Substantially Similar--A Blog on IP Issues, Writing and Film

Richard DeNeut--Client and Friend

by John Aquino on 09/20/16

Richard DeNeut passed away in January, and his ashes were laid to rest on Friday, Sept. 16 at the Abbey of Regina Laudis in Bethlehem, Connecticut. He was an actor, a writer, a photographer, a photography executive, a veteran, and a terrific raconteur. He was also my client and my friend. Some of what you will read here I said at his gravesite.

I represented Dick and the Abbey of Regina Laudis as their attorney for the book The Ear of the Heart: An Actress' Journey from Hollywood to Holy Vows by Mother Dolores Hart and Dick. In addition to reviewing, revising, and negotiating the contract, I was asked to be a mediator of sorts between Dick and everybody else. He could be demanding, primarily because he cared very dearly about his work. He could also be easy-going, compassionate, kind and fun. He was very gifted at all of his jobs.

Dick took to me gradually, finding that we were both movie fans. Soon, he was asking my opinion and advice. There was always an element of uncertainty when Dick called--happy or annoyed? Most of the time it was a joy to talk to him and to be with him. He would call or e-mail me about the film he had just seen at the Screenwriters Guild and send me his notes on the Oscar ceremonies. Other times he called--something was terribly wrong and I had to fix it!

As a child actor, he appeared at the age of 4 in the Meglin Kiddies short films and then moved on and was featured in six of the Hal Roach Our Gang comedies. His credit read "Dickie De Nuet."(At one point, he had four separate listings with different spellings of his name on the International Movie Database. Dick told me he had tried to get the IMDB to fix it without success. After Dick's death in January 2016, I tackled the IMDB correction process, and the changes were finally made.) He appeared in the Shirley Temple Film The Blue Bird in 1940 and in 1943 in The Song of Bernadette.

He attended UCLA and staged a college show in which his classmate Carol Burnett appeared. She later credited the show with giving her the performing bug. After army service in Alaska, he joined the staff of Globe Photos and eventually became its West Coast Bureau Chief. His work at Globe led to his being the compiler and editor of the coffee-table size photo book Inside Hollywood: 60 Years of Globe Photos (Konemann, 2001), which I have in front of me, a gift from my lovely wife. A photo of Marilyn Monroe that I had never seen before is on the slip cover.

In 1958, he met Dolores Hart, and they became life-long friends. She left a successful acting career in 1963 and became a cloistered Benedictine nun.

He also co-wrote in 1977 with Carl Gabler the screenplay for an exceptional tv movie titled Night Drive starring Valerie Harper about a housewife who witnesses the murder of a highway patrol officer and is stalked by the murderer. In 1988, his-friend Mother Dolores Hart asked Dick to help pull together Patricia Neal's autobiography As I Am from tape recordings Neal had made while staying at the Abbey. I was told by a number of sources that the publisher insisted that he receive credit--"with Richard DeNeut"--and royalties, so impressed was the publisher with his work on what became a best seller.

In 2001, Mother Dolores Hart asked Dick to work with her on her autobiography, which became The Ear of the Heart. He fashioned it as a combination of Mother Dolores' and his voice narrating events and commenting on them to one another..

The book had a long gestation period, with Dick traveling from Hollywood to Connecticut several times a year and interviewing and forming strong relationships with members of the Abbey community; he worked with Mother Dolores in person, by phone, by mail and, eventually, by e-mail. I was brought in in February 2012. We settled on a publisher, negotiated the contract and the book was published in May 2013. It has gone into three printings

I'll always regret that Dick wasn't feeling up to recording his part of the dialogue of the audiobook for the Ear of the Heart, which was instead done by Mother Dolores and Matthew Arnold.

The last exchange of e-mails and phone calls I had with Dick was in October 2015. The book and audiobook were out and an option agreement on the film rights had been negotiated and signed. I was casting around for possible projects and read about a proposed and unrealized sequel to Come to the Stable, a 1949 highly fictionalized account of the founding of the Abbey of Regina Laudis made by 20th Century Fox and starring Loretta Young and Celeste Holm. One of the invented bits was about a composer who owns the land where the nuns, newly arrived from France, want to build a hospital. He resists until finds out that his hit song was based upon a Gregorian chant he heard the nuns singing during the war at their Abbey in France when he was stationed nearby. I mentioned to Dick that this there was a connection or at least a parallel between this Gregorian chant and the compact disks the Abbey of Regina Laudis released years later of its members singing Gregorian chant.

Dick--I mentioned that we were both film fans--e-mailed me back that the song, "Through a Long and Sleepless Night," was nominated for an Academy Award for best song but lost to Frank Loesser's "Baby, It's Cold Outside," which shouldn't have won because Loesser had written and performed it with his wife years before; this led the Academy to change the rules and require that a song must be written for the film to be nominated.

I answered that "Through a Long and Sleepless Night" shouldn't have won anyway because Alfred Newman's melody for the song was derived from the "Miserere" by Gregorio Allegri in the 1630s.

Ten minutes later, Dick sent me another e-mail that had the complete lyrics for the song. And ten minutes after that, he called me and sang the song all the way through, "just in case you thought I didn't know the melody." He added in both the e-mail and the phone call, "I don't know why I can remember this and sometimes I can't remember my own name."

I think I may know why. The lyrics have something of Dick about them--clever, romantic, sad but ultimately hopeful. It begins,

"Through a long and sleepless night, I whisper your name./Through a long and sleepless night/A fool is to blame./Can't help but wonder if you are lonely too./As I lie here and toss about/So at a loss about you."

And it ends,

"I know that someday my heart will see the light./ Until then I lie here sleepless/And I pray my heart will weep less/All through a long and lonely sleepless night."

Dick had a wonderful expression to end his e-mails : "Arms around you." Dick our heart's arms are around you and we know yours are around us.

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Muhammad Ali--Lessons Learned

by John Aquino on 06/05/16

News of Muhammad Ali's death made me think of when I used to follow the fights. There are lessons to be learned.

My Dad and I used to watch the Friday night fights together on television sponsored by Gillette (their commercial went, "How are you fixed for blades, dum dum dum/How are you fixed for blades, dum dum dum). My Dad had great affection for Rocky Marciano, a heavyweight boxer whose parents, like my Dad's, had come to the U.S. from Italy. Marciano became heavyweight champion and retired undefeated. He was a stocky man but very fit and a slugger. After Marciano retired, there were a lot of slugging heavyweights but they were heavy heavweights. They'd stand in the center of the ring and belt each other. I remember one named Mike DeJohn who was like that. Mike died in 1988 at the age of 57.

Then Cassius Clay--who Muhammad Ali after he converted to Islam--came along. He weighed over 200 pounds, but he was muscled, lean and fast, so fast. In 1964, he fought the then-champion, Sony Liston, who outweighed him by 20 pounds. Liston was called the bear.

I remember seeing a documentary of Ali that featured an interview with the colorful sports writer Bert Sugar describing the first fight between Clay and Liston. While Sugar was talking, they showed the film of the weigh-in. Liston, who was sitting on a folding chair, was crouched over, waiting for the weigh-in to begin. The film footage focuses on Liston, but we hear Clay come in and he's running around saying, "I'm the greatest! I'm the greatest! I'm going bear hunting tonight. Someone's going to die in the ring tonight!" We hear Sugar saying that Liston was tough and mean--he'd been in prison for armed robbery and battery; he was a scary man "and he wasn't afraid of anything--". And the film closes in on Liston's face and it's clear he's looking at Clay running around out of the corner of his anxious eye. And Sugar continued his sentence, "--except crazy people."

Clay was playing mind games on Liston. And he was also fast where Liston was slow. Liston didn't come out for the seventh round and lost the title by a technical knockout. In their rematch, Clay knocked Liston out in the first round.

Clay said he turned boxing into a science. I've been at meetings and heard people ask if a competitor was playing 'rope-a-drop" with us. Clay developed the technique by pretending to be hurt by his opponent's punches and covering up and letting the other fighter wail away while Clay bounced off the ropes and looked like he was being hurt more than he was. When his opponent became tired from his exhausting and fruitless barrage, Clay turned around and finished him off.

Clay/Ali was the best fighter I had ever seen. He changed the entire pace of boxing. Was he the greatest? Maybe. If you score it on points, to use a boxing term, Marciano retired undefeated, Clay was beaten a number of times--later in his career and after a forced retirement when he was in his prime.

Interestingly enough, in 1969, during the time Ali was suspended from boxing for his refusal to participate in the army draft during the Vietnam War period, someone came up with the idea of having a computer decide who would win a hypothetical match--Ali or Marciano--and hired them to spar for the camera and then edited the footage to match the computer's outcome. The computer thought Marciano would have won. The "superfight" wasn't broadcast until 1970, by which time Marciano had died in a plane crash. Admittedly, the computer made its decision before Ali was reinstated and went on to regain the heavyweight title that had been taken from him and before he lost the title and then won it back for a third time. Ali said the computer was racist because it was made in Mississippi. And it was, after all, a 1969 computer.

And I didn't mention that he was a poet, or at least a very facile rhymer, which Marciano, for all of his skills, never was.

I trained as a boxer. But then I lost interest. I hung around in locker rooms with a lot of older fighters who were clearly showing the brain damage that also affected Muhammad Ali, whose Parkinson's Disease was reportedly brought on by the blows he took to his head. I remember hearing someone describe how when a boxer takes a blow to the head it's similar to what happens to a yoke when someone shakes an egg. That's when I quit.

I admire Muhammad Ali for his skill and fondly remember the times I watched him in his prime with my Dad. I could probably teach a management class using Ali as an example. But I am still amazed that boxing is allowed.

Today we are hearing all of the complaints about concussions and pro football. But boxing is designed to cause concussions. Boxing should be outlawed. That's the last line in Humphrey Bogart's last movie, 1956's The Harder They Fall, which was about the fight game--it's a thinly disguised portrait of the 1930s heavyweight champion Primo Carnera. "Boxing should be outlawed if it takes an act of Congress to do it," Bogart says. But he was really talking about the criminals who were controlling the fight game and owned boxers whom they forced to throw fights to others--supposedly boxers like Carnera--who were big and imposing but less skilled. Boxing should be outlawed because of the damage it causes to fighter's brains.

There's a lot to be learned from the life of Muhammad Ali--his grace, his skill, his courage, and banning boxing--because of what it did to him and others and is doing to boxers every day today--is one of them.

* A footnote on the movie The Harder They Fall, which was written by Philip Yordan based on a novel by Budd Schulberg. Schulberg had the Carnera-based character Tony Moreno fight the champ played by Max Baer. Baer won the title from Carnera in 1934. They appeared together the same year in another thinly disguised movie suggested by fact in which Carnera played the champ and Baer the challenger--The Prizefighter and the Lady. In The Harder They Fall, Schulberg/Yordan took a real incident--Baer beat up the boxer Ernie Schaaf so badly that he died after a fight with Carnera who had just hit him with a left jab, and Baer got the blame. Some say the accusation was unjustified, but the blame remained. And Baer had beaten another fighter, Frankie Campbell, so fiercely that Campbell haddied. Baer was charged with manslaughter, acquitted but banned from boxing for a year. The coroner's report was that Campbell's brain had been knocked loose from his skull by Baer's blows. In The Harder They Fall, Baer plays the champ and Mike Lane plays the challenger, Moreno. The champ tells the gangsters he won't take it easy on Moreno because he got the credit for killing the boxer and champ takes pride in having done it. So Baer was, in a way, playing himself. In real life, according to his son Max Baer Jr., who played Jethro in the tv show The Beverly Hillbillies, his father was devastated by Campbell's death. But the two Baer-related incidents show that brain injuries have always been part of boxing, long before Ali.

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My Brother Jim

by John Aquino on 01/01/16

My brother Jim died in August as a result of early onset Alzheimer's.

People were very kind and said that it was a great loss. And it was and is, but for me the loss started about three years ago, which was the last time I had a real conversation with him.

We grew up together, sharing the same room for 10 years until my sisters got married, and we took over theirs. Jim painted his walls purple. One of the reason was that his high school, Gonzaga, had purple and white as its school colors. Another reason was that he was Jim, sometimes outspoken, seldom shy.

Until the big move to separate rooms, we would watch television together with the lights out and the sound down so Mom and Dad wouldn’t hear, gazing up at a 10-inch screen situated on a three-foot stand. We'd listen to records, including the comedy routines of a stand-up comic who is not highly morally regarded at this time but whose name rhymes with Bosby and who had an album titled "To Russell My Brother Whom I Slept With."

To Jim, my brother, whom I slept with.

We'd also listen to the records of the parodist Allen Sherman. Both Cosby and Sherman formed some of my cultural understanding, and I think Jim's too. We learned about parody from Sherman, who would use the melodies of popular songs and write funny lyrics.

Sherman did a parody of a song Doris Day sang in the 1953 movie Calamity Jane, “Secret Love” and not only took the melody but wrote lyrics that matched the surprise of the song. The original song by Sammy Fain and Paul Francis Webster begins, “Once I had a secret love,/That lived within the heart of me,” and ends, “Now my heart’s an open door,/My secret love’s no secret any more.” Sherman’s parody was titled “Secret Code,” and begins, “Once I had a secret code,/Where A was B and B was G,” and ends, “That is how we won the war,/My secret code’s no secret any more.”

We realized that parody actually takes original, possibly copyrighted material and makes fun of it. In law school, I learned how this meets the fair use exception of the copyright law because its purpose is satire and comment. In a similar way, when Jim and I watched Walt Disney's Fantasia, we realized that what made the hippos and alligators in ballet costumes doing Americare Ponchielli's "Dance of the Hours Fantasia" really funny is that the music was actually Ponchielli's and they danced to it perfectly except for the fact that they were hippos and alligators.

Cosby would talk about things like how the captains of opposing teams in football games are introduced by the referee and during the coin toss pick heads or tails. And he would imagine that happening in conflicts in history. "Captain Custer, this is Captain Sitting Bull. Captain Sitting Bull, this is Captain Custer."

Our Dad had a workshop and used to take time to show us how to build and fix things. Jim listened. Me, not so much. I may have picked up something about problem solving by osmosis, but it was Jim who learned to fix the plumbing and build a table. He was inquisitive and always eager to learn.

As a result, Jim was the one family members called when something was broken. And he would always come. He would also come when you didn't call, when he just heard that your sink was stopped or you had a flat tire. And he made things. My wife and I still have the nice bar he built for us as a wedding present.

He was a selfless, caring, generous person.

His inquisitiveness may have sometimes made him too eager to spread new knowledge. I remember we were having dinner with Mom and Grandma, my mom's mother, a sweet and gentle Italian-born lady. Jim had just read a book on religion that indicated that angels were a Persian myth that the Bible took over. Jim announced this at the dinner table, and Gram dropped her fork and said, 'Oh, Jimmie. You have to believe in angels. You have to."

Jim, are there angels? You would know now.

He also ran and exercised and managed to work his pulse rate into almost every conversation. “Do you remember how many home runs Babe Ruth hit for the record?” “60, Jim.” “Right. And did you know my pulse rate is 60!”

Stubborn? A little bit. The only phrase Jim knew in Italian was “Teste de Calabrese,” which means, “You have a head from Calabria,” which is very stony. He knew it because Dad used it a lot about both of us.

He married young and divorced 10 years later, the father of three children whom he pretty much raised, selflessly, making sure they received catechetical training and that they would be able to go to and complete their college educations. They're grown now, Professionals, and pretty darn good people, making contributions to the world. Their Dad would be proud, and there’s a new grandson whose middle name is James.

He always wanted to be a writer. He had a very inventive mind. I remember a short story he wrote about a little boy bringing an elephant’s tooth to a museum. But I think he was too busy helping other people to spend the time. Instead, he worked in human resources, once again helping others.

About five years ago, for my birthday, my wife gave me three tickets for a Washington Nationals baseball game. She remembered my telling her that our Dad would take us to games when the team was the Washington Senators and the stadium was called Griffith. We'd sit on the first-base side near the home team dugout. The team moved to RFK Stadium, and after Dad died my two brothers and I joined the "Knot-hole Club," with cheap-seats so far up in the bleachers that we're talking nose-bleeds and eagles but also the only way we could afford to go. The players really did look like ants playing pin-ball. But then baseball left D.C., only to return in 2005.

I value that day beyond measurement. My wife had given me the perfect gift. Washington lost, but we had a bright, sunny, brotherly day. It was during that day that Jim told me the doctor thought something was wrong with his memory.

He stayed with Mom for a while, and my wife and I would go visit for dinner. I remember once Jim said, "Didn't you write a play in high school that was a parody of Shakespeare's Richard III called 'Richard the Toity-Terd?’" I had, and he remembered it decades later. It's funny how the mind works.

He just accepted his fate, talking about how at a certain point his children should just put him on a bus to Milwaukee. He didn't want to burden them. Selfless, as usual.

I've missed him for years. We'd try to visit him at the facility every two weeks. After a while he didn't seem to recognize us. But it was good to be with him. And there was always the hope that he knew we were there, that he knew who we were and that he understood what we were saying.

And one day I had reason to believe he did know, he did understand. Among the records we used to listen to in our shared room was the original cast album of the 1955 musical Damn Yankees. We liked it because it was about our Washington Senators and also because it has a great score, especially the song “(You gotta have) Heart” that the manager sings to his team. The manger sings it through once, and then there’s a musical vamp when the players strut around before singing the song themselves: Dum-da-dum da, dat-dat-dat-dat-dat/ Dum-da-dum da, dat-dat-dat-dat-dat.” One day when we were visiting Jim in the assisted living facility, we were talking to him, and he wasn’t responding. So I reminisced about Damn Yankees and sang “Heart” all the way through. And when I had finished, Jim suddenly started singing the vamp: “Dum-da-dum da, dat-dat-dat-dat-dat.” And I said to myself, “He’s still in there. Not only does he know who we are, he knows the vamp from ‘Heart.’”

He’s no longer here for us to visit. But he's in our hearts. He's the song we'll remember when someone else smiles in a certain way or helps another person.

Good person, dependable, loving, kind. That’s the example he set.

We love you, Jim, and always will. We’ll also always remember.

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Update on Some Cases and Legal Issues

by John Aquino on 10/15/15

It's been a while.

I want to provide some updates on previous blogs..

After having written a number of blogs on the lawsuit asserting that the character of Sherlock Holmes wasn't protected by copyright, I published a blog on November 25, 2014 stating that the case of the copyright of Sherlock Holmes is closed. And I think it still is. But neither the story nor the lawsuits had ended.

The U.S. District Court for the Northern District of Illinois ruled that because the earlier Sherlock Holmes stories by Sir Arthur Conan Doyle had passed into the public domain, so had the character of Sherlock Holmes. The only exception was that characteristics of Holmes that are portrayed in stories published between 1923 and 1927, which are still covered by copyright, are likewise copyright protected. Those stories portray an older Sherlock Holmes. The U.S. Court of Appeals for the Seventh Circuit affirmed the district court's decision, and awarded the author-plaintiff attorneys fees, and the Supreme Court declined to hear the case.

In June 2015, a movie titled Mr. Holmes about Sherlock Holmes at the end of his life premiered in the UK, with a U.S. release date following in July. But in May, the Sir Arthur Conan Doyle Estate had sued the filmmakers in the U.S. District Court for the District of New Mexico, saying that the older Holmes in the movie was infringing the copyright of the stories about the older Holmes.

On Oct. 9, 2015, the estate announced that it had reached a settlement with filmmakers. So, the older Holmes in movies, and presumably tv and books and other media, apparently can only be portrayed if the Sir Arthur Conan Doyle Estate gives license.

Sing 'Happy Birthday,' It Seems to Be All Right.

In a May 1, 2013 blog, I wrote about a lawsuit challenging the copyright of Warner/Chappell for the song "Happy Birthday." The music company had been asserting the copyright for years, even though some had questioned whether it really owned the copyright and suggested that the lyrics were in the public domain.

The U.S. District Court for the Central District of California on Sept. 23, 2015, held that Warner/Chappell had through a series of agreements made by its predecessor companies in the 1890s, 1930s and 1940 obtained ownership of some arrangements of the music but not of the ownership of the lyrics. The parties have agreed that the music is in the public domain.

The court didn't decide on whether the lyrics are in the public domain. This leaves open the possibility that someone else will show up with a claim of copyright for the lyrics. But since Warner/Chappell has been requiring movies, tv shows and even large gatherings to pay royalties every time someone in the movie or show or at the party sings "Happy Birthday" while having a right that the court said was not valid, it seems unlikely (although not impossible) that such a party would appear now.

If they had the rights, they would have disputed Warner/Chappell themselves rather than waiting for a singer and other who wanted to sing the song without charge to do so, right?

Three's Still Company. On February 25, 2014, I wrote about how playwright David Adjimi sued the owner of the copyright for the television show "Three's Company," asking for a declaratory judgment that his play "3C" didn't infringe the copyright. He did this in response to a cease-and-desist order from the copyright owner, demanding that he stop further performances of the play.

This struck me as an unusual lawsuit built around the legal concept that you can't copyright an idea. Usually, the issue comes up when an author sues the publisher of a successful book or the producers of a successful movie for copyright infringement, saying that the book or movie had been based on an unfinished manuscript he had given them or an idea he had pitched. The result is usually that court finds that between the author's work and the book or movie there is perhaps a resemblance of the basic premise but that otherwise the works are not substantially similar. Here an author was trying to preempt a lawsuit that he felt was sure to come.

Adjimi presented a fair use argument to justify his request for a judgment that he was not infringing the copyright of "Three's Company." He argued that he wasn't affecting the market for the tv show because no one could mistake his dark play for that lighthearted company. He also wrote that he wasn't really taking any amount of material from the tv show except an uncopyrightable idea.

The U.S. District Court for the Southern District of New York found in Adjimi's favor. The court wrote on March 21, 2015 in Adjimi v. DLT Entm't Ltd., S.D.N.Y., No. 1:14-cv-00568-LAP, 3/31/15., "3C'' uses the raw material of 'Three's Company' in the creation of new information, new aesthetics, new insights and new understandings and is the very type of activity that the fair use doctrine intends to protect for the enrichment of society."

And so you still can't exercise copyright protection for just an idea in the U.S.

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The Case Is Closed on Sherlock's Copyright

by John Aquino on 11/25/14

Just a brief update on the copyright protection--or general lack of it--for the fictional character of Sherlock Holmes.

On Nov. 3, 2014, the U.S. Supreme Court denied the petition for review of the Conan Doyle Estate. The petition asked the court the following question: "whether the federal courts have jurisdiction to issue a declaration of non-infringement when a plaintiff is unable or unwilling to come forward with a concrete work for comparison with the defendants' existing intellectual property."

The Supreme Court's denial of review finally establishes that characters and elements from 46 Sherlock Holmes works have fallen into the public domain and can be used by Klinger and others without permission or fee. Ten stories are still under copyright protection.

On Nov. 18, the U.S. District Court for the Northern District of Illinois noted that the dispute over fees had been resolved by the parties and Klinger's fee petition had been withdrawn.

The case is closed.

Fini.

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