  "In the case of verbal 'works' it is well
settled that although the 'proprietor's' monopoly extends beyond an
exact reproduction of the words, there can be no copyright in the 'ideas'
disclosed but only in their 'expression'.  Obviously, no principle can be
stated as to when an imitator has gone beyond copying the 'idea', and
has borrowed its 'expression'.  Decisions must therefore inevitably be
ad hoc." Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487,
489 (2 Cir. 1960) (L. Hand).

The difficult task in an infringement action is to distill the nonprotected
idea from protected expression. In Nichols v. Universal Pictures
Corporation, 45 F.2d 119, 121 (2 Cir. 1930), cert. denied, 282 U.S. 902
(1931), Judge Learned Hand articulated his "abstractions test" by noting
that "upon any work . . .  a great number of patterns of increasing
generality will fit equally well, as more and more of the incident is
left out. . . . There is a point in this series of abstractions where
they are no longer protected, since otherwise the playwright could
prevent the use of his 'ideas' to which, apart from their expression,
his property is never extended."  Attempting to further delineate
this boundary, one commentator has stated that "protection covers the
'pattern' of the work . . . the sequence of events and the development
of the interplay of characters." {n2}

While the demarcation between idea and expression may not be susceptible to
overly helpful generalization, it has been emphasized repeatedly that the
essence of infringement lies in taking not a general theme but its particular
expression through similarities of treatment, details, scenes, events and
characterization. Sheldon v. Metro-Goldwyn Pictures Corporation, 81 F.2d 49,
54 (2 Cir.), cert. denied, 298 U.S. 669 (1936); Burnett v. Lambino,
204 F. Supp. 327 (S.D.N.Y. 1962); Bevan v. Columbia Broadcasting System,
Inc., supra, 329 F. Supp. at 605.  Another helpful analytic concept is
that of scenes a faire, sequences of events which necessarily follow
from a common theme. "Similarity of expression . . . which necessarily
results from the fact that the common idea is only capable of expression
in more or less stereotyped form will preclude a finding of actionable
similarity." 1 Nimmer Section 143.11 at 626.2; see Yankwich, Originality
in the Law of Intellectual Property, 11 F.R.D. 457, 462 (1951). Copyrights,
then, do not protect thematic concepts or scenes which necessarily must
follow from certain similar plot situations. Thus, "no one infringes,
unless he descends so far into what is concrete [in a work] as to invade
. . . [its] 'expression.'" National Comics Publications v. Fawcett
Publications, 191 F.2d 594, 600 (2 Cir. 1951). An example illuminating
these somewhat theoretical statements may be helpful at this point.
In Nichols v. Universal Pictures Corporation, supra, the author of the
play "Abie's Irish Rose" claimed that her work had been infringed by
defendant's film "The Cohens and The Kellys." The court found that the only
matter common to the two stories, a "quarrel between a Jewish and an Irish
father, the marriage of their children, the birth of grandchildren and a
reconciliation," was not protected by copyright; similarly, the four
characters common to both plays were prototypes too indistinct to merit
copyright protection.  The court concluded that "[a] comedy based upon
conflicts between Irish and Jews, into which the marriage of their
children enters", was not within the protection afforded by copyright
because this theme was part of plaintiff's ideas.

The question which remains is whether defendants in the instant case
utilized the idea in Reyher's book or instead descended so far into
the concrete as to invade her expression.  We must first note that
both stories, intended for children, are necessarily less complex than
some other works submitted to pattern analysis.  See, e.g., Bevan v.
Columbia Broadcasting System, Inc., supra; Nichols v. Universal Pictures
Corporation, supra. Therefore, in addition to the essential sequence
of events, we might properly consider the "total concept and feel" of
the works in question.   Roth Greeting Cards v. United Card Company,
429 F.2d 1106, 1110 (9 Cir. 1970).

Reyher's thirty-five page book focuses on a Russian family living in the
Ukraine; the setting of the story is an important component of the work.
The main protagonists are the mother, father and six year old daughter.
The first few pages describe the duties of each family member in harvesting
the wheat crop.  There is also narrative about the customary feast days
during harvesting as Reyher describes, through the literary device of
the little girl helping her mother, the preparation of distinctive
Russian foods.  The feast day itself is depicted with vivid details of
costume and entertainment.  We have now progressed through fifteen pages
of appellant's book.  On the last day of field work prior to the feast,
the little girl is separated from her parents.  Meeting a group of
villagers unfamiliar to her, she describes her mother as the most
beautiful woman in the world.  The village leader sends boys to bring
back all the likely candidates; none, of course, is the mother.  Finally,
a homely woman, in fact the girl's mother, approaches the crowd and is
joyfully reunited with her child.  The village leader presents the moral
of the story: "We do not love people because they are beautiful, but
they seem beautiful to us because we love them." At the feast day, the
little girl tells her mother that, although other children have teased
her about her feelings, she thinks her mother is the most beautiful woman
in the world.  The mother expresses her happiness that her child sees
with her heart as well as with her eyes.

The Sesame Street Magazine version of the story, two pages long, presumably
is set in Africa.  There is no textual detail about African life; any
information comes from the five illustrations, which show African dress
on the characters, a woman carrying a basket on her head, and thatched
huts.  The story opens with a little boy crying in the fields because he
has become separated from his mother.  He describes her as the most
beautiful woman in the world.  The village leader gathers all the
beautiful women from surrounding villages to no avail.  An old
unattractive woman, the missing mother, is reunited with her son.  The
village leader states that although he doesn't find her beautiful, the
important thing is what the little boy thinks.  The lesson to be learned is
"what's not so beautiful to some can be very, very beautiful to others".

Based on the special relationship between parent and child, both works
present the thematic concept that to a lost child, the familiar face of the
mother is the most beautiful face, even though the mother is not, in fact,
beautiful to most. {n3}  The overlapping sequences of events concern the lost
child finding his or her mother, albeit with some difficulty because of the
description given.  This similarity of events, however, may be considered
scenes a faire, scenes which necessarily result from identical situations.
{n4}  Thus, where a lost child is the protagonist, there is likely to
be a reunion with parents.  Furthermore, the morals stated by the two stories
differ in emphasis.  Reyher's book focuses on how love makes people appear
beautiful, while the CTW story stresses that what is beautiful to some may not
be beautiful to others.  More importantly, however, the two works differ in
"total feel".  Reyher's book presents a picture of family life in the Russian
Ukraine and develops the characters of the little girl and her mother.  The
CTW story is barren of meaningful setting or character development in its
attempt to present its theme.  The two stories are not similar in mood,
details or characterization. Since both present only the same idea, no
infringement as to protected expression occurred.  The district court's
finding that the two illustrations of the reunion scene have such
substantial differences as not to warrant a finding of infringement is
one we will not disturb.



{n1} The district court found little, if any, paraphrasing and also noted
that the only phrase which appeared in both works was "Once upon a time,
long, long ago."

{n2} Z. Chafee, Reflections on the Law of Copyright, 45 Col. L.  Rev. 503,
513 (1945).
{n3} Appellants do not, and could not, claim that the title of their book is
within copyright protection.  Arnstein v. Porter, supra, 154 F.2d at 474.

{n4} As well stated by Judge Yankwich in his article, Originality in the
Law of Intellectual Property, supra, 11 F.R.D. at 464-465, "Similarity of
theme so obviously calls for similarity of treatment that originality will
be made to reside in the association and grouping of materials, the
delineation of character, the conflict and the other elements which are
the very essence of a dramatic production, . . . representing human beings
in action or in conflict."