Carnival Co. v. Metro-Goldwyn-Mayer, Inc. ( 1965 )

Valente, J.

(dissenting in part). I concur in the majority opinion of Justice Stevens except as to the fourth cause of action. As to that cause, I would hold it sufficient to withstand defendant’s motion to dismiss. The papers present an issue as to whether the unpublished dramatic book of “ Carnival” was delivered to defendant without limitations or restrictions as to its use. Plaintiffs have averred that the book was delivered under representations by defendant it would not use it unless it exercised its option a‘nd made a motion-picture version of “ Carnival ”. If plaintiffs establish that defendant was to use the book only in the event defendant exercised its option, then if the defendant prevails in its claim that the option was not exercised, plaintiffs have a cause of action for common-law infringement of copyright by virtue of an authorized use of the book. I would, therefore, let the fourth cause of action stand.

Babin, J. P., MoBallt and Witmeb, JJ., concur with Stevens, J.; Valente, J., dissents in part in opinion.

Order, entered on June 24, 1964, so far as appealed from, modified, on the law, to strike the third and fourth causes of action, and, in the exercise of discretion, plaintiffs are granted leave to apply at Special Term for leave to replead such causes (CPLB 3025; 3211, subd. [e]), and, as so modified, affirmed, without costs and without disbursements to either party.