Mailer v. RKO Teleradio Pictures, Inc.

• Decision Date: 08 May 1964
• Docket Number: No. 411,Docket 28217.,411
• Parties: Norman MAILER, Plaintiff-Appellant, v. RKO TELERADIO PICTURES, INC., and Warner Bros. Pictures, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

332 F.2d 747 (1964)

Norman MAILER, Plaintiff-Appellant, v. RKO TELERADIO PICTURES, INC., and Warner Bros. Pictures, Inc., Defendants-Appellees.

No. 411, Docket 28217.

United States Court of Appeals Second Circuit.

Argued April 10, 1964.

Decided May 8, 1964.

George Zolotar, of Rembar & Zolotar, New York City, for plaintiff-appellant.

Sidney P. Howell, Jr., of Regan, Goldfarb, Powell & Quinn, New York City (Edwin E. McAmis and Harry W. Jacobs, New York City, on the brief), for defendant-appellee RKO Teleradio Pictures, Inc.

Joseph D. Karp, New York City, for defendant-appellee Warner Bros. Pictures, Inc.

Before MOORE, SMITH and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge:

By the terms of an agreement dated October 14, 1954, Norman Mailer assigned the motion picture rights to his novel, "The Naked and the Dead," to defendants' predecessor, with the proviso that "if the production of a feature length photoplay is not completed pursuant hereto within three years and six months from the date hereof all rights transferred and assigned hereunder shall automatically revert to" Mailer. Mailer now contends that "production of a feature length photoplay" was not completed by the cut-off date, that all rights consequently reverted to him, and that the defendants' continued production and distribution of the motion picture version of "The Naked and the Dead" thus constituted an infringement of copyright. In a well-reasoned opinion below, Judge Dawson concluded that a "feature length photoplay" had been completed within the time specified, and accordingly rendered judgment for the defendants. 213 F.Supp. 294 (S.D.N.Y.1963).

In finding the solution to the question posed we must examine the state of completion of the photoplay on April 14, 1958, the crucial date for the operation of the reversionary clause. By that date principal photography on the picture had long been completed; the film had been shown to the Motion Picture Association of America, and, after several retakes, had won that organization's certificate of approval; it had been exhibited to executives of major theater chains in an effort to obtain bookings; and some 98% of RKO's production budget, amounting to almost two million dollars, had already been expended on the project. Three days after the cut-off date, moreover, the film was shown to the public in a sneak preview at Riverside, California, and, pursuant to a timetable set on March 7, the picture was released nationally on August 9, 1958.

As Mailer strenuously insists, certain changes were made after April 14. Original background music was added to the sound track, two lines in the picture's final scene were altered to conform to a request of the Legion of Decency, some 500 feet of film, amounting to approximately five minutes of running time, were trimmed to intensify dramatic impact, and a credit line, acknowledging the co-operation of the Department of the Army, was deleted. Like Judge Dawson, however, we are unable to conclude that these minor changes — even though undertaken after the cut-off date — were sufficient to cause all rights to revert to Mailer.

When viewed in the context of the contract as a whole, it is clear that the reversionary clause was not intended to exact so arbitrary and Draconian a penalty. Thus, the assignment agreement called for Mailer to receive a lump-sum payment of $100,000, plus approximately 12½% of the profits of the picture. As a means of protecting Mailer in this profit-participation arrangement, the reversionary clause was designed to ensure that the producer would not subsequently decide to abandon the proposed film, or "pigeon-hole" the book — a not uncommon occurrence in the motion picture industry — and hence deprive Mailer of both his expected share of the proceeds and the satisfaction which may come to an author upon seeing his work take life on the screen. If, pursuant to the clause, a picture was not in fact completed as intended by the parties within the time specified, Mailer would, quite properly, then be free to make other arrangements and hence to realize his objectives.

Seen in this light, which we believe places the true purpose of the disputed provision in its proper focus, the clause had clearly fulfilled its objective at the time the cut-off date was reached. RKO had already spent some $1,827,106 on the picture, a firm release date had been set, and only relatively insignificant alterations had yet to be completed. To hold that, under these circumstances, Mailer might wield the reversionary clause as a club, and compel the defendants to pay a greater amount for the picture rights than the parties had contemplated, would be tantamount to...