Page "Morton's fork" Paragraph 4

One might perhaps have expected the plaintiffs to contend directly, in light of the issues in this lawsuit, that the 1981 film is based on the book.

However, by mounting an indirect attack, in which the major premise is that the 1932 film is based on the book, plaintiffs apparently hoped to impale MGM with a ' Morton's Fork ': either the 1981 film followed the 1932 film, thereby infringing the book, or the 1981 film did not follow the 1932 film, thereby breaching the 1931 Agreement.

Even if plaintiffs ' major premise were sound, which our discussion in the text ... demonstrates it is not, MGM was not necessarily forced into the dilemma that plaintiffs seek to create.

Since the standard by which we judge the similarity of film to book is not the same standard by which we must judge the similarity between the two films ... the Fork is flawed by the fact that its tines are not true opposites.

Thus the possibility remained that for its new remake MGM could eliminate the arguably infringing elements of the 1932 film in a way that did not substantially alter the story, thereby complying with both the copyright law and the 1931 Agreement.

As it happens, this may have been the course MGM followed.

Most of the specific incidents in the 1932 film that plaintiffs claim were taken from the book, i. e., Holt's killing of the ape, Tarzan's killing of the lion with a stranglehold, and Holt's asking Jane if she can use a gun, are not in the 1981 film.