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Page:Bourne v. Walt Disney (2d Cir. 1995).pdf/3

 Stuart A. Summit (George Berger, Theodore C. Max, Phillips, Nizer, Benjamin, Krim & Ballon, New York City, of counsel), for Plaintiff-Appellant-Cross-Appellee.

Sanford M. Litvack (Jacob M. Yellin, The Walt Disney Company, Burbank, CA, Clark E. Walter, Joanna R. Swomley, Dewey Ballantine, New York City, of counsel), for Defendants-Appellees-Cross-Appellants.

Stephen H. Sulmeyer, Santa Monica, CA, for Karen Adams and Gretchen Thomas Anderson as amici curiae.

Alan L. Shulman, Scott L. Baker, Silverman & Shulman, P.C., New York City, of counsel, for National Music Publishers’ Association, Inc. as amicus curiae.

Fritz E. Attaway, Motion Picture Association of America, Inc., Washington, DC, Jon A. Baumgarten, Charles S. Sims, Proskauer Rose Goetz & Mendelsohn, New York City, of counsel, for The Motion Picture Association of America, Inc. as amicus curiae.

Dixon Q. Dern, Warren D. Dern, Dern & Vein, Los Angeles, CA, of counsel, for Video Software Dealers Association as amicus curiae.

Before: VAN GRAAFEILAND and MINER, Circuit Judges, and COTE, District Judge.

MINER, Circuit Judge:

Plaintiff-appellant-cross-appellee Beebe Bourne, doing business as the Bourne Co. (“Bourne”), brought this copyright infringement action against defendants-appellees-cross-appellants Walt Disney Co. and Buena Vista Home Video (collectively, “Disney”).

Bourne’s first claim of infringement arose from Disney’s sale of videocassette recordings featuring Bourne’s copyrighted compositions from the motion pictures “Snow White and the Seven Dwarfs” and “Pinocchio” (“the Compositions”). Although the Compositions were written by Disney employees, Disney had assigned the copyrights in the Compositions to Irving Berlin, Inc. (“Berlin”), a music publisher and the predecessor-in-interest to Bourne, in the 1930s when the movies first were released.

While conceding that the instrument conveying Disney’s copyrights in the Pinocchio compositions to Bourne provided Disney with a license to use the compositions “in synchronism with any and all of the motion pictures which may be made by [Disney],” Bourne argued that these rights were insufficient to allow Disney to distribute the compositions on videocassette. With respect to the compositions from Snow White, Bourne argued that these copyrights were assigned to Bourne without the grant of a license to Disney allowing it to use the compositions. In Bourne’s view, Disney had no right to use


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 patched linen is hung upon the pulley-line from the window. There is no Monday cleaning in the tenements. It is wash-day all the week round, for a change of clothing is scarce among the poor. They are poverty's honest badge, these perennial lines of rags hung out to dry, those that are not the washerwoman's professional shingle. The true line to be drawn between pauperism and honest poverty is the clothes-line. With it begins the effort to be clean that is the first and the best evidence of a desire to be honest.

What sort of an answer, think you, would come from these tenements to the question "Is life worth living?" were they heard at all in the discussion? It may be that this, cut from the last report but one of the Association for the Improvement of the Condition of the Poor, a long name for a weary task, has a suggestion of it: "In the depth of winter the attention of the Association was called to a Protestant family living in a garret in a miserable tenement in Cherry Street. The family's condition was most deplorable. The man, his wife, and three small children shivering in one room through the roof of which the pitiless winds of winter whistled. The room was almost barren of furniture; the parents slept on the floor, the elder children in boxes, and the baby was swung in an old shawl attached to the rafters by cords by way of a hammock. The father, a seaman, had been obliged to give up that calling because he was in consumption, and was unable to provide either bread or fire for his little ones."

Perhaps this may be put down as an exceptional case, but one that came to my notice some months ago in a Seventh Ward tenement was typical enough to escape that reproach. There were nine in the family: husband, wife, an aged grandmother, and six children; honest, hard

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

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 working Germans, scrupulously neat, but poor. All nine lived in two rooms, one about ten feet square that served as parlor, bedroom, and eating-room, the other a small hall-room made into a kitchen. The rent was seven dollars and a half a month, more than a week's wages for the husband and father, who was the only bread-winner in the family. That day the mother had thrown herself out of the window, and was carried up from the street dead. She was "discouraged," said some of the other women from the tenement, who had come in to look after the children while a messenger carried the news to the father at the shop. They went stolidly about their task, although they were evidently not without feeling for the dead woman. No doubt she was wrong in not taking life philosophically, as did the four families a city missionary found housekeeping in the four corners of one room. They got along well enough together until one of the families took a boarder and made trouble. Philosophy, according to my optimistic friend, naturally inhabits the tenements. The people who live there come to look upon death in a different way from the rest of us—do not take it as hard. He has never found time to explain how the fact fits into his general theory that life is not unbearable in the tenements. Unhappily for the philosophy of the slums, it is too apt to be of the kind that readily recognizes the saloon, always handy, as the refuge from every trouble, and shapes its practice according to the discovery.

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ERTAINLY a picturesque, if not very tidy, element has been added to the population in the "assisted" Italian immigrant who claims so large a share of public attention, partly because he keeps coming at such a tremendous rate, but chiefly because he elects to stay in New York, or near enough for it to serve as his base of operations, and here promptly reproduces conditions of destitution and disorder which, set in the frame-work of Mediterranean exuberance, are the delight of the artist, but in a matter-of-fact American community become its danger and reproach. The reproduction is made easier in New York because he finds the material ready to hand in the worst of the slum tenements; but even where it is not he soon reduces what he does find to his own level, if allowed to follow his natural bent. The Italian comes in at the bottom, and in the generation that came over the sea he stays there. In the slums he is welcomed as a tenant who "makes less trouble" than the contentious Irishman or the order-loving German, that is to say: is content to live in a pig-sty and submits to robbery at the hands of the rent-collector without murmur. Yet this very tractability makes of him in good hands, when firmly and intelligently

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 the compositions from Snow White until 1961, when Bourne conveyed certain rights to Disney in settlement of litigation then pending between the parties. The jury rejected each of Bourne’s arguments.

Bourne’s second copyright infringement claim related to Disney’s use of the Compositions in television commercials. Bourne contended that the licenses granted to Disney did not provide Disney with the right to use the Compositions in these advertisements. The jury found in Bourne’s favor on this claim. In so doing, the jury rejected Disney’s argument that Bourne was estopped from asserting its interpretation of the license agreements. The parties stipulated to damages in the amount of $420,000.

On appeal. Bourne’s principal contention is that the district court erred in failing to enter judgment as a matter of law in its favor on its claim regarding Disney’s sale of videocassettes containing the Compositions. Bourne also argues that the district court improperly placed upon it the burden of proving that Disney’s use of the Compositions was unauthorized. Finally, Bourne appeals from the district court’s denial of certain ancillary relief in connection with its successful claim regarding the television advertisements. Disney cross-appeals, contending that the district court erred in failing to enter judgment as a matter of law in its favor on its defense of estoppel. Disney also takes issue with certain aspects of the district court’s jury charge. For the reasons that follow, we reject each of these challenges and affirm the judgment of the district court in its entirety.

1. The Agreements

 * a. The 1933 “Shorts” Agreement

Since 1928, Disney has been in the business of creating animated motion pictures. These films include music, which is synchronized to the movement depicted in the drawings. During the 1930s, Disney was best known for creating six- to eight-minute animated motion pictures, called “short subjects” or “shorts,” featuring such characters as Mickey and Minnie Mouse, Goofy, and Donald Duck. At that time, Disney had no means of commercially exploiting the music featured in its shorts. In order to generate additional revenue from its musical compositions, Disney entered into an agreement with Berlin, one of the largest music publishers at that time.

Pursuant to a 1933 agreement between Berlin and Disney (“the 1933 Shorts Agreement”), Disney assigned the copyrights in the “musical compositions written for and used in connection with the synchronized motion picture comic cartoons of [Disney]” in exchange for a share of the revenues received by Berlin for use of the music. In derogation of the broad language set forth in the preamble of the agreement, paragraph nine limited the scope of the agreement in the following manner: "[T]he motion picture comic cartoons contemplated herein shall be the remaining twenty-six (26) motion picture cartoons to be produced for the motion picture season of 1933–34, plus the following motion picture comic cartoons comprised within the series produced for the motion picture season of 1932–33: [listing titles of seven cartoons]."

In order to allow Disney to use its musical compositions in connection with the animations for which they were written, paragraph two of the agreement granted back to Disney "the right to record … such music, mechanically, and perform the license others to perform the same in connection with the respective motion picture for which such music was especially written, the right to record such music mechanically in any and all other motion pictures to be produced by [Disney], the right to ship, import and export … any and all such mechanical recordings throughout the world, but only in connection with [Disney’s] pictures. [Disney] reserves television rights in respect to its motion picture comic cartoons…."

(emphasis added).

The 1933 Shorts Agreement was extended by the parties during the next several years. In 1935, the parties enlarged the subject matter of the agreement to include the


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 managed, a really desirable tenant. But it is not his good fortune often to fall in with other hospitality upon his coming than that which brought him here for its own profit, and has no idea of letting go its grip upon him as long as there is a cent to be made out of him.

Recent Congressional inquiries have shown the nature of the "assistance" he receives from greedy steamship agents and "bankers," who persuade him by false promises to mortgage his home, his few belongings, and his wages for months to come for a ticket to the land where plenty of work is to be had at princely wages. The padrone—the "banker," is nothing else—having made his ten per cent. out of him en route, receives him at the landing and turns him to double account as a wage-earner and a rent-payer. In each of these rôles he is made to yield a profit to his unscrupulous countryman, whom he trusts implicitly with the instinct of utter helplessness. The man is so ignorant that, as one of the sharpers who prey upon him put it once, it "would be downright sinful not to take him in." His ignorance and unconquerable suspicion of strangers dig the pit into which he falls. He not only knows no word of English, but he does not know enough to learn. Rarely only can he write his own language. Unlike the German, who begins learning English the day he lands as a matter of duty, or the Polish Jew, who takes it up as soon as he is able as an investment, the Italian learns slowly, if at all. Even his boy, born here, often speaks his native tongue indifferently. He is forced, therefore, to have constant recourse to the middle-man, who makes him pay handsomely at every turn. He hires him out to the railroad contractor, receiving a commission from the employer as well as from the laborer, and repeats the performance monthly, or as often as he can have him dismissed.

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 In the city he contracts for his lodging, subletting to him space in the vilest tenements at extortionate rents, and sets an example that does not lack imitators. The "princely wages" have vanished with his coming, and in their place hardships and a dollar a day, beheft with the padrone's merciless mortgage, confront him. Bred to even worse fare, he takes both as a matter of course, and, applying the maxim that it is not what one makes but what he saves that makes him rich, manages to turn the very dirt of the streets into a hoard of gold, with which he either returns to his Southern home, or brings over his family to join in his work and in his fortunes the next season.

The discovery was made by earlier explorers that there is money in New York's ash-barrel, but it was left to the genius of the padrone to develop the full resources of the mine that has become the exclusive preserve of the Italian immigrant. Only a few years ago, when rag-picking was carried on in a desultory and irresponsible sort of way, the city hired gangs of men to trim the ash-scows before they were sent out to sea. The trimming consisted in levelling out the dirt as it was dumped from the carts, so that the scow might be evenly loaded. The men were paid a dollar and a half a day, kept what they found that was worth having, and allowed the swarms of Italians who hung about the dumps to do the heavy work for them, letting them have their pick of the loads for their trouble. To-day Italians contract for the work, paying large sums to be permitted to do it. The city received not less than $80,000 last year for the sale of this privilege to the contractors, who in addition have to pay gangs of their countrymen for sorting out the bones, rags, tin cans and other waste that are found in the ashes and form the staples of their trade and their sources of revenue.

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 compositions contained in 18 additional Mickey Mouse and Silly Symphony cartoons. In 1936, the scope of the 1933 agreement again was expanded, this time to include the musical compositions contained in a series of cartoons to be distributed under an agreement with RKO Radio Pictures, Inc. The 1936 agreement was supplemented by a letter agreement in 1939 to include the “music and compositions contained in [Disney’s] short subject motion pictures for the … 1937–38 and 1938–39” seasons.

 * b. Snow White and the 1937 Assignment Agreement

Disney’s first feature-length film, Snow White, was exhibited in theaters beginning in December of 1937. Sometime before the movie’s premiere, Disney assigned to Berlin the copyrights to eight musical compositions from Snow White. Pursuant to this agreement (“the 1937 Assignment Agreement”), Berlin agreed to pay Disney a share of the royalties that it received from licensees of these compositions. The printed-form agreement used to memorialize the copyright assignment did not reserve any rights to Disney, nor did it grant Disney a license to use the musical compositions in any manner. Notwithstanding this lack of an express license, Snow White was released in theaters on a number of occasions while the principals to the transaction still were alive, without complaint from Berlin or its successor, Bourne.

 * c. The 1939 Pinocchio Agreement

On August 15, 1939, Disney entered into a new and separate agreement with Berlin (“the 1939 Pinocchio Agreement”), assigning to Berlin the copyrights in (1) the compositions from Disney’s full-length motion picture, Pinocchio, and (2) the short subjects comprising Disney’s 1939–40 series, in exchange for certain royalties. This agreement specifically granted back to Disney "the non-exclusive right to mechanically and/or electrically record the said musical compositions … in synchronism with any and all of the motion pictures which may be made by [Disney] and the right to export such recordings to all of the countries of the world, and the right to give public performances of such recordings in connection with the exhibition of the motion pictures with which said recordings were synchronized."

The parties agree that this agreement is fully integrated and is not dependent on any prior agreements.

 * d. The 1961 Settlement Agreement

In 1957, following the death of Saul Bourne, who was the owner of Bourne, Inc., Disney sued to recapture the copyrights in the Compositions, alleging that the copyrights were held in trust by Bourne on the condition that they would be assigned back to Disney upon demand. In its complaint, Disney described the 1933 Agreement as “relating to the music in certain short motion picture subjects;” the 1937 Assignment Agreement as the only agreement concerning Snow White; and the 1939 Pinocchio Agreement as the only contract concerning Pinocchio. The litigation was settled in 1961 by mutual agreement (“the 1961 Settlement Agreement”). Although the 1961 Settlement Agreement granted Disney a license in the theatrical motion picture and television grand performing rights in the Compositions, as defined by the American Society of Composers, Authors, and Publishers, nothing in the settlement agreement gave Disney the right to synchronize or fix the Compositions on videocassette.

2. Disney’s Use of the Compositions

 * a. In General

At trial, Disney introduced substantial evidence that it had used the Compositions for decades in a variety of ways, without complaint from Bourne. As noted above, Snow White was released in 1937 and re-released seven times thereafter. In connection with the re-releases of both Pinocchio and Snow White, Disney created theatrical trailers, using the Compositions, which were run as “coming attractions” in movie theaters. Disney also used the Compositions in connection with its weekly television show that began in 1954 and ran for almost four decades. In particular, the song “When You Wish Upon a Star” from Pinocchio was used as the


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 Mr. Mac Quedy came up to the divine as Mr. Crotchet left him, and said: "There is one piece of news which the old gentleman has not told you. The great firm of Catchflat and Company, in which young Crotchet is a partner, has stopped payment."

Bless me! that accounts for the young gentleman's melancholy. I thought they would overreach themselves with their own tricks. The day of reckoning, Mr. Mac Quedy, is the point which your paper-money science always leaves out of view.

I do not see, sir, that the failure of Catchflat and Company has any thing to do with my science.

It has this to do with it, sir, that you


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 would turn the whole nation into a great paper-money shop, and take no thought of the day of reckoning. But the dinner is coming. I think you, who are so fond of paper promises, should dine on the bill of fare.

The harper at the head of the hall struck up an ancient march, and the dishes were brought in, in grand procession.

The boar's head, garnished with rosemary, with a citron in its mouth, led the van. Then came tureens of plum-porridge; then a series of turkeys, and, in the midst of them, an enormous sausage, which it required two men to carry. Then came geese and capons, tongues and hams, the ancient glory of the Christmas pie, a gigantic plum-pudding, a pyramid of minced pies, and a baron of beef bringing up the rear.


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 opening and closing for the series. There also was evidence that Disney sold reel-to-reel movies containing the Compositions for home use.

 * b. Videocassettes

The first videocassette recording that Disney made and sold containing Bourne’s copyrighted compositions was the subject of a 1979 license agreement between Bourne and Disney (“the 1979 Agreement”). Pursuant to this agreement, Disney received a license to manufacture and sell videocassette recordings of a live theatrical performance of the Snow White compositions held at Radio City Music Hall. Bourne received a 68 cent royalty for each videocassette sold.

In the early 1980s, Disney introduced videocassettes containing various animated pictures synchronized with Bourne’s compositions. In 1985, Disney released the full-length motion picture Pinocchio on videocassette. Prior to this time, Disney had a policy of prohibiting the exploitation of its full-length feature films in media other than theatrically-exhibited film. Indeed, pursuant to Disney’s policy, films such as Snow White and Pinocchio were exhibited in theaters every six to eight years. This policy was abandoned after a change in Disney’s management in 1984. The Pinocchio videocassette remained on Billboard’s list of top-selling videocassettes for almost three years.

Since the release of Pinocchio, Snow White also has been distributed on videocassette. Besides the release of Disney’s feature films, the Compositions have been used by Disney in connection with “sing-along” programs and certain cartoons.

 * c. Advertising

Disney also has used the Compositions in paid television commercials to advertise its theme parks and the theatrical releases of Snow White and Pinocchio. Overall, Disney utilized such paid television advertising infrequently and on a regional, rather than a national, basis until the mid-1980s. On several occasions, Disney obtained licenses from Bourne for the use of the Compositions in its commercials. In 1975, Bourne issued a license to Disney for a television commercial using the song “When You Wish Upon a Star” to promote Disneyland. In 1977, Disney paid Bourne a fee to use one of its copyrighted compositions from Snow White in connection with a television advertisement for Disney World and Eastern Airlines. Again, in 1985, Disney obtained a license from Bourne for the use of the Compositions in its television commercials.

In the majority of instances, however, Disney has used the Compositions in its paid television advertisements without obtaining a license from Bourne. In January of 1987, Disney began its “What’s Next” series, in which it used the song “When You Wish Upon a Star” in a national television campaign without a license from Bourne. Disney also used the Compositions in television commercials to promote the theatrical releases of Pinocchio in 1984 and Snow White in 1987, even though it had not obtained a license.

3. Proceedings Below

Following an eleven-day trial, the jury returned a verdict in favor of Bourne on its second claim, finding that Disney infringed Bourne’s copyrights by using the Compositions in television advertising. On Bourne’s first claim, concerning Disney’s right to use the Compositions in videocassettes, the jury found for Disney. The parties stipulated to the sum of $420,000 in damages. The district court denied Bourne’s post-trial motions for attorney’s fees and a new trial on the basis of newly discovered evidence, and granted its motions for costs and prejudgment interest.

1. Disney’s Rights to Make and Sell Videocassettes

 * a. Disney’s Rights in Snow White

Bourne argues that the district court erred in submitting to the jury the question of


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 "It is something new under the sun," said the divine, as he sat down, "to see a great dinner without fish."

Fish was for fasts, in the twelfth century.

Well, sir, I prefer our reformed system of putting fasts and feasts together. Not but here is ample indemnity.

Ale and wine flowed in abundance. The dinner passed off merrily; the old harper playing all the while the oldest music in his repertory. The tables being cleared, he indemnified himself for lost time at the lower end of the hall, in company with the old butler and the other domestics, whose attendance on the banquet had been indispensable.

The scheme of Christmas gambols, which


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 whether Disney has a license for the musical compositions from Snow White. Bourne bases this argument on its contentions that (1) Snow White clearly falls outside the scope of the 1933 Shorts Agreement, and (2) the 1937 Assignment Agreement, by which the copyrights in musical compositions from Snow White were assigned to Bourne, did not contain a provision granting rights back to Disney. Accordingly, Bourne argues that the district court erred in failing to enter judgment as a matter of law in its favor with regard to Snow White.

As to Bourne’s first contention, we agree that the musical compositions from Snow White clearly fall outside the scope of the 1933 Shorts Agreement. In arguing that the agreement was ambiguous, Disney points to the broad language of the preamble of the 1933 Agreement, which states: “[Bourne] desires to acquire the copyrights for the musical compositions written for and used in connection with the synchronized motion picture comic cartoons of [Disney].” Disney reasons that, since Snow White is a “motion picture comic cartoon,” the agreement could be read to include the Snow White compositions. We disagree.

Disney’s construction of the preamble is belied by paragraph nine of the agreement, which provides: "[T]he motion picture comic cartoons contemplated herein shall be the remaining twenty-six (26) motion picture cartoons to be produced for the motion picture season of 1933–34, plus the following motion picture comic cartoons comprised within the series produced for the motion picture season of 1932–33: [listing titles of seven cartoons]."

Snow White’s compositions clearly fall outside the scope of paragraph nine. Reading the contract as a whole, as we must, see Kinek v. Paramount Communications, Inc., 22 F.3d 503, 509 (2d Cir.1994), we conclude that Disney’s reliance on the preamble is misplaced. Moreover, Disney’s construction of the agreement is contradicted by the parties’ subsequent agreements in 1935, 1936, and 1939, in which the parties enlarged “the subject matter” of the 1933 Shorts Agreement by adding certain motion picture comic cartoons “in addition to those set forth in paragraph ‘9’ of the [prior] contract.” Accordingly, we conclude that the Snow White compositions fall outside the scope of the 1933 Shorts Agreement.

However, our examination of the 1937 Assignment Agreement persuades us that it was not intended to be a complete integration of the mutual promises between Disney and Bourne, and, therefore, that extrinsic evidence of the implied grant of a license to Disney properly was admitted. Under New York law, where, as here, the written agreement does not contain a merger clause, the court must determine whether the agreement is integrated “by reading the writing in the light of surrounding circumstances, and by determining whether or not the agreement was one which the parties would ordinarily be expected to embody in the writing.” Braten v. Bankers Trust Co., 60 N.Y.2d 155, 468 N.Y.S.2d 861, 864, 456 N.E.2d 802, 804 (1983) (quoting Ball v. Grady, 267 N.Y. 470, 472, 196 N.E. 402 (1935)). The “[d]ecision in each case must, of course, turn upon the type of transaction involved, the scope of the written contract” and the content of any other agreements asserted. ''Fogelson v. Rackfay Constr. Co.'', 300 N.Y. 334, 338, 90 N.E.2d 881 (1950).

We believe that the circumstances surrounding the 1937 Assignment Agreement compel the conclusion that the agreement was not intended to be an integration. If, as Bourne contends, the 1937 Assignment Agreement was intended to constitute the entire agreement concerning the musical compositions from Snow White, then Disney would have been left with no right to use the compositions in the original release of the motion picture in 1937 or in any of the subsequent releases. That Disney would relinquish, on the eve of Snow White’s theatrical release, all rights in the compositions that it composed specifically for use in the motion picture is highly implausible.

Other factors also weigh against finding that the agreement was intended to be an integration. First, for Disney not to have received a grant-back from Bourne would have marked a considerable departure from


text:
Author:George Redsull Carter

Poetry collections

 * The School-Boy's Reverie (1826)

Individual poems

 * "The Churchyard Dial" (1839)

title: Author:George Redsull Carter


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 Mr. Chainmail had laid for the evening, was interrupted by a tremendous clamor without.

What have we here? Mummers?

Nay, I know not. I expect none. "Who is there?" he added, approaching the door of the hall.

"Who is there?" vociferated the divine, with the voice of Stentor.

"Captain Swing," replied a chorus of discordant voices.

Ho, ho! here is a piece of the dark ages we did not bargain for. Here is the Jacquerie. Here is the march of mind with a witness.


text: Index:The Hunterian oration, delivered before the Royal College of Surgeons in London, on the fourteenth day of February, 1821 (electronic resource) (IA b21483851).pdf


text:
Author:Thomas Chevalier

Works

 * The Hunterian Oration for 1821

title: Author:Thomas Chevalier


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 the prior business relationship between the companies. The prior agreements between the parties demonstrate that Disney, a motion picture producer, turned to Bourne, a music publisher, to exploit commercially the musical compositions that Disney created in connection with its motion pictures. In each instance, Disney retained certain rights in the compositions so as to allow Disney to continue to put them to the use for which they originally were written. Indeed, the use of the Compositions by Disney in connection with its motion pictures was essential to the purpose of the agreements, since Bourne’s ability to exploit successfully the Compositions depended, in large part, on the success of Disney’s motion pictures. See Saxon Capital Corp. v. Wilvin Assocs., 195 A.D.2d 429, 600 N.Y.S.2d 708, 709 (1st Dep’t 1993) (“[T]he condition [absent from the writing] was so central to the purpose of the [agreement] that the condition might well have been perceived by defendants as self-evident and its omission unremarkable.”).

The parties’ conduct subsequent to the agreement also weighs against finding that the 1937 Assignment Agreement was intended to be an integration. Berlin and its successor, Bourne, certainly were aware of Snow White’s successful theatrical releases. Yet, Bourne never contended, until this litigation, that Disney did not have the right to use the musical compositions written for Snow White in synchronization with the motion picture. Finally, we note that the 1937 Assignment Agreement was a printed-form contract, prepared by Bourne, and apparently signed without extensive negotiations or the involvement of legal counsel. Cf. Braten, 468 N.Y.S.2d at 864, 456 N.E.2d at 804 (in concluding that the contract was a complete integration, the court relied on the fact that “[t]he parties and their counsel negotiated during a two-month period, resulting in a specially drawn document”). Based on the foregoing considerations, we are confident that a New York court would conclude that the 1937 Assignment Agreement was not intended to be a complete integration. See Saxon, 600 N.Y.S.2d at 709. Accordingly, extrinsic evidence properly was admitted to prove that the parties intended to grant back to Disney certain rights in the Snow White compositions.

Although there was little direct evidence of the specific terms of the grant-back, we believe that Disney presented persuasive evidence that the contracting parties intended the grant-back provisions set forth in the 1933 Shorts Agreement to govern Disney’s rights to the Snow White compositions. The 1933 Shorts Agreement, which had been expanded in 1935 and 1936, was the only written agreement between the parties that delineated Disney’s rights in musical compositions that it had turned over to Bourne to exploit. Furthermore, correspondence between the parties indicates that the compositions from Snow White were being delivered to Bourne “for the usual purpose,” evincing an intent to have the matter controlled by a framework already established by the parties. Therefore, the evidence demonstrates an implied understanding between Disney and Bourne that Disney’s rights to the Snow White compositions were to be controlled by the 1933 Shorts Agreement. Accordingly, we conclude that, while the compositions from Snow White do not fall explicitly within the scope of the 1933 Shorts Agreement, the jury reasonably could have found that the parties implicitly incorporated the grant-back provision of the 1933 Shorts Agreement into the 1937 Assignment Agreement. Therefore, the district court did not err in submitting this matter to the jury.

 * b. Disney’s Rights to Produce Videocassettes

Bourne argues that the district court also erred by submitting to the jury the question of whether the 1933 Shorts Agreement and the 1939 Pinocchio Agreement provided Disney with a license to synchronize the Compositions with its videocassette images (“videocassette rights”). Bourne contends that videocassette rights fall outside the specific language of the grant, and that, because videocassette technology was unknown at the time of the agreements, such rights could not have been within the contemplation of the parties.

The relevant principles of contract construction are well-established. The


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 Do you not see that you have brought disparates together? the Jacquerie and the march of mind.

Not at all, sir. They are the same thing, under different names. . What was Jacquerie in the dark ages, is the march of mind in this very enlightened one—very enlightened one.

The cause is the same in both; poverty in despair.

Very likely; but the effect is extremely disagreeable.


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 12

in order to preserve the life of the patient.

Greece long continued to possess the principal ‘schools of medical and -chirur- gical knowledge, as well as of philoso- phy and eloquence; nor did she entirely lose this advantage, till after the grow- ing pride and power of her ambitious and overbearing rival, had finally’ sub- dued this princess. among the nations, and reduced her: to the humiliated condition of a’ Roman province.

Prior to that epoch, Ptolemy Soter had founded the school: and library at Alexandria, and had allowed and en- couraged the dissection of human bodies: Erasistratus and Herophilus made many discoveries in anatomy, and thus con- �


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92 of Medical Science unextinguished and pure; and who have, for three centuries, continued to reflect honour on this na- tion, by members eminent. for learning, great in science, and distinguished by the first excellence im professional at- tainments. Having enjoyed in our Uni- versities the highest means of cultivation that are provided for the human intel- lect, and then devoting themselves to the study and practice of medicine; these enlightened persons are most wisely and beneficially appoimted the consti- tutional guardians of the public health; and we feel it an happiness to unite with them in our endeavours to miti- gate the pains of disease; to convey consolation and hope into the chambers

�


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102 of Mr. Hunter, and continuéd, during the whole of a long and meniorable life; to be the. minificent promioter of evety branch of scientific research.

Nor must the presence, on this oc: casion; of that distinguished philosopher who has been. recently called fo fill the chair of the Royal Society; prevent our acknowledging with grateful respect, the benefits which humanity arid sciéhce, and especially Medical Science, havé recéived from those splendid discovéries which his talents have effected, from the further enquiries those discoveries have sug- gested, and the elucidations they havé in various instances afforded: Neither can we pass unnoticed the merits of Baron Cuvier, the remaining’ Honorary

�


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 objective “is to give effect to the intent of the [contracting] parties as revealed by the language they chose to use.” Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992). If the language of the contract is “unambiguous and conveys a definite meaning,” then the interpretation of the contract is a question of law for the court. Sayers v. Rochester Tel. Corp. Supplemental Management Pension Plan, 7 F.3d 1091, 1094 (2d Cir.1993); see Seiden, 959 F.2d at 428 (contract language “is not ambiguous when it has a definite and precise meaning … concerning which there is no reasonable basis for a difference in opinion” (internal quotations omitted)). Alternatively, “[w]here the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another,” then the interpretation of the contract becomes a question of fact for the jury and extrinsic evidence of the parties’ intent properly is admissible. Seiden, 959 F.2d at 428; see Walk-In Medical Ctrs., Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987) (stating that language is ambiguous if it is “capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business” (internal quotations omitted)).

In order to analyze Bourne’s contention that Disney has no right to produce videocassettes utilizing the Compositions, we first must look to the specific language of the grants. If the production of home videocassettes clearly falls outside the scope of the grants, then Disney’s use of the Compositions was unauthorized as a matter of law, and, therefore, the district court erred in submitting this question to the jury.

The 1939 Pinocchio Agreement provided Disney with “the non-exclusive right to mechanically and/or electrically record the said musical compositions … in synchronism with any and all of the motion pictures which may be made by [Disney]. [sic]” (emphasis added). Similarly, the 1933 Shorts Agreement, which we believe also controlled Disney’s rights with respect to the compositions from Snow White, granted to Disney “the right to record such music mechanically in any and all other motion pictures to be produced by [Disney]. [sic]” (emphasis added). As is apparent from the emphasized portions of the quoted language, the issue is whether, as Bourne contends, the term “motion picture” unambiguously excludes home videocassettes.

In support of this contention, Bourne makes several arguments. First, Bourne notes that, during the 1930s, the term “motion picture” was used to refer to the exhibition of projected images from celluloid film in a theater. In that sense, it was a reference to a specific type of medium for distributing images, rather than to the actual content of the work itself. This understanding of the term “motion picture” was supported by the testimony of Bourne’s expert witness, Renville McMann, Jr., an expert in television and videocassette technology.

Bourne also relies on the fact that the 1933 Shorts Agreement specifically gave Disney the right to use the Compositions on television, while the 1939 Pinocchio Agreement did not expressly grant Disney television rights. From this, Bourne asks us to infer that the parties intended only a narrow transfer of rights in the 1939 Pinocchio Agreement. Bourne also asks us to infer that the parties perceived a difference between a motion picture and the broadcast of the same on television.

In addition, Bourne emphasizes that video cassette recorders (“VCRs”) and videocassettes were unknown commercially at the time the agreement was signed. Bourne argues that both the First and Ninth Circuits, as well as the New York state courts, have held “that rights to future technologies such as videocassette recording are not conveyed where the technology was unknown at the time the parties entered into the bargain and no broad license of rights exists.” In making this argument, Bourne relies on a line of cases which essentially have held that the grant of television rights does not include home videocassette rights. See Rey v. Lafferty, 990 F.2d 1379, 1390 (1st Cir.) (license to produce episodes “for television viewing” held not to include home videocassette rights), ''cert. denied'', – U.S. —, 114 S.Ct.


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 It is the natural result, Mr. Mac Quedy, of that system of state seamanship which your science upholds. Putting the crew on short allowance, and doubling the rations of the officers, is the sure way to make a mutiny on board a ship in distress, Mr. Mac Quedy.

Eh! sir, I uphold no such system as that. I shall set you right as to cause and effect. Discontent increases with the increase of information. That is all.


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first rays of the sun were gilding the dancing waves of the Neva, and the roofs of the fast-rising city of St. Petersburg. Silence still reigned within the dockyards, as a young man, dressed in the German fashion, seated himself upon a coil of ropes and leant his head upon his hand.

“What lazy folks these Russians are,” peevishly he murmured; “my uncle needed not have awakened me so early, so I may as well take a nap whilst I am waiting here,” thus saying, he closed his eyes, stretched himself at length upon the cordage, and was quickly asleep.

Shortly afterwards, a man of tall and majestic stature, on whose every feature nobility was stamped, walked by the spot with a firm step. A brown coat of coarse cloth, cut in the Dutch fashion, and a small fur cap, composed the most prominent parts of his attire; he carried in his hand a knotted cane of immense size. This individual halted before a colossal vessel then being constructed on the stocks, and after gazing at it for some moments attentively, exclaimed—

“What do I see? are my workmen all mad? These timbers are all awry!” Then casting a searching glance around—“I see no ropes,” he continued; “but, if I mistake not, here is what I am looking for.”

He approached the spot where the young man was sleeping, drew forth a coil of rope, and was about to commence his work; but the young man started quickly to his feet, and seized hold of the rope, exclaiming angrily—

“Stay there, you rogue. I wontwon’t [sic] suffer my uncle’s property to be thus slyly stolen.”

“Steal!” responded the stranger; “I merely took the rope for a few moments, intending to return it almost immediately.”

“Take and steal, is the same thing here,” replied the young man. “Let go the rope, if you do not long for a good thrashing,” and he shook his fist at the offender with angry menace.

“Great booby,” cried the stranger, “here is a rouble; you will lend me the rope now, will you not?”

“Is it possible!” ejaculated the young man, “you speak German, and you take me for one of those miserable Russians who sell themselves soul and body for a piece of money. Keep your rouble, and take yourself off.”

“You have a good opinion, young man, it seems of this country.”

The young man looked at him with an ingenuous air, and replied, “You are not a Russian; and I will tell you frankly, that I have not a good opinion of that people. This is only the eighth day since my arrival in their villainous country; and as I cannot amuse myself in it, I shall make my way out of it as soon as I have once had a sight of that madman, its emperor.”

“Why do you call the emperor a madman?” asked the other, as he seated himself beside his hitherto opponent.

“I will tell you,” replied the young German familiarly, “you are a German, and although I took you for a thief, you appear to me, now I look at you more attentively, to have a tolerably honest face. The emperor, mark you, is a madman, because he thinks to make rational men of these boorish Russians; and you must know as well as I, that it is an utter impossibility. Look you,” he continued, as he stooped to pick up a small piece of wood, “it would be as easy to inform these Russians, as for


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 I said it was the march of mind. But we have not time for discussing cause and effect now. Let us get rid of the enemy.

And he vociferated at the top of his voice, "What do you want here?"

"Arms, arms," replied a hundred voices, "Give us the arms."

You see, Mr. Chainmail, this is the inconvenience of keeping an armoury, not fortified with sand bags, green bags, and old bags of all kinds.

Just give them the old spits and toasting irons, and they will go away quietly.

My spears and swords! not without my


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 94, 126 L.Ed.2d 61 (1993); Cohen v. Paramount Pictures Corp., 845 F.2d 851, 854 (9th Cir.1988) (holding that the right to exhibit a motion picture “by means of television” does not include the right to distribute videocassettes of the film); Tele-Pac, Inc. v. Grainger, 168 A.D.2d 11, 570 N.Y.S.2d 521, 522 (1st Dep’t 1991) (license to distribute the subject motion pictures “for broadcasting by television or any other similar device now known or hereafter to be made known” held not to include home videocassette rights). These cases, however, did not address the precise issue presented here: whether the grant of rights to synchronize musical compositions with “motion pictures” allows for videocassette synchronization.

While the arguments relied upon by Bourne are not entirely without merit, we cannot agree that the term “motion picture” has a sufficiently definite and precise meaning as to allow for interpretation as a matter of law. Rather than referring simply to the celluloid-film medium, we believe that the term “motion picture” reasonably can be understood to refer to "a broad genus whose fundamental characteristic is a series of related images that impart an impression of motion when shown in succession, including any sounds integrally conjoined with the images. Under this concept the physical form in which the motion picture is fixed—film, tape, discs, and so forth—is irrelevant…."

S.Rep. No. 72, 92d Cong., 1st Sess. 5 (1971), U.S.Code Cong. & Admin.News 1971 at 1566 (providing Congress’ understanding of “motion pictures” under the Copyright Act of 1909). Peter Nolan, a long-time Disney employee, and Dr. Richard Koszarski, curator of the American Museum of the Moving Image, both testified in support of this understanding. As Dr. Koszarski explained, there is no practical difference between storing a motion picture on film, videocassette, or any other storage media. We also note that Congress adopted the broader definition of the term “motion picture” in enacting the Copyright Act of 1976, 17 U.S.C. § 101. (“ ‘Motion pictures’ are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.”) Accordingly, we agree with the Fifth Circuit’s decision in Bloom v. Hearst Entertainment, Inc., 33 F.3d 518, 525 (5th Cir.1994), in which the court held that “a general grant of motion picture rights is potentially broad enough to contemplate … [videocassettes] as [a] means of distribution.”

Insofar as Bourne contends that, because videocassettes were unknown at the time of the agreement, their use could not have been within the contemplation of the parties, we disagree. While the specific technology underlying todays VCR’s was not available during the 1930s, Disney introduced credible evidence demonstrating that home viewing of motion pictures was within the contemplation of persons in the motion picture industry during the 1930s. Indeed, even in the 1930s Disney made available certain short subject cartoons for home viewing. Furthermore, Disney’s expert witness. Dr. Koszarski, testified regarding the non-celluloid methods of storing motion pictures that were under development during the 1930s.

Having concluded that the language of the grant to Disney reasonably is broad enough to cover videocassettes and that the possibility that Disney could market its motion pictures for home viewing was recognized by persons knowledgeable in the entertainment and motion picture industries, we believe that the district court properly submitted to the jury the question of whether the 1933 Shorts Agreement and the 1939 Pinocchio Agreement provided Disney with the right to synchronize the Compositions to videocassettes containing its motion pictures.

 * c. Burden of Proof

Bourne contends that, even if the district court properly submitted the issue of contract interpretation to the jury, the court erred in its jury charge regarding the burden of proof. The district court charged the jury that Bourne, as the plaintiff-licensor, had the burden of proving that Disney’s use of the Compositions was unauthorized. Bourne argues that a license is an affirmative defense to a claim of copyright infringement, and, therefore, that Disney had the burden of


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 life. These assailants are all aliens to my land and house. My men will fight for me, one and all. This is the fortress of beef and ale.

Eh! sir, when the rabble is up, it is very indiscriminating. You are e'en suffering for the sins of Sir Simon Steeltrap, and the like, who have pushed the principle of accumulation a little too far.

The way to keep the people down, is kind and liberal usage.

That is very well, (where it can be afforded,) in the way of prevention; but in the way of cure, the operation must be more drastic. (Taking down a battle-axe.) I would fain


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 have a good blunderbuss charged with slugs.

When I suspended these arms for ornament, I never dreamed of their being called into use.

Let me address them. I never failed to convince an audience that the best thing they could do was to go away.

Eh! sir, I can bring them to that conclusion in time than you.

I have no fancy for fighting. It is a very hard case upon a guest, when the latter end of a feast is the beginning of a fray.

Give them the old iron.


text: Court and Lady’s Magazine/Volume 3/February 1839/Churchyard Contemplations


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 Give them the weapons! Pessimo, medius fidius, exemplo. Forbid it the spirit of Frere Jean des Entommeures! No! let us see what the church militant, in the armour of the twelfth century, will do against the march of mind. Follow me who will, and stay who list. Here goes: Pro aris et focis! that is, for tithe pigs and fires to roast them!

He clapped a helmet on his head, seized a long lance, threw open the gates, and tilted out on the rabble, side by side with Mr. Chainmail, followed by the greater portion of the male inmates of the hall, who had armed themselves at random.

The rabble-rout, being unprepared for


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 such a sortie, fled in all directions, over hedge and ditch.

Mr. Trillo stayed in the hall, playing a march on the harp, to inspirit the rest to sally out. The water-loving Mr. Philpot had diluted himself with so much wine, as to be quite hors de combat. Mr. Toogood, intending to equip himself in purely defensive armour, contrived to slip a ponderous coat of mail over his shoulders, which pinioned his arms to his sides; and in this condition, like a chicken trussed for roasting, he was thrown down behind a pillar, in the first rush of the sortie. Mr. Crotchet seized the occurrence as a pretext for staying with him, and passed the whole time of the action in picking him out of his shell.

"Phew!" said the divine, returning; "an


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 proving that its use of the Compositions was authorized.

Bourne is correct insofar as it contends that the possession of a license by an accused infringer traditionally has been characterized as a matter of affirmative defense. See, e.g., Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.01 (“Nimmer”). However, in most of the cases addressing the defense of license, the issue has been whether a license is held by the accused infringer. See, e.g., CMS Software Design Sys., Inc. v. Info Designs, Inc., 785 F.2d 1246, 1247 (5th Cir.1986). Since, in such cases, evidence of a license is readily available to the alleged licensee, it is sensible to place upon that party the burden of coming forward with evidence of a license. See United States v. Larracuente, 952 F.2d 672, 674 (2d Cir.1992) (holding that a defendant charged with criminal copyright infringement bears the burden of producing evidence of a sub-license).

In this case, however, there is no dispute that Disney received from Bourne various licenses to copyrighted compositions. The only dispute is whether Disney’s synchronization of the Compositions with its home videocassettes and its use of the Compositions in its television commercials fall within the scope of the existing licenses. See Gilliam v. American Broadcasting Cos., 538 F.2d 14, 20 (2d Cir.1976) (licensee infringes owner’s copyright if its use exceeds the scope of the license). Thus, the only dispute here is the scope of the licenses, not their existence.

We conclude that, in cases where only the scope of the license is at issue, the copyright owner bears the burden of proving that the defendant’s copying was unauthorized. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085 (9th Cir.1989) (“To prevail on its claim of copyright infringement, [the copyright owner] must prove … ‘copying’ of protectible expression by [the accused infringer] beyond the scope of [the] license.”); Microsoft Corp. v. Harmony Computers & Electronics, Inc., 846 F.Supp. 208, 210 (E.D.N.Y.1994); see also NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 235 n. 5 (7th Cir.), ''cert. denied'', – U.S. —, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995). Copyright disputes involving only the scope of the alleged infringer’s license present the court with a question that essentially is one of contract: whether the parties’ license agreement encompasses the defendant’s activities. Just as in an ordinary contract action, the party claiming a breach carries the burden of persuasion. See Gordon v. Leonetti, 324 F.2d 491, 492 (2d Cir.1963).

 * d. Disney’s Right to Distribute Videocassettes

Bourne further argues that, even if Disney had the right to synchronize the Compositions with videocassettes, Disney had no right to sell or publicly distribute the videocassettes that it produced. Bourne asserts that Disney needed two separate grants from Bourne to make and distribute videocassettes containing the synchronized Compositions: (1) the right to copy (or record) the Compositions in synchronization with Disney’s motion pictures; and (2) a separate right to sell or distribute the videocassettes. Since the grants to Disney do not specifically include the latter right, Bourne argues, Disney’s sale and distribution of its videocassettes constitute an infringement of Bourne’s copyrights in the Compositions, even if the license granted Disney the former right. Under the Copyright Act of 1909 (“the 1909 Act”), the copyright holder has the exclusive right to “publish … and vend the copyrighted work.” 17 U.S.C. § 1(a) (1909 Act). Although Disney has been “vending” works without any express license from Bourne, Disney contends that its activities fall within the first sale doctrine. Section 27 of the 1909 Act provides: The copyright is distinct from the property in the material object copyrighted, and the sale or conveyance … of the material object shall not of itself constitute a transfer of the copyright …; but


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 inglorious victory: but it deserves a devil and a bowl of punch."

A wassail-bowl.

No, sir. No more of the twelfth century for me.

Nay, Doctor. The twelfth century has backed you well. Its manner and habits, its community of kind feelings between master and man, are the true remedy for these ebullitions.

Something like it: improved by my diagram: arts for arms.

No wassail-bowl for me. Give me an unsophisticated bowl of punch, which belongs to that blissful middle period, after the


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 Jacquerie was down, and before the march of mind was up. But, see, who is floundering in the water?

Proceeding to the edge of the moat, they fished up Mr. Firedamp, who had missed his way back, and tumbled in. He was drawn out, exclaiming, "that he had taken his last dose of malaria in this world."

Tut, man; dry clothes, a turkey's leg and rump, well devilled, and a quart of strong punch, will set all to rights.

"Wood embers," said Mr. Firedamp, when he had been accommodated with a change of clothes, "there is no antidote to malaria like the smoke of wood embers; pine embers." And he placed himself, with his mouth open, close by the fire.


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 Punch, sir, punch: there is no antidote like punch.

Well, Doctor, you shall be indulged. But I shall have my wassail-bowl, nevertheless. An immense bowl of spiced wine, with roasted apples hissing on its surface, was borne into the hall by four men, followed by an empty bowl of the same dimensions, with all the materials of arrack punch, for the divine's especial brewage. He accinged himself to the task, with his usual heroism, and having finished it to his entire satisfaction, reminded his host to order in the devil.

I think, Mr. Chainmail, we can amuse


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 in this title shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained. 17 U.S.C. § 27 (1909 Act) (emphasis added). A similar provision appears in the Copyright Act of 1976. See 17 U.S.C. § 109. These provisions generally are considered to enunciate the first sale doctrine. See Nimmer, supra, § 8.12[B]. Disney argues that, since it was authorized under the various license agreements to synchronize the Compositions with its videocassettes, the first sale doctrine permits it to transfer the resulting videocassettes as it sees fit.

In Platt & Munk Co. v. Republic Graphics, Inc., 315 F.2d 847 (2d Cir.1963), this court noted that, while the language of section 27 is quite expansive, a literal reading of the statute is unacceptable, stating that

"[i]f lawful possession by another sufficed to deprive the copyright proprietor of his right to control the transfer of the copyrighted objects, any bailee of such objects could sell them without infringing the copyright…. In view of the necessary role played by manufacturers, shippers, and others in producing and distributing copies of copyrighted works, … a copyright proprietor could not present his work to the public without risking the loss of part of his copyright protection."

Id. at 851. The court also noted that a literal reading of the statute would leave a “purchaser of a copy from a conceded pirate … free to resell” the copy. Id. Rather than looking simply at whether the lawful possession of the copy has passed, we framed the issue as “whether or not there has been such a disposition of the article that it may fairly be said that the … [copyright proprietor] has received his reward for the use of the article.” Id. at 854 (quoting United States v. Masonite Corp., 316 U.S. 265, 278, 62 S.Ct. 1070, 1077, 86 L.Ed. 1461 (1942)).

Relying primarily on Platt & Munk, Bourne contends that the first sale doctrine is inapplicable here. Bourne argues that Disney, even if it lawfully possessed the videocassettes, did not acquire the videocassettes as the result of a “first sale” by Bourne, the copyright owner. Since no transfer of copies passed from Bourne to Disney, Bourne argues that no “first sale” has occurred. We disagree.

In our view, Bourne reads our decision in Platt & Munk too broadly. This is not a case where the party claiming the benefit of the first sale doctrine is simply a bailee that acquired a possessory interest in the goods. For example, the possessor of the copies in Platt & Munk was an unpaid manufacturer of goods that were alleged to be defective by the copyright proprietor who had ordered them. 315 F.2d at 849. Here, the party claiming the benefit of the first sale doctrine, Disney, was licensed by Bourne to exploit the copyrighted compositions in connection with its motion pictures. Having so licensed Disney, we do not see any good reason why Disney should not be able to dispose of these lawfully made copies as it wishes. Accord Nimmer, § 8.12[B][3].

Bourne also asserts that it received no “reward” for Disney’s sale of copies of videocassette recordings containing the Compositions. This assertion, however, ignores the circumstances by which Bourne came to own these copyrights. As discussed above, the Compositions at issue here were created by Disney. Disney, in turn, conveyed these valuable copyrights to Bourne in exchange for, inter alia, a broad grant to Disney that would allow it to exploit the Compositions in connection with its motion pictures. Under the circumstances of this case, “it may fairly be said that [Bourne] has received [its] reward for the use of the article.” We therefore reject Bourne’s contention that Disney’s


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 ourselves very well here all night. The enemy may be still excubant: and we had better not disperse till daylight. I am perfectly satisfied with my quarters. Let the young folks go on with their gambols; let them dance to your old harper's minstrelsy; and if they please to kiss under the mistletoe, whereof I espy a goodly bunch suspended at the end of the hall, let those who like it not, leave it to those who do. Moreover, if among the more sedate portion of the assembly, which, I foresee, will keep me company, there were any to revive the good old custom of singing after supper, so to fill up the intervals of the dances, the steps of night would move more lightly.

My Susan will set the example, after she has set that of joining in the rustic dance, according to good customs long departed.


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 sale of videocassettes constituted infringement of Bourne’s exclusive right to vend.

2. Bourne’s Other Contentions

Bourne objects to the district court’s denial of certain ancillary relief in connection with the jury verdict in its favor on its advertising claim. We see no abuse of discretion in any of the district court’s determinations regarding ancillary relief.

We have considered Bourne’s remaining contentions and find them all to be without merit.

3. The Cross-Appeal

Disney’s principal contention on its cross-appeal is that the district court should have entered judgment as a matter of law on its affirmative defense of estoppel. Judgment as a matter of law cannot be granted on an issue if “there is [a] legally sufficient evidentiary basis for a reasonable jury to find” to the contrary. See Fed.R.Civ.P. 50. Our review of the record persuades us that a reasonable trier of fact could have found that Disney had not relied detrimentally on Bourne’s conduct. See ''General Elec. Capital Corp. v. Armadora, S.A.'', 37 F.3d 41, 45 (2d Cir.1994). In particular, we note that Disney continued to obtain licenses from Bourne for the use of the Compositions in television advertisements during the 1970s and mid-1980s, and that Disney’s paid television advertisements were infrequent up and through this time period. While Disney certainly provided strong evidence of estoppel, we believe that the jury was entitled to decide this issue in favor of Bourne.

We have considered Disney’s remaining contentions and find them all to be without merit.

In view of the foregoing, we affirm the judgment of the district court.


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 After the first dance, in which all classes of the company mingled, the young lady of the mansion took her harp, and following the reverend gentleman's suggestion, sang a song of the twelfth century.


text: Bourne v. Walt Disney Co. (2d Cir. 1995)


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Several others of the party sang in the intervals of the dances. Mr. Chainmail handed to Mr. Trillo another ballad of the


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 twelfth century, of a merrier character than the former. Mr. Trillo readily accommodated it with an air, and sang


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text:
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 Lady Clarinda, being prevailed on to take the harp in her turn, sang the following stanzas.


title: Page:Tristram.djvu/188


title: Page:Tristram.djvu/189


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The glance which she threw at the Captain, as she sang the last verse, awakened his dormant hopes. Looking round for his rival, he saw that he was not in the hall; and, approaching the lady of his heart, he received one of the sweetest smiles of their earlier days.

After a time, the ladies, and all the females of the party, retired. The males remained on duty with punch and wassail, and dropped off one by one into sweet forgetfulness; so that when the rising sun of December looked through the painted windows on mouldering


title: Page:Tristram.djvu/190


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 embers and flickering lamps, the vaulted roof was echoing to a mellifluous concert of noses, from the clarionet of the waiting-boy at one end of the hall, to the double bass of the Reverend Doctor, ringing over the empty punch-bowl, at the other.

this eventful night, young Crotchet was seen no more on English mould. Whither he had vanished, was a question that could no more be answered in his case, than in that of King Arthur, after the battle of Camlan. The great firm of Catchflat and


text:
Author:William Blizard

Works

 * The Hunterian Oration for 1823

Works about the author

 * Dictionary of National Biography, 1885-1900/Blizard, William

title: Author:William Blizard


title: Page:Tristram.djvu/191


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 Company figured in the Gazette, and paid sixpence in the pound; and it was clear that he had shrunk from exhibiting himself on the scene of his former greatness, shorn of the beams of his paper prosperity. Some supposed him to be sleeping among the undiscoverable secrets of some barbel-pool in the Thames; but those who knew him best were more inclined to the opinion that he had gone across the Atlantic, with his pockets full of surplus capital, to join his old acquaintance, Mr. Touchandgo, in the bank of Dotandcarryonetown.

Lady Clarinda was more sorry for her father's disappointment than her own; but she had too much pride to allow herself to be put up a second time in the money-market; and when the Captain renewed his assiduities, her old partiality for him, combining with a sense of gratitude for a degree of constancy which she


title: Page:Tristram.djvu/192


title: Page:Tristram.djvu/193


text: Page:The Hunterian oration, delivered before the Royal College of Surgeons in London, on the fourteenth day of February, 1821 (electronic resource) (IA b21483851).pdf/118


title: Page:Tristram.djvu/194


text: Page:Holly Hedge and other christmas stories (IA hollyhedgeotherc0000temp).djvu/2


text:
Page:The Hunterian oration, delivered before the Royal College of Surgeons in London, on the fourteenth day of February, 1821 (electronic resource) (IA b21483851).pdf/121

The Opinion, that Subjects for the HUNTERIAN ORATION would soon be exhausted, is, in the Judgment of the Author, unfounded.

If Inquiry were made for Topics of Discourse for the 14th of February, the Hunterian Collection would afford a boundless Choice of Subjects, in the Illustrations there displayed of the simple Laws of the animal Economy, in the Formation and Functions of Organs; and in the Signs of Aberration of Actions, from Injury or Disease. And if Inquiry were extended to the Nature, and the Order of Advancement of anatomical, physiological, and pathological Knowledge; and to Improvements in the Art and Science of Surgery, since the Huntertan Era; such a Field of Objects would be presented as would embarrass Endeavours for Selection. �


text:
Page:Manual on Uniform Traffic Control Devices for Streets and Highways, 11th Edition (December 2023).pdf/7

MUTCD 11th Edition     (R3-5, R3-5a, R3-7, R3-19 Series, and R3-20) and Plaques            <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> DO NOT PASS ON SHOULDER Sign (R4-18)
 <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" /> <templatestyles src="TOC templates/styles.css" />
 * - class="__toc_row_m-1 __toc_row_2-1 wst-toc-row-2-1 "
 * colspan=2 |MOVEMENT AND LANE CONTROL SIGNS AND PLAQUES
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.26
 *
Movement Prohibition Signs (R3-1 through R3-4, R3-18, and R3-27)

 * | 89
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.27
 *
Intersection Lane Control Signs (R3-5 through R3-8)

 * | 91
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.28
 *
Mandatory Movement Lane Control Signs
 * | 92
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.29
 *
Optional Movement Lane Control Signs (R3-6 Series)

 * | 93
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.30
 *
Advance Intersection Lane Control Signs (R3-8 Series)

 * | 93
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.31
 *
RIGHT (LEFT) LANE MUST EXIT Signs (R3-33, R3-33a)

 * | 94
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.32
 *
Two-Way Left-Turn-Only Signs (R3-9a and R3-9b) and Plaques

 * | 94
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.33
 *
BEGIN and END Plaques (R3-9cP and R3-9dP)

 * | 94
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.34
 *
Reversible Lane Control Signs (R3-9e through R3-9i)

 * | 94
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.35
 *
Jughandle Signs (R3-23, R3-24, R3-25, and R3-26 Series)

 * | 97
 * - class="__toc_row_m-1 __toc_row_2-1 wst-toc-row-2-1 "
 * colspan=2 |PASSING, KEEP RIGHT, AND SLOW TRAFFIC SIGNS
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.36
 *
DO NOT PASS Sign (R4-1)

 * | 102
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.37
 *
PASS WITH CARE Sign (R4-2)

 * | 102
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.38
 *
KEEP RIGHT EXCEPT TO PASS Sign (R4-16), SLOWER TRAFFIC KEEP RIGHT Sign (R4-3), and TRUCKS USE RIGHT LANE Sign (R4-5)

 * | 102
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.39
 *
Keep Right and Keep Left Signs (R4-7 Series and R4-8 Series)

 * | 102
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.40
 *
STAY IN LANE Sign (R4-9)

 * | 104
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.41
 *
RUNAWAY VEHICLES ONLY Sign (R4-10)

 * | 104
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.42
 *
Slow Vehicle Turn-Out Signs (R4-12, R4-13, and R4-14)

 * | 106
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.43
 *
DO NOT DRIVE ON SHOULDER Sign (R4-17) and
 * | 106
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.44
 *
ALL TRAFFIC Sign (R4-20) and RIGHT (LEFT) TURN ONLY Sign (R4-21)

 * | 106
 * - class="__toc_row_m-1 __toc_row_2-1 wst-toc-row-2-1 "
 * colspan=2 |SELECTIVE EXCLUSION SIGNS AND PLAQUES
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.45
 *
Selective Exclusion Signs and Plaques

 * | 107
 * - class="__toc_row_m-1 __toc_row_2-1 wst-toc-row-2-1 "
 * colspan=2 |DO NOT ENTER, WRONG WAY, ONE WAY, AND RELATED SIGNS AND PLAQUES
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.46
 *
DO NOT ENTER Sign (R5-1)

 * | 109
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.47
 *
WRONG WAY Sign (R5-1a)

 * | 110
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.48
 *
Wrong-Way Traffic Control at Interchange Ramps

 * | 111
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.49
 *
ONE WAY Signs (R6-1 and R6-2)

 * | 114
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.50
 *
Divided Highway Crossing Signs (R6-3 and R6-3a)

 * | 116
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.51
 *
Roundabout Circulation Plaque (R6-5P)

 * | 118
 * - class="__toc_row_m-1 __toc_row_2-1 wst-toc-row-2-1 "
 * colspan=2 |PARKING, STANDING, STOPPING, AND EMERGENCY RESTRICTION SIGNS
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.52
 *
Parking, Standing, and Stopping Signs (R7 and R8 Series)

 * | 123
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.53
 *
Design of Parking, Standing, and Stopping Signs

 * | 123
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.54
 *
Placement of Parking, Standing, and Stopping Signs

 * | 127
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.55
 *
Emergency Restriction Signs (R8-4 and R8-7)

 * | 127
 * - class="__toc_row_m-1 __toc_row_2-1 wst-toc-row-2-1 "
 * colspan=2 |PEDESTRIAN SIGNS
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.56
 *
WALK ON LEFT FACING TRAFFIC and No Hitchhiking Signs (R9-1, R9-4, and R9-4a)

 * | 128
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.57
 *
Pedestrian Crossing Signs (R9-2 and R9-3)

 * | 128
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.58
 *
Traffic Signal Pedestrian and Bicyclist Actuation Signs (R10-1 through R10-4 and R10-24 through R10-26)

 * | 128
 * - class="__toc_row_m-1 __toc_row_2-1 wst-toc-row-2-1 "
 * colspan=2 |TRAFFIC SIGNAL SIGNS AND PLAQUES
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.59
 *
Traffic Signal Signs and Plaques (R10-5 through R10-30)

 * | 131
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.60
 *
No Turn on Red Signs (R10-11 Series, R10-17a, and R10-30)

 * | 134
 * - class="__toc_row_1-m-1 __toc_row_1-dot-1 wst-toc-row-1-dot-1 "
 * | Section 2B.61
 *
Ramp Metering Signs (R10-28 and R10-29)

 * | 135

December 2023


text:
Page:The Hunterian oration, delivered before the Royal College of Surgeons in London, on the fourteenth day of February, 1821 (electronic resource) (IA b21483851).pdf/122

vi To modify and embody the interesting Truths drawn from these Sources, without trespassing an the Provinces of the Professors, but with enlivening Influence on their Exertions, would prove a pleasant Exercise in the Hours of Abstraction from professional Toil.

These Sentiments would have guided the Author in the |Adoption of Subjects for the late Occasion; had he not been seriously impressed with the Propriety of making an Effort, or at least of recording his Protest, against Practices, daily increasing, which, while they dishonour Surgery, retard the Progress of Improvement, and the Diffusion of chirurgical Knowledge for the general Benefit of the Community.

 * 1 May, 1823.

�


text: Page:The Hunterian oration, delivered before the Royal College of Surgeons in London, on the fourteenth day of February, 1821 (electronic resource) (IA b21483851).pdf/123


text: Page:The Hunterian oration, delivered before the Royal College of Surgeons in London, on the fourteenth day of February, 1821 (electronic resource) (IA b21483851).pdf/124


text: Index:The Hunterian oration delivered in the theatre of the Royal College of Surgeons in London, on the fourteenth of February, 1833 (IA b21911952).pdf


text:
Author:John Howship

Works

 * The Hunterian Oration for 1833

title: Author:John Howship


text:
Page:An American Tragedy Vol 1.pdf/80

66 “Sure,” he agreed, gallantly, and forthwith she signaled the young negress who had returned as waitress, and in a moment a small table was put before them and a bottle of whisky with soda on the side—a sight that so astonished and troubled Clyde that he could scarcely speak. He had forty dollars in his pocket, and the cost of drinks here, as he had heard from the others, would not be less than two dollars each, but even so, think of him buying drinks for such a woman at such a price! And his mother and sisters and brother at home with scarcely the means to make ends meet. And yet he bought and paid for several, feeling all the while that he had let himself in for a terrifying bit of extravagance, if not an orgy, but now that he was here, he must go through with it.

And besides, as he now saw, this girl was really pretty. She had on a Delft blue evening gown of velvet, with slippers and stockings to match. In her ears were blue earrings and her neck and shoulders and arms were plump and smooth. The most disturbing thing about her was that her bodice was cut very low—he dared scarcely look at her there—and her cheeks and lips were painted—most assuredly the marks of the scarlet woman. Yet she did not seem very aggressive, in fact quite human, and she kept looking rather interestedly at his deep and dark and nervous eyes.

“You work over at the Green-Davidson, too, don’t you?” she asked.

“Yes,” replied Clyde, trying to appear as if all this were not new to him—as if he had been often in just such a place as this, amid such scenes. “How did you know?”

“Oh, I know Oscar Hegglund,” she replied. ‘“‘He comes around here once in a while. Is he a friend of yours?”

“Yes. That is, he works over at the hotel with me.”

“But you haven’t been here before.”

“No,” said Clyde, swiftly, and yet with a trace of inquiry in his own mood. Why should she say he hadn’t been here before?

“I thought you hadn’t. I’ve seen most of these other boys before, but I never saw you. You haven’t been working over at the hotel very long, have you?”

“No,” said, Clyde, a little irritated by this, his eyebrows and the skin of his forehead rising and falling as he talked—a form of contraction and expansion that went on involuntarily whenever he was nervous or thought deepiy. “What of it?”

“Oh, nothing. I just knew you hadn’t. You don’t look very much like these other boys—you look different.” She smiled

title: Page:An American Tragedy Vol 1.pdf/80


text:
Page:The Hunterian oration delivered in the theatre of the Royal College of Surgeons in London, on the fourteenth of February, 1833 (IA b21911952).pdf/10

10 may be dated the origin of the three several departments of the profession.

The exact extent, or the precise course of Medical study, reeommended or required in the school of Alexandria, we have now no means of determining. It is, however, suffici- eutly evident that it soon gave a new impulse to en- quiry, an inereased desire for information. ‘The spirit with whieh opinions were formed, and the earnest anxiety dis- played in maintaining them, were sufficiently manifested in the eonduet of SErspion, the founder of the Empiric Sect; a sect that was well supported by talent, and long continued to flourish. While those who took up the op- posite side of the question, formed a second, the Dog- matie or rational seet. The first, admitting only one general method of acquiring skill in the Medical art, that of expe- rience, a knowledge derived from the evidence of sense; the second, asserting the necessity for knowing the latent, as well as evident causes of disease, and contending that a physician ought to understand the natural actions and functions of the human body, which necessarily pre-supposes an acquaintance with the internal parts.

Athird sect, the Methodie, was founded by THEMsoN, the disciple of AscteriapEs; who maintained, that the ex- amination of the causes of complaints, recommended by the Dogmatics, was useless, and the laborious observations of the Empiries, unnecessary; for that the whole art of Medicine might be taught ina few months. He considered that all �


text:
Page:An American Tragedy Vol 1.pdf/81

 oddly and rather ingratiatingly, a smile and a mood which Clyde failed to interpret.

“How different?” he inquired, solemnly and contentiously, taking up a glass and drinking from it.

“I’ll bet you one thing,” she went on, ignoring his inquiry entirely. “You don’t care for girls like me very much, do you?”

“Oh, yes, I do, too,” he said, evasively.

“Oh, no, you don’t either. I can tell. But I like you just the same. I like your eyes. You’re not like those other fellows. You’re more refined, kinda. I can tell. You don’t look like them.”

“Oh, I don’t know,” replied Clyde, very much pleased and flattered, his forehead wrinkling and clearing as before. This girl was certainly not as bad as he thought, maybe. She was more intelligent—a little more refined than the others. Her costume was not so gross. And she hadn’t thrown herself upon him as had these others upon Hegglund, Higby, Kinsella and Ratterer. Nearly all of the group by now were seated upon chairs or divans about the room and upon their knees were girls. And in front of every couple was a little table with a bottle of whisky upon it.

“Look who’s drinking whisky!” called Kinsella to such of the others as would pay any attention to him, glancing in Clyde’s direction.

“Well, you needn’t be afraid of me,” went on the girl, while Clyde glanced at her arms and neck, at her too much revealed bosom, which quite chilled and yet enticed him. “I haven’t been so very long in this business. And I wouldn’t be here now if it hadn’t been for all the bad luck I’ve had. I’d rather live at home with my family if I could, only they wouldn’t have me, now.” She looked rather solemnly at the floor, thinking mainly of the little inexperienced dunce Clyde was—so raw and green. Also of the money she had seen him take out of his pocket—plainly quite a sum. Also how really good-looking he was, not handsome or vigorous, but pleasing. And he was thinking at the instant of Esta, as to where she had gone or was now. What might have befallen her—who could say? What might have been done to her? Had this girl, by any chance, ever had any such unfortunate experience as she had had? He felt a growing, if somewhat grandiose, sympathy, and looked at her as much as to say: “You poor thing.” Yet for the moment he would not trust himself to say anything or make any further inquiry.

“You fellows who come into a place like this always think

title: Page:An American Tragedy Vol 1.pdf/81


text:
Page:An American Tragedy Vol 1.pdf/82

68 so hard of everybody. I know how you are. But we’re not as bad as you think.”

Clyde’s brows knit and smoothed again. Perhaps she was not as bad as he thought. She was a low woman, no doubt—evil but pretty. In fact, as he looked about the room from time to time, none of the girls appealed to him more. And she thought him better than these other boys—more refined—she had detected that. The compliment stuck. Presently she was filling his glass for him and urging him to drink with her. _Another group of young men arrived about then—and other girls coming out of the mysterious portals at the rear to greet them—Hegglund and Ratterer and Kinsella and Higby, as he saw, mysteriously disappeared up that back stairs that was heavily curtained from the general room. And as these others came in, this girl invited him to come and sit upon a divan in the back room where the lights were dimmer.

And now, seated here, she had drawn very close to him and touched his hands and finally linking an arm in his and pressing close to him, inquired if he didn’t want to see how pretty some of the rooms on the second floor were furnished. And seeing that he was quite alone now—not one of all the group with whom he had come around to observe him—and that this girl seemed to lean to him warmly and sympathetically, he allowed himself to be led up that curtained back stair and into a small pink and blue furnished room, while he kept saying to himself that this was an outrageous and dangerous proceeding on his part, and that it might well end in misery for him. He might contract some dreadful disease. She might charge him more than he could afford. He was afraid of her—himself—everything, really—quite nervous and almost dumb with his several fears and qualms. And yet he went, and, the door locked behind him, this interestingly well-rounded and graceful Venus turned the moment they were within and held him to her, then calmly, and before a tall mirror which revealed her fully to herself and him, began to disrobe. . ..

title: Page:An American Tragedy Vol 1.pdf/82


text:
Page:The problem of China - Russell 1922.pdf/198

196Rh Their pacifism is rooted in their contemplative outlook, and in the fact that they do not desire to change whatever they see. They take a pleasure—as their pictures show—in observing characteristic manifestations of different kinds of life, and they have no wish to reduce everything to a preconceived pattern. They have not the ideal of progress which dominates the Western nations, and affords a rationalization of our active impulses. Progress is, of course, a very modern ideal even with us; it is part of what we owe to science and industrialism. The cultivated conservative Chinese of the present day talk exactly as their earliest sages write. If one points out to them that this shows how little progress there has been, they will say: "Why seek progress when you already enjoy what is excellent?" At first, this point of view seems to a European unduly indolent; but gradually doubts as to one's own wisdom grow up, and one begins to think that much of what we call progress is only restless change, bringing us no nearer to any desirable goal.

It is interesting to contrast what the Chinese have sought in the West with what the West has sought in China. The Chinese in the West seek knowledge, in the hope—which I fear is usually vain—that knowledge may prove a gateway to wisdom. White men have gone to China with three motives: to fight, to make money, and to convert the Chinese to our religion. The last of these motives has the merit of being idealistic, and has inspired many heroic lives. But the soldier, the merchant, and the missionary are alike concerned to stamp our civilization upon the world; they are all three, in a certain sense, pugnacious. The Chinese have no wish to convert us to Confucianism; they say "religions


text:
Page:The problem of China - Russell 1922.pdf/199

197Rh are many, but reason is one," and with that they are content to let us go our way. They are good merchants, but their methods are quite different from those of European merchants in China, who are perpetually seeking concessions, monopolies, railways, and mines, and endeavouring to get their claims supported by gunboats. The Chinese are not, as a rule, good soldiers, because the causes for which they are asked to fight are not worth fighting for, and they know it. But that is only a proof of their reasonableness.

I think the tolerance of the Chinese is in excess of anything that Europeans can imagine from their experience at home. We imagine ourselves tolerant, because we are more so than our ancestors. But we still practise political and social persecution, and what is more, we are firmly persuaded that our civilization and our way of life are immeasurably better than any other, so that when we come across a nation like the Chinese, we are convinced that the kindest thing we can do to them is to make them like ourselves. I believe this to be a profound mistake. It seemed to me that the average Chinaman, even if he is miserably poor, is happier than the average Englishman, and is happier because the nation is built upon a more humane and civilized outlook than our own. Restlessness and pugnacity not only cause obvious evils, but fill our lives with discontent, incapacitate us for the enjoyment of beauty, and make us almost incapable of the contemplative virtues. In this respect we have grown rapidly worse during the last hundred years. I do not deny that the Chinese go too far in the other direction; but for that very reason I think contact between East and West is likely to be fruitful to both parties. They may learn from us


text:
Page:Weird Tales Volume 10 Number 5 (1927-11).djvu/43

 Clayton was about to reply when I noticed that a pallor spread over his features and he leaned forward with eyes intent upon the hotel entrance. Following the direction of his gaze I saw the well-tailored back of a gentleman disappearing through the doorway. I turned with a glance of inquiry to my friend. His manner showed agitation, and I did not press him for the explanation, which I knew would be forthcoming shortly.

"That man" Clayton explained in a husky voice, "is an enemy—and possibly not without reason," he added reflectively. "Two years ago I was fortunate enough to win as my wife the girl whom we both loved. Shortly afterward the company in which we were both financially interested elected me to the presidency, a position to which each of us had aspired. Since that time my dear wife died—but the business concern in which that man and I are mutually interested is prospering. Although my two victories have been won solely by fair means, the man whom you saw disappearing within the doorway has proved a determined enemy whose obsession is to avenge his defeat in love and war."

I was a little disquieted, though I sought to cover my uneasiness with cheering words.

"Never mind, old chap. We are living in the Twentieth Century. No one can stoop to revenge in these days and get away with it. Now if we were living in 70 A. D., for instance, you might have cause for alarm. Life was held pretty cheap at the time Titus laid siege to Jerusalem, and one had to live warily, but things are different now."

He smiled wanly. "Speaking of Titus, let's begin tomorrow to solve the mystery of the 'certain soldier'."

"Agreed!" I replied heartily. "I'm in my element when it comes to finding an explanation for the inexplicable."

seemed to have forsaken me completely that night. The full moon shining in at my window caused me to abandon all further thought of rest. I arose, dressed myself and stood gazing out across the silvery landscape. The moonlight softened objects below that in the glare of day stood out in too bold relief.

I stood for some time in a troubled and hesitant mood.

"Why not?" I exclaimed, half aloud.

Once resolved upon my course of action I sought the streets below without eliciting any, surprize from the sleepy concierge at the desk. The streets were silent and deserted, the pavement echoing with the ring of my footfall until it seemed to me that all Rome must be apprized of my nocturnal sally. Soon I spied the ancient grandeur of the Colosseum as it rose tier on tier above the stone ruins and cypress trees that nestled in its shadow. I was approaching the familiar territory of the once busy mart of ancient Rome. The Arch of Constantine rose before me, sublime in its architectural beauty. Then I turned fascinated eyes down to the ruins of the Forum, which lie several feet below the level of the present city.

I know it was surprize, though not untinged with fear, that possessed me as I became aware of the presence of another figure not fifty feet ahead of me. It was that of a man, and he was agilely descending the steps to the lower level. I instantly recognized Lee Clayton and watched him with fascinated gaze. What could the man be doing alone among silent ruins in the dead of the night? Then I thought of myself and my own intentions and I nearly laughed aloud. Well, I would not spy on my friend! I quickened my pace with the intention of making my presence


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 Rh “Is there any ink in it?” asked the Prince—which threw us into a renewed paroxysm of laughter.

The Prince took the pen and very kindly autographed for us seven photographs of himself. He offered us more, but he felt that seven was about all we could use. We were still suffocated with laughter over the Prince’s wit; His Highness was still signing photographs when an equerry appeared and whispered in the Prince’s ear. His Highness, with the consummate tact to be learned only at a court, turned quietly without a word and left the room.

We never, in all our experience, remember seeing a prince—or a mere man for the matter of that—leave a room with greater suavity, discretion, or aplomb. It was a revelation of breeding, of race, of long slavery to caste. And yet, with it all, it seemed to have a touch of finality about it—a hint that the entire proceeding was deliberate, planned, not to be altered by circumstance. He did not come back.

We understand that he appeared later in the morning at a civic reception in the costume of an Alpine Jaeger, and attended the matinée in the dress of a lieutenant of police.

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198Rh the indispensable minimum of practical efficiency, and we may learn from them something of that contemplative wisdom which has enabled them to persist while all the other nations of antiquity have perished.

When I went to China, I went to teach; but every day that I stayed I thought less of what I had to teach them and more of what I had to learn from them. Among Europeans who had lived a long time in China, I found this attitude not uncommon; but among those whose stay is short, or who go only to make money, it is sadly rare. It is rare because the Chinese do not excel in the things we really value—military prowess and industrial enterprise. But those who value wisdom or beauty, or even the simple enjoyment of life, will find more of these things in China than in the distracted and turbulent West, and will be happy to live where such things are valued. I wish I could hope that China, in return for our scientific knowledge, may give us something of her large tolerance and contemplative peace of mind.


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abbot, in his alb arrayed," stood at the altar in the abbey-chapel of Rubygill, with all his plump, sleek, rosy friars, in goodly lines disposed, to solemnize the nuptials of the beautiful Matilda Fitzwater, daughter of the Baron of Arlingford, with the noble Robert Fitz-Ooth, Earl of Locksley and Huntingdon. The abbey of Rubygill stood in a picturesque valley, at a little distance from the western boundary of Sherwood forest, in