No. 692, Docket 79-7704.

United States Court of Appeals, Second Circuit.

Argued February 27, 1980.

Decided March 25, 1980.

  James C. Eastman, Washington, D.C., for plaintiff-appellant.

  Coudert Bros., New York City (Eugene L. Girden, New York City,
of counsel), for defendant-appellee Universal City Studios, Inc.

  Peter A. Flynn, and Myron M. Cherry, Chicago, Ill. (Cherry,
Flynn & Kanter, Chicago, Ill., Hervey M. Johnson, White Plains,
N.Y.), and James J. McEnroe, New York City (Watson, Leavenworth,
Kelton & Taggert, New York City), for defendant-appellee Michael
M. Mooney.

  Appeal from the United States District Court for the Southern
District of New York.

  Before KAUFMAN, Chief Judge, TIMBERS, Circuit Judge, and
WERKER, District Judge.[fn*]

[fn*] Of the United States District Court for the Southern
District of New York, sitting by designation.

  IRVING R. KAUFMAN, Chief Judge:

[1] A grant of copyright in a published work secures for its author
a limited monopoly over the expression it contains. The copyright
provides a financial incentive to those who would add to the
corpus of existing knowledge by creating original works.
Nevertheless, the protection afforded the copyright holder has
never extended to history, be it documented fact or explanatory
hypothesis. The rationale for this doctrine is that the cause of
knowledge is best served when history is the common property of
all, and each generation remains free to draw upon the
discoveries and insights of the past. Accordingly, the scope of
copyright in historical accounts is narrow indeed, embracing no
more than the author's original expression of particular facts
and theories already in the public domain. As the case before us
illustrates, absent wholesale usurpation of another's expression,
claims of copyright infringement where works of history are at
issue are rarely successful.


[2] This litigation arises from three separate accounts of the
triumphant introduction, last voyage, and tragic destruction of
the Hindenburg, the colossal dirigible constructed in Germany
during Hitler's reign. The zeppelin, the last and most
sophisticated in a fleet of luxury airships, which punctually
floated its wealthy passengers from the Third Reich to the United
States, exploded into flames and disintegrated in 35 seconds as
it hovered above the Lakehurst, New Jersey Naval Air Station at
7:25 p. m. on May 6, 1937. Thirty-six passengers and crew were
killed but, fortunately, 52 persons survived. Official
investigations conducted by both American and German authorities
could ascertain no definitive cause of the disaster, but both
suggested the plausibility of static electricity or St. Elmo's
Fire, which could have ignited the highly explosive hydrogen that
filled the airship. Throughout, the investigators refused to rule
out the possibility of sabotage.

[3] The destruction of the Hindenburg marked the concluding chapter
in the chronicle of airship passenger service, for after the
tragedy at Lakehurst, the Nazi regime permanently grounded the
Graf Zeppelin I and discontinued its plan to construct an even
larger dirigible, the Graf Zeppelin II.

[4] The final pages of the airship's story marked the beginning of
a series of journalistic, historical, and literary accounts
devoted to the Hindenburg and its fate. Indeed, weeks of
testimony by a plethora of witnesses before the official
investigative panels provided fertile source material for
would-be authors. Moreover, both the American and German
Commissions issued official reports, detailing all that was then
known of the tragedy. A number of newspaper and magazine articles
had been written about the Hindenburg in 1936, its first year of
trans-Atlantic service, and they, of course, multiplied many fold
after the crash. In addition, two passengers - Margaret Mather
and Gertrud Adelt - published separate and detailed accounts of
the voyage, C. E. Rosendahl, commander of the Lakehurst Naval Air
Station and a pioneer in airship travel himself, wrote a book
titled What About the Airship, in which he endorsed the theory
that the Hindenburg was the victim of sabotage. In 1957, Nelson
Gidding, who would return to the subject of the Hindenburg some
20 years later, wrote an unpublished "treatment" for a motion
picture based on the deliberate destruction of the airship. In
that year as well, John Toland published Ships in the Sky
which, in its seventeenth chapter, chronicled the last flight of
the Hindenburg. In 1962, Dale Titler released Wings of Mystery,
in which he too devoted a chapter to the Hindenburg.[fn1]

[5] Appellant A. A. Hoehling published Who Destroyed the
Hindenburg?, a full-length book based on his exhaustive
research in 1962. Mr. Hoehling studied the investigative reports,
consulted previously published articles and books, and conducted
interviews with survivors of the crash as well as others who
possessed information about the Hindenburg. His book is presented
as a factual account, written in an objective, reportorial style.

[6] The first half recounts the final crossing of the Hindenburg,
from Sunday, May 2, when it left Frankfurt, to Thursday, May 6,
when it exploded at Lakehurst. Hoehling describes the airship,
its role as an instrument of propaganda in Nazi Germany, its
passengers and crew, the danger of hydrogen, and the ominous
threats received by German officials, warning that the Hindenburg
would be destroyed. The second portion, headed The Quest, sets
forth the progress of the official investigations, followed by an
account of Hoehling's own research. In the final chapter,
spanning eleven pages, Hoehling suggests that all proffered
explanations of the explosion, save deliberate destruction, are
unconvincing He concludes that the most likely saboteur is one
Eric Spehl, a "rigger" on the Hindenburg crew who was killed at

[7] According to Hoehling, Spehl had motive, expertise, and
opportunity to plant an explosive device, constructed of dry-cell
batteries and a flashbulb, in "Gas Gell 4," the location of the
initial explosion. An amateur photographer with access to
flashbulbs, Spehl could have destroyed the Hindenburg to please
his ladyfriend, a suspected communist dedicated to exploding the
myth of Nazi invincibility.

[8] Ten years later appellee Michael MacDonald Mooney published his
book, The Hindenburg. Mooney's endeavor might be characterized
as more literary than historical in its attempt to weave a number
of symbolic themes through the actual events surrounding the
tragedy. His dominant theme contrasts the natural beauty of the
month of May, when the disaster occurred, with the cold,
deliberate progress of "technology." The May theme is expressed
not simply by the season, but also by the character of Spehl,
portrayed as a sensitive artisan with needle and thread. The
Hindenburg, in contrast, is the symbol of technology, as are its
German creators and the Reich itself. The destruction is depicted
as the ultimate triumph of nature over technology, as Spehl
plants the bomb that ignites the hydrogen. Developing this theme
from the outset, Mooney begins with an extended review of man's
efforts to defy nature through flight, focusing on the evolution
of the zeppelin. This story culminates in the construction of the
Hindenburg, and the Nazis' claims of its indestructibility.
Mooney then traces the fateful voyage, advising the reader almost
immediately of Spehl's scheme. The book concludes with the
airship's explosion.

[9] Mooney acknowledges, in this case, that he consulted Hoehling's
book, and that he relied on it for some details. He asserts that
he first discovered the "Spehl-as-saboteur" theory when he read
Titler's Wings of Mystery. Indeed, Titler concludes that Spehl
was the saboteur, for essentially the reasons stated by Hoehling.
Mooney also claims to have studied the complete National Archives
and New York Times files concerning the Hindenburg, as well as
all previously published material. Moreover, he traveled to
Germany, visited Spehl's birthplace, and conducted a number of
interviews with survivors.

[10] After Mooney prepared an outline of his anticipated book, his
publisher succeeded in negotiations to sell the motion picture
rights to appellee Universal City Studios.[fn2] Universal then
commissioned a screen story by writers Levinson and Link, best
known for their television series, Columbo, in which a somewhat
disheveled, but wise detective unravels artfully conceived murder
mysteries. In their screen story, Levinson and Link created a
Columbo-like character who endeavored to identify the saboteur on
board the Hindenburg. Director Robert Wise, however, was not
satisfied with this version, and called upon Nelson Gidding to
write a final screenplay. Gidding, it will be recalled, had
engaged in preliminary work on a film about the Hindenburg almost
twenty years earlier.

[11] The Gidding screenplay follows what is known in the motion
picture industry as a "Grand Hotel" formula, developing a number
of fictional characters and subplots involving them. This formula
has become standard fare in so-called "disaster" movies, which
have enjoyed a certain popularity in recent years. In the film,
which was released in late 1975, a rigger named "Boerth," who has
an anti-Nazi ladyfriend, plans to destroy the airship in an
effort to embarrass the Reich. Nazi officials, vaguely aware of
sabotage threats, station a Luftwaffe intelligence officer on the
zeppelin, loosely resembling a Colonel Erdmann who was aboard the
Hindenburg. This character is portrayed as a likable fellow who
soon discovers that Boerth is the saboteur. Boerth, however,
convinces him that the Hindenburg should be destroyed and the two
join forces, planning the explosion for several hours after the
landing at Lakehurst, when no people would be on board. In
Gidding's version, the airship is delayed by a storm, frantic
efforts to defuse the bomb fail, and the Hindenburg is destroyed.
The film's subplots involve other possible suspects, including a
fictional countess who has had her estate expropriated by the
Reich, two fictional confidence men wanted by New York City
police, and an advertising executive rushing to close a business
deal in America.

[12] Upon learning of Universal's plans to release the film,
Hoehling instituted this action against Universal for copyright
infringement and common law unfair competition in the district
court for the District of Columbia in October 1975. Judge Smith
declined to issue an order restraining release of the film in
December, and it was distributed throughout the nation.

[13] In January 1976, Hoehling sought to amend his complaint to
include Mooney as a defendant. The district court, however,
decided that it lacked personal jurisdiction over Mooney.[fn3] In
June 1976, Hoehling again attempted to amend his complaint, this
time to add Mooney's publishers as defendants. Judge Smith denied
this motion as well, but granted Hoehling's request to transfer
the litigation to the Southern District of New York, 28 U.S.C. § 1404(a),
where Mooney himself was successfully included as a
party. Judge Metzner, with the assistance of Magistrate Sinclair,
supervised extensive discovery through most of 1978. After the
completion of discovery, both Mooney and Universal moved for
summary judgment, Fed.R.Civ.P. 56, which was granted on August 1,


[14] It is undisputed that Hoehling has a valid copyright in his
book. To prove infringement, however, he must demonstrate that
defendants "copied" his work and that they "improperly
appropriated" his "expression." See Arnstein v. Porter,
154 F.2d 464, 468 (2d Cir. 1946). Ordinarily, wrongful appropriation
is shown by proving a "substantial similarity" of copyrightable
expression. See Nichols v. Universal Pictures Corp., 45 F.2d 119,
121 (2d Cir. 1930), cert. denied, 282 U.S. 902, 51 S.Ct.
216, 75 L.Ed. 795 (1931). Because substantial similarity is
customarily an extremely close question of fact, see Arnstein,
supra, 154 F.2d at 468, summary judgment has traditionally been
frowned upon in copyright litigation, id. at 474. Nevertheless,
while Arnstein's influence in other areas of the law has been
diminished, see SEC v. Research Automation Corp., 585 F.2d 31
(2d Cir. 1978); 6 Moore's Federal Practice ¶ 56.17[14] (2d ed.
1976), a series of copyright cases in the Southern District of
New York have granted defendants summary judgment when all
alleged similarity related to non-copyrightable elements of the
plaintiff's work, see, e. g., Alexander v. Haley, 460 F.Supp. 40
(S.D.N.Y. 1978); Musto v. Meyer, 434 F.Supp. 32 (S.D.N.Y. 1977);
Gardner v. Nizer, 391 F.Supp. 940 (S.D.N.Y. 1975); Fuld v.
National Broadcasting Co., 390 F.Supp. 877 (S.D.N.Y. 1975). These
cases signal an important development in the law of copyright,
permitting courts to put "a swift end to meritless litigation"
and to avoid lengthy and costly trials. Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980); accord,
Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. 1972); American
Manufacturers Mutual Insurance Co. v. American
Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 278 (2d
Cir. 1967). Drawing on these cases, Judge Metzner assumed both
copying and substantial similarity, but concluded that all
similarities pertained to various categories of non-copyrightable
material. Accordingly, he granted appellees' motion for summary
judgment. We affirm the judgment of the district court.


[15] Hoehling's principal claim is that both Mooney and Universal
copied the essential plot of his book - i. e., Eric Spehl,
influenced by his girl friend, sabotaged the Hindenburg by
placing a crude bomb in Gas Cell 4. In their briefs, and at oral
argument, appellees have labored to convince us that their plots
are not substantially similar to Hoehling's. While Hoehling's
Spehl destroys the airship to please his communist girlfriend,
Mooney's character is motivated by an aversion to the
technological age. Universal's Boerth, on the other hand, is a
fervent anti-fascist who enlists the support of a Luftwaffe
colonel who, in turn, unsuccessfully attempts to defuse the bomb
at the eleventh hour.

[16] Although this argument has potential merit when presented to a
fact finder adjudicating the issue of substantial similarity, it
is largely irrelevant to a motion for summary judgment where the
issue of substantial similarity has been eliminated by the
judge's affirmative assumption. Under Rule 56(c), summary
judgment is appropriate only when "there is no genuine issue as
to any material fact." Accord, Heyman v. Commerce & Industry
Insurance Co., 524 F.2d 1317 (2d Cir. 1975). Perhaps recognizing
this, appellees further argue that Hoehling's plot is an "idea,"
and ideas are not copyrightable as a matter of law. See Sheldon
v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.),
cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936).

[17] Hoehling, however, correctly rejoins that while ideas
themselves are not subject to copyright, his "expression" of his
idea is copyrightable. Id. at 54. He relies on Learned Hand's
opinion in Sheldon, supra, at 50, holding that Letty Lynton
infringed Dishonored Lady by copying its story of a woman who
poisons her lover, and Augustus Hand's analysis in Detective
Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2d Cir.
1940), concluding that the exploits of "Wonderman" infringed the
copyright held by the creators of "Superman," the original
indestructible man. Moreover, Hoehling asserts that, in both
these cases, the line between "ideas" and "expression" is drawn,
in the first instance, by the fact finder.

[18] Sheldon and Detective Comics, however, dealt with works of
fiction,[fn4] where the distinction between an idea and its
expression is especially elusive. But, where, as here, the idea
at issue is an interpretation of an historical event, our cases
hold that such interpretations are not copyrightable as a matter
of law. In Rosemont Enterprises, Inc. v. Random House, Inc.,
366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87
S.Ct. 714, 17 L.Ed.2d 546 (1967), we held that the defendant's
biography of Howard Hughes did not infringe an earlier biography
of the reclusive alleged billionaire. Although the plots of the
two works were necessarily similar, there could be no
infringement because of the "public benefit in encouraging the
development of historical and biographical works and their public
distribution." Id. at 307; accord, Oxford Book Co. v. College
Entrance Book Co., 98 F.2d 688 (2d Cir. 1938). To avoid a
chilling effect on authors who contemplate tackling an historical
issue or event, broad latitude must be granted to subsequent
authors who make use of historical subject matter, including
theories or plots. Learned Hand counselled in Myers v. Mail &
Express Co., 36 C.O.Bull. 478, 479 (S.D.N.Y. 1919), "[t]here
cannot be any such thing as copyright in the order of
presentation of the facts, nor, indeed, in their selection."[fn5]

[19] In the instant case, the hypothesis that Eric Spehl destroyed
the Hindenburg is based entirely on the interpretation of
historical facts, including Spehl's life, his girlfriend's
anti-Nazi connections, the explosion's origin in Gas Cell 4,
Spehl's duty station, discovery of a dry-cell battery among the
wreckage, and rumors about Spehl's involvement dating from a 1938
Gestapo investigation. Such an historical interpretation, whether
or not it originated with Mr. Hoehling, is not protected by his
copyright and can be freely used by subsequent authors.


[20] The same reasoning governs Hoehling's claim that a number of
specific facts, ascertained through his personal research, were
copied by appellees.[fn6] The cases in this circuit, however,
make clear that factual information is in the public domain.
See, e. g., Rosemont Enterprises, Inc., supra, 366 F.2d at 309;
Oxford Book Co., supra, 98 F.2d at 691. Each appellee had the
right to "avail himself of the facts contained" in Hoehling's
book and to "use such information, whether correct or incorrect,
in his own literary work." Greenbie v. Noble, 151 F.Supp. 45,
67 (S.D.N.Y. 1957). Accordingly, there is little consolation in
relying on cases in other circuits holding that the fruits of
original research are copyrightable. See, e. g., Toksvig v.
Bruce Publications Corp., 181 F.2d 664, 667 (7th Cir. 1950);
Miller v. Universal City Studios, Inc., 460 F.Supp. 984
(S.D.Fla. 1978). Indeed, this circuit has clearly repudiated
Toksvig and its progeny. In Rosemont Enterprises, Inc.,
supra, 366 F.2d at 310, we refused to "subscribe to the view
that an author is absolutely precluded from saving time and
effort by referring to and relying upon prior published material.
. . . It is just such wasted effort that the proscription against
the copyright of ideas and facts . . .. are designed to
prevent." Accord, 1 Nimmer on Copyright § 2.11 (1979).


[21] The remainder of Hoehling's claimed similarities relate to
random duplications of phrases and sequences of events. For
example, all three works contain a scene in a German beer hall,
in which the airship's crew engages in revelry prior to the
voyage. Other claimed similarities concern common German
greetings of the period, such as "Heil Hitler," or songs, such as
the German National anthem. These elements, however, are merely
scenes a faire, that is, "incidents, characters or settings
which are as a practical matter indispensable, or at least
standard, in the treatment of a given topic." Alexander, supra,
460 F.Supp. at 45; accord, Bevan v. Columbia Broadcasting
System, Inc., 329 F.Supp. 601, 607 (S.D.N.Y. 1971). Because it is
virtually impossible to write about a particular historical era
or fictional theme without employing certain "stock" or standard
literary devices, we have held that scenes a faire are not
copyrightable as a matter of law. See Reyher v. Children's
Television Workshop, 533 F.2d 87, 91 (2d Cir.), cert. denied,
429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976).


[22] All of Hoehling's allegations of copying, therefore, encompass
material that is non-copyrightable as a matter of law, rendering
summary judgment entirely appropriate. We are aware, however,
that in distinguishing between themes, facts, and scenes a
faire on the one hand, and copyrightable expression on the
other, courts may lose sight of the forest for the trees. By
factoring out similarities based on noncopyrightable elements, a
court runs the risk of overlooking wholesale usurpation of a
prior author's expression. A verbatim reproduction of another
work, of course, even in the realm of nonfiction, is actionable
as copyright infringement. See Wainwright Securities, Inc. v.
Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977), cert.
denied, 434 U.S. 1014, 98 S.Ct. 730 (1978). Thus, in granting or
reviewing a grant of summary judgment for defendants, courts
should assure themselves that the works before them are not
virtually identical. In this case, it is clear that all three
authors relate the story of the Hindenburg differently.

[23] In works devoted to historical subjects, it is our view that a
second author may make significant use of prior work, so long as
he does not bodily appropriate the expression of another.
Rosemont Enterprises, Inc., supra, 366 F.2d at 310. This
principle is justified by the fundamental policy undergirding the
copyright laws - the encouragement of contributions to recorded
knowledge. The "financial reward guaranteed to the copyright
holder is but an incident of this general objective, rather than
an end in itself." Berlin v. E. C. Publications, Inc., 329 F.2d 541,
543-44 (2d Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46,
13 L.Ed.2d 33 (1964). Knowledge is expanded as well by granting
new authors of historical works a relatively free hand to build
upon the work of their predecessors.[fn7]


[24] Finally, we affirm Judge Metzner's rejection of Hoehling's
claims based on the common law of "unfair competition." Where, as
here, historical facts, themes, and research have been
deliberately exempted from the scope of copyright protection to
vindicate the overriding goal of encouraging contributions to
recorded knowledge, the states are pre-empted from removing such
material from the public domain. See, e. g., Sears, Roebuck & Co.
v. Stiffel Co., 376 U.S. 225, 83 S.Ct. 1868, 10 L.Ed.2d 1050
(1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234,
84 S.Ct. 779, 11 L.Ed.2d 669 (1964). "To forbid copying" in this
case, "would interfere with the federal policy . . . of allowing
free access to copy whatever the federal patent and copyright
laws leave in the public domain." Id. at 237, 84 S.Ct. at 782.

[25] The judgment of the district court is affirmed.

[fn1] Titler's account was published after the release of
appellant's book. In an affidavit in this litigation, Titler
states that he copied Hoehling's theory of sabotage. Hoehling,
however, has never instituted a copyright action against Titler.

[fn2] Mooney, his publishers, and Universal entered into an
agreement under which (I) Universal acquired the film rights to
Mooney's book, (2) Universal agreed to promote sales of the book,
and (3) Mooney would receive a percentage fee, tied to sales of
his book. Hoehling claims that because of this arrangement,
Universal is vicariously liable if Mooney's book, but not the
motion picture, is held to infringe his copyright. In view of our
disposition of the appeal, however, we need not address this

[fn3] At the same time, Judge Smith denied Universal's motion for
summary judgment, concluding it was inappropriate prior to the
completion of requested discovery.

[fn4] In Sheldon, both works, were loosely based on an actual
murder committed by a young Scottish girl. Judge Hand, however,
clearly dealt only with the fictional plots conceived by the
respective authors. See Sheldon v. Metro-Goldwyn Pictures Corp.,
81 F.2d 49, 54 (2d Cir.), cert. denied, 298 U.S. 669, 56 S.Ct.
835, 80 L.Ed. 1392 (1936).

[fn5] This circuit has permitted extensive reliance on prior
works of history. See, e. g., Gardner v. Nizer, 391 F.Supp. 940
(S.D.N.Y. 1975) (the story of the Rosenberg trial not
copyrightable); Fuld v. National Broadcasting Co., 390 F.Supp.
877 (S.D.N.Y. 1975) ("Bugsy" Siegel's life story not
copyrightable); Greenbie v. Noble, 151 F.Supp. 45
(S.D.N.Y. 1957) (the life of Anna Carroll, a member of Lincoln's
cabinet, not copyrightable). The commentators are in accord with
this view. See, e. g. 1 Nimmer on Copyright § 2.11[A](1979);
Chafee, Reflections on the Law of Copyright: I, 45 Colum.L.Rev.
503, 511 (1945).

[fn6] In detailed comparisons of his book with Mooney's work and
Universal's motion picture, Hoehling isolates 266 and 75 alleged
instances of copying, respectively. Judge Metzner correctly
pointed out that many of these allegations are patently
frivolous. The vast majority of the remainder deals with alleged
copying of historical facts. It would serve no purpose to review
Hoehling's specific allegations in detail in this opinion. The
following ten examples, however, are illustrative: (1) Eric
Spehl's age and birthplace; (2) Crew members had smuggled monkeys
on board the Graf Zeppelin; (3) Germany's ambassador to the
United States dismissed threats of sabotage; (4) A warning letter
had been received from a Mrs. Rauch; (5) The Hindenburg's captain
was constructing a new home in Zeppelinheim; (6) Eric Spehl was a
photographer; (7) The airship flew over Boston; (8) The
Hindenburg was "tail heavy" before landing; (9) A member of the
ground crew had etched his name in the zeppelin's hull; and (10)
The navigator set the Hindenburg's course by reference to various
North Atlantic islands.

[fn7] We note that publication of Mooney's book and release of
the motion picture revived long dormant interest in the
Hindenburg. As a result, Hoehling's book, which had been out of
print for some time, was actually re-released after the film was
featured in theaters across the country.

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