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District Court of Appeal, Second District, Division 1, California.


Civ. 18270.

Decided: November 08, 1951

Loeb & Loeb, Harry L. Gershon, Los Angeles, Herman F. Selvin, Los Angeles, of counsel, for appellants. Harold A. Fendler, Los Angeles, Jacques Leslie, Beverly Hills, for respondent.

This is an appeal from the judgment following a jury verdict for plaintiff in an action for damages.

Appellants' ‘Introductory statement’ recites that the action is for ‘plagiarism’ in which ‘plaintiff contends that defendants infringed upon his common law copyright in an unpublished story manuscript of 59 pages written by him in 1938 and entitled ‘Manhattan Masquerade’. The claimed infringement is alleged to have resulted from defendants' production and distribution in 1946 of the motion picture ‘She Wrote the Book’, starring Joan Davis and Jack Oakie. It is not claimed that there has been piracy of specific scenes or sequences, gags or dialogue. Plaintiff's claim of piracy rests upon his contention that defendants appropriated and used the ‘central dramatic situation’, Goulding v. R. K. O. Pictures, Inc., 35 Cal.2d 690, 221 P.2d 95, of his story in the production of their motion picture.

‘The evidence upon which plaintiff relies in support of his contention is that of similarity between the story and the picture with respect to the broad story outline of each; the idea of a woman impersonating the author of a supposedly autobiographical best-selling book depicting the amorous conduct of a beautiful young lady of easy virtue. The pseudo-authoress is feted in the manner befitting her assumed character and attempts by her conduct to justify the reputation she has supposedly earned, almost losing thereby the love of a young man of high moral character. It is defendants' contention that such similarities cannot support a verdict of plagiarism in that they arise only from the common use of a broad theme or idea that, as a matter of law, is not protectible by common law copyright. This appeal presents the question whether under the well-recognized principles of the recently announced decision of the Supreme Court in Golding v. R. K. O. Pictures, Inc., 35 Cal.2d 690, 221 P.2d 95, the judgment is supported by substantial evidence of similarity between plaintiff's story and defendant's motion picture with respect to protectible material contained in the former. Defendants contend that the judgment is not so supported. Defendants also contend that the judgment must be reversed for the reasons that the trial court erroneously instructed the jury as to the applicable law, the damages awarded are manifestly excessive, and plaintiff's counsel was guilty of prejudicial misconduct’.

It is contended by appellant that the evidence was insufficient to sustain the judgment; that the court erroneously instructed the jury, ‘That plaintiff could recover if the jury found that defendants copied a substantial portion of his story without reference to the question whether the portion copied was protectible’; that the court erred in instructing the jury on the subject of ownership; that the court erred in the instruction on damages and that the damages were excessive and that plaintiff's counsel ‘committed prejudicial misconduct’.

On the other hand, respondent contends that,

‘1. Appellants err in stating that plaintiff does not claim ‘piracy of specific scenes or sequences' but relies wholly upon similarities in ‘the common use of a broad theme or idea’. As we shall hereafter show plaintiff contends (and the jury impliedly found) that a substantial portion of plaintiff's story including major characters, characterizations, motivation and a substantial number of scenes and incidents, appearing in the same sequence and order, were all pirated from plaintiff's work. Constant use and repetition throughout their brief by appellants of such words as ‘ideas' or ‘themes' is a basic misconception of plaintiff's theory, testimony, and of the evidence supplied by plaintiff's script and defendants' motion picture.

‘2. Appellants blind themselves to the impeachment of their principal witnesses and to the inferences of bad faith which must necessarily have been drawn by the jury from the constant evasion, contradiction and inconsistent statements of appellants' witnesses Gershenson, Wilson, etc. Appellants err in attempting to whitewash this testimony as ‘uncontradicted and unimpeached’.

‘3. Appellants' attack upon the jury instructions is completely unwarranted because the primary error complained of by appellants was incorporated in the instructions which appellants themselves requested. In any event, any error contained in these instructions was wholly cured by additional instructions requested by respondent, given by the trial court, and which are completely ignored by appellants. It is only by a complete distortion of one instruction and the misconstruction of others that appellants can imply interpretations which are contrary to the express instructions actually given by the trial court.

‘4. The alleged misconduct of respondent's counsel was considered of such little importance by appellants at the trial that their counsel stated to the court that an admonition to the jury was ‘perhaps unnecessary’. Nevertheless the trial court immediately gave such admonition and in denying a motion for new trial expressly ruled that no misconduct had occurred or in any event that appellants had not been prejudiced thereby.

‘5. Appellants err in contending that a motion picture made, owned and copyrighted by a third party (Columbia Pictures Corporation) must be deemed by this court as conclusive evidence ‘refuting plaintiff's claim of originality’ or ‘establishing that much of the material of plaintiff's story is in public domain’. Originality is a question of fact (impliedly found by the jury) and material which is copyrighted by a third party is certainly not ‘in public domain’. Appellants cannot exonerate their piracy from respondent by asserting that they ‘could have obtained the story from another source’. Golding v. R.K.O. Radio Pictures, Inc., 35 Cal.2d 690, 697, 221 P.2d 95. Italics by Supreme Court.

‘6. Appellants completely overlook the basic rule that questions of originality, similarity and copying are questions of fact for the jury and an appellate court should not be asked to substitute its own impressions for the findings of fact made by the trial court or jury.

‘7. Appellants err in constantly referring to certain ‘differences' and ‘dissimilarities' between respondent's story and appellants' picture. None of these relate to the basic counterpart in story, characterization, motivation and sequence of incident and event; but even if they did so relate and ‘such differences are shown to exist, the question remains for the trial of fact to decide the issue’'.

The record reveals that plaintiff had been a professional writer for thirty years. And, as plaintiff's brief recites, ‘Some time during the year 1938 plaintiff originated, created and wrote a literary work subsequently titled ‘Manhattan Masquerade’. This literary work was in the form of a thirteen-page outline synopsis designed for development into a motion picture script; and which was submitted to the defendant on September 1, 1938. This original submission was made to Mr. Joseph Pasternak, then a producer employed by the defendant Universal Pictures Company. Based upon this thirteen-page synopsis, a written agreement was entered into between the plaintiff and the defendant Universal Pictures Company which provided that in consideration of the payment of $250.00 by the defendant Universal Pictures Company, to plaintiff, plaintiff would write and complete an original story of not less than 10,000 words suitable for a motion picture. By this agreement plaintiff granted to defendant an option to purchase this story for the sum of $3,250.00, and the agreement further provided in paragraph 2 thereof ‘in the event that we (Universal) do not exercise said option, we shall have no right, title or interest whatsoever in or to said story’. Subsequently the plaintiff wrote an original story of fifty-nine pages and consisting of some 20,000 words which was delivered to Universal Pictures on November 14, 1938.

‘It was admitted by stipulation that the defendant Universal Pictures retained both the thireteen-page synopsis and the fifty-nine-page screen treatment in their files continuously from the date of first submission through the date of the filing of the action. It was furthermore admitted that a synopsis and review of the plaintiff's literary work was prepared by one Maurice Tombragel, an employee of Universal, and that his review and synopsis were retained in the Universal files at all times after September 14, 1938.

‘Universal did not exercise its option and consequently all rights of ownership remained in plaintiff.

‘During the year 1946 defendants produced and released the motion picture entitled ‘She Wrote the Book’. The jury found that the defendants' picture ‘She Wrote the Book’ substantially copies the plaintiff's work ‘Manhattan Masquerade,’ thereby rendering it valueless.

‘It is an admitted fact in the case that a synopsis of plaintiff's story was mimeographed and placed in a bound volume together with synopses of other story properties which had been submitted to Universal and had either been purchased, produced or rejected. This volume was one of a set of volumes of which there were available on the Universal Picture Company's lot approximately thirty complete sets; one of which was in the office of defendants' executive producer, Joseph Gershenson, who produced the motion picture alleged to have pirated plaintiff's story. There were also one or two sets of these volumes in the Universal Story Department available to all producers and writers on the lot, including the defendants Oscar Brodney and Warren Wilson, who claim they originated defendants' motion picture ‘She Wrote the Book.”

It would serve no useful purpose to detail the stories. They were read to the jury and the motion picture was exhibited. This court has likewise read the stories and seen the moving pictures which were exhibited to the jury and is satisfied that the evidence is sufficient to sustain the implied finding of similarity. Golding v. R.K.O. Pictures, Inc., supra, 35 Cal.2d at page 698, 221 P.2d 95.

During the trial which started on Monday and was concluded the following Tuesday, evidence as to the facts above recited was introduced. That the evidence substantially supports the jury's conclusion there can be no question and the absence of authority of an appellate tribunal to disturb the judgment in such circumstances is well settled.

The attempt by appellant to inject a question of law in the within appeal is unavailing. The same question was presented in Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 221 P.2d 95, 100, which is cited by both parties in the within action. There the opinion recites:

‘The parties are directly at variance as to whether this issue of similarity presents a question of law or of fact. The only direct statements in the cases appear to confirm the playwrights' position that it is a question of fact for the jury. Universal Pictures Co. v. Harold Lloyd Corp., 9 Cir., 162 F.2d 354, 360; Dam v. Kirke La Shelle Co., C.C.[N.Y.] 166 F. 589. However, they extend this point too far when they contend that the determination by the jury of this issue ‘is conclusive’ upon appeal. No finding of fact is binding upon an appellate court if it is not supported by substantial evidence. The function of this court, when the contention of insufficiency is made, is to examine the record to ascertain whether there is evidence to support the verdict of the jury.

‘The situation presented by the issue of similarity is a peculiar one. There is always some evidence in the record. That is to say, if plagiarism is claimed there will always be a play by the plaintiff and one assertedly copied from it by the defendant. Yet the mere existence of two dramatic works in evidence does not, per se, constitute sufficient evidence of similarity. It is necessary to read or view the two works to see if they present any substantial similarity insofar as the plaintiff's property in his work is concerned. This is not to say that the appellate court will substitute itself for the jury to decide what it thinks of the issue of similarity, it is merely a question of determining if there is any substantial evidence of similarity to support the jury's finding.’

And with regard to the ‘protectibility’ issue argued by appellant the court in the Golding case, supra, noted that, ‘If it is established that the plaintiff has a protectible property in his literary work, and there was copying, the elements of liability for infringement or piracy are established and all that remains is the determination of damages. On this latter issue, the rules are the same with regard to literary property as apply to any other form of personal property.’ Cases cited. In the within action there is substantial evidence establishing plaintiff's ‘protectible property’ in the story alleged to have been pirated by defendant.

An examination of the instructions complained of by appellant reveals no prejudicial error. The instructions as requested by both parties and given by the trial court were proper and fair.

In the light of the decisions in such cases the damages in the within action do not appear to be excessive and with regard to the alleged misconduct on the part of plaintiff, the argument relied on by appellant is not sustained by the record.

The judgment is affirmed.


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