Gordon v. Goren

Per Curiam.

The complaint alleges that plaintiff originated the idea of a television program featuring the game of bridge, in which, after showing a hand being played, an outstanding expert makes an analysis of the play. Plaintiff made a pilot film embodying this idea and hired defendant Goren to appear in it and make the analyses. Goren participated* was paid for his efforts and presented with a copy of the pilot film. Plaintiff then submitted the pilot film to the corporate defendant, which rejected the idea. Some time later the corporate defendant presented a television program based on the same formula. In this program defendant Goren also acted as the commenting expert. As against both defendants, plaintiff seeks an injunction, damages and an accounting. On this appeal we are concerned only with whether the complaint states a cause of action as against the defendant Goren.

The theory of the complaint is that plaintiff had a literary property in the subject matter of the pilot film akin, if not amounting to, a common-law copyright, and that defendant, as a participant in the infringement, is liable for the consequences. While the bald statement has some support in the decided cases, the word “ participated ” is a word of art and does not embrace every person who had a connection with the corporate defendant’s production. To be liable it must be shown that the defendant not only contributed to the production but to the infringement, Such activities would be appropriating material from the original presentation (Universal Pictures Co. v. Harold Lloyd Corp., 162 F. 2d 354; Cain v. Universal Pictures Co., 47 F. Supp. 1013), issuing licenses to reproduce it (American Tel. & Tel. Co., v. Radio Audion Co., 281 F. 200) and like activity (Gross v, Van Dyk Gravure Co., 230 F. 412). Here the defendant’s contribution was not to the infringement. The purpose of his Selection for both programs was that he would bring his reputation for experience and expertness, and would necessarily supply his own. material, But it is not alleged that he had anything to do with formulating the original idea or making possible the pirating of that idea, if it was so pirated. Though apparently a logical choice for performing the role he Was retained for, he was not the only person who could have done it, so he was not responsible for the infringement in the sense that it could not have resulted without his participation. Nor is the fact that he was aware of plaintiff’s original program of any significance. He neither communicated nor revealed the format to his codefendant. The plaintiff did that himself.

If plaintiff’s theory is correct, an expert in any field who once accepts employment in a venture can thereafter accept employment in another venture only at the peril of liability for damages if it afterwards is found that the second venture infringes on the first, The mere rendition of the professional service is sufficient to bring about this result, as nothing material in addition to that is alleged. We do not believe that to be the law.

The order should he reversed on the law, with costs to the appellant, and the complaint dismissed as to the moving-defendant.