WEITZENKORN v. LESSER

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District Court of Appeal, Second District, Division 2, California.

WEITZENKORN v. LESSER et al.

Civ. 17868.

Decided: May 25, 1951

Harold A. Fendler, Beverly Hills, Daniel A. Weber and Robert W. Lerner, Beverly Hills, of counsel, for appellant. Mitchell, Silberberg & Knupp and Arthur Groman, all of Los Angeles, for respondents.

After a judgment of dismissal predicated upon the sustaining of defendants' demurrers without leave to amend to plaintiff's complaint on three alleged causes of action: (1) Upon an express contract by defendants Sol Lesser and Sol Lesser Productions, Inc. (hereinafter referred to as defendants Lesser) to pay plaintiff the reasonable value of her literary composition. (2) Upon an implied contract of defendants Lesser to pay plaintiff the reasonable value of her literary material. (3) Plagiarism arising out of defendants' unauthorized use of the literary material in a motion picture produced and distributed by defendants, plaintiff appeals.

Facts

The complaint in substance alleges as follows:

First Count:

That plaintiff was an author and writer and on or about November 25, 1944, originated, created, wrote and completed a literary and dramatic composition consisting of 19 pages entitled ‘Tarzan in the Land of Eternal Youth’ and later called ‘Tarzan and the Fountain of Youth’. A true copy of plaintiff's composition is attached to the complaint.

At all times prior to November 25, 1944, plaintiff was the sole and exclusive owner of said literary and dramatic composition and has at all times retained all common law rights of ownership and authorship therein; that on or about November 24, 1944, plaintiff submitted her literary composition to defendants Lesser at their special instance and request ‘pursuant to an express oral understanding and agreement wherein and whereby in consideration of said submission by plaintiff said defendants and each of them orally promised and agreed to pay to plaintiff the reasonable value thereof if said defendants or either of them should at any time in the future use the same or any portion thereof.’

It was further alleged that defendants Lesser and each of them ‘promised and agreed to give usual and customary screen credit to the plaintiff as the author of said story’ in the event of its use; that after accepting the literary composition of plaintiff said defendants on or about June 8, 1948, produced a motion picture photoplay entitled ‘Tarzan's Magic Fountain’ which said defendants in conjunction with defendant RKO Radio Pictures, Inc., distributed, released and caused to be exhibited commencing about November 1, 1948, and continuously thereafter; that said motion picture is patterned upon, copies and uses plaintiff's literary and dramatic composition; that it is impractical to attach to the complaint a copy of the motion picture photoplay by reason of the nature and bulk of the same and that all of the negative and positive prints are in the possession and custody of defendants and plaintiff cannot procure a copy thereof; that by reason of the production and distribution of defendants' motion picture plaintiff alleged that her literary and dramatic composition of the reasonable value of $50,000 has been rendered valueless and that she had been damaged in such sum; that the value of the screen credit which plaintiff did not receive was likewise of a reasonable value of $50,000.

Second Count:

All of the allegations of the first count except the averments with respect to the express agreement of the parties are incorporated by reference and in addition thereto the following is alleged:

‘That on or about the 25th day of November, 1944, plaintiff submitted to defendants Sol Lesser and Sol Lesser Productions, Inc., and each of them at their special instance and request plaintiff's said literary and dramatic composition entitled ‘Tarzan in the Land of Eternal Youth’ for the purpose of sale to or use by defendants upon payment to plaintiff of the reasonable value thereof; and said defendants and each of them thereupon accepted submission of said literary and dramatic composition by plaintiff and retained the same and became fully familiar with the contents thereof.'

Third Count:

The third count incorporates by reference the material allegations of the first count except the averments respecting the express agreement of the parties and then alleges as follows:

‘That on or about the 25th day of November, 1944, plaintiff submitted to defendants and each of them at their special instance and request, plaintiff's said literary and dramatic composition entitled ‘Tarzan in the Land of Eternal Youth’ for the purpose of sale to defendants and defendants and each of them retained the same in their possession for several months thereafter and became fully familiar with the contents thereof.

‘That with full notice and knowledge of plaintiff's rights in the premises and in wilful and deliberate disregard thereof and without the knowledge, authority or consent of the plaintiff, defendants during the year 1948 did produce, distribute and release for public exhibition in the County of Los Angeles, State of California and elsewhere throughout the United States of America, a certain motion picture photoplay entitled ‘Tarzan's Magic Fountain’ substantially copying, using, embodying and misappropriating plaintiff's said original literary and dramatic composition entitled ‘Tarzan in the Land of Eternal Youth’.'

Damages in the sum of $100,000 are alleged as owing to plaintiff as a result of the facts alleged in the third count.

Pursuant to the provisions of section 426, subsection 3 of the Code of Civil Procedure,1 an order was made by the trial judge directing that defendants' motion picture be exhibited to the court, ‘and that the contents of such production be deemed a part of the complaint to the same extent and with the same force as though such production had been attached to the complaint.’ After viewing the motion picture the trial court sustained defendants' demurrers to each count of the complaint without leave to amend

Questions

One: Did the first count of the complaint state a cause of action against defendants Lesser?

Yes. The first count of the complaint contains all the essential allegations of an express contract whereby defendants Lesser agreed to pay plaintiff the reasonable value of her literary composition, and to give her screen credit therefor if used by defendants. This count also contained an allegation that defendants breached this express contract.

It was a question of fact for the determination of the trier of fact whether or not such contract had been entered into, and whether or not defendants had breached it. This is true whether the composition submitted by plaintiff was new, novel, common or open to public knowledge. (High v. Trade Union Courier Pub. Corp. et al., Sup., 69 N.Y.S.2d 526, 529; Cole v. Phillips H. Lord, Inc., 262 App.Div. 116, 28 N.Y.S.2d 404, 409[3]; cf. Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643, 645 et seq.)

Therefore the trial judge erred in sustaining a demurrer to the first count of the complaint.

Two: Did the second count of the complaint state a cause of action?

Yes. The second count of the complaint had all the essential elements of an implied contract with payment therefor to be made by defendants for the use of plaintiff's literary material furnished to them. It contained an allegation that plaintiff furnished to defendants at their special instance and request her literary material entitled ‘Tarzan in the Land of Eternal Youth’ for the purpose of the sale of the same to defendants upon the payment to plaintiff of a reasonable value thereof, and that defendants accepted said literary composition, retained and used the same.

A plaintiff may recover upon the theory of an implied contract if properly pleaded even though the idea may be common or open to public knowledge. (Yadkoe v. Fields, 66 Cal.App.2d 150, 159[4], 151 P.2d 906. See also High v. Trade Union Courier Pub. Corp. et al., Sup., 69 N.Y.S.2d 526, 529; Cole v. Phillips H. Lord, Inc., 262 App.Div. 116, 28 N.Y.S.2d 404, 409[5].)

It is thus evident that since this count of the complaint stated a cause of action the trial court erred in sustaining the demurrer thereto.

Three: Did the third count of the complaint state a cause of action?

Yes. If from all of the facts well pleaded only a single inference and one conclusion may be drawn, upon the filing of a general demurrer thereto a question of law arises for the trial court's determination, to wit, whether the facts thus pleaded state a cause of action in favor of plaintiff. If however reasonable minds may reach different inferences and conclusions from the facts well pleaded in the complaint, and if one inference and conclusion would support a judgment in favor of plaintiff while the opposite would support a judgment in favor of defendant, a question of fact is presented for determination of the trier of fact and a general demurrer to the complaint should be overruled. (See Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 695, 221 P.2d 95; Fetterley v. Brown, 204 Cal. 386, 387, 268 P. 643; Grant v. Sheerin, 84 Cal. 197, 200, 23 P. 1094. Cf. Perguica v. Industrial Accident Comm., 29 Cal.2d 857, 859; Yucaipa Farmers Co-op Ass'n v. Industrial Accident Comm., 55 Cal.App.2d 234, 238, 130 P.2d 146.)

In the instant case there is a reasonable difference of opinion among reasonable minds as to whether the facts as pleaded in the third count of the complaint would sustain a judgment in favor of plaintiff. Hence under the above rule the demurrer to the third count should have been overruled.

The judgment is reversed with instructions to the trial court to overrule the demurrers and to permit defendants a reasonable time within which to answer should they be so advised.

I concur in the judgment of reversal and in the opinion of Mr. Justice McComb.

An additional question raised by defendants and not covered in Justice McComb's opinion should be determined now since it will undoubtedly arise again during the course of the litigation.

Defendant contends that (1) the court not only may but must consider facts of which judicial notice may be taken that are contrary to the express allegations in the complaint; (2) the court may properly take judicial notice of established literature; (3) when the matter is a proper subject of judicial notice the judge, in order to attain mental certainty, may require the assistance of the parties or may make his own investigation, or both; (4) if the court is able to find as a matter of law that there was no protectible material, or, if there were such, no substantial part of it was copied by defendants, then there would be no question of fact to be submitted to the jury and the case should be dismissed; (5) the court should read two books submitted by defendants, to wit, ‘She’ by H. Rider Haggard, published in 1887, and ‘Tarzan's Quest’ by Edgar Rice Burroughs, published eight years prior to plaintiff's conception of her own theme; (6) such reading will disclose that plaintiff has pirated her entire story, characters, names, theme, plot, locale and sequence from ‘Tarzan's Quest’ and additional material from ‘She.’ Hence, argue defendants, the court must take judicial notice that plaintiff cannot advance the claim of originality or protectibility for her story, nor can she make any claim of similarity between her story and defendants' picture, or of appropriation by them of her material. Defendants acknowledge that the court should be cautious in taking judicial notice of matters that refute plaintiff's claim of originality and state they do not emphasize unduly the matter of judicial notice of specific literature in passing on the issue of originality.

It is not necessary to decide whether judicial notice may be taken of literature in general or of the above mentioned books in particular, since for the purpose of this decision it may be conceded without deciding that plaintiff's plot is so similar to those in the books mentioned that it appears to have been lifted from them; but such circumstance, if it be a fact, does not admit of a decision on demurrer that plaintiff obtained her material from those publications.

It has been said that there is nothing new under the sun and that plots of all modern stories are merely revamped versions of old ones or combinations of two or more. Plaintiff may have obtained her material from one or both of the books mentioned; on the other hand the plot may have originated in her own mind. The question cannot be settled on demurrer merely by reason of the similarity of the plots. An adjudication can be made only by judge or jury after hearing the evidence. If plaintiff is able to establish to the satisfaction of the trier of facts that she had never read or heard of either book, or the plot of either, she may be freed from the charge of plagiarism. Neither the trial court nor this court has the power to read plaintiff' mind and ascertain the source of her material, whether her own inventive brain or the books referred to by defendants.

The mythical fountain of youth and the effect of its waters have been the subject of writers for hundreds of years. Ponce de Leon was in search of the fountain when the discovered Florida. Other explorers were equally optimistic in their search and equally unsuccessful. The fabulous Isle of Bimini was supposed by some to be the location of the youth preserving waters; others placed it in the heart of Africa. The fact that the legendary lost continent, Atlantis, Bimini and the fountain of youth have long been the subjects of folklore, song and story in many languages does not foreclose a modern writer from using the same situations and locales for the purpose of symbolization or for the manifestation of his imagination. While similarity of theme may be deemed to be strong evidence of copying it must be considered along with evidence of other facts in determining the issue of plagiarism.

The question of originality is not one of law to be determined by the court but is one of fact for the jury. Stanley v. Columbia Broadcasting System, 35 Cal.2d 653, 665, 221 P.2d 73; Kovacs v. Mutual Broadcasting System, Inc., 99 Cal.App.2d 56, 63, 221 P.2d 108, 112.

Even if, as contended by defendants, the theme of the fountain of youth is in the public domain it cannot be determined on a hearing on demurrer that there is not in plaintiff's material any new dramatic situation, new incident, new sequence, or new dialogue not found in any other book, scenario or play. A writing which is the production of the author cannot be copied. He may have derived his material from other sources but ‘The prior art is only relevant as bearing on the question whether an alleged infringer has copied the author or has taken his material directly from the prior art.’ Detective Comics, Inc., v. Bruns Publications, Inc., 2 Cir., 111 F.2d 432, 433; Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 81 F.2d 49, 53. The fact that the plan of plaintiff's narrative is similar to themes of previously published stories does not defeat her claim of originality since it is not essential that any production, to be original within the meaning of the copyright law, shall be different from another—“the true test of originality is whether the production is the result of independent labor or of copying.” Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 697, 221 P.2d 95, 99. It is of no consequence that defendants could have obtained their story from another source when there is strong evidence from which a jury may reasonably conclude that their scenario was copied from plaintiff's story. Idem. One is free to copy the original but he is not free to copy the copy. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249, 23 S.Ct. 298, 47 L.Ed. 460, 462.

Similarity alone is not such absolute and incontestable proof of pirating that the court may make a finding of fact upon a hearing on demurrer. Hence, even though this court should be able to take judicial notice of the books mentioned, a point not necessary to be decided now, the court would not be in a position to determine as a fact at this stage of the case whether plaintiff pirated her story from the books or the plot and theme of the material submitted to defendants was the original product of her inventive genius.

FOOTNOTES

1.  Section 426(3) of the Code of Civil Procedure reads in part as follows:‘If the demand be for relief on account of the alleged infringement of the plaintiff's rights in and to a literary, artistic or intellectual production, there must be attached to the complaint a copy of the production as to which the infringement is claimed and a copy of the alleged infringing production. If, by reason of bulk or the nature of the production, it is not practicable to attach a copy to the complaint, that fact and the reasons why it is impracticable to attach a copy of the production to the complaint shall be alleged; and the court, in connection with any demurrer, motion or other proceeding in the cause in which a knowledge of the contents of such production may be necessary or desirable, shall make such order for a view of the production not attached as will suit the convenience of the court, to the end that the contents of such production may be deemed to be a part of the complaint to the same extent and with the same force as though such production had been capable of being and had been attached to the complaint. * * *’

McCOMB, Justice.

MOORE, P. J., concurs.

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