NASH v. CBS, INC., 899 F.2d 1537 (7th Cir. 1990)
JAY ROBERT NASH, PLAINTIFF-APPELLANT, v. CBS, INC., ET AL.,
United States Court of Appeals, Seventh Circuit.
Argued January 24, 1990.
Decided April 23, 1990.
Martin S. Agran, Agran & Agran, E. Leonard Rubin, Willian,
Brinks, Olds, Hofer, Gilson & Lione, Chicago, Ill., Harvey C.
Gordon, Glenview, Ill., for plaintiff-appellant.
William G. Schopf, Jr., Paula Litt, Schopf & Weiss, Chicago,
Ill., for defendants-appellees.
Appeal from the United States District Court for the Northern
District of Illinois.
Before FLAUM and EASTERBROOK, Circuit Judges, and GRANT, Senior
[fn*] The Honorable Robert A. Grant, of the Northern District of
Indiana, sitting by designation.
EASTERBROOK, Circuit Judge.
 John Dillinger, Public Enemy No. 1, died on July 22, 1934, at
the Biograph Theater in Chicago. He emerged from the air
conditioned movie palace into as sweltering evening accompanied
by two women, one wearing a bright red dress. The "lady in red,"
Anna Sage, had agreed to betray his presence for $10,000. Agents
of the FBI were waiting. Alerted by Polly Hamilton, the other
woman, Dillinger wheeled to fire, but it was too late. A hail of
bullets cut him down, his .45 automatic unused. William C.
Sullivan, The Bureau 30-33 (1979). Now a national historic
site, the Biograph bears a plaque commemorating the event. It
still shows, movies, and the air conditioning is not better now
than in 1934.
 Jay Robert Nash believes that Dillinger did not die at the
Biograph. In Dillinger: Dead or Alive? (1970), and The
Dillinger Dossier (1983), Nash maintains that Dillinger learned
about the trap and dispatched Jimmy Lawrence, a small-time
hoodlum who looked like him, in his stead. The FBI, mortified
that its set-up had no sting, kept the switch quiet. Nash points
to discrepancies between Dillinger's physical characteristics and
those of the corpse: Dillinger had a scar on his upper lip and
the corpse did not; Dillinger lacked a tooth that the corpse
possessed; Dillinger had blue eyes, the corpse brown eyes;
Dillinger's eyebrows were thicker than those of the corpse.
Although Dillinger's sister identified the dead man, Nash finds
the circumstances suspicious, and he is struck by the decision of
Dillinger's father to encase the corpse in concrete before
burial. As part of the cover-up, according to Nash, the FBI
planted Dillinger's fingerprints in the morgue. After
interviewing many persons connected with Dillinger's gang and the
FBI's pursuit of it, Nash tracked Dillinger to the west coast,
where Dillinger married and lay low. Nash believes that he
survived at least until 1979. The Dillinger Dossier contains
pictures of a middle-aged coupled and then an elderly man who,
Nash believes, is Dillinger in dotage. Nash provides capsule
versions of his conclusions in his Bloodletters and Badmen: A
Narrative Encyclopedia of American Criminals from the Pilgrims to
the Present (1973), and his expose Citizen Hoover
 Nash's reconstruction of the Dillinger story has not won
adherents among historians - or the FBI. Someone in Hollywood
must have read The Dillinger Dossier, however, because in 1984
CBS broadcast an episode of its Simon and Simon series entitled
The Dillinger Print, Simon and Simon featured brothers Rick and
A.J. Simon, private detectives in San Diego. The district court
summarized the episode, 704 F.Supp. 823, 828-29 (N.D.Ill. 1989):
The opening scene of The [Dillinger] Print shows Ty
Becker, a retired FBI agent, telling his
grandchildren about Dillinger's life and the shooting
outside the Biograph Theater on July 22, 1934. Ty
also mentions that he doubts Dillinger was the man
who was shot that night and vows to track him down
some day. After the grandchildren leave with his
daughter Addie, an intruder breaks into Ty's home,
steals an old gun which once belonged to Dillinger,
and kills Ty with the gun.
Concerned that the police would regard Ty's death
as a typical murder incident to burglary rather than
related to moon-lighting lighting she suspected he
was performing for the FBI, Addie hires the Simons.
Next, Addie goes to the bank to remove her father's
safety deposit box. While she is in the vault, a
masked man, wearing 1930s style spectator shoes,
shoots tear gas into the bank and steals Ty's safety
deposit box. The Simons arrive at the bank soon
thereafter and pick up the thief's gun, which turns
out to be the Dillinger gun Stolen from Ty's house.
Police investigation later reveals that the gun bears
the fresh fingersprint of John Dillinger.
The Simons are next seen purchasing newspapers
which are carrying the story that Dillinger may be
alive. As the Simons discuss the case, A.J. reads
from a book entitled "Twentieth Century Desperadoes."
He implies that some evidence supports the idea
Dillinger is alive and relates to Rick several
physical discrepancies between Dillinger and the
Corpse described in the 1934 autopsy. Nash cites the
same discrepancies in his books.
Numerous Dillinger impostors soon come forward, and
the FBI enters the case. However, FBI Agents
Kinneman, who is a friend of A.J.'s, informs the
Simons that Ty Becker was not working for the FBI at
the time of his death.
The scene then switches to a health club. As A.J.
and Kinneman are playing racquetball, a man wearing a
trench coat and spectator shoes enters the club and,
from the viewing area, sprays a salvo of bullets over
A.J. and Kinneman. Afterwards, A.J. Solemnly swears
revenge against Dillinger of whoever tried to shoot
The next day, the Simons visit the police station
and discover that "leads" regarding Dillinger's
whereabouts have poured in from all over the world.
They agree to check out a few leads, including one
that takes them to a dentist in San Diego. The
dentist rejects the Simons' suggestion that Dillinger
lives in his house and attributes the police tip to a
crazy woman who lives across the street.
The Simons and Addie then pay a visit to Ty
Becker's old secretary, who informs them that Ty was
working on an internal FBI investigation at the time
he was killed. Immediately thereafter, the Simons and
Addie receive a call from Kinneman, who tells them
that "there is more truth to this" Dillinger affair
than anyone had imagined and that the Simons should
meet him at a closed-down theater.
When the Simons and Addie enter the theater, a
gangster documentary is playing. Kinneman and a man
wearings spectator shoes shoot at the trio. The
Simons eventually kill the man in spectator shoes.
They then subdue Kinneman, who admits to killing Ty
Becker in order to stop the internal investigation
which, it turns out, was directed at Kinneman, and to
leaving the fake Dillinger fingerprint on the gun at
In the penultimate scene, the FBI thanks the Simons
for their help in arresting Kinneman and solving the
Dillinger mystery. Rick nevertheless insists
Dillinger may be alive and perhaps living in Oregon.
. . . The episode closes with a teaser: the dentist,
one of the leads whom the Simons had interviewed
earlier in the program, is seen pushing his elderly
father in a wheelchair and admonishing him to refrain
from discussing the "old days in Chicago" anymore.
 Nash filed this suit seeking damages on the theory that The
Dillinger Print violates his copyrights in the four books
setting out his version of Dillinger's escape from death and new
life on the west coast. The district court determined that the
books' copyrighted material consists in Nash's presentation and
exposition, not in any of the historical events. 691 F.Supp. 140
(N.D.Ill. 1988). CBS then moved for summary judgment, conceding
for this purposes both accesses to Nash's books and copying of
the books' factual material. The court granted this motion, 704
F.Supp. 823, holding that The Dillinger Print did not
appropriate any of the material protected by Nash's copyrights.
 CBS's concession removes from this case two questions that
bedevil copyright litigation. See Selle v. Gibb, 741 F.2d 896,
901-02 (7th Cir. 1984). It leaves the questions whether the copier
used matter that the copyright law protects and, if so, whether
it took "too much" (that is, more than allowed by the "fair use"
doctrine codified in 17 U.S.C. § 107). See Atari, Inc. v. North
American Philips Consumer Electronics Corp., 672 F.2d 607,
614-17 (7th Cir. 1982), Toksvig v. Bruce Pub. Co., 181 F.2d 664
(7th Cir. 1950). These latter questions have proven especially
difficult when, as in this case, the copier works in a medium
different from the original.
 Learned Hand, whose opinions still dominate this corner of the
law, observed in Nichols v. Universal Pictures Corp., 45 F.2d 119,
121 (2d Cir. 1930), that all depends on the level of
abstraction at which the court conceives the interest protected
by the copyright. If the court chooses a law level (say, only the
words the first author employed), then a copier may take the
plot, exposition, and all other original material, even though
these may be the most important ingredients of the first author's
contribution. As a practical matter this would mean that anyone
could produce the work in a new medium without compensating the
original author, despite the statute's grant to the author of the
privilege to make "derivative works." If on the other hand the
court should select a high level of abstraction, the first author
may claim protection for whole genres of work ("the romantic
novel" or, more modestly, any story involving doomed young lovers
from warning clans, so that a copyright on Romeo and Juliet
would cover West Side Story too). Even a less sweeping degree
of abstraction creates a risk of giving copyright protection to
"the idea" although the statute protects only "expression".
17 U.S.C. § 102(b); Holmes v. Hurst, 174 U.S. 82, 86, 19 S.Ct.
606, 607, 43 L.Ed. 904 (1989); Mazer v. Stein, 347 U.S. 201,
217-18, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954); Rockford Map
Publishers, Inc. v. Directory Service Co., 768 F.2d 145 (7th
Cir. 1985); Miller v. Universal City Studios, Inc., 650 F.2d 1365
(5th Cir. 1981); United Telephone Co. v. Johnson Publishing
Co., 855 F.2d 604, 608-09 (8th Cir. 1988).
 Sometimes called the "abstractions test," Hand's insight is not
a "test" at all. It is a clever way to pose the difficulties that
require courts to avoid either extreme of the continuum of
generality. It does little to help resolve a given case, even
when melded with Hand's further observation, in cases such as
Peter Pan Fabrics, Inc., v. Martin Weiner Corp., 274 F.2d 487,
489 (2d Cir. 1960), that one may ask what the "ordinary observer"
would think are the essential parts of the two works' "aesthetic
appeals." See also Seller, 741 F.2d at 903-05. Who is the
"ordinary" observer, and how does this person choose the level of
generality? Ordinary observers, like reasonable men in torts, are
fictious characters of the law, reminders that judges must apply
objectives tests rather than examine their own perceptions. They
do not answer the essential question: at what level of
generality? After 200 years of wrestling with copyright
questions, it is unlikely that courts will come up with the
answer any time soon, if the indeed there is "an" answer, which
 Hand returned again and again to the opposing forces that make
the formulation of a single approach so difficult. Intellectual
(and artistic) progress is possible only if each author builds on
the work of others. No one invents even a tiny fraction of the
ideas that make up our cultural heritage. Once a work has been
written and published, any rule requiring people to compensate
the author slows progress in literature and art, making useful
expressions "too expensive," forcing authors to re-invent the
wheel, and so on. Every work uses scraps of thought from
thousands of predecessors, far too many to compensate even if the
legal system were frictionless, which it isn't. Because any new
work depends on others even if unconsciously, broad protection of
intellectual property also creates a distinct possibility that
the costs of litigation - old authors trying to get a "piece of
the action" from current successes - will prevent or penalize the
production of new works, even though the claims be rebuffed.
Authors as a group therefore might, prefer limited protection for
their writings - they gain in the ability to use others' works
more than they lose in potential royalties. See William M. Landes
& Richard A. Posner, An Economic Analysis of Copyright Law, 18
J. Legal Studies 325, 332-33, 349-59 (1989).
 Yet to deny authors all reward for the value their labors
contribute to the works of others also will lead to
inefficiently little writing, just as surely as excessively broad
rights will do. The prospect of reward is an important stimulus
for thinking and writing, especially for persons such as Nash who
are full-time authors. Before the first work is published, broad
protection of intellectual property seems best; after it is
published, narrow protection seems best. At each instant some new
works are in progress, and every author is simultaneously a
creator in part and a borrower in part. In these roles, the same
person has different objectives. Yet only one rule can be in
force. This single rule must achieve as much as possible of these
inconsistent demands. Neither Congress nor the courts has the
information that would allow it to determine which is best. Both
institutions must muddle through, using not a fixed rule but a
sense of the consequences of moving dramatically in either
 If Nash had written a novel that another had translated into a
screenplay, this would be a difficult case. Although The
Dillinger Print is substantially original, it does not matter
that almost all of the second author's expression is new. "[N]o
plagiarist can excuse the wrong by showing how much of his work
he did not pirate." Sheldon v. Metro-Goldwyn Pictures Corp.,
81 F.2d 49, 56 (2d Cir. 1936) (L. Hand, J.). The TV drama took from
Nash's works the idea that Dillinger survived and retired to the
west coast, and employed many of the ingredients that Nash used
to demonstrate that the man in the Cook County morgue was not
Dillinger. CBS even used one of Nash's books as a prop:
"Twentieth Century Desperadoes" in The Dillinger Print is a
ringer for Nash's Bloodletters and Badmen. To see that The
Dillinger Print is in a sense a "derivative work", we need only
imagine how we would react if Nash had written a short story
based on the premise that Dillinger was really a woman
masquerading as a man, and CBS has used a switch in sex roles as
the centerpiece of a drama. In such an event we would need to
decide, as Hand did in Sheldon, whether the portions CBS took
over were qualitatively so important that the original author's
market would be diminished excessively by a rule allowing similar
appropriations in the regular course.
 Nash does not portray The Dillinger Dossier and its companion
works as fiction, however, which makes all the difference. The
inventor of Sherlock Holmes controls that Character's fate while
the copyright lasts; the first person to conclude that Dillinger
survived does not get dibs on history. If Dillinger survived,
that fact is available to all. Nash's rights lie in his
expression: in his words, in his arrangement of facts (his
deployment of narration interspersed with interviews, for
example), but not in the naked "truth". The Dillinger Print
does not use any words from The Dillinger Dossier or Nash's
other books; it does not take over any of Nash's presentation but
instead employs a setting of its own invention with new
exposition and development. Physical differences between
Dillinger and the corpse, planted fingerprints, photographs of
Dillinger and other gangsters in the 1930s, these and all the
rest are facts as Nash depicts them. (Nash did not take the
photographs and has no rights in them; The Dillinger Print used
the photos but not Nash's arrangement of them.)
 The cases closest to ours are not plays translated to the movie
screen (as in Sheldon) but movies made from speculative works
representing themselves as fact. For example, Universal made a
motion picture based on the premise that an idealistic crewman
planted a bomb that destroyed the dirigible Hindenburg on May
6, 1937. The theory came straight from A.A. Hoehling's Who
Destroyed the Hindenburg? (1962), a monograph based on
exhaustive research. The motion picture added subplots and
development, but the thesis and the evidence adduced in support
of it could be traced to Hoehling. Nonetheless, the Second
Circuit concluded that this did not infringe Hoehling's rights,
because the book placed the facts (as opposed to Hoehling's
exposition) in the public domain. Hoehling v. Universal City
Studios, Inc., 613 F.2d 972 (1980). See also Miller v.
Universal City Studios (facts about a notorious kidnapping are
not protected by copyright). Cf. Musto v. Meyer, 434 F.Supp. 32
(S.D.N.Y. 1977) (idea for The Seven Per Cent Solution derived
from article in medical journal).
 Hoehling suggested that "[t]o 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". 618
F.2d at 978. As our opinion in Toksvig shows, we are not
willing to say that "anything goes" as along as the first work is
about history. Toksvig held that the author of a biography of
Hans Christian Andersen infringed the copyright of the author of
an earlier biography by using portions of Andersen's letters as
well as some of the themes and structure. Hoehling rejected
Toksvig, see 618 F.2d at 979, concluding that "[k]nowledge is
expanded . . . by granting new authors of historical works a
relatively free hand to build upon the work of their
predecessors." Id. at 980 (footnote omitted). With respect for
our colleagues of the east, we think this goes to the extreme of
looking at incentives only ex post. The author is in Hoehling
and Toksvig spent years tracking down leads. If all of their
work, right down to their words, may be used without
compensation, there will be too few original investigations, and
facts will not be available on which to build.
 In Toksvig the first author, who knew Danish, spent three
years learning about Andersen's life; the second author, who knew
no Danish, wrote her biography in less than a year by copying out
of the first book scenes and letters that the original author
discovered or translated. Reducing the return on such effort, by
allowing unhindered use, would make the initial legwork less
attractive and so less frequent. Copyright law does not protect
hard work (divorced from expression), and hard work is not an
essential ingredient of copyrightable expression (see Rockford
Map), to the extent Toksvig confuses work or ideas with
expression, it has been justly criticized. Rosemont Enterprises,
Inc., v. Random House, Inc., 366 F.2d 303, 310 (2d Cir. 1966);
Miller v. Universal City Studios, 650 F.2d at 1371; William F.
Party, The Fair Use Privilege in Copyright Law 65-70 (1985).
See also Eisenschiml v. Fawcett Publications, Inc., 246 F.2d 598,
604 (7th Cir. 1957) (recognizing both that any two treatments
of the same historical subject will be similar because the facts
limit the author's freedom, and that a scholar is entitled to use
a predecessor's work). We need not revisit Toksvig on its own
facts to know that it is a mistake to hitch up at either pole
of the continuum between granting the first author a right to
forbid all similar treatments of history and granting the second
author a right to use anything he please of the first's work.
Cf. New Era Publications v. Henry Holt & Co., 873 F.2d 576 (2d
Cir.), rehearing en banc denied, 884 F.2d 659 (1989).
 Authors of fiction do not (necessarily) need greater incentives
than authors of non-fiction. Users of and elaborators on works of
non-fiction are not (necessarily) more easily dissuaded than are
those who use or elaborate on works of fiction. Decisions such as
Hoehling do not come straight from first principles. They
depend, rather, on the language of what is now 17 U.S.C. § 102(b):
"In no case does copyright protection for an original
work . . . extend to any idea, . . . or discovery, regardless of
the form in which it is described, explained, illustrated, or
embodied in such work." Long before the 1976 revision of the
statute, courts had decided that historical facts are among the
"ideas" and "discoveries" that the statute does not cover.
International News Service v. Associated Press, 248 U.S. 215,
234, 39 S.Ct. 68, 71, 63 L.Ed. 211 (1918). This is not a natural
law; Congress could have made copyright broader (as patent law
is). But it is law, which will come as no surprise to Nash. His
own books are largely fresh expositions of facts looked up in
other people's books. Consider the introduction to the
bibliography in Murder, America: Homicide in the United States
from the Revolution to the Present 447 (1980):
The research for this book was done in libraries and
achieves throughout the United States, in addition to
interviews and lengthy correspondence. The author's
own files, exceeding more than a quarter of a million
separate entries and a personal crime library of more
than 25,000 volumes, were heavily employed.
 The producers of Simon and Simon used Nash's work as Nash has
used others': as a source of facts and ideas, to which they added
their distinctive overlay. As the district court found, CBS did
no more than § 102(b) permits. Because The Dillinger Print uses
Nash's analysis of history but none of his expression, the
[fn**] Nash's other works include Darkest Hours: A Narrative
Encyclopedia of Worldwide Disasters from Ancient Times to the
Present (1976); Murder, America: Homicide in the United States
from the Revolution to the Present (1980); Look for the Woman:
A Narrative Encyclopedia of Female Prisoners, Kidnappers,
Thieves, Extortionists, Terrorists, Swindlers and Spies from
Elizabethan Times to the Present (1981); and Murder Among the
Mighty: Celebrity Slayings that Shocked America (1983). The
record does not reveal whether he is the life of the party
wherever he goes.