Kurlan v. Columbia Broadcasting System, Inc.

EDMONDS, J.

Arthur Kurlan is suing Columbia Broadcasting System, Inc., and others for damages upon the ground that they copied and used a proposed radio program owned by him. As in Weitzenkorn v. Lesser, ante, p. 778 [256 P.2d 947], the appeal is from a judgment entered upon an order sustaining the demurrers of the defendants without leave to amend.

For his first cause of action, Kurlan alleges that Ruth MeKenney “originated, created and wrote certain stories for the ‘New Yorker Magazine’ which were subsequently dramatized in a stage play entitled ‘My Sister Eileen,’ and which were subsequently used as the basis of a motion picture photo-play also entitled ‘My Sister Eileen’ featuring the same leading female characters known as ‘Ruth’ and ‘Eileen,’ and depicting unique characterizations and relationships between said characters.” He states that, by written agreement, Mc-Kenney transferred to him “the sole andTexclñsivRrifybt. to usé for radio broadcasting purpoges_saidpleading female characters.” She also assigned to him “all radio broadcasting rights” which she had “expressly reserved” in connection with prior licenses and uses of these characters. A further allegation is that, prior to the commencement of this action, MeKenney assigned to him all causes of action which she might have against these defendants arising out of transactions alleged in this complaint.

Kurlan then pleads that he “conceived, originated, and devised a new and original radio program idea and original untitled radio program” featuring Ruth and Eileen. In connection with this program, he states, he originated new program techniques and methods of radio presentation, including a new radio production format. These, he says, he “reduced to concrete form and embodied” in a written script and a sample audition recording, at a cost of $10,000, retaining at all times his common law rights of ownership and authorship.

Kurlan states that he submitted his radio program to the defendants at their special instance and request pursuant to an express oral agreement. In consideration of such submission, if they used all or any part of the program they promised to pay him its reasonable value. The defendants accepted submission of the program script and recording, he states, heard it, and became fully familiar with it. Thereafter, CBS and the other defendants, without Kurlan’s authority or license, produced and broadcast over a coast-to-coast network a weekly series of radio programs entitled, “My Friend Irma.” This radio broadcast, the complaint continues, substantially copied, used and embodied his radio program idea and format. Kurlan claims general damages of $150,000 for rendering valueless his “personal property.”

The second count of the complaint incorporates by reference all of the allegations of the first one except the averments with respect to an express agreement. In addition, it declares that Kurlan submitted his radio program idea and sample audition recording to the defendants at their request for the purpose of sale to or use by them upon payment to him of its reasonable value.

The third count also incorporates by reference all of the allegations of the first one except the averments with respect to an express agreement. It then alleges that Kurlan submitted his radio program idea and audition recording to the defendants at their request pursuant to an implied agreement that, in consideration for the submission, if used by them, they would pay him the reasonable value of the program idea, or any part of it.

After incorporating by reference all of the allegations of the first count except those with respect to an express agreement, the fourth count asserts that the radio program was submitted to the defendants at their request pursuant to trade customs, practices and usages. These customs, the complaint declares, are that the defendants would not use or copy all or any part of his program without his consent and that they would not do or permit any act in derogation of its value.

By reference, all of the allegations of the first count, except those respecting an express agreement, use of the program by the defendants and damages, are made a part of the fifth one. Kurlan then pleads that he submitted his program to the defendants at their request for the purpose of sale to them. They heard the audition recording, he says, and retained it in their possession for several weeks, becoming fully familiar with its contents.

Thereafter, according to the complaint, the defendants negotiated with him for production of a series of radio programs based upon his idea. These negotiations, Kurlan states, were terminated when the defendants informed him that they “intended to use” his idea, characters and format “without compensation therefor by merely changing the names of the characters and describing the leading female characters as girl friends instead of sisters.” According to Kurlan, the defendants said that by doing so they would save the expense of compensating him and McKenney and own and control the program. Kurlan alleges that he immediately objected to the proposed action and notified the defendants that they would act at their peril.

Thereafter, Kurlan states, with full notice and knowledge of his rights and “in wilful and deliberate disregard thereof,” the defendants broadcast over a coast-to-coast network a weekly series of radio programs entitled, “My Friend Irma.” These programs substantially copied, used, embodied and misappropriated his “untitled and unpublished sample audition recording.” By such conduct, Kurlan says, the defendants “have appropriated the rights," benefits, royalties and profits to which” he “is solely and exclusively entitled,” and they have destroyed the value of his “personal property.” He alleges general damages in the amount of $150,000.

The fifth count includes an allegation that, because of their nature, “it is not practicable to attach to the complaint” either Kurlan’s audition recording or recordings of the defendants’ radio program. The defendants’ recordings are in their possession and control, it is said. Kurlan makes proferí of his recording and consents that the records which be submitted to the defendants “shall be deemed to be a part of this complaint for all purposes and upon any demurrer, motion or other proceeding in this cause.” By stipulation, this allegation was made a part of each of the preceding counts of the complaint.

The defendants demurred to the complaint upon the grounds that each count fails to state facts sufficient to constitute a cause of action. They also moved to require Kurlan to comply with section 426(3) of the Code of Civil Procedure.

The motion to require compliance with the statute was granted and the records of both radio programs were ordered to be introduced and filed as exhibits on demurrer. Thereafter, demurrers were sustained without leave to amend and judgment entered “that plaintiff take nothing as against said defendants. ’ ’

This court has studied the scripts and heard recordings of both radio programs. Hurlan’s program, “My Sister Eileen,” features “the further adventures of Ruth and Eileen,” the principal characters “from Ruth McKenney’s best-selling stories and from the Broadway and motion picture hit” of the same name. The principal idea of the program is to capitalize upon the success of McKenney’s creation. As stated in an advertising blurb in the audition script, “Millions of people have read the Ruth and Eileen stories or seen the play or picture . . . which means that several million dollars worth of some one else’s money has already been spent for you, Mr. Prospective Client. . . . These characters have been highly successful in every medium—magazines—books—stage—and screen . . . but—as a series have never before been presented on the air . . . the medium for which they are best suited.”

The program may be summarized as follows: Ruth and Eileen are sisters living in an apartment which Eileen found for them in New York City. Ruth possesses average intelligence and capabilities and is the balance wheel of the pair. Eileen is semi-moronic, scatterbrained, impulsive, naive, completely thoughtless and oblivious to the consequences of most of her acts. Lucille Ball, a motion picture actress under contract to Kurlan, plays the part of Ruth.

Ruth, as narrator, introduces a series of incidents in which Eileen’s stupidity creates situations extremely embarrassing to Ruth. Ruth is constantly trying to rescue one or both of them from Eileen’s scrapes, while Eileen continues to add complications. Through Ruth’s efforts, Eileen’s situations are turned to the benefit of the pair.

Most of the situations which Eileen creates arise, directly or indirectly, from the fact that Eileen is man-crazy. She trusts any man, and has an astonishing capacity for acquiring large numbers of them in unorthodox ways. This trait introduces certain minor characters into the program, including one dispossessed male who moves in to live with the girls. There is a loud-moüthed Texan boor who, thanks to Eileen, forces his crude attentions upon Ruth. Among other characters are an eccentric old landlady and an ill-tempered canine monstrosity. Ruth’s boy friend, Lloyd Carter, is mentioned in the audition recording but his personality is not developed.

The defendants’ program, “My Friend Irma,” also features two girls, one reasonably intelligent, the other stupid, living in an apartment in Now York City. However, it in no way attempts to capitalize upon the success of McKenney’s creation. Jane and Irma are chance friends, not sisters. Jane, for lack of a better place to live, moved into an apartment already occupied by Irma. Marie Wilson, a motion picture and stage actress famous for “dumb-blonde” roles, plays the part of Irma.

Jane, the more intelligent of the two, acts as narrator, introducing a series of incidents in which Irma’s stupidity creates situations extremely embarrassing to one or both girls. Jane, however, is totally incapable of coping with the dilemmas posed by Irma’s antics. With helpless fascination, Jane watches the unfolding of each new near-catastrophe. Inevitably, in the most improbable and unexpected manner, each situation turns out for the benefit of all concerned.

Irma is a confirmed 1 ‘ one-man girl. ’ ’ Her boy friend, ■ Al, a smooth talking phony, is the third principal character in the show. Al, with his schemes, frequently does as much or more than Irma to create the uncomfortable situations to which the characters are subjected. Jane also is a “one-man girl,” very much in love with her socialite businessman employer, Richard Rhinelander III. Richard is frequently the baffled victim of Irma’s stupidity and Al’s machinations. Minor characters include an avaricious landlady, a burlesque violinist, Richard’s mother, and a succession of startlingly unconventional neighboring tenants and friends of Al.

Kurlan contends that his complaint tenders issues of fact with respect to access, originality, similarity and copying and that the trial court erred iu deciding these issues upon demurrer. He further claims that each count of his complaint is well pleaded and that the trial court erred in sustaining the demurrers without leave to amend. The 1947 “procedural” amendment to section 426(3) of the Code of Civil Procedure, he says, was not intended to prevent jury trials upon the merits and did not change the “substantive” rule of law that issues of fact shall not be determined upon demurrer or motion.

Another point urged by Kurlan is that the first four counts of his complaint, based upon express and implied contract, state causes of action which cannot be governed by the principles applicable to the tort action of plagiarism. As to the fifth count, he declares that the cause of action will lie for deliberate taking of his idea and format although no literary property is involved.

The defendants contend that, under section 426(3), upon demurrer, the court must examine the alleged infringed and infringing productions and determine whether Kurlan’s production is legally proteetible property and whether there is any substantial evidence of similarity with respect to such property. In determining the issue of originality, they argue, the court should apply the doctrine of judicial notice. They also contend that the complaint shows upon its1 face that the literary content of Kurlan’s program previously has been published and is, therefore, a part of the public domain. Because no legally proteetible material was used by them, they say, the demurrers to each cause of action were properly sustained. In addition, as to the. counts upon express and implied-in-fact contract, the defendants assert that the alleged agreement is within the statute of frauds and unenforceable.

The preliminary question here, as in Weitzenkorn v. Lesser, su,pra, is: To what actions does section 426(3) of the Code of Civil Procedure apply f Kurlan’s counsel does not raise this point in his briefs. However, it appears from the record that the order requiring compliance with section 426(3) was entered over his objection and after argument concerning the question. The general rule is “that ordinarily where a party has neglected to present a point in his brief he may be precluded from insisting that the court consider the point when deciding the case. . . . However, we know of no hard-and-fast rule which prohibits the court from considering and deciding points of law which may not have been urged and argued in the briefs originally filed if it appears to the court that an important legal principle is necessarily involved in the newly discovered point and that a proper disposition of the case requires a discussion and decision of that point.” (Schubert v. Lowe, 193 Cal. 291, 294 [223 P. 550]; Philbrook v. Randall, 195 Cal. 95, 105 [231 P. 739].)

In Weitzenkorn v. Lesser, supra, it is held that the statute applies not only to a tort action for plagiarism but also to causes of action for infringement of related contract rights. Therefore, the order of the trial court making the records of both radio programs a part of the complaint affects all five alleged causes of action and a comparison of the productions must be made in considering each count.

Kurlan contends that the statute cannot and does not deprive him of his right to a jury trial of issues of fact with respect to access, originality, similarity and copying. As held in Weitzenkorn v. Lesser, supra, the statute provides a method for considering the alleged infringed and infringing productions upon demurrer. This in no way deprives a plaintiff of his right to a jury trial. If, from a comparison of the productions, a question of fact is shown to exist, the cause should be submitted to the jury.

The defendants argue that the court may take judicial notice of the contents of published books and plays and of former and contemporary radio programs in determining whether Kurlan’s claim of originality is well founded. For the reasons stated in the Weitzenkorn case, the court cannot do so.

However, Kurland has alleged facts which negative originality as to the major portion of his production. He states that “My Sister Eileen” featuring the characters “Ruth” and “Eileen” and “depicting unique characterizations and relationships between said characters” was originated, created and written by Ruth MeKenney for the “New Yorker Magazine.” The audition recording which Kurlan has attached to his complaint also states that the story has been published in books. According to the recording, “Millions of people have read the Ruth and Eileen stories.”

At the time Kurlan’s cause of action arose, section 983 of the Civil Code declared: “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.” Section 980 of the same code, as then in effect, provided that, “The author of any product of the mind, . . . has an exclusive ownership therein, and in the representation or expression thereof, which continues so long as the product and the representations or expressions thereof made by him remain in his possession.”

Kurlan’s complaint shows that any property interest which MeKenney may have had in either the story or characters of “My Sister Eileen” has been lost by publication. According to the pleader, neither the product of MeKenney’s mind nor its representations or expressions remain in her possession. Therefore, as a matter of law, there is no protectible property in the “basic dramatic core” of the story, its characters and their relationships, or the form and manner of its expression.

It is suggested, however, that MeKenney retained the right to use the characters “Ruth” and “Eileen” in sequels to the original stories. The implication is that no one else could acquire this right. But even if we assume that eharacteriza!tions may be protectible, these characters were products of the mind which intentionally had been made public. Under the circumstances, there was nothing to prevent McKenney or anyone else from utilizing them in other productions.

The program incorporated in the complaint declares that it features “the further adventures of Ruth and Eileen.” Therefore, we must assume for the purposes of the demurrers that the story is a sequel to, and not a reproduction of, McKenney’s literary creation, which is not before the court and the contents of which we cannot judicially notice. Even though the dramatic core of Kurlan’s production, together with its two principal characters, their relationships, and its locale, are unoriginal under the allegations of the pleading, neither its style and manner of expression nor its minor characters can be held, upon demurrer, to lack originality as a matter of law. (Weitzenkorn v. Lesser, supra.)

In addition to his allegation that he created an “original untitled radio program,” Kurlan claims to have “devised a new and original radio program idea” for which he “originated, created and devised . . . new program techniques and methods of radio presentation . . . including a new radio production format.” In that regard, this case is similar to Stanley v. Columbia Broadcasting System, Inc., 35 Cal.2d 653 [221 P.2d 73, 23 A.L.R.2d 216] , and Kovacs v. Mutual Broadcasting System, Inc., 99 Cal.App.2d 56 [221 P.2d 108], where the claimed protectible property was a “radio program idea” rather than the traditional conception of “literary property.”

(Under the rules stated and applied in deciding those cases, for Kurlan to have a protectible interest in his radio program idea as reduced to a production format, he must establish both originality and novelty.

I Kurlan’s radio program idea was to capitalize upon a famous I and successful story, play and motion picture by producing | it on the radio. The court may take judicial notice of the | fact that there is nothing new and novel in this idea which | might constitute protectible property. (Stanley v. Columbia Broadcasting System, Inc., supra, p. 663.) Whether there is any originality or novelty in Kurlan’s “new program techniques and methods of radio presentation” is more difficult to determine. There is nothing novel about customary broadcasting techniques, but the court cannot have judicial knowledge of all of the methods of the highly complicated radio industry. It might be possible for Kurlan to show that he created something novel in the way of program techniques and methods of presentation. Because extrinic evidence is required | to prove whether there is any element of novelty in his program techniques, it cannot be determined upon demurrer, that there is no protectible property in them. Insofar as the I question of a lack of originality or novelty may be involved | in each cause of action, the demurrers could not properly have been sustained solely upon that ground.

The next question for decision is that of similarity. Access and inclination to copy being admitted by the demurrer, then if it may be said that some substantial similarity between the programs reasonably could be found, the issues of similarity and of copying are to be determined by the trier of fact. Having both programs before it upon demurrer in accordance with section 426(3), the court may determine whether there is substantial similarity between them. (Weitzenkorn v. Lesser, supra.) If, as a matter of law, there is no such similarity, then there is no question of fact and the demurrers to each count of the complaint were properly sustained.

In order for the fifth count of the complaint to state a cause of action for plagiarism, there must be some substantial similarity between the defendants’ radio program and protectible portions of Kurlan’s production. (Weitzenkorn v Lesser, supra.) Even if it might be found that there is some! originality in the development of minor characters which j Kurlan may have added to McKenney’s story for the purposes I of the radio program, there is no similarity between them and I characters in the defendants’ program. Nor is there any simi-1 larity between the two shows as to the form and manner of | expression of their literary content. However, some similarity I might be found in the methods of program presentation and 1 radio techniques. Because evidence may tend to prove that Kurlan’s program format was both original and novel, the demurrers to the fifth cause of action were improperly sus- 1 tained. ‘

The defendants strike directly at the heart of Kurlan’s other claims by asserting that the complaint charges only the breach of an express, or an implied-in-fact, contract to pay for a “new and original” radio program, if used. They argue that, both from the allegations of the complaint and from the audition program itself, it appears, as a matter of law, that the program is neither original nor novel. Therefore, they say, no cause of action is stated upon an express or implied-in-fact contract.

However, as previously stated, it cannot be determined upon demurrer in the absence of evidence of previously published works that there is nothing original in the literary content of the program or that the radio production techniques „ utilized lack novelty. Nor may the complaint be construed so narrowly as suggested by the defendants. In substance, it alleges that Kurlan created a new and original radio program which he submitted to the defendants in return for their promise, express or implied, to pay “the reasonable value thereof” if they used it. Although Kurlan has described his production as a new and original program, he does not allege that he represented it to the defendants as such. Also, there is no allegation that the agreement was conditioned upon Kurlan’s production’s being new and original. The pleading allows Kurlan to present evidence, if there be such, tending to prove a promise, express or implied in fact, to pay for the use of his program whether or not it is original.

For this reason, and in accordance with the rule stated in Weitsenkorn v. Lesser, supra, the question of protectibility need not be considered in determining the sufficiency of the allegations of the first count of the complaint, based upon A express contract. Kurlan may be able to present evidence [jshowing some similarity between the program techniques. I ¡In addition, although there is no similarity between proteetibie portions of the literary content of Kurlan’s program and jthe defendants’ broadcasts, there is the possibility of finding Isome similarity in the use by each production of a “dumb” character who produces difficult situations for a “smart” ' character, both being girls who share an apartment in New York City. The terms of the contract and the content of the programs present questions of fact for the jury as to the contractual provisions, access, similarity, and copying.

1 ' However, the defendants argue that, even if the cause of action upon express contract otherwise is well pleaded, the demurrers to it properly were sustained because the complaint shows on its face that the contract is within the bar of the statute of frauds. Even if it be assumed that the transaction alleged might be said to be a sale of “goods” within section 1624a of the Civil Code, the complaint, upon its face, does not show the bar of the statute. A transaction is removed from the statute by acceptance of part of the goods received. “There is an acceptance of goods . . . when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.’’ (§ 1624a[3].) Kurlan alleges facts from which access, copying and use conceivably could be found. If such findings were made, acceptance of at least a portion of the goods received would be proved and the statute would constitute no bar to the action. Under the circumstances, the facts pleaded in the first count are sufficient to state a cause of action and the demurrers thereto were improperly sustained.

The second and third counts of the complaint are based upon the common count of quantum, valebant and are sufficient to state a cause of action upon either a contract implied in fact or one implied in law. (Weitzenkorn v. Lesser, supra.) As stated in the Weitzenkorn case, ‘ ‘ Although it is unnecessary for the pleading to distinguish between the contract implied in fact and the contract implied in law, or quasi contract, the elements which must be proved for recovery upon each of them are quite different. ’ ’ Here, it might be possible for Kurlan to recover upon either a contract implied in fact or one implied in law. Under the first theory, the required proof is essentially the same as that for the count upon express contract, with the exception that conduct, rather than words of promise, must be proved from which the promise may be implied. On the other hand, if Kurlan relies upon a contract implied in law, the proof necessary for a recovery is the same as that required by the tort action for plagiarism. For these reasons, the demurrers to the second and third counts of the complaint should have been overruled.

The fourth count relies upon a contract implied in fact from trade customs, practices and usages. The conclusions in regard to the count upon express contract are equally applicable to this count and the demurrers thereto were improperly sustained.

These conclusions make it unnecessary to consider Kurlan’s contention that it was an abuse of discretion for the trial court to have sustained the general demurrers to all five causes of action without leave to amend.

The judgment is reversed as to each cause of action with directions to permit the defendants to answer.

Gibson, C. J., and Shenk, J., concurred.