139 Cal. App. 724 | Cal. Ct. App. | 1934
This is an appeal by the plaintiff from a judgment of dismissal of the action, following upon the court’s order sustaining the several demurrers of the defendants to the third amended complaint.
This appeal is presented on the judgment-roll. If the complaint stated a cause of action, the judgment should be reversed. Relying upon the authority of Westwater v. Rector etc. of Grace Church, 140 Cal. 339 [73 Pac. 1055], respondents contend that the action sounds in contract and not in tort and that as an action for breach of contract it did not state a cause of action. Appellant apparently concedes that if the action is necessarily founded on a breach of contract there is no right of action shown by the allegations of the complaint. Appellant contends, however, that by her third amended complaint she stated a cause of action for libel, committed by wrongful and unauthorized publication of a picture of appellant, whereby she was misrepresented in her professional character as an actress, with resulting injury to her professional reputation.
By a contract in writing, defendants engaged the services of appellant to appear in a Vitaphone Talking Production which they were producing under the temporary title of “Show of Shows”. In the contract it was provided as
Those provisions of the third amended complaint which constitute the alleged cause of action are as follows: “II. That plaintiff is an actress by profession, and at all times herein mentioned, and for a long time prior thereto was engaged in acting upon the stage and in moving pictures and talking motion pictures; that she is an actress and public performer of great artistic ability and accomplishments with a wide reputation among producers, other members of the theatrical profession, and the public as one habitually associated with and taking part only in acts and performances of major importance as the star or featured performer at a high remuneration therefor, so that appearance by plaintiff in an act or performance of minor importance, or which taken from, its original context appeared to be of minor importance, would impair her standing as a star or feature player, and would lessen her importance in the estimation of producers, other members of theatrical profession and the public, and would thereafter impair her ability to command as high a remuneration, or as important engagements as theretofore, all of which facts were, at all times herein mentioned, well known to defendants and each of them.”
Paragraph III states the pleader’s construction of the contract and makes the written contract itself a part thereof.
“V. That upon the making of the said contract plaintiff' took part and appeared in said all-star production and her acted part was therein filmed by the defendants in connection with the said motion picture film of ‘Show of Shows’.
“VI. That plaintiff is informed and believes and upon such information and belief alleges that after the making of the film of the said ‘Show of Shows’, including the said acted part of plaintiff, defendants, having secured the reproduction of plaintiff’s said acting in connection with said all-star major production and under said contract, without any privilege, permission or authority from plaintiff, and against her will and consent, wrongfully, unlawfully, willfully, maliciously and fraudulently and in violation of plaintiff’s right of privacy, did subtract and separate from the film and records of said all-star production those portions thereof reproducing plaintiff’s said acted part and did present and exhibit said portions so separated in various theaters and at various public performances before large audiences of people as a ‘short’ or performance of short duration and inconsequential importance, and not in connection with or as part of the said major production, and not in connection with the work of said other stars and in such manner as to present plaintiff to said audiences as a performer who could be and had been engaged in the production of a ‘short’ or brief and minor production, and did thereby present and show plaintiff to said audiences and the theatri
The decision in Westwater v. Rector etc. of Grace Church, supra, relied upon by respondents herein, presents a contract as well as a similarity to the case at bar. There the plaintiff was a vocalist in the defendant’s choir under a contract which provided that she should not be dismissed without six months’ notice. In violation of the contract she was dismissed without notice. The Supreme Court said: “The action is not for a tort, nor is it for slander or libel. Therefore the question is one arising by reason of a breach of the contract.” Treating the case, therefore, as an action for breach of contract, upon examination of the complaint it was found that it did not state facts sufficient to constitute a cause of action. It showed a breach of the contract but failed to show or state facts showing any damage to the plaintiff by reason of the breach.
Appellant claims that respondents have invaded a right which belongs to her indepéndent of the contract. Did she have any right to prevent the exhibition of the picture as a short, which was not based upon the specific provisions of the contract? If it be true as respondents contend, that in the absence of such specific provision an exhibition of the picture as a short or otherwise, would have been justified as an exercise of the producer’s property right in the picture, then it follows that such exhibition of the picture by the defendant gives to the plaintiff no right of action other than for broach of the contract. We think that this is the actual situation. By the contract respondent acquired a full ownership in the picture, subject only to the limitations contained in the contract. This ownership included the right to use the picture publicly in any form of exhibition, except as such right is limited by the terms of the contract. It seems clearly to follow that the exhibition of the scene as a short would not be a tortious invasion of the plaintiff’s right of privacy. If wrong at all it necessarily was only a breach of the contract.
The admissions made by counsel for appellant exclude any contention that the complaint stated a cause of action for breach of contract. They themselves point out that their complaint does not contain the usual allegations with re
As it appears that the complaint did not state a cause of action on any theory applicable to the facts of the ease as alleged, it follows that the court did not err in sustaining the demurrer.
The judgment is affirmed.