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


Civ. 16090.

Decided: April 19, 1948

O'Melveny & Myers, Homer I. Mitchell, W. B. Carman, Jr., and Deane F. Johnson, all of Los Angeles, for appellant. Harold A. Fendler, of Beverly Hills, and John W. Preston, of Los Angeles, for respondent.

This action was brought to recover on an alleged implied agreement of defendant to pay plaintiff for a radio program which plaintiff claims to have originated. The case was tried to a jury. A verdict for $35,000 in favor of plaintiff was rendered upon which judgment was entered. Defendant made a motion for a judgment in its favor notwithstanding the verdict and a motion for a new trial. Both motions were denied. The appeal is from the judgment and from the order denying defendant's motion for a judgment notwithstanding the verdict.

1. The Pleadings. Plaintiff's allegations in his complaint are as follows: During the year 1941 he originated and caused to be prepared, composed and written an original script for a radio program entitled ‘Walter Wanger Presents,’ and a program format entitled ‘Preview Parade’ or ‘Hollywood Preview.’ About September 1, 1941, plaintiff caused the script of his radio program to be recorded upon records for the purpose of submission to prospective sponsors, advertising agencies and broadcasting companies. Plaintiff has at all times retained full ownership of the program and has never licensed nor authorized its use. During the years 1942, 1943 and 1944 plaintiff submitted to defendant his original radio program and the script, format and recording thereof at defendant's special instance and request for the sole purpose of having defendant determine whether or not it desired to purchase or license the right to use it. Pursuant to an implied agreement that if defendant used the program it would pay plaintiff the reasonable value thereof, and in the event defendant did not secure from plaintiff a license to use the program it would remain inviolate in each and every part, about May 1, 1945, and each week thereafter for one year, defendant produced and presented a radio program substantially copying, embodying and using plaintiff's program and radio format without the knowledge, authority or consent of plaintiff. The radio program produced by defendant was entitled ‘Hollywood Preview’ and was broadcast regionally over the Pacific Network of Columbia Broadcasting System, originating at Station KNX in Los Angeles. The reasonable value of the unauthorized use of plaintiff's program was alleged to be the sum of $100,000.

Defendant denied all allegations of plaintiff's complaint except that it admitted that a radio program entitled ‘Hollywood Preview’ had been produced since about May 1, 1945, originating at Station KNX.

2. Sufficiency of the evidence. The verdict of the jury is an implied finding that plaintiff's allegations are true. Defendant contends that the evidence is insufficient to sustain the implied finding that defendant became obligated by an implied agreement to pay plaintiff the reasonable value of the latter's radio program idea.

The principal features of the program originated by plaintiff and communicated by him to defendant are as follows:

1. The announcer introduced a prominent motion picture personality as master of ceremonies thus: ‘Walter Wanger presents Hollywood Preview. Hollywood Preview! Hollywood Preview!—And here is Hollywood's distinguished producer Walter Wanger.’

2. The master of ceremonies, Mr. Wanger, (a) welcomed the listeners to ‘our Hollywood Preview Parade’; (b) stated that the purpose of the program was to give the radio audience a voice in what pictures Hollywood should produce in the months to come; (c) stated that producers do not always know what the public wants, and ‘this is the reason for this ‘Preview Parade”; (d) asked the listeners to send in their opinions as to whether the drama presented on the radio each week would make a good film, and to suggest players for the leading roles; (e) announced that the sponsor would give cash prizes for the best letters; (f) introduced the announcer.

3. The announcer (a) referred to the master of ceremonies as one of Hollywood's most progressive film leaders and the producer of outstanding films (naming them); (b) stated that the master of ceremonies each week would select a story which he felt should be made into a picture; (c) asked listeners to send their opinions; (d) stated that a prize would be given each week for the best letter and if a sufficient number voted for the play it would be produced as a motion picture; (e) again presented the master of ceremonies.

4. The master of ceremonies (a) announced the title of the play to be presented on that evening's program and the names of the authors of the play; (b) asked ‘Do you think it should be made into a motion picture?’ (c) named quests present in the studio who would later give their opinions of the play; (d) named the composer of the music.

5. The drama was presented.

6. The master of ceremonies (a) asked the listeners if they liked the drama and if they would like to see it made into a picture; (b) stated that the real idea of the program was that each week a story would be presented which ‘we think would be a good motion picture;’ (c) asked the listeners to write to Mr. Wanger telling him whether they would like the play made into a picture and why; also to name their choice of stars to play the leading roles; (d) stated that the writer of the best letter would receive a prize; (e) stated that ‘Hollywood is waiting for your answer’; (f) stated that the listeners' letters had helped in a decision to make the drama of the previous week into a picture.

7. The board of experts (guests above mentioned) were interviewed and gave their opinions of the play that had just been produced.

8. The master of ceremonies thanked the experts and asked the listeners if they agreed with the opinions of the quests.

9. The announcer gave the name of the composer of the music for the program and the names of the actors who took part in the play.

Defendant's program as broadcast weekly from its studio in Hollywood for a year is substantially in the following form:

1. The announcer (a) named the sponsor of the program ‘Hollywood Preview’; (b) introduced the master of ceremonies ‘as an eminent star of radio, stage and screen’ who ‘brings you another Hollywood Preview of a motion picture of the future;’ (c) named the play about to be presented.

2. The master of ceremonies (a) announced another ‘Preview Night here in Hollywood’; (b) invited listeners to share in the excitement; (c) referred to the enthusiasm prevailing over the radio version of Hollywood Preview; (d) named the play to be presented and said it was ‘now being prepared for filming’ by one of the leading studios in Hollywood; (e) introduced the star.

3. The drama was presented.

4. The announcer said ‘So ends to-night's Hollywood Preview story,’ and called the star of the radio play to be interviewed.

5. The master of ceremonies interviewed the star.

6. The announcer (a) asked the studio audience to fill out cards ‘giving their comments and indicating their favorites for the picture version’ of the play; (b) gave a commercial announcement; (c) named the producer of ‘Hollywood Preview,’ the director of the radio play and the composer of the music; (d) announced the name of the play to be produced the following week by ‘Hollywood Preview’ and the name of the star who would appear.

A comparison of the foregoing outlines will reveal that there is no substantial difference between the formats of the two programs. In each the program was entitled ‘Hollywood Preview’; the title was repeated and emphasized throughout the production; the announcer introduced the master of ceremonies; the latter was prominent in motion pictures; he stated the title of the play and the name of the star; the drama was presented; it was a play not previously seen in motion pictures; its authors were named; listeners were asked to express their opinions of the play.

The principal differences are these: (1) In plaintiff's format all hearers of the program, both the studio audience and those listening on the radio, were asked to present their opinions, while in defendant's program the expression of opinion was limited to the persons in the studio. (2) In plaintiff's program prizes were offered for the best letters commenting on the play, but defendant offered prizes for only a short period. (This feature will be referred to later.) (3) Plaintiff proposed to use dramatic material that was suitable for producing a picture, while on the program presented by defendant it was stated that the play was ‘now being prepared for filming.’ (4) In plaintiff's program a board of experts or critics gave their opinion of the play. This feature did not appear in defendant's program.

Not only were the idea, plan and material of plaintiff's program copied but the elements of the program appear in the same order of sequence in defendant's presentation.

The dissimilarities between the program prepared by plaintiff and that presented on the radio by defendant are trivial and superficial and are so unimportant as to be persuasive that defendant based its program on plaintiff's fully developed idea and format and on his completely prepared program which he had reduced to writing in minute detail, and that the slight digressions were carefully planned and designed with the intent, purpose and hope of avoiding the charge of appropriating plaintiff's property. By its verdict the jury adopted this theory and we find nothing in the record or in the argument upon which to base a disagreement with its implied finding to that effect.

The omission from defendant's program of the opinions of the board of experts or critics is of no consequence as a distinguishing characteristic. Whether the expression of opinion invited from the public was limited to the studio audience or extended to the radio listeners is not a real variation. It is a difference only in degree. The similarity was in obtaining the opinions of listeners and whether they were present in the studio was immaterial. In neither program was the radio drama based on a motion picture that had already been produced—in one case it might be and in the other it was about to be filmed. The offering of prizes was an item of plaintiff's program. The same feature was introduced into defendant's broadcast for six weeks and was abandoned after defendant received notice from plaintiff claiming infringement.

Plaintiff began the preparation of his program in 1937 or 1938 and worked on it for four years. He prepared a complete radio script for a half-hour production. He made an audition recording of it before an audience in the National Broad-casting Company's studio in which Walter Wanger was master of ceremonies and other actors appeared. The audition recording was produced for submission to advertising agencies, radio network officials and their clients for sale. In January, 1942, plaintiff met Russ Johnson, Pacific Coast KNX program director, at the general office of defendant in Los Angeles where he submitted to and left with Johnson the script, format and recording of the program. Two weeks later Johnson informed plaintiff that he liked the program but that defendant could not use it at that particular time since defendant's prospective clients had no immediate need for the show. Plaintiff then spoke to Ben Paley, defendant's program operations manager, who heard the recording and read the script of the format. Paley arranged for plaintiff to meet Larry Berns and Hal Hudson. Berns had come from New York to build or select new programs for defendant. Hudson became defendant's western program director. The recording was played for Berns who also read the script. Later plaintiff left the recording with Hudson who, some time later, told plaintiff there was no immediate need for the program.

Defendant's employees denied some of plaintiff's testimony and there are conflicts in the evidence as to the sequence of events—the submission of plaintiff's program to Berns and Hudson, the transmission of the proposed ‘Hollywood Preview’ program by Hudson to defendant's New York office, and other matters. There were contradictions of parts of the testimony of some of defendant's employees by other employees. Since the jury has, by its implied findings, determined such conflicts and contradictions as appear in the record a statement of the evidence of the various witnesses would serve no purpose except to lengthen this opinion.

3. Plaintiff's program—an abstract or a concrete idea. Defendant maintains (1) that this action is predicated ‘solely upon an alleged improper use of an abstract idea’; (2) that an abstract idea is not property; (3) that there can be no implied contract to pay for an abstract idea; (4) that if defendant used plaintiff's idea he is not entitled to recover compensation therefor. If we were able to agree with the first contention we would be compelled to apply the other three and to reverse the judgment, for there is no property right in a mere abstract idea. Courts will not protect property in an idea that has not been reduced to concrete form. Bowen v. Yankee Network, Inc., D.C., 46 F.Supp. 62, 63; Stone v. Liggett & Meyers Tobacco Co., 260 App.Div. 450. 23 N.Y.S.2d 210, 212; Williamson v. New York Cent. R. Co., 258 App.Div. 226, 16 N.Y.S.2d 217. Such a right exists only in the arrangement and combination of the ideas—in the form, sequence and manner in which the compositon expresses the idea. Bowen v. Yankee Network, Inc., supra.

Although there is no property right in an idea there may be property in a particular combination of ideas. (Johnston v. Twentieth Century-Fox Film Corporation, 82 Cal.App.2d 796, 187 P.2d 474; Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 561, 90 P.2d 371. It is not merely an idea onwhich this action is based but a combination of ideas that have been reduced to concrete form.

Contrary to defendant's contention this action is not based on the appropriation or improper use of an abstract idea. Plaintiff submitted to defendant a fully developed, completely written, concrete program,1 the salient features of which were used in defendant's broadcasts weekly for an entire year, save only the drama which of course was to be a different one each week. His composition was his property.

When an idea takes concrete form or, as phrased in some of the decisions, when the material is the expression of an idea or a concrete combination of ideas and elements, in differentiation from a mere abstract idea, it is a property right subject to sale. It may become the subject of an implied agreement and is within the protection of the courts against piracy. This rule is illustrated by the following examples: Material suitable for radio broadcasts and motion pictures (Yadkoe v. Fields, 66 Cal.App.2d 150, 152, 151 P.2d 906; a scenario and synopsis for a photoplay (Thompson v. Famous Players-Lasky Corporation, 3 F.2d 707); a phrase, scheme, picture or slogan originated for advertising purposes (Ryan v. Century Brewing Co., 185 Wash. 600, 55 P.2d 1053, 104 A.L.R. 1353; Liggett & Meyer Tobacco Co. v. Meyer, 101 Ind.App. 420, 194 N.E. 206, 210; Healey v. R.H. Macy & Co., 277 N.Y. 681, 14 N.E.2d 388, affirming 251 App.Div. 440, 297 N.Y.S. 165); a detailed plan for the manufacture, design, packaging and labeling of candy tablets (American Mint Corporation v. Ex-Lax, Inc., 263 App.Div. 89, 31 N.Y.S.2d 708); a plan as to form and substance of newspaper interviews (Jenkins v. News Syndicate Co., Inc., 128 Misc. 284, 219 N.Y.S. 196); an idea evolved into a basic radio program. Cole v. Phillips H. Lord, Inc., 262 App.Div. 116, 28 N.Y.S.2d 404.

‘Abstract’ is defined as ‘considered apart from any application to a particular object.’ (Webster's New International Dict., 2d Ed., p. 10.) ‘Concrete’ means ‘belonging to actual things or events; real; specific.’ (Id., p. 555.) Plaintiff's abstract idea as originally conceived, that is the idea without application to anything in particular, might have been stated thus: An announcer and a master of ceremonies; performance of a drama; listeners invited to say whether they would like to see the drama in a motion picture; prizes for best letters; drama criticised by a board of judges or critics. Such an idea, if disclosed to others, could have been used by them without hindrance from plaintiff and without liability to him for compensation. But plaintiff didnot offer his idea to defendant in that abstract form. He developed it until it became real, specific and actual. Every part of the idea was embodied and narrated in a complete, sequential recital. As produced and recorded in the studio it made a half-hour program, which was the time plaintiff intended it to consume on the radio. The same period was occupied by defendant's simulation of plaintiff's material.

Plaintiff did not propose to defendant merely a plan or an outline of an idea such as those found in the Bowen, Stone and Williamson cases above cited. He composed and wrote the words of the entire show save only each week's drama and the spontaneous comments which the critics would make. He left nothing to be inserted, nothing to be altered. His program was as concrete, definite and specific as could be devised by the use of words.

In its opening brief defendant raised the defense now being discussed, that plaintiff had formulated only an ‘abstract idea.’ However, in its closing brief defendant concedes that ‘plaintiff's treatment, development, and expression of its [sic.] ideas resulted, of course in the creation of a piece of literary property as evidenced by his script and audition recording * * * By reason of such treatment, development and expression of ideas there was also formulated a ‘plan’ or ‘system’ for the presentation, intended to be used not only on the particular audition recording but on succeeding programs in a series.' (Emphasis added.) This admission relieves us of a further examination of this phase of the appeal. In connection with this concessin defendant asserts that it ‘claims no right to use that literary property.’ Notwithstanding this disclaimer it has appropriated and usd for its own profit both plaintiff's literary production and his concrete program idea. This will be discussed in a subsequent portion of this opinion.

4. Newness and novelty of plaintiff's idea. Defendant contends that plaintiff is not entitled to recover for the reason that his performance was neither new, novel, nor unique and that no enforcible agreement to pay for an idea can be implied unless the idea is new and novel since there would then be no consideration for the contract. Defendant refers at length in its brief to the pitter-patter that is heard daily and hourly on the radio and to the similarity of the programs and the manner of their presentation in an apparent effort to induce the belief that nothing new in the form of a radio program can be devised. Some of the features to plaintiff's program may not have been new but there was a combination and sequence of elements which the jury impliedly found to be novel and to have been originated by plaintiff.

The question of originality of plaintiff's program is not one of law to be determined by the ocurt but is one of fact for the jury's decision. Yadkoe v. Filds, 66 Cal.App.2d 150, 159, 151 P.2d 906; Dezendorf v. Twentieth Century-Fox Film Corporation, 9 Cir., 99 F.2d 850, 851; New York Belting & P. Co. v. New Jersey etc. Co., 137 U.S. 445, 450, 11 S.Ct. 193, 34 L.Ed. 741, 743. In Cole v. Phillips H. Lord, Inc., 262 App.Div. 116, 28 N.Y.S.2d 404, 409, the court held that a property right exists with respect to ‘a combination of ideas evolved into a program’ and whether plaintiff was entitled to recover on an implied contract was a question for the jury. The judgment of dismissal was reversed and the case remanded for a new trial. We have been furnished with a copy of the unreported opinion rendered by the trial judge on the second trial. It has no bearing on the instant case. The court did not discuss any question of law with which we are now concerned but found from the evidence that the plaintiff's idea or formula for his program was not new or novel and that he was not entilted to recover damages by reason of defendant's use of a similar program.

To entitle plaintiff to protection it is not necessary that his work or the materials therein be entirely new and have never been used before, or even if they have been used it is not necessary that they have never been used for the same purpose. ‘The truequestion is, whether the same plan, arrangement and combination of materials have been used before for the same purpose or for any other purpose.’ Even though he may have borrowed materials from others, if he has combined them in a different manner his composition will be protected. Emerson v. Davies, Fed.Cas. 4,436, 8 Fed.Cas. 615, 618; Edwards & Deutsch Lithographing Co v. Boorman, 7 Cir., 15 F.2d 35, 36.

To be original does not contemplate that every feature must be new. If this were the test for originality and uniqueness it would be difficult to obtain a copyright for a book, song or play, since plots, materials, ideas and circumstances constantly repeated but in a different form or combination. Materials used in a composition may be ‘old and in the public domain,’ but a copyright thereof will protect ‘the particular plan, arrangement, and combination’ of the author. Edwards & Deutsch Lithographing Co. v. Boorman, supra. Originality is attained by ‘taking commonplace materials and acts and making them into a new combination and novel arrangement.’ Universal Pictures Co., Inc. v. Harold Lloyd Corporation, 9 Cir., 162 F.2d 354, 363.

Defendant contends that the lack of newness and novelty of plaintiff's idea is shown by defendant's evidence that its Transcontinental Program Director, Mr. Vanda, before he heard of plaintiff and his program, considered using an idea similar to plaintiff's in a program to be entitled ‘Search fo rStories.’ It does not appear that Vanda's idea was developed nor does it appear that such a program was ever produced on the radio by defendant or by any other broadcasting company. There was evidence that Hudson, also in defendant's program department, without knowledge of plaintiff's program, conceived an idea of dramatizing stories written for new pictures and presenting them on the radio with some form of listener participation in judging the value of the stories for motion picture purposes. Notwithstanding this evidence, the fact was for the determination of the jury who were the sole judges of the weight of the evidence and were not bound to accept any testimony as true if they did not believe it. Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 561, 90 P.2d 371; Yadkoe, Dezendorf and New York Belting Co. cases, supra.

Defendant refers to the facts that the presentation of a large number of plays of various kinds over the radio each day has made that feature commonplace; that the term ‘Hollywood Preview’ has been used for many years in the showing of motion pictures; that listener praticipation is not new; that prize competitions of different character are a part of several radio shows. From these facts defendant deduces the argument that plaintiff's radio program is wanting in originality. In the instant case there is a combination of cfeatures and a method of their combination which, insofar as the record discloses, had not been presented in a radio program prior to its conception by plaintiff and its submission by him to defendant. ‘Hollywood Preview’ had never before been used as the title of a radio program. The title, the request that listeners state their preference for stories to be dramatized and produced in motion pictures and that they suggest the names of stars for the principal parts, the offer of cash prizes for the best letters, were combined into one radio show.

There is evidence that radio programs were previously presented entitled ‘Hollywood Startime,’ ‘Hollywood Playtime,’ ‘Hollywood Players' and ‘This Is Hollywood,’ but plaintiff was the first person to designate a radio program as ‘Hollywood Preview,’ and was the first to combine that name with the features appearing in his program.

We must apply the rules found in the cases above cited, to wit, that the work or materials need not be entirely new but may be in the public domain or have been borrowed from others, that a new or different combination of old ideas will be protected aginst piracy, that feature be new, that demand that every feature be new, that commonplace materials may be made into a novel arrangement, and finally that the question of originality is one of fact for the jury to determine. The application of these rules, together with evidence of a substantial character sustaining the implied finding of the jury that the form of plaintiff's program and the ‘plan, arrangement and combination of materials' were new and novel in radio production, precludes a reviewing court from ignoring the verdict insofar as it determines this feature of the appeal.

5. Defendant's appropriation of plaintiff's idea, plan and arrangement. Defendant contends that there is no substantial evidence that it appropriated features of plaintiff's program. Much of what we have already said is applicable to this contention. The similarity of the two programs is shown by the outlines which we have set out.

Ideas, though in a copyrighted book or play, may be copied and used but the form, sequence or manner in which the idea is developed, treated or expressed cannot be appropriated.

The fact that the radio program originated by plaintiff was not copied verbatim by defendant or that it did not use the exact expressions or arrangement of words found in plaintiff's material does not relieve it from liability. Changes made in the original plan of the program or ‘omissions from or additions to the original’ do not excuse an unlawful appropriation. Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 562, 90 P.2d 371; Nutt v. National Institute, 2 Cir., 31 F.2d 236, 237; Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 81 F.2d 49, 56; Boosey v. Empire Music Co., D.C., 224 F. 646, 647. ‘Copying is not confined to a literary repetition, but includes various modes in which the matter of any publication may be adopted, imitated, or transferred with more or less colorable alteration.’ Disguisig the source from which the material was derived does not defeat the protection provided for the originator of the work. King Features Syndicate v. Fleischer, 2 Cir., 299 F. 533, 535.

The issue is whether defendant appropriated and used plaintiff's idea, plan and arrangement as a model and made colorable alterations and variations to disguise their use, and that issue was for the jury to decide. Barsha v. Metro-Goldwyn-Mayer, supra, 32 Cal.App.2d at page 560, 90 P.2d at page 373. It was within their province to draw reasonable inferences from the evidence, to judge the weight of the evidence, and to reject evidence if they were not convinced of its truth. 32 Cal.App.2d at page 561, 90 P.2d at page 374. If similarities of the two programs be shown to the extent that they justify an inference that plaintiff's material was copied or imitiated, proof that a substantial part of plaintiff's program was appropriated is sufficient to render defendant liable. Barsha case, 32 Cal.App.2d at page 561, 90 P.2d at page 374; Fendler v. Morosco, 253 N.Y. 281, 171 N.E. 56, 60. Where the only similarity between the two songs was the copying of one phrase an injunction was issued restraining the sale of the song last published. Boosey v. Empire Music Co., supra.

Defendant invokes the rule that in order that a plaintiff recover damages he must prove that the defendant had access to the plaintiff's work (citing Echevarria v. Warner Bros. Pictures, D.C., 12 F.Supp. 632, 638; Dezendorf v. Twentieth Century-Fox Film Corporation, D.C., 32 F.Supp. 359 [reversed 9 Cir., 99 F.2d 850]; and Columbia Pictures Corporation v. Krazna, Sup., 65 N.Y.S.2d 67, 69), and contends that its offering of prizes for six weeks coul dnot have been copied from plaintiff's program because there is no evidence that the individuals who incorporated the contest idea in defendant's program had had access to plaintiff's composition; in fact, says defendant, the evidence is conclusive that those individuals had no knowledge of plaintiff's program. To say that defenadant did not have access to the program is to deny or ignore the positive evidence to which we have referred that at least three persons in defendant's program department had read plaintiff's script and had heard the playing of the recording long before defendant began the broadcasting of its program. It is of no importance whether or not the persons who actually prepared defendant's production or those who created the contest idea in it had had access to plaintiff's material, since other responsible employees who had charge of program production admitted on the witness stand that they had read plaintiff's script, had heard his recording, and that they knew all the details of his plan. Th ejury had a right (1) to draw the inference that those of defendant's employees who knew the details of the program had suggested its duplication or had related the details of the plan to other employees who adopted and produced it; (2) to disbelieve the testimony that the writers of defendant's show had not had access to plaintiff's program.

6. Effect of public production of plaintiff's program. Prior to plaintiff's offer of his program to defendant he presented it before a selected audience of 400 persons in a studio of the National Broadcasting Company in Hollywood and at the same time had a recording made of it. Such presentatio was in the same form as read and played to the jury. Defendant contends that the disclosure of plaintiff's idea to the studio audience was such a voluntary and intentional publication of it as to dedicate it to the public, thus authorizing defendant or any other person to copy and to reproduce it, citing section 9832 of the Civil Code, in connection with which section 9802 must be be considered. While counsel have discussed the amendments to these sections adopted in 1947, the reason for their adoption and the effect of the sections as amended we shall nor discuss them since plaintiff's cause of action arose, the case was tried and judgment endered prior to the effective date of the amendments.

Defendant maintains that an agreement will not be implied on its part to pay for the ‘idea’ which it contends any one had a right to use without consideration. It is agreed by counsel for both litigants ‘as far as ideas are concerned the California statute is simply a codification of the common law.’

It is argued with emphasis that since this action is based on an ‘idea’ (which defendant subsequently conceded resulted in the ‘creation of a piece of literary property’) and since the idea (with the literary property) was presented to a studio audience plaintiff thereby abandoned such property right as he possess in it and dedicated to the public the right to copy it and to reproduce it on the radio or otherwise.

We have pointed out that plaintiff is not suing to recover damages for the appropriation by defendant of a mere idea. The complaint alleges that plaintiff ‘originated and caused to be prepared, composed and written an original script for a radio program;’ that he caused the script of his program to be recorded upon records; that he submitted his ‘original radio program and the script, format and records thereof’ to defendant; that defendant produced and presented a radio program substantially copying and using ‘plaintiff's radio program and radio format.’ Plaintiff not only prepared and produced an ‘iea’ but he prepared a completely written program (now admitted by defendant to be literary property) setting forth every word that was to be said on the radio with two exceptions: (1) the drama which he could not have written because a new drama was to be presented each week; (2) the interview with the experts or critics which could not be prepared in advance because the questions asked of them and their answers were to be spontaneous, extemporaneous and unrehearsed, each critic expressing in individual language his or her observations as to the worth of the drama as the basis of a motion picture.

‘The common law prohibits any kind of unauthorized interference with, or use of, an unpublished work on the ground of an exclusive property right.’ 18 C.J.S., ‘Copyright and Literary Property,’ § 2. This statement ‘is consistent with the rule of law as to literary property embodied in section 980 of the Civil Code.’ Yadkoe v. Fields, 66 Cal.App.2d 150, 160, 151 P.2d 906, 911.

Publication of a literary work is effected by communicating or dedicating it to the public. This is known as a ‘general publication.’ There is also a ‘limited publication’ which is one that ‘communicates a knowledge of its econtents under conditions expressly or impliedly precluding its dedication to the public.’ Werckmeister v. American Lithographic Co., 2 Cir., 134 F. 321, 324. ‘When a literary work is exhibited for a particular purpose, or to a limited number of persons' it does not thereby become publici juris and the author retains ownership of the work until he relinquishes it either by contract or by an ‘unequivocal act indicating an intent to dedicate it to the public.’ Palmer v. De Witt, 47 N.Y. 532, 543, 7 Am.Rep. 480; Werckmeister v. American Lithographic Co., supra, 134 F. at page 326; American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299, 28 S.Ct. 72, 52 L.Ed. 208, 217, 12 Ann.Cas. 595. The making of a recording of plaintiff's program in the presence of an invited, limited audience was not a publication of the program to the extent of abandoning it to the public with the right to reproduce it. Nutt v. National Institute, 2 Cir., 31 F.2d 236, 238; Thomas v. Lennon, C.C., 14 F. 849, 851; Press Pub. Co. v. Monroe, 2 Cir., 73 F. 196, 198. In Ferris v. Frohman, 223 U.S. 424, 435, 32 S.Ct. 263, 56 L.Ed. 492, 497, the court held that the public presentation of an unpublished dramatic composition does not deprive the owner of his common-law right of protection and that at common law the public performance of a play is not an abandonment of it to the public use.

The rendering of a performance before a radio microphone is not an abandonment of ownership of the literary property or a dedication of it to the public at large. Upon Co. v. National Broadcasting Co., D.C., 8 F.Supp. 358, 362. This decision was affirmed in 1 Cir., 81 F.2d 373, where the court held (81 F.2d at page 376) that the author retained his exclusive rights in the literary material whether or not he had licensed the right to broadcast it by radio. A public performance of a dramatic or musical composition is not an abandonment of the production to the public. McCarthy & Fischer, Inc. v. White, D.C., 259 F. 364. Public exhibition is not necessarily a publication merely because the public generally is given access to the work. The test is whether the exhibition to the public is ‘under such conditions as to show dedication without reservation of rights or only the right to view or inspect it without more.’ The exhibition of a motion picture without charge to a number of audiences in public places does not constitute a publication dedicating the picture or any material contained in it to the general public. Patterson v. Century Productions, Inc., 2 Cir., 93 F.2d 489, 492. A scenario and synopsis for a photoplay is a production of intellectual labor and protected against piracy. Thompson v. Famous Players-Lasky Corp., D.C., 3 F.2d 707. The delivery of copies of a poem to members of a ‘literary committee’ to enable them to decide whether it was suitable for their acceptance and presentation at a public meeting was not a publication of the poem and did not prejudice the owner's common-law rights. Press Pub. Co. v. Monroe, supra.

Since plaintiff is asserting a property right in his idea plus the fully developed, written composition concretely expressing the idea, the cases cited by defendant to the effect that mere ideas and plans are not subject to protection have no bearing on th eissues involved in this action. In Downes v. Culbertson, 153 Misc. 14, 275 N.Y.S.233, the plaintiff sought an injunction to restrain the defendants from using a method of teaching the game of bridge alleged to have been invented and originated by the plaintiff. The court held, 275 N.Y.S. at page 242, that neither the method of teaching nor the arrangement of materials is a subject of property rights and that they may be fully used and copied. In Glazer v. Hoffman, 153 Fla. 809, 16 So.2d 53, the plaintiff, who was amagician, had originated and developed a new trick in magic. The court refused to enjoin the defendant from copying and producing it publicly, holding, 16 So.2d at page 55, that the plaintiff's performance was not within the copyright statute and that the public exhibition given by him was a dedication of his act to the public. Affiliated Enterprises, Inc. v. Gruber, 1 Cir., 86 F.2d 958, involved a plan and procedure for ‘bank night’ designed to increase attendance in theatres. The plan was held to have became common property when it was publicly presented ‘without th eprotection of a patent.’ These and other cases cited by defendant were tort actions, in none of which did the plaintiff claim any rights under contract, express or implied.

8. Defendant's motion for a new trial. The motion was made on three grounds: (1) newly discovered evidence, (2) excessive damages, appearing to have been given under the influence of passion or prejudice, (3) insufficiency of the evidence to justify the verdict and that the verdict is against law.

The second and third grounds have already been discussed and determined adversely to defendant's contentions.

The newly discovered evidence is set forth in the affidavit of one James Allen. He states that in 1935 he conceived the idea of a radio program which would dramatize stories and present them to the listening public as a ‘show case’ of possible literary material for the legitimate stage; a ‘show case’ is a presentation of literary material to radio listeners, giving the author the opportunity of having his material heard and approved or disapproved by the public; he registered his radio program idea in 1935 with ‘Billboard,’ a theatrical publication, in New York City; in 1939 he conceived the plan of directing his radio program idea to motion pictures instead of to legitimate stage plays; the idea was to present dramatization of scripts, books, scenarios and plays which had never been produced as motion pictures but which might be suitable therefor and to present them to the radio public so that they might submit comment as to whether they would like to have the dramatizations made into motion pictures; on May 22, 1939, he registered his radio program idea with the Screen Writers' Guild; he conceived the two titles ‘Play Preview’ and ‘Preview Parade’ as suitable titles for the program.

Allen included only one title, ‘Play Preview,’ in his registration. He did not have as a part of his program a request for letters from listeners or the offer of prizes. His idea was to direct the author's material ‘to the attention of stage and screen producers,’ not to the public generally. He states that plaintiff had nothing whatsoever to do with the origination or development of the idea and that plaintiff's only connection with th eprogram was that Allen employed him as musical director in June, 1939, while Allen was preparing the script for an audition recording of a program based upon his idea. There are affidavits of other persons tending to corroborate the statements contained in Allen's affidavit.

The affidavits filed in opposition to the motion for a new trial create the same amount and character of conflict as that presented by the evidence offered at the trial.

Plaintiff states in his affidavit that ‘Hollywood Reporter,’ a motion picture publication, contained an article in its issue of March 8, 1939, referring to the mediocre character of pictures then being produced and stating that audience participation would be enlisted with the expectation of criticisms addressed to the nearest Warner's exhibitor. Based on the ideas in the Hollywood Reporter and similar articles in other trade papers, plaintiff states, he conceived the idea of combining in a single radio program all the elements contained in the various news articles together with ideas of his own; that in May, 1938, he had completed a tentative format for his program including tentative titles of ‘Hollywood Preview,’ ‘Preview Parade’ and ‘Hollywood Preview Parade:’ participation by the radio listening audience in the slection of motion picture material by the solicitation of letters from the public commenting upon the prospective use in motion pictures of such radio material and suggesting stars and leading players whom the radio public would like to see portrayed in the motion picture roles; he included in his format a committee of experts to judge the letters and award cash prizes each week for the best letters submitted; he states the names of three friends with whom he discussed this idea of entertainment in the summer of 1938. These persons submitted affidavits corroborating plaintiff as to his discussions of his program with them. Plaintiff states that in May, 1939, he was notified that the radio station with which he had been connected was to be sold, and in seeking other employment he met James Allen about June 1, 1939; he was told that he would be employed to compose and conduct the music that would be specially written for each of Allen's programs which the latter was then contemplating; he participated in a series of conferences with Allen and others at which the title, format and details of Allen's proposed new program were formulated; he made several suggestions as to the content, composition and format of Allen's program and suggested to Allen the titles ‘Preview Parade’ and ‘Hollywood Preview Parade;’ he also suggested that the listening audiences comment upon the suitability of the material and name the stars they would like to see portrayed if the radio material should eventually be seen on the screen; Allen adopted that idea. Plaintiff states that he never received from Allen or from many of his associates any part of the program idea which he, plaintiff, conceived in 1938, the audition recording and format of which were introduced in evidence at the trial of this action. He further states that he never disclosed to Allen his idea of awarding cash prizes for the best letters submitted or the title ‘Hollywood Preview.’ Affidavits were filed corroborating many portions of plaintiff's statements.

In June, 1939, Allen prepared a prospectus setting forth his ‘idea’ of his proposed program but did not disclose in the prospectus any part of the program itself or any ‘concrete idea’ thereof. Plaintiff was named on this prospectus as the musical director. The printed prospectus was distributed to numerous persons who Allen thought might be interested in the program and to advertising agencies and radio stations.

Defendant contends that Allen's proposed program and those of Vanda and Hudson, to which we have referred, together with Stanley's, were the ideas of four different persons each claiming to have originated the idea. The Vanda annd Hudson programs were before the jury at the trial. The court had that evidence, Allen's affidavit and plaintiff's affidavit before it for consideration on the motion for a new trial and had a right to determine whether Allen's claim was sufficient to warrant a new trial. The court determined adversely to defendant's contention and we do not find from the entire record that there was any abuse of discretion in the ruling of the court.

Defendant further contends that since Allen publicly distributed his printed prospectus containing a defective notice of copyright his idea was dedicated to the public and that defendant therefore was privileged to use it. It is not contended that Allen's prospectus ever at any time came into the possession of defendant, or any of its agents or employees; on the contrary defendant's motion for anew trial is based upon the assertion that it had no knowledge of Allen's program ideas until after the judgment was entered in this case. Furthermore defendant does not contend that its program was identical with that of Allen, and the fact is that there are many differences between the two programs.

Even though Allen's program was proclaimed to the public with a defective notice of copyright it is no defense that the source of defendant's program was in the public domain if that source was unknown to defendant and was not used by it. Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 81 F.2d 49, 53, 54; Detective Comics, Inc. v. Bruns Publication, Inc., 2 Cir., 111 F.2d 432, 433; Fred Fisher, Inc. v. Dillingham, D.C., 298 F. 145, 150. In the Sheldon case it is held that prior art is relevant only as bearing on the question whether the alleged infringer has copied or taken his material directly from the work of the author of the prior art. In the Fisher case it is held that if the alleged infringer claims the rights of the public he may use them but he cannot use the work of the copyright owner whether the latter's composition be old or new.

The motion for a new trial is to a large extent addressed to the discretion of the trial judge, and the granting of the motion is so completely within his discretion that an appellate court will not disturb the ruling unless it is manifest that a gross or unmistakable abuse of discretion appears. Fennessey v. Pacific Gas & Electric Co., 10 Cal.2d 538, 544, 76 P.2d 104; Whitfield v. Debrincat, 18 Cal.App.2d 730, 733, 64 P.2d 960; Mazzotta v. Los Angeles Ry. Corporation, 25 Cal.2d 165, 169, 153 P.2d 338.

In passing upon the motion for a new trial the court was confronted with affidavits that conflicted as to manyif not all the material facts, and he had before him the outlines of Allen's program as well as plaintiff's complete production whereby he could determine both the similarities and dissimilarities of the two programs. We find no abuse of discretion in the denial of the motion for a new trial.

The judgment and the order denying defendant's motion for a judgment notwithstanding the verdict are and each of them is affirmed.


1.  Plaintiff's complete program is as follows:Announcer: ‘Ladies and gentlemen, Walter Wanger Presents Hollywood preview! Hollywood Preview! Hollywood Preview!‘And here is Hollywood's distinguished producer, Walter Wanger.’Wanger: ‘How do you do, ladies and gentlemen. Welcome to our Hollywood Preview Parade, a radio show designed for your pleasure and to give you a voice in what pictures Hollywood shall produce in the months to come. Hollywood is very interested in giving you motion pictures you want to see. Unfortunately producers do not and cannot always know just what you do want. This is the reason for this ‘Preview Parade.’ Each week we plan to present a radio story we think will make a good film. We ask you to send us your opinion and suggest players for the leading roles. Our sponsor will give worthwhile cash prizes for the best letters, but more about that later.‘Of the five stories we have so far presented the series, three will be made into motion pictures largely because of your voting.‘Now allow me to introduce Mr. True Boardman.’Boardman: ‘This is the sixth program of the new series, ‘Walter Wanger Presents.’ Your host is one of Hollywood's most progressive film leaders, the President of the Academy of Motion Picture Arts and Sciences, and producer of such outstanding films as Foreign Correspondent, Blockade, Long Voyage Home, Stagecoach, Algiers, and currently Sundown.‘Each week Mr. Wanger selects a story which he feels should be made into a picture. You are asked to write to Mr. Wanger and give him your opinion. The sponsors pay $500 for the best letter written by one of our listeners and if enough of you vote for it our play will be produced as a motion picture.‘And now, once again, Walter Wanger.’Wanger: ‘Thank you, Mr. Boardman. Thought our play is entitled ‘So Gallantly Gleaming.’ It has been written by Harvey Thew, Peter Ordway, and Sonya Levien. The radio adaptation is by Hector Chevigny.“So Gallantly Gleaming' tells a thrilling and romantic story of a great explorer, his beautiful wife, and the acquisition of California. Listen closely. Do you think it should be made into a motion picture? Your votes will decide.‘Our guests who will later give their opinion are Miss Joan Bennett, Hector Chevigny and Henry Hthaway. Music is by Robert Armbruster.’(Drama)Boardman: ‘Thank you ladies and gentlemen. Did you like ‘So Gallantly Gleaming’? Would you like to see it as a motion picture? The story of John Charles Fremont, I think, is one that deserves retelling. In a moment we will hear the opinion of our three Hollywood guests, Joan Bennett, Hector Chevigny, and Henry Hathaway, and then have an opportunity to compare their opinions with yours.‘Now again a word as to the real idea behind this program. Each week Walter Wanger Presents brings you a story which we think would be a good motion picture. And here is your part in the program. We ask you to write to Mr. Wanger, telling him whether or not you would like to have this play made into a motion picture, and why. Also include your choice of stars toplay the leading roles. The best letter received each week will receive an award of $500 from our sponsor. The award is based not on the style of your letter, not on brilliant writing, but entirely on the reasons you set down as your opinion. And believe me, Hollywood is waiting for your vote. Whether or not you win a prize, your vote will help decide whether or not to film ‘So Gallantly Gleaming.’ The American picture-going public has long said it wished a voice in the choice of stories presented on the screen. Here s the chance for you to have that voice and make it heard across the nation. Write your letter now, tonight. Address Walter Wanger, Hollywood, California.‘Last week Mr. Wagner presented ‘Out of the Night,’ the sensational novel which has attracted such nationwide comment. A storm of argument was aroused. 68,000 letters have been received to date, and we are happy to announce that Warner Brothers Studio have arranged to make this startling story into a film in the near future. So, thanks to your letters, you have helped Warner Brothers to their decision to film ‘Out of the Night.’‘Last week's best letter was from Mrs. William Wentworth of Brockton, Massachusetts. Congratulations, Mrs. Wentworth! Your check for $500 goes forward immediately.‘Now, Mr. Wanger, I think we are all anxious to hear the opinions of our guests about tonight's show.’(Interview With Board o fExperts)Wanger: ‘Thank you. Thank you very much. Thank you, Joan Bennett, Henry Hathaway, Hector Chevigny. Do you ladies and gentlemen, agree with the opinions of our guests? Do you agree that ‘So Gallantly Gleaming’ should become a motion picture? And who do you think should play the leading roles? Won't you write and tell us. Remember that whether your letter is best and wins the prize or not, you are helping Hollywood decide on what to give you on the screen. Next week we will have something totally different for you, a story called ‘Two Arabian for you, a story called ‘Two Arabian Knights.’ Until then, this is WalterAnnouncer: ‘Walter Wanger Presents is brought to you at this same time each week by our sponsor. Original music for tonight's show was written and directed, as always, by Robert Armbruster. The cast included Hollywood's outstanding radio stars—Lurene Tuttle, Lou Crosby, Norman Field, Elliot Lewis, Lou Merrill, Frederick Shields, Paul Whitley, Norene Gamille, Gayne Whitman.‘This is John Hiestand hanging out the ‘Goodnight’ sign until we meet again next week at this same time. This is the National Broadcasting Company.'

FN2 Sections 980 and 983 of the Civil Code as enacted in 1872 and as they read until the 1947 amendment, (Stats.1947, ch. 1107) read:Sec. 980. ‘The author of any product of the mind, whether it is an invention, or a composition in letters or art, or a design, with or without delineation, or other graphical representation, has an exclusive ownership therein, and in the representation or expression thereof, which continues to long as the product and the representations or expressions thereof made by him remain in his possession.’Sec. 983. ‘If the owner of a product of the mind intentionally makes it public, a copy or reproduction may be made public by any person, without responsibility to the owner, so far as the law of this state is concerned.’.  FN2 Sections 980 and 983 of the Civil Code as enacted in 1872 and as they read until the 1947 amendment, (Stats.1947, ch. 1107) read:Sec. 980. ‘The author of any product of the mind, whether it is an invention, or a composition in letters or art, or a design, with or without delineation, or other graphical representation, has an exclusive ownership therein, and in the representation or expression thereof, which continues to long as the product and the representations or expressions thereof made by him remain in his possession.’Sec. 983. ‘If the owner of a product of the mind intentionally makes it public, a copy or reproduction may be made public by any person, without responsibility to the owner, so far as the law of this state is concerned.’

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.