*1 interprets my majority opinion Because it is belief that the 980 of so nar- 1947 amendment to section the Civil Code rowly protection products no provide as to whatever mind and author’s creative because there is inherent determining too a test for issue of therein strict productions, judg- I two would reverse the entire ment with directions to the court de- trial overrule the they permit if murrers defendants answer be so advised.
Appellant’s petition rehearing May 28, for a was denied Carter, J., 1953. opinion petition was should granted. A. No. Apr. 22094. Bank.
[L. 1953.] KURLAN, ARTHUR Appellant, v. COLUMBIA BROAD SYSTEM, (a CASTING INC., Corporation) al., Re et spondents. *2 Fendler, Lerner, Weber & Harold A. Fendler and Daniel Appellant. for A. Weber
Aubrey Pacht, Ross, Warne, & Finn, I. Tannenbaum Clore Greenberg, E. as Amici Curiae Stulberg Gordon and Maxwell Appellant. on behalf of Mitchell,
O’Melveny Myers, & Homer I. W. B. Carman Respondents. for Harned Pettus Hoose Thelen, Bridges, & & Marrin, Loeb, Johnson Loeb Her- Harry Gershon, L. as Amici Curiae man F. Selvin on Respondents. behalf of
EDMONDS, J. suing Arthur Kurlan is Columbia Broad casting System, Inc., damages and others ground they copied proposed and used a owned Lesser, ante, him. As Weitzenkorn v. p. 778 [256 appeal P.2d 947], judgment is from a upon an entered sustaining order the demurrers of the defendants without leave to amend. action, For his first cause of Kurlan alleges that Ruth
MeKenney “originated, created and wrote certain stories Magazine’ the ‘New Yorker subsequently which were drama ‘My stage play tized in a entitled and which Eileen,’ Sister subsequently were used as the basis of a picture motion photo- ‘My play entitled also featuring the same Sister Eileen’ *3 leading female characters known as ‘Ruth’ ‘Eileen,’ and and depicting unique characterizations and relationships between by said He that, characters.” states written agreement, Mc -Kenney transferred to him “the sole andTexclñsivRrifybt. to broadcasting purpoges_saidpleading usé for radio female assigned characters.” She also to him “all radio broad casting rights” “expressly which she had reserved” in con prior nection with licenses and uses of these characters. A allegation that, prior further to commencement of MeKenney assigned this to him action, all of causes action might against which she these arising defendants out alleged complaint. of transactions then pleads “conceived, Kurlan that he originated, and original program a new and devised original idea and program” featuring untitled radio and Ruth Eileen. In program, with this states, connection he he originated new program techniques and of methods radio presentation, in- production cluding a new radio format. These, he says, he “reduced concrete form and to embodied” in a script written sample and a audition at recording, $10,000, of cost retain- ing rights at all times his common law of ownership and authorship. that he submitted program
Kurlan states his radio to special request their instance defendants at pursuant agreement. In of such express an oral consideration sub- part program they they any if or of the mission, used all him The ac- promised pay its reasonable value. defendants program script recording, he cepted submission of the states, fully and became familiar with it. There- it, heard defendants, after, other without Kurlan’s author- CBS ity license, and broadcast over a produced or coast-to-coast “My weekly programs entitled, network series broadcast, complaint continues, Irma.” This radio Friend copied, program used and embodied his radio substantially damages general $150,000 Kurlan claims idea and format. “personal property.” rendering valueless his incorporates by count of the second except the aver allegations one all first reference express agreement. addition, to an respect ments with program submitted his radio idea and that Kurlan declares recording request at to the defendants their sample audition by upon payment use them purpose of sale to or its him of reasonable value. incorporates by reference all
The third count also except respect with one the averments allegations first express agreement. alleges It then that Kurlan sub to an recording program idea and audition to the his radio mitted request pursuant implied agree an at their defendants if submission, for the used that, in consideration ment program them, they pay him reasonable value would idea, any part of it. allegations all incorporating reference
After respect except express count those of the first program that the radio fourth count asserts agreement, the request pursuant their defendants at was submitted usages. These customs, customs, practices to trade the defendants would not use complaint declares, are that any part of his without his consent copy all or permit derogation act they do or would *4 its value. allegations count, except first of the By reference, all agreement, program use of the express respecting those part of fifth damages, are made a the and defendants the he his pleads submitted to then one. Kurlan purpose for the of sale to them. request at their defendants recording, says, he and retained it in They the audition heard weeks, becoming fully familiar several for possession their contents. with its
Thereafter, according complaint, to the defendants negotiated production him with of a of radio series programs upon These negotiations, based his idea. Kurlan states, were terminated when the defendants informed him they his idea, “intended to use” and characters format compensation by merely changing “without therefor the names leading describing of the characters and female characters girl According Kurlan, friends sisters.” instead of to by doing they expense defendants said that would so save the McKenney compensating of him and and own and control program. alleges immediately objected Kurlan that he proposed action they and notified defendants that peril. would act at their
Thereafter, states, Kurlan knowledge with full notice and rights disregard of his and “in wilful and thereof,” deliberate the defendants broadcast over a coast-to-coast network weekly “My programs entitled, series radio Friend Irma.” programs substantially These copied, used, embodied and mis- appropriated unpublished sample his “untitled and audition recording.” By conduct, says, such Kurlan the defendants royalties appropriated “have rights," benefits, profits and solely exclusively to which” he entitled,” “is they destroyed the value of “personal property.” his He alleges general damages in the amount $150,000. allegation
The fifth count includes an that, because of their practicable nature, “it is not complaint” attach recording either recordings Kurlan’s audition of the de- program. fendants’ recordings The defendants’ are possession control, their said. Kurlan makes proferí recording of his and consents records which be submitted to the part defendants “shall deemed to abe complaint of this purposes upon demurrer, all proceeding By motion other stipulation, in this cause.” allegation part was made a of the preceding each counts complaint. The defendants demurred grounds that each count fails to state facts sufficient to constitute a They cause of action. require also moved to Kurlan comply 426(3) section the Code Civil Procedure. require compliance motion with the statute was granted and the records of both programs were ordered to be introduced and filed as exhibits on demurrer. There- after, demurrers were sustained without leave to amend
judgment nothing against plaintiff entered “that take said ’’ defendants. recordings of scripts
This court has and heard studied the programs. “My Eileen,” both program, Hurlan’s Sister Eileen,” Ruth and features further adventures of “the McKenney’s best-selling principal characters “from Ruth Broadway picture of and motion hit” stories and from the to program The idea of the is principal the same name. McKenney’s capitalize upon of creation. As stated success advertising script, “Millions in blurb in the audition play or seen the and Eileen stories people have read the Ruth million dollars worth . means that several picture . . which already you, money spent has been one else’s some highly . been . These characters have Prospective Client. . Mr. medium—magazines—books—stage—and every successful presented never before been . . . but—as series screen they are best suited.” for which medium on air . . the . Ruth as follows: summarized Eileen found apartment which living in an Eileen are sisters average intelli- City. possesses Ruth in New York for them pair. balance wheel is the gence capabilities naive, impulsive, com- scatterbrained, semi-moronic, Eileen is consequences of most thoughtless and oblivious pletely under con- picture actress a motion Ball, of her acts. Lucille of Ruth. part Kurlan, plays the tract of incidents which Ruth, as introduces a series narrator, embarrassing extremely stupidity creates situations Eileen’s constantly trying one or both to rescue to Ruth. Ruth to add Eileen continues com- scrapes, from Eileen’s while them are efforts, situations Through Eileen’s plications. Ruth’s pair. benefit turned to the directly arise, situations Eileen creates Most indirectly, man-crazy. fact that Eileen She astonishing capacity acquiring any man, and has an trusts ways. This large numbers of them unorthodox trait intro- including into the program, minor characters duces certain girls. male who moves to live with the dispossessed one Eileen, who, Texan boor thanks a loud-moüthed There is Among attentions Ruth. other char- his crude forces landlady ill-tempered and an old canine are an eccentric acters boy Lloyd Carter, is mentioned monstrosity. friend, Ruth’s developed. recording personality not but his audition in the Irma,” “My Friend also features program, The defendants’ stupid, living the other intelligent, reasonably one two girls, City. way apartment However, in an in Now York in no McKenney’s attempts capitalize upon the crea- success friends, Jane, chance and Irma are sisters. tion. Jane apartment into an place for lack of a better moved live, *6 picture by Wilson, a motion already Irma. Marie occupied roles, plays stage famous “dumb-blonde” and actress part of Irma. narrator, intelligent more as intro-
Jane, two, acts ducing creates stupidity a of incidents which Irma’s series extremely embarrassing girls. Jane, or both situations to one totally with incapable coping the dilemmas however, by fascination, posed helpless Irma’s With Jane antics. unfolding near-catastrophe. Inevi- watches of each new unexpected manner, tably, improbable most each out for of all concerned. situation turns the benefit n 1‘ ’’ Irma a girl. one-man boy confirmed Her friend, Al, talking smooth phony, a principal is the third character Al, show. his schemes, frequently with does as much more than Irma to create the uncomfortable situations subjected. are characters Jane girl,” is a also “one-man very much in love with her employer, socialite businessman Richard Rhinelander frequently III. Richard is the baffled victim of stupidity Irma’s and Al’s machinations. Minor burlesque characters include an avaricious landlady, vio linist, mother, Richard’s and succession of startlingly uncon neighboring ventional tenants and friends Al. Kurlan contends complaint that his tenders issues of fact respect access,
with originality, similarity and copying and that the trial court iu deciding erred these upon issues de- murrer. He further claims that each complaint count of his is well pleaded and the trial court erred in sustaining the demurrers without leave to amend. The 1947 “procedural” 426(3) amendment to section of the Code of Procedure, Civil he says, was not prevent jury intended upon trials merits and not change did the “substantive” rule of law that issues shall not be upon fact determined demurrer or motion. point urged by Another Kurlan is that the first four counts of his complaint, upon express based implied contract, state action governed causes of which cannot prin- ciples applicable plagiarism. tort action of As to the count, fifth he declares that the cause action lie will taking deliberate of his idea and although format literary no property is involved. upon that, 426(3),
The contend defendants under section demurrer, infringed the court must alleged examine the infringing productions pro and determine whether Kurlan’s duction is proteetible legally there property and whether substantial respect evidence to such property. determining they In originality, argue, the issue of apply the court judicial They should the doctrine of notice. also contend upon that the shows its1face literary previously content of Kurlan’s has been published is, therefore, part public domain. no legally proteetible them, Because material was used they say, properly demurrers each cause of action were express sustained. addition, counts the. implied-in-fact alleged contract, the defendants assert that agreement is within the statute of frauds and unenforceable. question Lesser, preliminary here, as in Weitzenkorn v. su,pra, 426(3) is: actions of the Code To what does section apply f counsel not raise this Civil Procedure Kurlan’s does point appears in his record that However, briefs. from the *7 compliance 426(3) requiring the order with section was concerning objection argument over the entered after his and ordinarily party a question. general rule is “that where The may pre neglected present point to a in his brief he has insisting point from court when cluded the consider the deciding However, . . . know of hard-and-fast the case. we no considering deciding prohibits and rule which the court argued may urged in of which not have been and points law appears to originally filed if it the court an briefs necessarily newly involved in the legal principle important disposition point proper of the and that a case discovered point.” (Schubert and of that requires a discussion decision ; Randall, P. Philbrook v. Lowe, 291, Cal. v. 550] 739].) P. 195 Cal. supra, Lesser, v. it is held that the statute Weitzenkorn plagiarism tort but also to only to a action not
applies rights. infringement contract of related of action for causes Therefore, making records of of the court the order trial complaint all part affects five programs a of the both comparison productions and a alleged of action causes considering count. in each must be made and does de- that the statute cannot Kurlan contends fact right jury a trial of issues of him of prive his copying. As access, originality, respect Lesser, supra, provides a in statute held Weitzenkorn alleged infringed infringing considering the method for way plain- deprives productions demurrer. This no jury comparison from a right If, to a trial. tiff his question exist, cause productions, of fact shown jury. should be submitted may argue judicial
The defendants take court published plays notice of the books and and of contents of former contemporary programs determining originality whether Kurlan’s claim founded. For well case, reasons do stated Weitzenkorn the court cannot so. alleged original- However, negative Kurland has which facts ity major portion as production. to the of his He states that “My featuring Sister Eileen” the characters “Ruth” unique “depicting “Eileen” and rela- characterizations and tionships originated, said characters” was created and written Ruth MeKenney for the Magazine.” “New Yorker recording audition which Kurlan has attached to his com- plaint story published also states that the has been in books. According recording, people “Millions have read the Ruth Eileen stories.”
At the time arose, Kurlan’s cause of action section 983 of the Civil “If Code declared: product the owner of a intentionally mind it public, copy reproduction makes may public by any be made person, responsibility without owner, so far as the law of state is concerned.” Section code, effect, same provided that, then in “The product author . . mind, . has exclusive ownership therein, representation and in the expression thereof, long product repre- continues so as the and the expressions sentations or him thereof made remain his possession.” any property shows that Kurlan’s interest which MeKenney story in either had or characters of “My by publication. Eileen” has been lost According Sister *8 product pleader, MeKenney’s neither to the mind nor expressions representations its or remain in possession. her Therefore, law, protectible a matter there is no prop- erty story, in the “basic core” dramatic its characters relationships, and their or the form and manner of its ex- pression. however, MeKenney suggested,
It is right retained sequels to use the “Ruth” and characters “Eileen” in original The implication stories. is that no one else could acquire right. But even if this we assume that eharacteriza- products of the were
may protectible, characters be these public. Under the intentionally been made had mind which McKenney prevent nothing to circumstances, there was productions. utilizing them in other anyone else from !tions declares that it incorporated in program Eileen.” of Ruth and There- further adventures features “the purposes of the demurrers that must assume for the fore, we McKenney’s reproduction of, story sequel to, and not is a and the con- literary creation, is not before court though judicially notice. Even we cannot tents of which together with production, Kurlan’s its two dramatic core of relationships, locale, their and its are principal characters, allegations pleading, its unoriginal under the neither minor style expression manner of nor its characters can and upon demurrer, originality as a matter of held, be lack (Weitzenkorn Lesser, supra.) law. allegation “original that he created
In addition to his program,” Kurlan claims to have “devised a untitled radio original program “origi- idea” for which he new radio program techniques . . . new nated, created and devised presentation . . . including methods radio new radio regard, is similar production format.” In that this case Stanley Broadcasting System, Inc., 35 v. Columbia Cal.2d 653 , P.2d 23 A.L.R.2d and Kovacs v. Mutual Broad- 216] casting System, Inc., Cal.App.2d 108], P.2d where protectible property program claimed was a “radio idea” conception “literary property.” rather than traditional cases, applied deciding the rules stated and those protectible program for Kurlan to have a interest in his radio he production format, idea as reduced to a must establish originality novelty. both (Under capitalize upon a famous idea was to program Kurlan’s I picture producing story, play and motion
I and successful judicial notice of the take The court radio. it on the | idea which nothing and novel new that there fact | (Stanley property. v. Columbia protectible might constitute | p. 663.) Whether there is Inc., supra, Broadcasting System, program tech- novelty in Kurlan’s “new any originality more difficult presentation” of radio niques methods customary broad- nothing novel about There determine. judicial knowl- the court cannot techniques, but casting in- highly complicated of the methods edge of all he for Kurlan to show that cre- dustry. might possible It techniques way in the something novel ated *9 required extrinic evidence is presentation. Because methods | novelty pro- in any there element of his whether is prove upon demurrer, techniques, be gram it determined cannot I protectible property no in them. Insofar as the there is that may originality novelty | question of a lack of be involved action, properly in the could not have each cause demurrers upon solely ground. that been sustained question similarity. The next decision is that of Access copy being demurrer, admitted then and inclination if may it similarity be said that some substantial between programs reasonably found, could be the issues of similarity copying and of are to determined be the trier Having of fact. programs upon before both it demurrer in accordance with 426(3), may section the court determine whether is similarity there substantial (Weitze between them. n Lesser, korn v. supra.) If, as a law, matter of there is no similarity, such then question there no of fact and the to each complaint demurrers count of properly were sustained.
In order for the fifth complaint count of the to state a cause of plagiarism, action for there some must be substan- similarity tial program the defendants’ radio protectible portions production. (Weitzenkorn Kurlan’s v Lesser, supra.) might if Even it be found there is some! in originality development of minor characters j may Kurlan story added to McKenney’s purposes I program, similarity radio there is no between them and I program. characters defendants’ Nor there simi-1 larity between the two shows to the form and manner of | expression literary their content. I However, some might be program found presentation methods of techniques. may Because prove evidence tend to program original Kurlan’s format was both novel, the fifth demurrers to cause of improperly action were sus- ‘ tained. directly strike defendants at the heart of Kurlan’s other by asserting complaint claims charges only that the the breach express, of an implied-in-fact, or an pay contract to for a original” “new and program, They if argue used. that, allegations complaint both from the and from the program itself, appears, audition law, as a matter of program original Therefore, they neither nor novel. say, no upon cause action is stated an express implied- in-fact contract. previously stated,
However, as it cannot be determined previously pub- evidence of demurrer the absence of nothing literary original lished works that there is production techniques content of the or that the radio „ novelty. Nor utilized lack construed *10 by narrowly suggested substance, so the defendants. In it original alleges program created that Kurlan a new he which to the defendants in return for their submitted pay promise, express implied, or “the reasonable to value they Although his if it. has described thereof” used Kurlan allege he production original program, as new and does Also, represented he it to the defendants as such. there allegation agreement upon was Kur- no that the conditioned being original. new production’s pleading allows lan’s evidence, such, tending present prove Kurlan to if there be to implied express fact, pay in for the of promise, use original. program his whether or not it is reason, in For accordance with the rule stated in question Lesser, supra, protectibility Weitsenkorn v. of sufficiency determining in of the need not be considered allegations complaint, upon the first count of based of A present be express contract. Kurlan able evidence similarity program techniques. between some [jshowing I similarity protee- although no addition, there is ¡In literary of portions of the Kurlan’s tibie content broadcasts, possibility finding is the defendants’ there jthe production in of a use each “dumb” Isome produces a “smart” who difficult situations for character ' apartment in character, being girls share an New both who City. of the of the contract and content York The terms jury questions of fact for the as to the programs present access, similarity, copying. provisions, contractual '1 argue that, even if the cause of However, the defendants pleaded, is well upon express contract otherwise action sustained because the com properly to it were demurrers the bar on face that the contract within plaint shows its if be assumed that of frauds. Even it of the statute “goods” alleged might a sale of be said be transaction Code, complaint, upon 1624a of Civil section within statute. A the bar of the transaction face, does not show its part acceptance goods removed from the statute goods . . when the acceptance . “There is an received. delivery expresses goods, after buyer, before or either becoming the owner those his assent to by words or conduct specific goods.’’ (§ 1624a[3].) alleges Kurlan facts from access, copying conceivably and use could be found. findings made, acceptance portion If such were of at least a goods proved received would be and the statute would circumstances, no bar to the action. constitute Under the pleaded in the facts the first count are sufficient to state a cause improperly action and demurrers thereto were sus tained.
The second and counts of the third are upon quantum, based the common count of valebant and are upon sufficient state cause action either a contract im plied implied (Weitzenkorn Lesser, fact or one law. ‘‘ supra.) As case, Although stated the Weitzenkorn it is un necessary pleading distinguish for the between the contract implied in fact and implied law, quasi the contract con tract, the elements which proved recovery upon must be ’’ quite each of them are Here, might different. possible for Kurlan to recover implied either a contract in fact or implied one in law. theory, required Under the first proof is essentially the same as that for upon express the count con *11 tract, exception with the conduct, rather than words of promise, proved must be promise from which the may im plied. On the hand, other upon if Kurlan relies a contract implied law, proof in necessary recovery for a is the same required by plagiarism. the tort action for For these reasons, the demurrers to the second and third counts of the complaint should have been overruled.
The upon fourth count relies implied a contract in fact from customs, practices usages. trade and The conclusions regard in express count contract equally are applicable to this count and the demurrers thereto were im properly sustained.
These unnecessary conclusions make it to consider Kurlan’s contention that it was an abuse of discretion for the trial court general have sustained the demurrers to all five causes of action without leave to amend. judgment is reversed as to each cause of action with permit
directions to the defendants to answer.
Gibson, J., Shenk, J., C. and concurred. SCHAUER, J judgment I concur in the and with all that . portion opinion which is not inconsistent with the views expressed by me in Golding Pictures, v. R.K.O. Inc. (1950),
812
35 690, ; Stanley Cal.2d 710 P.2d v. Columbia [221 95] Broadcasting System, 653, Inc. 35 Cal.2d (1950), [221 73, ; P.2d in Burtis v. Pic A.L.R.2d Universal 216] Co., Inc., post, p. tures P.2d 933]. Dissenting.—Plaintiff TRAYNOR, J., Concurring J., seeks recovery alleged plan use of for the unauthorized his program presentation consist in the serialized living apartment, sisters in a New York adventures of two by script plan preparing lie reduced his to concrete form sample de- program audition of one submitted it to alleges they program made use of his fendants. He “My producing Friend and that either under the Irma,” implied piracy express contract, terms or virtue of literary property, damages of his he entitled to recover majority opinion he such use. The holds that has stated causes plagiarism. of action for breach of contract and for both alleged my plaintiff facts, if opinion has not Since property, proved, infringement literary of his would establish holding. I agree cannot with the latter into program be divided three elements. Plaintiff’s I1 principal consisting There is raw material two relaJuJnship them, and the locale characters, the basic material was taken their adventures. Since this it could con- published McKenney, of Ruth in no event works j literary protectible property under the of this state. stitute law ,, : unnecessary (Civ. 983.) Accordingly, it is decide Code, § merely the basic' ideas whether it constituted some of embodied ¡ j would, previously published, program, had it not been development and constitute sufficient treatment of basic | ; (See subject protection. copyright ideas to be the Goldin Inc., 95], Pictures, R.K.O. P.2d Cal.2d g cited.) dissent, and cases authorities there McKenney’s plaintiff produced sample Using material, his presented one two which he adventure *12 copyright protection Although he cannot claim under sisters. McKenney’s material the law of for or for ideas this state protection any may it, he entitled to he added to development he has such given treatment original maienZPuSRURME^T^agreA'TOthlTIie holding court, 1 sample as the dramatic however, insofar content plaintiff’s 1 concerned, there is no program j program. and defendants’ Such similar- original contributions ' only respect this arises in from the common exist ity as does
813 MeKenney use of the basic dramatic found situation works, accordingly, support finding piracy. will (Golding Pictures, Inc., 690, 35 v. R.K.O. Cal.2d 695-696 95].) P.2d [221 plaintiff’s program plan
The third
element
is its basic
as
specific
from the
episode
presented'asTa
distinct
or adventure
sample
plan
or illustration thereof. The
or format consists
following
of a combination
ideas:
the use of the Mc
-Kenney
;
material as
basis for a serialized
program
person
intelligent
the use of
narration
first
sister to set
stage
bridge
gaps
between the scenes in each
program;
principal
and the use of the
carry
characters to
over
listener interest from week to week.
It
assumed
original
this combination of ideas was
plaintiff.
More
over, although
nothing
there is
new
any
or novel about
one of
ideas, may
these
they
be assumed that
had not been com
bined in the
manner
same
earlier radio'program.
It
does not follow, however, that this combination of ideas con
protectible
property.
stitutes
intellectual
program
basic
plan adopted
as the foundation
a radio serial
analogous
plot
to the basic
play
dramatic core or
of a
or movie.
It
only
general
consists
of the author’s
ideas as distinct from his
original
development
treatment or
general
them. Such
ideas
are free and
property.
(See
cannot constitute
Golding v.
Pictures,
Inc.,
R.K.O.
690,
Cal.2d
P.2d 95],
[221
dissent; Stanley
Broadcasting
v. Columbia
System, Inc., 35
653,
Cal.2d
73,
P.2d
216],
A.L.R.2d
dissent.)
[221
Lesser, ante, p.
Weitzenkorn v.
947],
P.2d
[256
the court holds that since the 1947
Code,
amendment to Civil
section
ideas,
original
distinct from the
form and
expression,
manner of their
'do not constitute literary property
justifies
protection
state.
It
against plagiarism
given
that was
dramatic core
plaintiffs’
basic
play
in Golding
Pictures,
v. R.K.O.
Inc.,
814 9801, re Code, section originally enacted, Civil
As it was mind,” and then “any product of the generally ferred might property that types of intellectual listed the different composition in letters or “a Among those listed was exist. only product to the art,” protection was extended and art, also in letters or but itself, is, composition protection expression Thus any representation or thereof. by literary composition created to the exact was not limited representa to other and different author, but extended might copied therefrom. Under expressions tions 11 only long as the so however, protection existed terms, its re expression or thereof” representation product and arguable possession. was thus in It mained the author’s might literary composition in a copyrights law the common manuscript even with possession of-the a transfer of be lost publication. out actual specifically deal with amended to
In 1947 the statute was relating art,2 provisions and the compositions in letters or property and the limitation of intellectual forms to other the amend- were deleted.3 Thus respect possession with copyrights law common made clear that the author’s ment dependent upon pos- or art are not in letters composition expression representation, or its or composition session publication provided in only in the event of lost but are expressly The statute now deals the Civil Code. section rights possession or owner- copyrights as distinct with 985.) manuscript (Cf., Code, original itself. Civ. ship § amendment, however, did nor after its before Neither property to define the extent to purport section original ideas as distinct from their might exist in rights expression representation development. An or treatment might only consist in the statement original composition anof plot play the dramatic core or general outline of ; of the general plan of a for a radio movie, in the statement or orI mind, invention, any product whether ''The author of delineation, art, design, composition with or without or or a letters or a therein, ownership representation, graphical has an exclusive or other long expression thereof, representation which continues so or representations expressions product thereof made and the as the possession.” in his him remain 2 ‘ composition proprietor in letters or art has an author or ‘The against expression ownership representation thereof as exclusive originally independently except persons the same creates one who all composition.” similar or a prop dealing separate of intellectual subdivision other forms 3 A 1.) (Stats. 1949, erty in 1949. eh. § to section 980 was added y Pictures, Inc., program. (Golding supra; v. R.K.O. Stanle supra.) Broadcasting System, Inc., Thus, i v. Columbia f Stanley correctly pro Golding decided, eases were play could be extended to the basic dramatic core of tection present just under the statute plan or the of a radio j *14 the former. as it was those cases under i g my however, properly accepted the court opinion, parties Stanley case of the in the that sections concession formerly 983, worded, 980 and as were but codifications sections, which common The 1947 amendments to those law. Stanley Golding cases, in the antedated the decisions by eliminating language merely clarified fact making might interpreted have been as the duration of common possession copyrights publication. turn on rather than law rule Accordingly, property, the common law that ideas are not recognizes (Weitzenkorn Lesser, ante, the court now v. which 947]), applied by should be p. 778 P.2d in this case [256 holding plaintiff has not stated a cause of action for plagiarism. comparison programs
From two it cannot be said plaintiff’s as a matter of law that defendants have not used Although program idea. that idea is property, , may by express protected implied-in-faet or an con- ; (Weitzenkorn Lesser, ante, p. v. tract. 778 P.2d [256 947] Stanley Broadcasting System, Inc., v. Columbia 35 Cal.2d 653, 73, 216]; dissent.) 674 P.2d 23 A.L.R.2d Since pleaded express plaintiff implied-in has counts both contract, judgment I faet concur to the extent that it sustaining the order the demurrer reverses to those counts. Spence, J., concurred.
CARTER, dissent. J.—I judgment I concur in the reversal but I cannot greater part reasoning pro- in the and law concur pounded majority opinion. in the majority
It is stated that “Kurlan’s shows McKenney any property may interest had story ‘My or characters of Sister Eileen’ has either been by publication.” pleading story lost shows that the public play, magazines made in a picture, were characters It also shows that stories had never and books. been agreement plaintiff’s the air and that written presented on expressly right assignor had reserved the sole exclusive 816 broadcasting purposes leading
to use for female these copyright “The characters. owner of the common-law has a perpetual right right property and the exclusive of first general publication, may, prior thereto, enjoy the benefit publication right a restricted without forfeiture of the general publication. Thus, he communicate the contents right. of his work under restrictions without forfeiture of the restriction, This under is known communication of contents added; publication.” (Emphasis restricted or limited 18.) 15, publi Bobbs-Merrill Co. v. 147 F. “A limited Straus, subject copyright cation of a which communicates one im knowledge expressly under conditions its contents pliedly Abernethy precluding public. its dedication v. Hutchinson, 209; Pitman, Nichols v. 26 L.R.Ch.Div. L.J.Ch. 374; L.R.App.Cas. 326; Tomkins v. Sime, Caird v. Halleck, Witt, De 32, Am.Rep. 480; 133 Mass. Palmer v. Robinson, 10 532, Am.Rep. 480; 47 N.Y. Turner v. Ir.Ch. Rep. 121, 135; Wheatley Clarke, 9 Am.Law Laura Keene v. & Reg. 33-80, (Werckmeister American 7,644.” Fed.Cas. No. ; Lithographic Co., 68 L.R.A. F. 321 C.C.A. 591] 354-356.) Amdur, Copyright Practice, pp. Law and *15 public performance “It is well settled that the of a dramatic or composition merely musical limited publication a which does the spectator any not confer hearer or title to the manuscript, any right copy may or to a have been ob surreptitiously, tained or which pos come into his accidentally; only publication session a because of the manu script rights will amount to an abandonment of the consequent public author and a transfer of them to the domain, publication long such and no occurs as as the author exercises manuscript, right control over his has a to<such control. (Crowe Aiken, 3441; v. Keene Clark, Fed.Cas. v. 5 Robertson (28 Super.Ct.) 38; Kimball, N.Y. Keene v. Gray (Mass.) 16 545, 426; Ferris, 77 Am.Dec. Brown v. 122 418, Misc. 204 190.) Consequently special public a N.Y.S. use of it the author for his own benefit is no evidence of abandonment of property entirely his because such a therein, use is consistent right with his Thus, reading, exclusive to its control. the stage representation recital or a manuscript play public of profit, author, for with the consent of the does not constitute of public any rights evidence abandonment of arising authorship play; from the nor deprive does it right copyright (Boucicault him of play. Fox, his to the v. 3 977.) Fed.Cas.
817 merely “A ticket the holder to wit- of admission entitles enjoy play, single a exhibition of the without con- ness right ferring upon any public member of the obtain the to surreptitiously possession original manuscript for subsequent reproduce representation profit, for or to composition memory or taken during from from notes earnings performance, public in order to share in the of its presentation. play a not entitled author were to If of him, claim, protection profits the lam to to secure of resulting from, public performances composition, his drama- of pla/ys would tists soon cease to write the amusement and for public, government entertainment unless subsidised of by primate patronage: or aided derived revenue from published copies popular the sale a drama would be of of negligible comparison receipts. (Werck- with the box-office Co., v. American Litho. 553, meister F. 321 C.C.A. 591].) 68 L.R.A. uncopyrighted unprinted
“Where an drama has been publicly performed aat theatre consent, author’s person right repeat performance no unlicensed has a to public publish theatre, copies a or to of the dramatic com- position, surreptitiously whether reproduced obtained memory witnessing performance after a thereof; permission act it public author’s at a theatre does not amount an abandonment his title it or to a dedica- of public; tion it to the and the proprietor the exclusive performing rights, assignee, by or his virtue his common rights, injunction law is entitled to an restraining an un- representation (Ferris authorized v. Frohman, 223 thereof. 492].) U.S. S.Ct. L.Ed. “Where the give public intent of the owner is to merely right literary property limited use his or to use it particular way, the owner’s act does constitute an property; public of all abandonment his but the acquires a only right use to the extent the dedication. (Aronson ” Baker, N.J.Eq. 365, 177.) (Ball, A. Law Copy- *16 right Literary and Property, 1944, 135.) 61, p. (Emphasis § added.) practice
It common dramatizing rights reserve the rights respected on the sale of a book and these are up and by (Ford Blaney the held courts v. Charles E. Amusement 642). 1(b) 148 F. Co., Copyright Section of the 1909 Act expressly copyright proprietor confers the the exclusive by right translation, to transform the work dramatization, making embodying material adaptation, by and other versions original in parts of the order to enable the and substantial every reap field of in profits of his work in author to the exploited it be property in which can advanta tellectual copies by performance profit by vending public geously 1028). (O’Neill Co., Film This v. General section N.Y.S. by any adapta to cover literally been construed courts has story same as literary of a work which tells the tion resulting adapted presen be drama original, whether stage play or for exhibition on the form of tation in 92, L.Ed. (Kalem Harper Bros, v. screen Co. U.S. ; International Film S. v. Ann.Cas. 1913A Co. 1285] Affi 229). Distributors, liated 283 F. demurrer, allegations purpose of all of alleged complaint complaint as true. It is in the must be taken day March, 11th of here on or about the Ruth that agreement MeKenney writing, and entered into plaintiff \For MeKenney grant plaintiff did Ruth the sole and |wherein broadcasting right purposes use exclusive for radio ¡leading female characters created her and featured or stories, stage play picture and portrayed in motion “said I Í MeKenney ‘My Eileen,’ said Ruth entitled Sister and did grant plaintiff said Arthur Kurlan all ; furthermore j rights had broadcasting and therein thereto theretofore i ! MeKenney by said Ruth expressly been reserved eonnec- prior and and all said licenses uses said tion with each stories, play with said and motion characters connection I (Emphasis added.) It picture mentioned.” hereinbefore alleged original expiration after the term further parties, was agreement the time extended Ruth MeKenney MeKenney plaintiff; that Ruth reserved and royalties in right with the to receive connection retained the under programs and all radio licensed production plaintiff’s assignor all agreement. Hence, reserved f leading characters, true, cannot rights in the two law, majority opinion, that “as a matter of in the stated protectible property in the ‘basic dramatic core’ there is no relationships, their or the story, its form characters ’’ pub- expression there has because been manner its allegations show that lication. , rights limited one with certain reserved. was a publication types rights recognized different been It has publication may literary be re- works be reserved rights. (See Manners Famous preserve as to those stricted so
819
v. Fox
Page & Co.
811;
262 F.
L. C.
Players-Lasky Corp.,
Corp.,
Gogniat
Pictures
196;
v. Universal
Corp.,
Film
83 F.2d
Vitaphone Corp.,
v.
Productions
Pat.Q. 117;
35 U.S.
Casino
Society European S.A.A.C.
;
new in a broadcast new air, the but play something broadcast over there is new by play someone else over the air for the in a broadcast first play rights has the author of that reserved the radio time if play being used a medium [thereto, because the new it. Stanley broadcasting was not concerned with the case play; it was concerned with a combination of ideas rights in being way used for the first time in a certain was ideas, permis- originator of that with the combination the suing play, broadcasting author of the new was sion of the system. pro- now 426(3) of the Code of Civil Procedure Section infringe- production as which copy
vides that alleged infringing produc- copy claimed and ment is 821 permits tion This trial complaint. must be attached to the upon demurrer, decide in first instance whether court, similarity productions. or not Here there between the two tofore, similarity be one question has been considered to Broadcasting System, Inc., (Stanley of fact v. Columbia 35 216]; Golding 23 Cal.2d 653 P.2d v. R.K.O. A.L.R.2d [221 Inc., 95]; Mutual Pictures, Cal.2d 690 P.2d Kovacs v. Broadcasting System, ; Inc., Cal.App.2d P.2d 108] Irwin, Century-Fox Film 142; Frankel v. Twentieth F.2d Corp. Dieckhaus, 893), F.2d and the to be that test impression upon a average man received reasonable comparative reading two There be no works. should change in new It the test to be used under the code section. words, should still be that of reasonable man. other there is reasonable minds as whether or not could if differ question one works, two then the is still jury. of fact for play “My In the Eileen,” Sister Ruth, as narrator, is a
young, attractive, intelligent working girl who is unwilling victim a succession of difficulties created her sister, whom Eileen, with she “apartments lives because are hard to *19 find in York.” New Ruth is the balancewheel for her com- pletely thoughtless, impulsive, scatterbrained sister, Eileen. hopelessly Eileen is job unable to hold a and has six of had them within four months. She has no financial sense and never any money has spends because every she cent she has on “junk” everybody which seems to be able to sell her. She exchequer uses the common and family funds without Ruth’s knowledge or consent and makes life unbearable for with Ruth her schemes; scatterbrained embarrasses Ruth ridiculous lies told without malice or intent to creat mischief but with every to help desire sister her and roommate. Ruth and Eileen are from Ohio. acquired city Ruth has “sophisti- some cation” while Eileen has not completely and remains naive. supposed fiancé, Ruth’s Claude, is blustering described as a “braggart,” but she is in love serious, intelligent with a busi- Lloyd nessman, Carter.
Jane, production in the “My Irma,” Friend as nar- is a rator, serious, intelligent working girl Wyoming from who acquired has city “sophistication.” certain amount of She her lives with “friend Irma” apartments because are “hard days.” t.o find these is in serious, intelligent Jane love a businessman, Richard III. careless, Rhinelander gay, Irma is sophistica- thoughtless lacking
impulsive, completely in ; of her tion she causes Jane endless difficulties because scatter- is boy friend, Al, Irma’s described as a brained schemes. windbag.” play “My in “phony program, In this as the landlady. Sister Eileen” there is an eccentric forth, conjunction just set attention In with the similarities summary productions two as set forth in called law, as majority opinion. said, It cannot be a matter of the two. The briefs show that there is no between “My describing Friend entitled 1948, March Irma,” Herald-Tribune, 22, New York on program: and review of the criticism stated a dramatic young girl idea, roommates, central of two one “The intolerably all innocent of knowl bright, the other one almost very funny play entitled almost intact was taken edge, ” question added.) (Emphasis Eileen.’ ‘My Sister ' similarity assuredly one productions two most between the might as be seen from differ can on reasonable minds quoted review and fact three above dramatic (see Appeal (Cal.App.) justices of the District Court myself feel that within the common 936) well as P.2d observer, spectator or average reader, listener knowledge copying induce the belief that similarities there are sufficient ' there are differences between place. It is true that taken has said in the Mr. Edmonds programs, but as Justice the two quality plagiar go to the Golding “such differences case (Golding v. not its or nonexistence.” ism, and existence 95].) P.2d Pictures, Inc., 35 Cal.2d R.K.O. minds than the reasonable one has test other ever No been determining question of similarity laid down infringed infringing productions alleged there determining the matter why, demurrer, reason no any apply other rule. I trial court should As read and in majority opinion case that Weitzenkorn v. (this filed) Lesser, ante, p. day P.2d I do 947] proposed has been other than find that test that of similarity.” Lesser, supra, Weitzenkorn v. “substantial *20 similarity “if composi- is said some substantial reasonably found, could be issues of tions be determined the trier of copying are to the fact” and comparison “If, in the instant case it is said that question exist, of fact is productions, shown the cause my jury.” opinion, be submitted to the these state- should saying question that the equivalent are not the ments differ on whether jury minds could one for the if reasonable productions are similar. or not the two the trial judgment directions to I would reverse permit de- to all counts and court to overrule demurrer as they fendants to answer if be so advised. May 28, rehearing petition for a was denied Appellant’s (cid:127) opinion that Carter, J., Spence, J., were
1953. granted. petition should be Apr. 29, In Bank. A. No. 22215. 1953.] [L. PIC BURTIS, Respondent, UNIVERSAL
THOMSON al., Ap (a Corporation) et COMPANY, INC. TURES pellants.