Opinion
7-12-1951
KURLAN v. COLUMBIA BROADCASTING SYSTEM, Inc., et al. Civ. 16859.
Harold A. Fendler, Beverly Hills (Fendler, Weber & Lerner and Daniel A. Weber, Beverly Hills, of counsel), for appellant. O'Melveny & Myers, Homer I. Mitchell, W. B. Carman, Harned Pettus Hoose, Los Angeles, for respondents, Columbia Broadcasting System, Inc., Ernest Martin, Cy Howard, Young & Rebicam, Inc.
KURLAN
v.
COLUMBIA BROADCASTING SYSTEM, Inc., et al.
July 12, 1951.
As Modified on Denial of Rehearing July 31, 1951.
Hearing Granted Sept. 7, 1951. *
Harold A. Fendler, Beverly Hills (Fendler, Weber & Lerner and Daniel A. Weber, Beverly Hills, of counsel), for appellant.
O'Melveny & Myers, Homer I. Mitchell, W. B. Carman, Harned Pettus Hoose, Los Angeles, for respondents, Columbia Broadcasting System, Inc., Ernest Martin, Cy Howard, Young & Rebicam, Inc.
SHINN, Presiding Justice.
Plaintiff, Arthur Kurlan, instituted this action against Columbia Broadcasting System, Inc., a corporation, and certain individual defendants, alleging five separate causes of action claimed to have arisen out of the submission to and use by the defendants of a certain radio idea and program, including a sample audition recording thereof. General demurrers of the defendants were sustained without leave to amend and judgment was entered in their favor. Plaintiff appeals.
The several causes of action may be described as follows: (1) Upon an express contract to pay plaintiff the reasonable value of his radio program idea and format; (2 & 3) upon an implied contract to pay plaintiff the reasonable value thereof as alleged in the second and third causes of action; (4) upon an implied contract based upon trade customs, practices and usages of the radio industry; (5) for plagiarism.
Before ruling on the demurrers the court, on motion of defendants under section 426(3), Code of Civil Procedure, ordered the incorporation in plaintiff's complaint of plaintiff's and defendants' respective literary properties. Pursuant to this order there were 'introduced and filed' one script of plaintiff's program, 'My Sister Eileen' and a transcription thereof, 32 scripts of defendants' program, 'My Friend Irma' and a transcription of each. By arrangement of counsel one script and transcription thereof of plaintiff's program, and the script and a transcription of one of defendants' programs, have been furnished this Court. We have examined the scripts and have listened to the recordings.
The parties are agreed that the demurrers were sustained without leave to amend upon the grounds that it appeared from the recordings as a matter of law that there was no novelty in plaintiff's production and there were insufficient facts appearing from a comparison of the two productions to support either a finding that any substantial similarity exists between them as to legally protectible material in plaintiff's literary property, or a finding of copying.
It was alleged generally that plaintiff had acquired from one Ruth McKenney the sole and exclusive right to use for radio broadcasting purposes two unique leading female characters known as 'Ruth' and 'Eileen' which had been created by her and portrayed in stories published in the New Yorker magazine, and in a stage play, and a motion picture, each entitled 'My Sister Eileen,' and that plaintiff thereby acquired the sole and exclusive right to the use of said characters and their unique characterization and relationships for all broadcasting purposes. The radio program produced by defendants was entitled 'My Friend Irma.' The characters, 'Irma' and 'Jane' in defendants' production were alleged to be but counterparts of the characters 'Ruth' and 'Eileen' in plaintiff's program.
The first cause of action, on express contract, alleged the following facts: That plaintiff conceived, originated, and devised a new and original radio program idea and original untitled radio program featuring two leading female characters named 'Ruth' and 'Eileen,' created by Ruth McKenney; that plaintiff devised new program techniques and methods of radio presentation for the program and reduced it to concrete form, embodied in written script and perpetuated upon wax records; that plaintiff expended the sum of approximately $10,000 in connection with the preparation and production of this sample audition recording; plaintiff submitted to the defendants, at their special instance and request, said original radio program idea and untitled radio program, including said sample audition recording thereof, under and pursuant to an express oral understanding and agreement wherein and whereby defendants orally promised and agreed to pay to plaintiff the reasonable value thereof if defendants used the same or any part or portion thereof, and defendants thereupon accepted from plaintiff submission of said original radio program idea and untitled radio program format, including the sample audition recording thereof, and heard the same and became fully familiar with the contents thereof; thereafter, following extensive negotiations defendants informed plaintiff they would not purchase his program but would produce one of their own and, commencing on or about the 11th day of April, 1947, and continuing upon Friday of each week thereafter, defendants did produce, present and broadcast from coast to coast, a series of radio programs entitled 'My Friend Irma' substantially copying, using and embodying plaintiff's said original radio program idea and format, all without compensation paid to plaintiff.
Defendants construe the alleged agreement as one to pay for plaintiff's program only in case they made use of material in which plaintiff had a protectible property right. Referring to the allegations that plaintiff conceived, originated and devised a new and original radio program idea and original radio program, and submitted to defendants 'said original radio program idea and entitled radio program, including said sample audition recording thereof' and that 'defendants promised to pay plaintiff the reasonable value thereof if defendants used the same or any part or portion thereof' etc., defendants say, in effect, that they were not to pay even if they used the particular program if it was one they could rightfully have duplicated. It may very well be that after hearing the evidence concerning the agreement a court or jury might determine there was no agreement to pay for what was in the public domain and available to defendants, but we do not so interpret the allegations of the complaint. If the program lacked novelty it would not follow as a matter of law that it would have been of no value whatever to defendants, even though it might not have been worth to them what it had cost plaintiff. The rule that there will be read into such an agreement the implication that the buyer is not required to pay for anything that he could have obtained without cost from other sources does not apply. Cf. Masline v. New York, N. H. & H. R. Co., 1921, 95 Conn. 702, 112 A. 639. It was alleged that defendants used and copied plaintiff's program. Under these circumstances there cannot be found in the alleged agreement an implied condition that if defendants used plaintiff's production they were to pay nothing for it unless they made use of material that was protectible. For these reasons the first cause of action must be held sufficient. Additional grounds for sustaining this cause of action will appear in our further discussion of the issues presented by the other causes of action.
The remaining four causes of action involve questions of originality and similarity. Did plaintiff have an original expression of ideas reduced to concrete form? Did the defendants subsequently copy both the ideas and their expression? Normally these are questions for the jury. But defendants contend, and we agree, that before a jury question arises the court must determine as a matter of law that there are allegations of sufficient facts to support findings favorable to plaintiff upon these issues. Defendants further contend there are no sufficient allegations of novelty or originality, and that while there may be similarity of ideas between plaintiff's and defendants' productions, there is clearly no similarity of expression, so no question of fact arises as to issues of protectibility or copying. They say that a reading of plaintiff's program in the light of the court's judicial notice of prior dramatic situations will show that plaintiff's production is simply a hackneyed situation involving stock characters, devoid of any material that is protectible.
A clear purpose of the amendment of section 426 so as to require the presentation to the court on demurrer, or other proceeding, of the allegedly infringed and infringing productions was to acquaint the court with the contents thereof for the decision of questions of law. Accordingly, the productions are a part of the complaint and we shall set forth what we consider to be sufficient of the substance of the two programs to furnish a basis for our conclusions.
Our only purpose in so doing is to answer the claim of the defendants that want of novelty and similarity are conclusively shown. The claim is twofold, namely: That the trial court properly held from what is within the common knowledge that there was no novelty in plaintiff's production, and also that a comparison of the two programs furnishes no reasonable basis for a finding of similarity due to copying. Whatever our personal views may be, we are satisfied that we cannot hold on the basis of judicial notice that there is no novelty of development and expression in plaintiff's production even if, as defendants asserts, it consists only of a portrayal of the experiences of two familiar characters through a series of commonplace incidents. Neither can we hold that within the common knowledge of the average reader, observer, spectator or listener there are not sufficient similarities to induce the belief that copying has taken place. See Stanley v. Columbia Broadcasting System, 35 Cal.2d 653, 662, 221 P.2d 73. In discussing the two programs and their points of similarity we merely mention the features that a trier of the facts would have to take into consideration. Since it would be manifestly improper for use to intimate what views we hold upon these factual questions it should be understood from what is to follow that we have formulated no views except as to the questions of law we must answer. All that concerns us is whether, upon the factual issues, reasonable minds could reach opposite conclusions.
The principal characters in plaintiff's program are two sisters, Ruth and Eileen. Ruth is the capable and sophisticated balance wheel of the pair. Eileen is scatterbrained, impulsive, naive, completely thoughtless and oblvious to the consequences of most of her acts. Ruth acting as narrator introduces a series of incidents in which Eileen creates situations which to her seem perfectly natural, but are extremely embarrassing to Ruth. Ruth attempts to resolve the situations while Eileen continues to introduce complications. In most improbable ways Eileen's created situations turn out to the benefit of all. The details vary, but this developed theme runs throughout the audition record and forms the basis of plaintiff's proposed program series.
In defendants' program the principal characters are two friends, Jane and Irma. Ruth, in plaintiff's production, and Jane, in that of defendants, are capable, possessed of ordinary intelligence, stable and sophisticated, while Eileen and Irma are scatterbrained, naive, irresponsible, impulsive and oblivious to the consequences of most of their acts. Jane, like Ruth, acts as narrator to introduce a series of incidents in which Irma, like Eileen, creates situations which to her seem perfectly natural but are extremely embarrassing to Jane, just as Eileen's are to Ruth. In plaintiff's production Ruth attempts to resolve the situation while Eileen continues to introduce complications. In defendants' production Jane attempts to resolve the situation while Irma continues to introduce complications. In both radio plays the situations created by the scatterbrained girl turn out to the benefit of all in most improbable and unexpected ways.
There are incidents in the sample programs which have points of similarity as to the weight of which we express no opinion. In both programs the girls are living in an apartment obtained or provided by the scatterbrained girl; both involve visits to the apartment by a gentleman friend of the capable one, and in both the action takes place in the apartment. In plaintiff's program the friend is represented by the scatterbrained girl to be the finance of the other girl, much to the latter's dismay. In the other program the scatterbrained girl invites the other girl's employer to dinner in the apartment and suggests that they marry, to the great embarrassment of the other girl.
We may say, preliminarily, that there is little, if any, originality or novelty in the contentions advanced by defendants. The applicable legal principles have been clearly established by the decisions of our Supreme Court and the District Courts of Appeal. Stanley v. Columbia Broadcasting System, 35 Cal.2d 653, 221 P.2d 73; Golding v. R. K. O. Pictures, Inc., 35 Cal.2d 690, 221 P.2d 95; Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 90 P.2d 371; Kovacs v. Mutual Broadcasting System, 99 Cal.App.2d 56, 221 P.2d 108; Weitzenkorn v. Lesser, ---- Cal.App.2d ----, 231 P.2d 889; Yadkoe v. Fields, 66 Cal.App.2d 150, 151 P.2d 906; See also, Dezendorf v. Twentieth Century-Fox Film Corporation, 9 Cir., 1938, 99 F.2d 850; Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 1936, 81 F.2d 49.
There is, of course, no legally protectible property in ideas alone apart from their expression. With respect to ideas alone, it is repeatedly said, 'there is nothing new under the sun.' Defendants point out that the 'idea' of a 'dumb' girl getting an intelligent one into various scrapes is as old as written expression, if not older. Nevertheless, it is also true that the essence of art is expression of these commonplace ideas in ways that are unique with the artist, be he writer, painter, musician or other. It is this novelty of expression, this product of the creative mind, this embellishment of skeleton 'ideas,' that gives rise to a legally protectible interest. (See cases, supra.)
The generallized theme of a dumb girl embroiling herself and her more capable companion in a series of scrapes is undoubtedly quite old, but particular extension of this broad theme may be quite new. In the present case the evidence within the issues may establish that plaintiff has done more than use the generalized theme--that he has given it a more specific nature, added a new radio technique, reduced to concrete form, and in addition, that he has presented characters with personalities so developed they are clearly recognizable. After reading the scripts and listening to the records we cannot say there is such obvious lack of originality in plaintiff's use of familiar dramatic elements as to render the question of originality one of law.
Our conclusion is the same with respect to the issue of copying. The similarities in the two programs and defendants' familiarity with plaintiff's program before they produced their own would justify an inference and a finding that defendants copied plaintiff's program idea. 35 Cal.2d 690, 221 P.2d 95; 99 Cal.App.2d 56, 221 P.2d 108, supra.
Assuming, without conceding, that something was copied, defendants nevertheless contend that as a matter of law what was copied was not novel, and hence not protectible. With this we cannot agree. We deem the preceding analysis of the recorded programs and scripts sufficient to show that upon proof of the facts pleaded a jury could properly find novelty and originality in what was copied.
It was not alleged in the complaint whether the McKenney stories were copyrighted. Defendants point out that if they were not, their publication rendered them open to use in any manner by any person, citing section 983(a), Civil Code: 'If the owner of a composition in letters or art publishes it the same may be used in any manner by any person, without responsibility to the owner, insofar as the law of this State is concerned.' In this particular the complaint was uncertain, although it was not demurred to upon that ground. If the stories were copyrighted, jurisdiction of an action for infringement would be in the Federal Court. Loew's, Inc., v. Superior Court, 18 Cal.2d 419, 115 P.2d 983. We may not assume as against the jurisdiction of the State court that the stories were copyrighted. Peterson v. Donelley, 33 Cal.App.2d 133, 91 P.2d 123; Cheney v. Trauzettel, 9 Cal.2d 158, 69 P.2d 832. Assuming then, that they were not, defendants assert, correctly, that the material of the stories was in the public domain. Section 983(a), Civil Code, so provides. Defendants say: 'Therefore with respect to the basic situation and characterizations upon which plaintiff relies, the publication which he alleges destroys any right he has to recover compensation for their use from any person so far as the California courts are concerned.' Defendants' argument proceeds upon the supposition that plaintiff's production contains nothing more than the basic theme of the McKenney stories, or the basic theme developed through a succession of incidents and through expression substantially copied from the McKenney stories. Hence, they say, it is devoid of originality and protectible material. They also say that the complaint describes plaintiff's production as one having the sole purpose to capitalize upon the title 'My Sister Eileen,' and thus take advantage of the name and fame of the stories and play; and that if this is property which is protectible they have not used it. This is but another phase of the argument of absence of originality in plaintiff's radio program. It is merely a claim that the program contains nothing of creative expression or technique other than that to be found in the published stories. This does not appear from the complaint. The general allegations are to the contrary, and, since there is nothing before the court to controvert them, they must be taken as true. If uncopyrighted, the material of the stories is open to use like any other material in the public domain, but the fact that plaintiff has made use of such material does not necessarily rob his work of originality. The stories are not before the court. Manifestly, it cannot be said as a matter of law from the complaint, including the recording, that plaintiff in his program has not developed the theme, the characters and the situations of the stories by unique and original expression. Although the complaint alleges previous publication of the stories containing the characters and theme which plaintiff made use of, it is a non sequitur that the radio program he has produced is lacking in creative expression. But we think it would be a waste of words to comment further along this line upon the mere supposition that the stories were not copyrighted. Certainly no useful purpose can be served by keeping the court in the dark upon that score. Plaintiff should be required to allege the facts as to copywriting before defendants are required to answer.
Our conclusion that facts are stated in the complaint which give plaintiff the right to go to trial requires a reversal of the judgment. In view of the decisions first cited, which settle all the questions of law that have been briefed, it is unnecessary to extend this opinion.
The judgment is reversed.
WOOD and VALLEE, JJ., concur. --------------- * Subsequent opinion 256 P.2d 962.