HUGH PENTECOST – Remember to Kill Me. Dodd Mead, hardcover, 1984. Worldwide, paperback, 1988.

   Longevity is one of the strong points of Judson Philips, who was a sports reporter while a student at Columbia University where he was a contemporary of Cornell Woolrich and Jacques Barzun in the early 1920s.

   He’s been writing ever since, under his own name and the more famous pseudonym of Hugh Pentecost, with hundreds of magazine stories in the “pulps” and the “slicks” plus over a hundred novels since his first in 1936.

   Never a great literary stylist, Philips-Pentecost is often not readable, especially when his plot is weak. On the other hand, considering his prolificity, he has done some very good work, and one of his best recent Pentecost novels, Remember to Kill Me, has recently been reprinted by Worldwide Library in paperback.

   In a far from new plot device, terrorists take over the luxury Beaumont Hotel, holding hostages and planting bombs throughout the building. The Pentecost nuts-and-bolts prose works beautifully here as the suspense builds up while Pierre Chambrun tries to resolve matters without loss of life.

   The growth in books about what the television networks call “hostage situations” has led to this new sub-genre of the mystery, which I’ll call “howdoit,” depending upon how (if at all) the authorities will end a siege without loss of life. Remember to Kill Me is one of the best and most suspenseful of this new breed.

[UPDATE] 05-14-12.   Judson Philips died in 1989, at the age of 86, with one book published after his death. Pierre Chambrun, one of his most popular characters, appeared in 22 novels and one short story collection. For more about the author, his Wikipedia entry can be found here, and his page on the Golden Age of Detection wiki is here.

FREDERICK NEBEL – Tough As Nails: The Complete Cases of Donahue from the Pages of Black Mask. Altus Press, softcover, May 2012. [A limited edition hardcover may still be available.]

   This is rapidly turning out to be the year that Frederick Nebel was rediscovered. First we had The Complete Casebook of Cardigan, Volume One, which I reviewed here. Then just recently Black Dog Books published Empire of the Devil, a collection of Nebel’s adventure tales.

   Coming up later in the year will be additional volumes in the Cardigan series from Altus Press plus the complete stories from the Black Mask series starring Kennedy and MacBride. And now just published we have this latest book from Altus Press collecting all the Donahue stories from Black Mask.

   Like The Complete Casebook of Cardigan, this book is a must buy for any lover of hardboiled fiction. The Donahue stories are also historically significant because in 1930 it was very obvious to Joe Shaw, the editor of Black Mask, that he was about to lose his best writer. Dashiell Hammett would be following the money to Hollywood, and no pulp magazine could compete with the enormous paychecks available from the movie industry.

   Shaw asked his second best writer (Chandler did not appear until 1933) to develop a series similar to the Continental Op made famous by Hammett. I stress the word “similar” because in 1930 no one could compare to the quality of Hammett. The result was Donahue of the Interstate Detective Agency. There were 15 novelettes published between November 1930 and March 1935.

   The first question readers will be asking is how do these stories stand in comparison to the Cardigan stories? The answer is simple: if you liked Cardigan, then you will like Donahue. I really do not see much of a difference between the two characters.

   Like Cardigan, Donahue is tough, hardboiled, no nonsense, and a private operative working for a detective agency. We learn very little about the private lives of either character and the stories are fast moving examples of crime fiction which stand up very well even though 80 years have passed since the Cardigan and Donahue stories appeared.

   The Donahue stories were written according to the above standards set by Shaw during his time as editor for Black Mask, 1926-1936. Frankly, I consider this collection another bargain from Altus Press. The quality paperback, which is almost 600 pages is available for $29.95 from Altus Press, Mike Chomko Books, and Amazon.com.

   The limited edition hardcover, which I had to have because of the importance of this collection, is priced at $39.95 and can be ordered through the Altus Press website. These books are print on demand and hold up to the usual high qualities of Matt Moring, the publisher.

   In addition to the 15 long novelettes, all 30 some pages long except for the last one which clocks in at 56 pages, the stories all have the original illustrations by the Black Mask artist Arthur Rodman Bowker. Bowker had a very distinctive style and I’ve always liked his work. He seems to fit in with the no nonsense, hard as diamonds Black Mask style. The cover is a stunner from Black Mask also, and I believe it shows Donahue(or a character very much like him), in action, gun in hand.

   The introduction is by pulp historian, Will Murray, and the book is edited and compiled by Rob Preston. Rob has also compiled a bibliography of the works of Frederick Lewis Nebel. This is an important feature of the collection and runs 14 pages grouped by magazine title chronologically.

   It shows that Nebel had around a hundred or so stories in the slick magazines and in addition to the fiction in Black Mask and Dime Detective, he also had over a hundred stories in other pulp magazines such as Northwest Stories, Action Stories, Air Stories, Wings, and so on. The bibliography also lists the books written by Nebel as well as the anthologies he appeared in. The screenplays based on his work are also listed.

   Earlier, I mentioned that we don’t learn much of Donahue’s private life. But here are a few items of note. Donahue’s philosophy can be summed up in the passage from the first story in the series, “Rough Justice.” On page 18 Donahue says:

   Donahue lives in a hotel apartment, made up of a small living room and bedroom. It has a bath and a small pantry. He smokes a pipe, cigarettes and cigars. He’s in his thirties, tall, lean and good looking. He eats well, attends boxing and hockey sports and says that he never gambles. He drinks brandy, scotch, martinis, wine, and beer.

   Through the first 14 stories he has no girl friends, in fact he seems to mistrust the women he meets and this is understandable since they mostly turn out to be nothing but trouble. However in the last story he does meet a girl that he likes and trusts and the story ends with Donahue making a date.

   Speaking of drinking, when this series commenced prohibition was still in effect across the country. I have read books about the widespread popularity of speakeasies and this series certainly shows the speakeasy as a very popular illegal hangout. They may have been illegal but everyone in NYC seemed to be drinking in these establishments including the local police.

   This series shows just how impossible it was to make the general public stop drinking. It was an impossible task and prohibition just encouraged crime and corruption. None of this ever bothered Donahue and his police contacts.

   I’ll repeat what I said again. This book is a must buy for all readers of the hardboiled and quality pulp fiction. Altus Press is doing excellent work reprinting such fiction and I urge everyone to support their efforts. They have some excellent books scheduled for future publication.

      Contents:

Acknowledgment:   The magazine covers you see above were obtained from the Galactic Central website, thanks to Phil Stephensen-Payne.

JOSEPH KOENIG – Little Odessa. Viking, hardcover, 1988. Ballantine, paperback, 1989.

   Perhaps contrary to the prevailing view, I had sizeable reservations about Joseph Koenig’s first, Floater, but I have none about his second, Little Odessa, an innovative and grimly amusing slice of New York’s nether regions.

   Kate Piro, born in Odessa, Russia, dances nude at one of the city’s sleazier night spots while yearning for something better. An arrest brings her in touch with Stanley Bucyk, cop, which is not better. Kate “moonlights” at another joint, whose owner (like all males within viewing distance) wants her in bed.

   She resists, but he offers her the management of his joint, and the loan of his townhouse and its resident wolfhound, while he takes a trip to Israel. Everyone in this little caper is bent — it’s just a matter of degree.

   Terminally bent, someone is, for in short order Kate has a corpse leaking all over the townhouse and nowhere to turn. This is a dandy.

[UPDATE] 05-13-12.   Joseph Koenig wrote four well-regarded crime novels between 1986 and 1993, then seemingly dropped out of sight as far as the world of mystery fiction was concerned. He has recently resurfaced as an author, however. His first novel in nearly 20 years, False Negative, will be published in June by Hard Case Crime. You can read more about it here.

THE RUSSIA HOUSE. 1990. Sean Connery, Michelle Pfeiffer, Roy Scheider, James Fox, Klaus Maria Brandauer, John Mahoney, Michael Kitchen, J.T. Walsh, Ken Russell. Based on the novel by John le Carré. Director: Fred Schepisi.

   I haven’t read the novel, and if I hadn’t recently seen the movie, I probably never would have. For one reason or another, none good, spy fiction hasn’t been a major portion of my reading diet for some time. But there is a chance I’ll read it now, if only to find out what was in the book that wasn’t in the movie.

   There’s no way, the way I see it, that a long book (which I assume le Carré’s book was) could be condensed down into a film that was less than two hours long.

   Or at least that’s how I felt as we were leaving the theater. Something was missing. And the something that was missing was the feeling that something had happened during the course of the movie, other than (I grant you) a successful romance between Sean Connery (playing a disheveled semi-idealistic British publisher) and Michelle Pfeiffer, as a Russian go-between delivering him a manuscript from a dissident Soviet scientist (Blandauer).

   As one of the various British or American agents who get caught up in the story says, somewhere close to the end, “Well, we’re back to square one.”

   As a spy or espionage novel, rather than a romance, there’s a moderate amount of suspense that builds up before the ending, but none of the edge-of-the-seat variety. Curiously, a number of incidents occur that appear to be of major significance, but nothing seems to happen as a result. Actions, whether performed under duress or not, never appear to have consequences.

   There are scenes in which Sean Connery’s characters is wired for sound. There are others, especially when it would have counted the most — or that is to say, when the plot counts on it — he is not. What a clunky way to run an intelligence operation.

   The acting is uniformly terrific. Michelle Pfeiffer never looked lovelier. The scenery — apparently the movie was filmed in Russia — is even better. The story is what needed some help.

[UPDATE] 05-12-12. Of course there is the possibility that I missed something subtle, or even not so subtle. And if so, I am sure that someone reading this will tell me what it was. I only vaguely remember the details of the movie itself — it was over 20 years ago — but strangely enough, I do remember the theater Judy and I went to see it in, and I do remember how well-filmed it was.

ALISA CRAIG – The Grub-and-Stakers Spin a Yarn. Avon, paperback original, February 1990.

   The mystery begins in high gear and doesn’t let up until its over. A melodramatic shooting takes place in Miss Fuzzywuzzy’s yarn shop in downtown Lobelia Falls [somewhere in Ontario, Canada]. The dead man is the husband of Mother Matilda, owner of Mother Matilda’s Mincemeat, a million dollar operation in nearby Lammergen.

   He is also, or was, VP Nutmeg. At stake is Mother Matilda’s secret recipe for mincemeat, each VP being responsible for his/her ingredient only.

   Cutesy-poo, you must be thinking, and I wouldn’t blame you. I’d agree to a degree, but if not, then certainly sugary-sweet. Everybody in the book is as loopy as a loon, some more than others, with the (barely) possible exception of the detectives of record, Osbert and Dittany (formerly Henbit) Monk.

   Sometimes it makes for slow going, sometimes it’s worth an embarrassed chuckle or two. May I quote from pages 84-85? It sums it up as well as I ever could. (It could be author Alisa Craig, aka Charlotte MacLeod, speaking herself.)

   I think the detective work is nothing more than inspired guess work myself, but maybe you could say that of Sherlock Holmes, too. Certainly if you’ve enjoyed the earlier entries in the series, you’ll enjoy this one as well. As for me, I’m going to go take a nice long walk.

Bibliographic Notes:   Besides pinpointing the setting of the novel somewhat better than it was in the original review, I’ve also added the information that Alisa Craig was the pen name of Charlotte MacLeod. It was common knowledge at the time, but although MacLeod/Craig was extremely popular back in the early 1990s, that’s a generation ago, and I think her books are on the verge of being forgotten, if they haven’t already.

   As Alisa Craig, she wrote five books in the “Grub-and-Stakers” series, of which this was the fourth; and five in a series of mysteries solved by Detective Inspector Madoc Rhys of the RCMP, along with his wife Janet.

   Under her own name, Charlotte MacLeod, who died in 2005, wrote another 10 mysteries tackled by Professor Peter Shandy Balaclava Agricultural College, somewhere in Massachusetts; plus another 12 cases solved by Sarah Kelling and Max Bittersohn in the Boston Area. Add to this several stand-alones, and you have a shelf filled with books, all (or mostly all) of them cozies to the core, from page one to the end.

ANN DEMAREST – Murder on Every Floor. Hillman-Curl, hardcover, 1939. Mystery Novel of the Month #39, digest-sized paperback, 1942.

   As New York City’s worst winter in fifty-five years begins, Christine Howarth has passed up the opportunity to go to Bermuda with a rich young man. She is moving to Greenwich Village with the hope of painting at least one really good picture.

   Unfortunately, there’s no opportunity for her to achieve her goal since the very first night she moves into a new apartment there is murder done across the hall. No matter that she just arrived that evening and knows no one in the building, she is a suspect.

   Howarth is an engaging character. Her lawyer, who helps the police investigate and who is interested in Howarth, and the occupants of the apartment building are not, nor are they well drawn.

   Read the book if you come across it and it’s free or cheap, but don’t make it a point to look for it.

Bibliographic Notes:   Anne Demarest was the pen name of Florence Demarest Foos Bond (1905-?). The only other mystery novel to her credit, according to Hubin, was She Was His Secretary (Gramercy, 1939), and that one is denoted as having only marginal crime content.

   During the last months of World War II the editors of Esquire decided to launch a series of short detective stories and invited various mystery writers to create new characters for possible publication in the magazine.

   Among the invitees was Harry Stephen Keeler (1890-1967), perhaps the nuttiest author on earth. Harry got miffed at the thought of being asked to “submit a sample like a guy with a tin cup” and demanded $100 in advance. He must have fallen on the floor in shock when Esquire immediately sent him a check, although the editors specified that the advance wasn’t a commitment to accept his submission.

   Keeler proceeded to string together a 14,000-word adventure about a barking clock and an astigmatic witness, with a 7½-foot-tall mathematically educated hick from the sticks serving as detective. At first the character was named just that — Abner Hick to be precise — but before sending out the manuscript Keeler prudently changed his name to Quiribus Brown.

   When Esquire rejected the story, Keeler yanked Quiribus out of the plot, replaced him with that bedraggled old universal genius Tuddleton T. Trotter (who had starred in Harry’s mammoth extravaganza The Matilda Hunter Murder back in 1931), and added 85,000 more words to the story.

   His Spanish publisher Instituto Editorial Reus issued the result as El Caso del Reloj Ladrador (1947). Keeler’s U.S. publisher, the bottom-rung Phoenix Press, put out a shorter version that same year as The Case of the Barking Clock.

   Since Phoenix dropped Keeler in 1948, leaving him without a U.S. publisher for the rest of his life, Quiribus never saw the light of print in his native land. But Harry made him the protagonist in The Case of the Murdered Mathematician, issued in 1949 by his London publisher Ward, Lock.

   So what new detective was chosen to grace the pages of Esquire? A New York PI named Peter Chambers whose creator was Henry Kane, a lawyer and something of a Chandler wannabee. Chambers narrates his own cases in an idiom, known to connoisseurs as High Kanese, which is worlds removed from Keeler’s style but just as lovably eccentric.

   The first six Chambers stories appeared in Esquire between March 1947 and June 1948 and were collected as Report for a Corpse (Simon & Schuster, 1948).

   The timing was unfortunate in the sense that the book came out several months after Anthony Boucher was let go as reviewer for the San Francisco Chronicle and before he became mystery critic of the New York Times. I’d love to know what Boucher thought of this volume, but it was his predecessor Isaac Anderson who reviewed the book in the Times.

   I read the tales a few decades ago but had forgotten them completely when I started to reread them earlier this year. They’re more cleverly plotted than most PI stories during the years Chandler dominated the genre, but there’s nothing truly memorable about any of them and the narration is a pale shadow of what would soon become mature Kanese.

   According to just about any print or electronic source you might check, Henry Kane was born in 1918 and is still alive. Apparently neither of these statements is true.

   Lawrence Block had several conversations with Kane in the early 1970s and, while preparing a memoir of him for Mystery Scene, did some investigative work that was worthy of his own PI Matthew Scudder. An old girlfriend of Kane’s told Block that “he was most likely born not in 1918 but in 1908.” At least when Block knew him, he “lived on Long Island — Lido Beach, if memory serves — and spent Monday through Friday in an apartment on 34th Street west of Ninth Avenue.”

   Block tells us that he “took his work seriously, and insisted that each page be perfectly typed before he went on to the next one.” He was of Jewish descent but told Block that he “didn’t believe in any of that mumbo-jumbo.”

   His lifestyle was that of the stereotypical PI: a Dexedrine pill every morning, at least a quart of Scotch and a couple of packs of cigarettes a day. “It must have been sometime in the early ’80s that he died,” Block surmises.

   Of the eleven Henry Kanes listed in the Social Security Death Index, the one who was born in 1908 and died in 1988 is most likely our man. I would love to have met him, though not necessarily in that smoke-choked apartment.

   In his years as conductor of the “Criminals at Large” column for the Times, Anthony Boucher reviewed most of the Kane novels and collections, even though they were published in the unprestigious paperback-original format.

   I still recall vividly the time he reviewed one of those novels twice. Its U.S. title was Too French and Too Deadly (Avon pb #672, 1955). In his Times column for December 18, 1955 he called the book “probably enjoyable; Peter Chambers stories are usually amusing, and this one is said to include ‘a locked room within a locked room.’

   â€œBut the publishers have chosen to crowd a full-length novel into 122 pages by squeezing 500 words onto a 4-inch by 6-inch page; and squinting one’s way through the book is too much to ask of a reviewer, a reader, or anyone save possibly a Lord’s-Prayer-on-Pinhead engraver.”

   Apparently Kane then sent Boucher a copy of the hardcover British edition, The Narrowing Lust (Boardman, 1956). In his column for June 24, 1956, Boucher reported that “now that it’s legible, it’s also highly readable” and “includes an unusually impossible-seeming locked room problem. It’s a welcome blend of strict detective puzzle and crisp and sexy thriller….”

   In my last column I quoted the late Fred Steiner, composer of the Perry Mason theme: “You look at those old film noir pictures, they’ve always got jazz going for some reason or other.”

   Since then I’ve discovered that this seems to be a classic case of false memory. The point was demonstrated by David Butler in his book Jazz Noir: Listening to Music from Phantom Lady to The Last Seduction (Praeger, 2002) and confirmed by William Luhr in his just published Film Noir (Wiley-Blackwell, 2012):

   â€œAlthough many neo-noir movies have used single-instrument jazz solos to evoke the film noir era, it is difficult to find a canonical film noir [i.e. one that dates from the Forties or Fifties] that opens in that way. Most used full orchestral scores, as was standard studio practice.”

   It’s only in TV private-eye series like Peter Gunn that jazz became the norm. And, as Lawrence Block points out, the strongest uncredited influence on that landmark series was the novels and stories of Henry Kane — who wound up writing the Peter Gunn tie-in novel (Dell pb #B155, 1960)!

   Is this a weird world or what? Luhr’s book is one of the few that discusses in depth both canonical noir and the more recent evocations of the genre, of which perhaps the finest is Chinatown (1974). I recommend it highly to anyone invested in that type of film. And aren’t we all?

      Previously on this blog:

A Corpse for Christmas, by Henry Kane. Reviewed by Bill Deeck.
Trinity in Violence, by Henry Kane. A 1001 Midnights review by Art Scott.
The Midnight Man, by Henry Kane. A 1001 Midnights review by Bill Pronzini.
A Corpse for Christmas, by Henry Kane. Reviewed by Steve Lewis.
Until You Are Dead, by Henry Kane. Reviewed by Steve Lewis.

   A long quote from the latter book is included as a big chunk of the review.

THE HAT BOX MYSTERY. Screen Art Pictures, 1947. Tom Neal, Pamela Blake, Allen Jenkins, Virginia Sale. Director: Lambert Hillyer.

   There are a few remarkable things about this 45 minute movie, and the first is that it is a 45 minute movie, obviously the quick second half of a double feature on a Saturday matinee. The second remarkable thing is the opening scene, in which the four above-mentioned actors introduce themselves to the viewing audience and the characters they play. I’ll get back to that in a minute.

   One other remarkable thing, at least to me, is that this movie was produced and appeared in 1947. While watching it, I was assuming all way through that it was a much earlier film, one from perhaps around the time that Chester Morris was beginning his run of Boston Blackie pictures (1941), but no. It must have been the story line, which is straight from the budget B-mystery movies of the even earlier 1930s.

   Tom Neal plays private eye Rush Ashton, while Pamela Blake is his girl friend, secretary and assistant, Susan Hart. Allen Jenkins is “Harvard,” no last name given as I recall, is Ashton’s second-in-command, strangely enough, since “Harvard,” unable to get into Yale, seems barely able to steer himself across the street, where his girl friend Veronica Hoopler (Virginia Sale) owns and operates a hamburger joint.

   Not too surprisingly, it is only Miss Hoopler who has any common business sense, as it is from her that Ashton’s struggling PI agency must keep borrowing money to keep afloat. You must have come to the thought by now that at least half of this movie is played as a comedy, and if I’d kept track, I’d be willing to say that you are correct.

   Here’s the mystery portion: While Ashton is out of town on another case, a man in obvious disguise (glasses, phoney goatee) hires Susan to take his wife’s photograph with a camera disguised in turn as a hat box.

   Little does Susan know, but happily accepting the man’s thirty dollars, that inside the hat box is not a camera, but a gun.

   I’ll not say more. But surprisingly enough, Ashton does do some detective work in the case, the D.A. not being all that unfriendly, and the story is not a total disaster. If the script had been been revised so that the clues could have incorporated more into the story, instead of lumped into one great expository dump at the end — more viewers probably having figured it all out on their own anyway — this movie might have been — a contender? No, but something better than the (in all likelihood) throwaway second half of a double feature.

   Also surprisingly enough, the four players got to play the same roles all over again the following month, in a follow-up film titled The Case of the Baby-Sitter. While The Hat Box Mystery is readily available on DVD, copies of the second movie do not seem to exist, although one reviewer on IMDB must have seen it, as he complains in passing that Allen Jenkins may have gotten more screen time than Tom Neal.

   That’s rather discouraging news, but if a copy came along, would I watch? I don’t know what this says about me, but you bet I would.

[UPDATE] 05-08-12.   This review was first posted on this blog on May 30, 2008. I’ve bumped it up in time because a lively discussion has been taking place in the comments section over the last day or so. Not only has the conversation been lively, but it’s also been very informative. I thought the rest of you might like to know about it, rather than keep it buried, as it were, nearly four years in the past. I’ve altered and (hopefully) improved the selection of images, too.

HELL COMES TO FROGTOWN. New World Pictures, 1988. Julius LeFlore, RCB, Roddy Piper, William Smith, Sandahl Bergman, Kristi Somers, Rory Calhoun, Cliff Bemis. Directors: Donald G. Jackson & R. J. Kizer.

   [After watching those early Rory Calhoun action westerns], small wonder that I broke down and shelled out the $10 necessary to own my own copy of Donald G. Jackson’s 1988 cult classic Hell Comes to Frogtown.

   The World really needed a post-apocalypse movie with a sense of humor and this is it, a clever, relentlessly trivial thing about the end of Life as We Know It and What Happens Next.

   Writer/Director Jackson manages to avoid most of the cliches inherent in the concept of a Future Society Ruled by Women, gets surprisingly not-awful performances from Sandahl Bergman and pro wrestler “Rowdy” Roddy Piper, and even manages to evoke a lot of sympathy for a washed-up amphibian chanteuse played, I think, by Shirley Maclaine in heavy makeup and an unbilled cameo.

   Rory Calhoun, needless to say, is just fine as a garrulous old prospector named “Looney” Tunes, and one of the fight scenes between Piper and a six-foot talking toad brought down the House (such as it was) when Piper called his warty opponent a “horny bastard.” Priceless.

Editorial Comments: The trailer for this film can be seen here on YouTube. For a scene entitled “The Dance of the Three Snakes,” go here.

    In the last few years of David Goodis’ life, one of the most popular TV series was ABC’s The Fugitive, the saga of Dr. Richard Kimble (David Janssen) who was wrongly convicted of his wife’s murder, escaped from the wreck of a prison-bound train, and spent the next several years on the run, criss-crossing the country, changing identities constantly, being stalked relentlessly by the Javert-like Lt. Gerard (Barry Morse) as he searched for the one-armed man who was the real murderer.

    The series was produced by United Artists Television and ran on ABC for four seasons (1963-67) and 120 hour-long episodes. A year or so into its run, Goodis became convinced that the series was a rip-off of his own first crime-suspense novel, Dark Passage (1946), which had been serialized in the Saturday Evening Post before book publication and, a year later, became the basis of a Warner Brothers movie starring Humphrey Bogart and Lauren Bacall.

    Both the novel and the movie told the story of Vincent Parry, who was not a doctor but did escape from prison after being wrongly convicted of his wife’s murder and, although never stalked by a cop, did set out to clear himself and find the real killer, who was not a one-armed man.

    Goodis’ suit against United Artists TV raised three interesting legal issues. The one we’ll address first and last was whether The Fugitive infringed the copyright in Goodis’ novel. The Copyright Act of 1909, which was the governing law throughout Goodis’ lifetime, says that the owner of a copyrighted work has the exclusive right to “copy” the work. (The operative verb in the present Copyright Act is “reproduce.”)

    But neither statute sets any sort of standard for determining whether one work infringes another. What is that standard? Copyright law would be absurd and useless if it required absolute identity between the two: otherwise I could rip off The Da Vinci Code simply by changing the hero’s name to Langbert Robdon.

    But the law would be equally absurd, and contrary to public policy and probably to the First Amendment also, if it allowed authors to claim copyright protection for the ideas in their works, so that, for example, the first person who wrote a novel or story about an intelligent dignified black detective could sue anybody else who later did the same thing.

    In order to avoid both these extremes, the judicial decisions interpreting the Copyright Act have required for generations that in order to win an infringement suit a plaintiff has to establish that his work and the defendant’s work are “substantially similar” on the layer or level not of abstract ideas but of concrete expression.

    The problem of course is that the line separating ideas from the expression of ideas is indefinable. But in order to prevail in an infringement suit the plaintiff has to establish substantial similarity on the expression side of that indefinable line. This is what Goodis set out to do when he sued over The Fugitive.

    During the litigation the defendants took Goodis’ deposition, and their attorney questioned him intensely about what common elements he found between Dark Passage and The Fugitive. A few years ago, at a conference in Philadelphia, the law firm that had represented Goodis gave a presentation about the case. I was supposed to be there but missed my train.

    Some kind soul knew of my interest and saved me a copy of Goodis’ deposition, which was handed out to those who attended. I decided that, shorn of side issues and redundancies, this document would make a good teaching tool in my Copyright Law course because it illustrates so vividly how the game is played.

    Goodis, obviously well coached by his lawyers, tries to make the similarities seem as concrete as possible while the defense team tries just as hard to reduce them to abstract ideas. Let’s travel back in time and eavesdrop:

    Later in the deposition, obviously reading from notes, Goodis summarized the alleged similarities between his novel and the TV series.

        (1)   In Dark Passage Parry is primarily motivated by his determination to discover the truth concerning the murderer of his wife and the identity of the murderer. In The Fugitive Kimble is primarily motivated by his determination to discover the truth concerning the murderer of his wife and the identity of the murderer….

        (2)   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 physical violence. In The Fugitive Kimble is portrayed as a man who is not especially aggressive or physically powerful but he is equal to the occasion when threatened with violence….

        (3)   In Dark Passage Parry is portrayed as a quiet-spoken, reserved type, sensitive and kindly, considerate of others and with high standards of moral behavior. In The Fugitive Kimble is portrayed as a quiet-spoken, reserved type, sensitive and kindly, considerate of others and with high standards of moral behavior….

        (4)   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 Kimble’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….

        (5)   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 … places considerable emphasis on this aspect of the story. In The Fugitive Kimble 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…

        (6)   In Dark Passage Parry is portrayed as a man whose “lips are not made for smiling,” a man whose eyes reflect a sadness caused by his loneliness and his awareness of the unpredictable tides of fate. In The Fugitive Kimble is portrayed as an unsmiling, sad-faced man, whose eyes reflect a certain sorrow caused by his loneliness and his awareness of the odds imposed by the unpredictable hand of fate….

        (7)   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 same connection, 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 by 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 of the entire series 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…

    The defendants made a motion for summary judgment, asking the court to throw out the suit purely on legal grounds, but it wasn’t based on any claim that as a matter of law Dark Passage and The Fugitive were not substantially similar.

    In effect UA TV took the position: “Assuming for the sake of the argument that we did take substantial material from Dark Passage, we were legally entitled to do so.”

    The first of the two legal arguments they offered was based on the 1945 contract by which Goodis for $25,000 sold Warner Bros. the movie rights in his novel. Like most such contracts in Hollywood’s golden age, this one included language permitting the studio not only to make a movie based on the novel but to remake it as often as the studio chose. United Artists TV claimed that The Fugitive was legal on the basis of those remake rights, which it had bought from Warners.

    Could the contractual language have been broad enough to justify such a claim? Could a clause primarily intended to authorize one or at most a handful of theatrical remakes be stretched to justify the making of a TV series that lasted for 120 hour-long episodes?

    The federal district court hearing the case ruled that it not only could be but was, and on January 2, 1968, almost a year after Goodis’ death, granted summary judgment to the defendants on that basis, quoting from the 1945 contract at great length. Anyone who wants to go to a law library and read the decision will find it in Volume 278 of the Federal Supplement, beginning at page 120.

    The defendants’ second legal argument grew out of the Goodis deposition. Apparently the UA TV attorneys hadn’t previously realized that the Saturday Evening Post had paid Goodis $12,000 for the right to publish Dark Passage in six weekly installments before its publication in book form.

    Unfortunately the only copyright notice in those six issues of the Post was the general notice on the table of contents page in the name of the Curtis Publishing Company. But Curtis wasn’t the copyright owner of Dark Passage; it was merely the licensee of magazine serialization rights from Goodis, the real copyright owner.

    Therefore, the defendants argued, Dark Passage had been published serially without a proper copyright notice, with the consequence that it had been in the public domain ever since and anyone could make any use of it that they pleased.

    This may sound to 21st-century ears like an argument worthy of Alice in Wonderland or Catch-22, but under the 1909 Copyright Act, which was in force at the time of this case and remained the law until the beginning of 1978, it was a sound contention, and the District Court granted UA TV’s motion for summary judgment for that reason also. The Goodis estate appealed both rulings.

    The case moved through the legal system like a frozen snail. It took more than two years for the Second Circuit Court of Appeals to hand down its decision, but from the viewpoint of Goodis’ successors it was worth waiting for.

    In Goodis v. United Artists Television, which was dated March 9, 1970 and can be found in Volume 425 of the Federal Reporter, Second Series, beginning at page 397, the appeals court reversed the trial judge on both grounds.

    All three appellate judges sitting on the panel — Kaufman, Lumbard and Waterman — agreed, in Chief Judge Lumbard’s words, 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.”

    The court’s refusal to impose Draconian consequences on an author because of a minor defect in a copyright notice constituted a landmark decision at the time, and the law has continued to evolve in the same direction ever since. Indeed under our present Copyright Act no notice at all is necessary in order for a work to be protected.

    On the question of interpreting the contract between Goodis and Warners the three appellate judges split. Lumbard would have upheld the district court’s grant of summary judgment but was outvoted by Kaufman and Waterman.

    “The question presented here,” Waterman wrote, “is whether the contract language demonstrates unambiguously that Goodis meant to convey to Warner Brothers the right to create a television series such as The Fugitive or whether a genuine issue of material fact exists as to what the parties intended by the language they used… It is our holding that the contract language does not so clearly permit production of The Fugitive as to entitle the defendant to a grant of summary judgment.”

    This too constituted a major improvement in authors’ rights. Thanks to the court’s refusal to hold as a matter of law that the contract between Goodis and Warner Bros. conveyed extremely broad rights as UA contended, it would be up to a jury to decide that issue if and when the case came to trial.

    That trial never took place. After the Second Circuit decision the defendants paid Goodis’ successors a small amount of money to drop the suit and go away. But since UA TV had never admitted any substantial taking from Dark Passage, at trial Goodis would still have needed to show substantial similarity between his novel and The Fugitive.

    Could he have done so? I’ve read the novel and seen the movie based on it, and 40-plus years ago I watched The Fugitive TV series regularly. I’ve also taught copyright law for almost 40 years and written some crime-suspense fiction of my own, and of course I’ve read Goodis’ deposition several times.

    My tendency is to demand a strong showing before I find two works substantially similar, so perhaps I’m a bit prejudiced. But Goodis’ case strikes me as very weak, so weak that the trial court might well have refused to allow a jury even to consider the issue, on the ground that no reasonable jury could have decided in Goodis’ favor on the evidence he presented.

    We’ll never know. A lawsuit is like a horse race: anything can happen. One of the great lawyerly virtues is prudence. It was prudent of UA TV to offer a settlement and prudent of the Goodis successors to accept it.

    We also cannot know whether Goodis himself would have accepted a settlement had he lived. But if there’s an afterlife and they serve liquor, he no doubt would have toasted the wisdom of the Second Circuit Court of Appeals in using his case to strike two blows on behalf of all authors living and dead.