The 2010 Grafstein Lecture in Communications

Professor Mark Rose
Department of English, University of California, Santa Barbara

"Drama in the Courtroom: Nichols v. Universal and the Determination of Infringement"

Thursday, March 25, 2010
5:00 pm 
Cassels Brock and Blackwell Classroom C,
Flavelle House, 78 Queen's Park
University of Toronto Faculty of Law

The Centre for Innovation Law and Policy is delighted to host the 2010 Grafstein Lecture, presented by Professor Mark Rose.  Professor Rose is a Professor in the English Department at the University of California, Santa Barbara, where he has taught since 1977. He has taught at Yale University and the University of Illinois as well as at UCSB. He is the author of many books on subjects ranging from Shakespeare to Science Fiction as well as of Authors and Owners: The Invention of Copyright (1993). He also frequently serves as a consultant and expert in litigation involving allegations of copyright infringement.

Abstract: Nichols v. Universal (1930), in which the playwright Anne Nichols sued Universal Pictures claiming that the movie The Cohens and the Kellys infringed her play Abie's Irish Rose, is a classic copyright case that is perhaps best known for the "pattern test" proposed by Judge Learned Hand.  But Hand's opinion is also well known for his expression of irritation at the use of expert testimony at trial.  In this lecture I explore the issues in the case and the testimony of the opposed experts, dwelling in particular on the curious theories of Nichols' expert, Moses L. Malevinsky, the author of The Science of Playwriting.  I suggest that Nichols ultimately can be understood as a drama of conflicting literary theories in which each of the parties approached the matter from a distinct theoretical position and that Judge Hand's famous decision, too, was founded on literary theory.