Daly v. Palmer, or the Melodramatic Origins of the Ordinary Observer

Abstract

Daly v. Palmer, decided in 1868, began as one zealous New York theater owner’s attempt to prevent his rivals from capitalizing on his greatest dramatic success—the famous “Railroad Scene,” in which a character is tied to railroad tracks by the villain and is rescued only seconds before an approaching train passes. But the decision, authored by future Supreme Court Justice Samuel Blatchford, proved to be a landmark in copyright law for almost seventy years. Daly was one of the first plaintiffs to claim infringement by nonverbatim copying from an artistic, not informational, work, and his case anticipated by several decades an explosion of such lawsuits at the turn of the century. As those difficult cases became legion, courts and treatise writers alike looked to Blatchford’s detailed analysis for guidance.

Daly was innovative in two ways. Judge Blatchford extended copyright protection for plays beyond the printed text of the script, and held that the value of a work included the intangible impression made by the work on its audience when performed. Second, he measured infringement of such works by comparing the similarities in their sequence of events, even where no dialog was copied. Twentieth-century courts widely adopted Blatchford’s “sequence of events” test to determine if the narrative of one work infringed another. But eventually judges became dissatisfied with such piecemeal analysis, and, searching for an alternative, found Daly’s other holding: that the overall impression made upon the audience might matter.

This article, part of the “Forgotten IP Cases” Symposium hosted by the Syracuse Law Review, traces the origins and subsequent career of what was for many decades one of the most widely cited infringement cases in copyright law. It explores why Daly was so influential, and how it was ultimately replaced by the Second Circuit’s decision in Arnstein v. Porter. The concluding section offers some thoughts on what causes a copyright opinion to gain or lose precedential value.