Before L. HAND, SWAN, and CHASE, Circuit Judges.
[*49] L. HAND, Circuit Judge.
We are to remember that it makes no difference how far the play was anticipated by works in the public demesne which the plaintiffs did not use. The defendants appear not to recognize this, for they have filled the record with earlier instances of the same dramatic incidents and devices, as though, like a patent, a copyrighted work must be not only original, but new. That is not however the law as is obvious in the case of maps or compendia, where later works will necessarily be anticipated. At times, in discussing how much of the substance of a play the copyright protects, courts have indeed used language which [*54] seems to give countenance to the notion that, if a plot were old, it could not be copyrighted. London v. Biograph Co. (C. C.A.) 231 F. 696; Eichel v. Marcin (D.C.) 241 F. 404. But we understand by this no more than that in its broader outline a plot is never copyrightable, for it is plain beyond peradventure that anticipation as such cannot invalidate a copyright. Borrowed the work must indeed not be, for a plagiarist is not himself pro tanto an "author"; but if by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an "author," and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249, 23 S. Ct. 298, 47 L. Ed. 460; Gerlach-Barklow Co. v. Morris & Bendien, Inc., 23 F.(2d) 159, 161 (C. C.A. 2); Weil, Copyright Law, p. 234. But though a copyright is for this reason less vulnerable than a patent, the owner's protection is more limited, for just as he is no less an "author" because others have preceded him, so another who follows him, is not a tort-feasor unless he pirates his work. Jewelers' Circular Publishing Co. v. Keystone Co., 281 F. 83, 92, 26 A.L.R. 571 (C. C.A. 2); General Drafting Co. v. Andrews, 37 F.(2d) 54, 56 (C. C.A. 2); Williams v. Smythe (C. C.) 110 F. 961; American, etc., Directory Co. v. Gehring Pub. Co. (D.C.) 4 F.(2d) 415; New Jersey, etc., Co. v. Barton Business Service (D.C.) 57 F.(2d) 353. If the copyrighted work is therefore original, the public demesne is important only on the issue of infringement; that is, so far as it may break the force of the inference to be drawn from likenesses between the work and the putative piracy. If the defendant has had access to other material which would have served him as well, his disclaimer becomes more plausible.