The Fugitive

In 1963, ABC television launched the television show "The Fugitive." It was the story of Richard Kimble, a physician who had been wrongfully convicted of murdering his wife. Sentenced to death, Kimble was placed on a train to the state prison. The train crashed, giving Kimball the chance to escape. Now at large, Kimble searched for the "one armed man," whom he believed had been the murderer..

Goodis believed that "The Fugitive" had been patterned after Dark Passage. As a native of Philadelphia, David Goodis did what real Philadelphians do---he sued. On February 25, 1965, The Philadelphia Inquirer reported that David Goodis had sued United Artists-TV and the ABC network for $500,000 for infringing on the copyright of his novel Dark Passage.

Locally, David Goodis was represented by his cousin's law firm, Goodis, Greenfield, Narin and Mann. It was an important, midsize firm, with some 20 lawyers. The lead partner, Samuel Goodis, was dean of the labor bar. Other partners were leaders in their specialties. Robert K. Greenfield, nephew of financier Albert M. Greenfield, represented the Greenfield estate interests and City Stores, a group of department stores. Stephen Narin was a corporate lawyer. Theodore R. Mann was a litigator.

David Goodis hired Leo Gitlin, of New York City, to prosecute the claim. Several groups entered the case in support of Goodis. The Author's League of America represented by Irwin Karp of Hays, St. John, Abramson and Heilbron, of New York; the Dramatist's Guild, represented by Horace Manges of Weil, Gotshal and Manges; and the American Book Publishers Council joined the case in support of Goodis. When the case was appealed, the Goodis Estate, the Author's League and the American Book Publishers Council equally shared the cost of printing of the briefs. United Artists and ABC were represented by Coudert Brothers.

Click for description of episodes of "The Fugitive."
Working on the case in Philadelphia, was Julian Rackow, a recently admitted lawyer who had joined the Goodis firm in 1966. He moved to another firm in 1969.

"David brought suit because he felt that his material was 'stolen' from him, and he wanted to correct the wrong done to him," Rackow explained. "He felt very strongly about it."

Dark Passage was "a great novel," Rackow said. "It was very successful. It was published in several languages. I have it in the Spanish edition. The Bogart film was fabulous."

Looking back over four decades, Rackow spoke as if he had been star struck by the experience. At the time he had been only 25 years old, involved in the case of this amazing novel and movie and traveling in the highest legal and entertainment circles. On December 9, 1966 Rackow accompanied David Goodis to a deposition in New York.

Louis Boxer obtained copies of two depositions of David Goodis, from Ballard Spahr, the law firm now representing the Estate of David Goodis. The initial deposition was conducted on January 19, 1966 at 2:30 p.m. at the offices of Coudert Brothers, 200 Park Avenue. At 5:20 p.m., the deposition was adjourned. A new session had been delayed due to the death of David's mother and David's health. It was finally conducted on December 9, 1966 at 2:40 p.m. at the Coudert Brothers offices. At the deposition, David revealed that Dark Passage had been serialized in the Saturday Evening Post---a critical fact in the case. The deposition concluded at 3:45 p.m.

Goodis testified that Dark Passage and The Fugitive had the same "springboard" or "nucleus of the plot."

"In Dark Passage, the entire story is based upon a situation involving a man who has been unjustly sentenced for the murder of his wife. Subsequently he escapes . . . from prison and seeks to find the murderer but through a series of unfortunate circumstances, he is forced to keep running," Goodis testified. "The 'springboard' of [T]he Fugitive is essentially the same."

Goodis said he did not travel to San Francisco to research Dark Passage. He testified that he did research "Only as regards the geography of San Francisco. When I say 'geography,' I wanted to be authentic as to names of streets and also the location of San Quentin as regards San Francisco, in approximately, not exactly in terms of miles but more or less of a scenic approximation. I did not go to San Francisco. I got all of this information from an encyclopedia."

Goodis said that Dark Passage was "entirely a work of creative imagination." He explained, ". . . there have been works of fiction in recent years in which the authors admittedly state that the plots revolve around actual incidents, they have been accused, not legally to my knowledge, but accused in print of having borrowed the particular character."

"In the case of Dark Passage, and I am still under oath and I realize it, it is completely a work of the creative imagination, based on nothing that I have ever read about in newspapers or heard about. 

Whey I say fiction, I mean completely creative fiction," Goodis said.

Less than a month later, David was dead.

Rackow met with David Goodis several times at his office. He visited David Goodis' house two or three times.

"When I knew him, he was always pale. He was thin and of slight build. He never looked very robust," Rackow said. "In today's language, he dressed casually. He lived by himself in his big home in East Oak Lane. He appeared to live frugally and dress plainly. The house was modestly furnished."

Rackow described David Goodis as "shy, self-effacing and quiet." "He was not an aggressive personality. He was my image of an author."

Materials at the Temple University Archive shed some light on the author's lifestyle. The October 1963 Temple University Alumni Review profiled Goodis. It said, "Goodis puts in four or five hours each day at the typewriter. . . .
He likes to fish. He goes to the fights." The Alumni Review added, "The room he writes in is spare, but its gray catches the glow of sunlight." Goodis was a jazz fan. He liked Count Basie and Lionel Hampton, according to his biographer, Philippe Garnier.

The Temple Archives include copies of his Federal income tax returns. Goodis always listed himself as a writer. He had no other profession. He had good years and lean years. The Federal Reserve Bank of Saint Louis publishes a "Consumer Price Index for All Urban Consumers: All Items." The returns in the Archive show adjusted gross income (with approximate figure in 2006 dollars in parenthesis) as follows:

1945....$2861.00 ($26,000)
1946....$28,808.00 ($300,000)
1947....$21,033.46 ($210,000)
1948....$15,596.00 ($132,000)
1949....$563.75 ($4,500)
1952....$3900.54 ($28,000)
1953....$3231.35 ($24,000)
1954....$2,725.24 ($20,100)
1955....$13,570.04 ($100,800)
1956....$4,543.58 ($33,600)
1957....$17,456.27 ($125,400)
1959....$9398.94 ($64,200)
1960....$3956.92 ($26,800)
1961....$7,709.42 ($51,300)
1962....$3,996.32 ($26,400)
1963....$1755.29 ($11,400)
1964....$1929.94 ($12,400)

Some of the articles in the Temple Archive and some web pages speak of Goodis as a drinker. "It would not seem to be his personality to be a drinker," Rackow said. Rackow said that Goodis appeared to be who he actually was. "What you see is what you get."

"Someone who can write Dark Passage--that kind of a story--must have lived in his imagination. I can't tell you for sure. That's my impression. He did not appear to be putting on. He was just straight up," Rackow said.

Rackow said that Goodis never discussed his social life. When he came to the office, he always came alone. Asked if David Goodis had a sense of humor, Rackow replied, "I don't remember anything funny about him. He was very laid back and self-effacing. That's my reaction," Rackow said. "I would not call him unhappy. He just seemed to be in his own world."

Rackow participated in a panel at GoodisCON along with an attorney for the Goodis Estate, Corey Fields of Ballard Spahr, and a leader in the intellectual property bar, M. Kelly Tillery of Pepper Hamilton.

Rackow told GoodisCON that Goodis appeared “beaten down and defeated like the characters in his books.”

Rackow said he felt that Goodis “was wilting in the house after his parents died.”

“Was he angry about his work being stolen? If angry, it was internalized. He was not ranting and raving about it. But he wanted to right that wrong in his own way. He figured that he should take a shot at the case,” Rackow said.

“In the three or four months that I knew him, he lived a black and white life. There was very little color. I only remember shades of black and white and grays,” Rackow said.

“He could sit in his parents’ house behind a typewriter and write such vivid descriptions. I saw him living in a one or two dimensional world in East Oak Lane,” Rackow said.

Did Goodis have the wild life of internet fame, cruising the underside of Philly by night?

Rackow told GoodisCON that it was his “initial impression that he made it [his stories] up out of his imagination.”

However, from “what other people thought of him,” Rackow said, “I have a sense he might very well have had a life. I’m no so sure there wasn’t a second part of his lifestyle.”

In an unsigned memo in the Temple Archive, a Goodis lawyer set forth 14 similarities between Dark Passage and The Fugitive:

Complaint involving similarity of television series THE FUGITIVE to novel DARK PASSAGE and its filmed adaptation.

1. In DARK PASSAGE the protagonist, Vincent Parry, is an ordinary citizen (he works in an investment securities firm) who is accused, tried and convicted for the murder of his wife. He is actually innocent. In THE FUGITIVE the protagonist, Richard Kimball [sic] is an ordinary citizen (a physician) who is accused, tried and convicted for the murder of his wife. He is actually innocent.

2. In DARK PASSAGE, Parry is sentenced to life imprisonment in San Quentin. He escapes. In THE FUGITIVE, Kimball is sentenced to be executed. He escapes.

3. In DARK PASSAGE, the romantic element is provided by Parry's involvement with Irene Janney [Jansen in the film], who aids him in the course of his escape. An interested spectator at the murder trial, she believes in Parry's innocence. Eventually an affection develops between them. In many segments of THE FUGITIVE, the romantic element is provided by various women who aid Kimball in the course of his flight from the authorities. In one particular segment, the woman is portrayed by actress Susan Plechette. She was present at the murder trial and believes in Kimball's innocence. Eventually an effection [sic] develops between them.

4. In DARK PASSAGE, Parry attempts to avoid being recognized by assuming an alias and a disguise. In THE FUGITIVE, Kimball attempts to avoid being recognized by assuming an alias and a disguise.

5. In DARK PASSAGE, Parry is primarily motivated by his determination to discover the truth concerning the murder of his wife and the identity of the murderer. In THE FUGITIVE, Kimball is primarily motivated by his determination to discover the truth concerning the murder of his wife and the identity of the murderer.

6. In DARK PASSAGE, during the course of his flight from the authorities, Parry is recognized by a cab driver who sympathizes with him and offers assistance. The cab driver is an off-beat type, with a somewhat cynical and world-weary philosophical outlook.In THE FUGITIVE, Kimball is recognized by various characters who sympathize with him and offer assistance. Of these, several are off-beat types, with a somewhat world-weary philosophical outlook.

7. In DARK PASSAGE, Parry is recognized by a man known as Studebaker [Baker in the movie], who attempts to use Parry as the pawn in an extortion scheme aimed at Irene Janney. Studebaker is not a professional criminal, merely a cheap opportunist looking for easy money. In THE FUGITIVE, several segments are plotted to include various characters who recognize Kimball and attempt to use him as a pawn to further their own selfish and greedy plans. Many of these are not professional criminals, merely cheap opportunists.

8. In DARK PASSAGE, Parry is described as a man who is not especially aggressive or physically powerful. But he is equal to the occasion when threatened with violence. In the FUGITIVE, Kimball is portrayed as a man who is not especially aggressive or physically powerful. But he is equal to the occasion when threatened by violence.

9. In DARK PASSAGE, Parry is revealed as a quiet-spoken , reserved type, sensitive and kindly, considerate of others and with high standards of moral behavior. In THE FUGITIVE, Kimball is portrayed as a quiet-spoken reserved type, sensitive and kindly, considerate of others and with high standards of moral behavior.

10. The treatment of DARK PASSAGE places emphasis on Parry's panic and fear of being apprehended before he can find the murderer of his wife, rather than his bitterness at being unjustly accused and condemned. The treatment of THE FUGITIVE places emphasis on Kimball's panic and fear of being apprehended before he can find the murderer of his wife, rather than his bitterness at being unjustly condemned.

11. In DARK PASSAGE, Parry is forced by circumstances to live and behave like a hunted animal. He can trust no one, not even those who want to help him. The treatment of the novel, and also the filmed adaptation, place considerable emphasis on this aspect of the story. In THE FUGITIVE, Kimball is forced by circumstances to live and behave like a hunted animal. he can trust no one, not even those who want to help him. The treatment of the television series places considerable emphasis on this aspect of the story.

12. In DARK PASSAGE, Parry is revealed as a man whose "lips were not made for smiling"---a man whose eyes reflect a certain sadness caused by his loneliness and his awareness of the unpredictable tides of fate. In THE FUGITIVE, Kimball is portrayed as an unsmiling sad-faced man whose eyes reflect a certain sadness caused by his loneliness and his awareness of the odds imposed by the unpredictable hand of fate.

13. In DARK PASSAGE, despite his own desperate plight, Parry ignores the peril that faces him when he attempts to aid Irene Janney. He thereby proves that he is a man capable of extreme self-sacrifice. In THE FUGITIVE, despite his own desperate plight, Kimball proves that he is a man capable of the extreme limits of self-sacrifice. In many segments of this television series, he risks his life and freedom in various efforts to assist others who need help.

14. In DARK PASSAGE, Parry's actual escape from prison is merely a prologue for the ensuing events. The story itself is treated from the standpoint of the hazards facing an innocent man who must keep running and hiding, while at the same time seeking the means to eventually prove his innocence. In THE FUGITIVE, the entire series is based on a montage used in various segments as a prologue for the ensuing events. This prologue, accompanied b y the voice of a narrator, depicts the escape of an innocent man and is of course the springboard for the episode that follows. Regardless of the content of the segment, the plot and theme are based on the hazards facing an innocent man who must keep running and hiding, while at the same time seeking the means to eventually prove his innocence.

SUMMARY

In plot, theme, character development, continuity and treatment, THE FUGITIVE is essentially the same story as DARK PASSAGE, based on the fact that both emerge from the situation conceived and created by the original author. Specifically this situation, known in literary parlance as the "springboard" involves the plight of an innocent man, condemned for the murder of his wife, constantly on the run after having escaped from the authorities, aided by those who sympathize with him and menaced by others who are motivated by their own selfish interests. Parry's essential moral strength (at one point he refuses help from Irene Janney, trying to prevent her from jeopardizing her own freedom) is identical with that of Kimball in the FUGITIVE. In many segments of THE FUGITIVE, Kimball refuses help from women who wish to aid him, and who eventually do so despite his reluctance. In DARK PASSAGE, Parry's sad departure from Irene brings out the essence of the story's theme, the hopeless plight of an innocent man buffeted by relentless circumstance. This sequence repeated many times in various segments of THE FUGITIVE, wherein Kimball bids farewell to a woman he desires and with whom he would remain were he not a hunted man, is a prime example of the similarity of these two properties, mainly for the reason that the shading and nuances of Parry['s personality and character traits are mirrored by Kimball. Quite aside from the fact that on the visual screen the character of Parry was portrayed in the film DARK PASSAGE by Humphrey Bogart, and the character of Kimball currently portrayed in the television series THE FUGITIVE by David Janssen, it is virtually incontrovertible that the motivation is the same, the inner conflict is the same, the attitude and mood and instincts are the same, the restraint depicted in dialogue and displayed in manner of grooming and mode of attire are almost identical. The similarity extends even to the degree of sophistication on the part of Parry in DARK PASSAGE and Kimball in THE FUGITIVE. Parry likes jazz music, is an admirer of Count Basie, is mildly "hep" in the way he speaks, the expressions he uses. he is articulate without being an extrovert, and he is sensitive without being sentimental. Again, these traits are echoed both audibly and visually by Kimball in THE FUGITIVE, with the exception of the jazz music factor, although Kimball's personality indicates that he would appreciate the talent of Count Basie. it becomes evident, therefore, that the former white-collar employee in DARK PASSAGE, and the former physician in THE FUGITIVE, are not only victims of the same circumstance, not only doomed to the same fate, not only involved with the same type of female and other persons sympathetic and non-sympathetic, not only similarly responsive to negative externals, but are actually and conclusively the same image.

Rackow said that there was not much dispute that the theme of Dark Passage had been used. The case centered over whether the copyright had been given up by publication in the Saturday Evening Post. M. Kelly Tillery said the contract issue was “real tough.”

Though David Goodis was dead, the case took a life of its own, as it represented a test of the coverage of a copyright. The Federal District Court dismissed the complaint.

A memo dated May 8, 1973 between two lawyers at the Goodis firm, explained the significance of the Saturday Evening Post serialization.

"The District Court held that since David Goodis had published installments of Dark Passage in the Saturday Evening Post without a copyright notice appearing in the magazine, he had donated his work to the public domain"

The Goodis Estate appealed. The American Book Publishers Council, Inc. and the Authors League of America, Inc., filed amicus curiae (friend of the court) briefs. The United States Court of Appeals for the Second Circuit reversed the lower court and remanded the case for trial. This decision is reported at Goodis v. United Artists Television, Inc., 425 F.2d 397 (2nd Cir. 1970).

One of the judges was Irving R. Kaufman, who sentenced Julius and Ethel Rosenberg to death for stealing the atom bomb. The history of the case was summarized by the Federal Appeals Court as follows at 425 F.2d 398-399.

This appeal raises the important question whether a magazine publisher who acquires only the right to serialize a novel before it is published in book form has such an interest in the work that notice of copyright in the publisher's name will protect the copyright of the author of the novel. It also requires us to review the construction of a contract granting motion picture rights which defendants raise as a defense to this infringement action.

We all agree that the district court erred in concluding that copyright was not obtained by the publisher and that Goodis' work was thus thrown into the public domain without copyright protection. Moreover, since a majority of the panel, Judges Waterman and Kaufman, are of the view that interpretation of the contract involves factual determinations which should not have been made on a motion for summary judgment, we reverse the judgment of the district court and remand for further proceedings on those questions.

The plaintiffs are the executors of David Goodis, author of the novel "Dark Passage," a work which has proved both popular and adaptable to presentation in many of the entertainment media. When Goodis completed the novel in 1945, he made arrangements for the book to be printed in April, 1946. Later, on December 20, 1945, Goodis sold the exclusive motion picture rights in the novel to Warner Brothers for $25,000. The contract was Warner Brothers' standard form for acquiring movie rights, but, as we state below, it contained additional specially negotiated clauses to cover radio and television broadcast rights.

Before the book was published, Goodis also received $12,000 from Curtis Publishing Co. for the right to serialize the novel in "The Saturday Evening Post," one of Curtis' publications. The book publisher agreed to postpone distribution of the book until October, 1946, and "Dark Passage" was first published in eight installments of "The Saturday Evening Post" running from July 20 to September 7, 1946. Each issue contained a single copyright notice in the magazine's name as provided by the Copyright Act. There was no notice in Goodis' own name.

In due course, Warner Brothers produced a motion picture, also titled "Dark Passage," based on the novel. After the film was exhibited in theaters and shown on television, Warner Brothers in 1956 assigned its contract rights to defendant United Artists. United Artists produced a television film series, "The Fugitive," which was broadcast in weekly installments by defendant American Broadcasting Co. The series enjoyed considerable popularity on television, and early in 1965 Goodis instituted this action claiming $500,000 damages for copyright infringement. The defendants answered that the television series was covered by the contract which had been assigned to them by Warner Brothers.

In 1966, the defendants took Goodis' deposition and learned of his serialization agreement with Curtis. At this point, they conceived the theory that the work had fallen into the public domain because Curtis, a "mere licensee," had taken out copyright in its own name only. By stipulation the defendants amended their answer to include this affirmative defense.

The district court granted defendants' motion for summary judgment and dismissed the complaint on the grounds (1) that "Dark Passage" had fallen into the public domain, and (2) that the contract between Goodis and Warner Brothers clearly conveyed the right to produce a film series like "The Fugitive."

I. THE COPYRIGHT

We unanimously conclude that where a magazine has purchased the right of first publication under circumstances which show that the author has no intention to donate his work to the public, copyright notice in the magazine's name is sufficient to obtain a valid copyright on behalf of the beneficial owner, the author or proprietor.

With both David and Herbert Goodis dead, the value of the case dropped. The attorneys negotiated a settlement. In November 1972, the Goodis Estate agreed to accept $12,000 in full settlement, its attorney conceding in a letter, that the suit had only nuisance value.

M. Kelly Tillery likened the settlement to President Ford’s pardon of Richard Nixon, before Nixon was indicted.

“The settlement closed out the issue as to whether there was copyright infringement or what the Warner Brothers contract meant. The contract issue was very tough and made settlement a likely good strategy,” Tillery said.

Dark Passage was published and the rights were sold to the Saturday Evening Post at the dawn of the television age. Though the case was settled more than three decades ago, Corey Fields explained that one issue is still current: “What happens [when you publish] with new technology?”