Stanley v. Columbia Broadcasting System

• Citation: 23 A.L.R.2d 216,35 Cal.2d 653,221 P.2d 73
• Parties: , 23 A.L.R.2d 216, 86 U.S.P.Q. 520 STANLEY v. COLUMBIA BROADCASTING SYSTEM, Inc. et al. L. A. 20686.
• Decision Date: 04 August 1950
• Court: California Supreme Court

Page 73

221 P.2d 73

35 Cal.2d 653, 23 A.L.R.2d 216, 86 U.S.P.Q. 520

STANLEY v. COLUMBIA BROADCASTING SYSTEM, Inc. et al.

L. A. 20686.

Supreme Court of California, in Bank.

Aug. 4, 1950.

Rehearing Denied Aug. 31, 1950.

O'Melveny & Myers, Homer I. Mitchell, Louis W. Myers, W. B. Carman, Jr., and Deane F. Johnson, all of Los Angeles, for appellant.

Loeb & Loeb and Herman F. Selvin, all of Los Angeles, as amici curiae on behalf of appellant.

Harold A. Fendler, Beverly Hills, and John W. Preston, Los Angeles, for respondent.

CARTER, Justice.

Defendant has appealed from a verdict and judgment for $35,000 given by a jury in favor of the plaintiff. The action was brought to recover on an alleged implied agreement of defendant to pay plaintiff for a radio program which plaintiff claims to have originated.

In his complaint, plaintiff alleged that during the year 1941 he originated and caused to be prepared, composed and written an original script for a radio grogram entitled 'Walter Wanger Presents' and a radio program format entitled 'Preview Parade' or 'Hollywood Preview' and that about September 1st of that year he had this script recorded for the purpose of submitting it to prospective sponsors, advertising agencies and broadcasting companies. He alleged that he, at all times, retained full ownership of the radio program and that he at no time licensed or authorized the use of it in any manner. Plaintiff further alleged that during the years 1942, 1943 and 1944 he submitted to the defendant, Columbia Broadcasting System, Incorporated, the radio grogram, script, format and records for the purpose of having the defendant determine whether or not it desired to purchase it or license the right to use it under an implied agreement that if the defendant did use the radio program it would pay plaintiff its reasonable value. But that on or about the first of May, 1945, the defendant produced and presented a radio program entitled 'Hollywood Preview' which substantially copied and embodied plaintiff's radio program and, as a result, became indebted to the plaintiff for the use thereof.

On this appeal, defendant contends that the court should have found, as a matter of law, that there was no similarity between the two programs; that the evidence was insufficient to show that defendant had access to plaintiff's program idea that there can be no implied agreement to pay for an abstract idea which is not new or novel; that the jury arbitrarily ignored the uncontradicted, unimpeached testimony of defendant's witness, Hudson; that when an idea is made public there can be no liability for its use; that its motion for a new trial on the grounds that (1) the jury's verdict for damages was so excessive that it appeared to have been given under the influence of prejudice and passion, (2) newly discovered evidence, and (3) that the evidence was insufficient to support the verdict should have been granted.

As a general observation from the cases, it may be stated that the right of the originator of an idea to recover from one who uses or infringes it seems to depend upon whether or not the idea was novel and reduced to concrete form prior to its appropriation by the defendant, and, where the idea was disclosed by the originator to the appropriator, whether such disclosure took place under circumstnaces indicating that compensation was expected if the idea was used.

Where these prerequisites exist, recovery may be had upon a theory of contract implied in fact or in law. Plus Promotions, Inc., v. R. C. A. Mfg. Co., D.C.N.Y., 49 F.Supp. 116; Alberts v. Remington Rand, Inc., 175 Misc. 486, 23 N.Y.S.2d 892; Healey v. R. H. Macy & Co., 251 App.Div. 440, 297 N.Y.S. 165, affirmed 277 N.Y. 681, 14 N.E.2d 388.

Plaintiff's complete program is as follows:

'Announcer: 'Ladies and gentlemen, Walter Wanger Presents Hollywood Preview! Hollywood Preview! Hollowood Preview!

"And here is Hollywood's distinguished producer, Walter Wanger.'

'Wanger: 'How do you do, ladies and gentlemen. Welcome to our Hollywood Preview Parade, a radio show designed for your pleasure and to give you a voice in what pictures Hollywood shall produce in the months to come. Hollywood is very interested in giving you motion pictures you want to see. Unfortunately producers do not and cannot always know just what you do want. This is the reason for this 'Preview Parade.' Each week we plan to present a radio story we think will make a good film. We ask you to send us your opinion and suggest players for the leading roles. Our sponsor will give worthwhile cash prizes for the best letters, but more about that later.

"Now allow me to introduce Mr. True Boardman.'

'Boardman: 'This is the sixth program of the new series, 'Walter Wanger Presents.' Your host is one of Hollywood's most progressive film leaders, the President of the Academy of Motion Picture Arts and Sciences, and producer of such outstanding films as Foreign Correspondent, Blockade, Long Voyage Home, Stagecoach, Algiers, and currently Sundown.

"Each week Mr. Wanger selects a story which he feels should be made into a picture. You are asked to write to Mr. Wanger and give him your opinion. The sponsors pay $500 for the best letter written by one our listeners and if enough of you vote for it our play will be produced as a motion picture.

"And now, once again, Walter Wanger.'

'Wanger: 'Thank you, Mr. Boardman. Tonight out play is entitled 'So Gallantly Gleaming.' It has been written by Harvey Thew, Peter Ordway, and Sonya Levien. The radio adaptation is by Hector Chevigny.

"'So Gallantly Gleaming' tells a thrilling and romantic story of a great explorer, his beautiful wife, and the acquisition of California. Listen closely. Do you think it should be made into a motion picture? Your votes will decide.

"Our guests who will later give their opinion are Miss Joan Bennett, Hector Chevigny and Henry Hathaway. Music is by Robert Armbruster."

(Drama)

'Boardman: 'Thank you, ladies and gentlemen. Did you like 'So Gallantly Gleaming?' Would you like to see it as a motion picture? The story of John Charles Fremont, I think, is one that deserves retelling. In a moment we will hear the opinion of our three Hollywood guests, Joan Bennett, Hector Chevigny, and Henry Hathaway, and then have an opportunity to compare their opinions with yours.

"Now again a word as to the real idea behind this program. Each week Walter Wanger Presents brings you a story which we think would be a good motion picture. And here is your part in the program. We ask you to write to Mr. Wanger, telling him whether or not you would like to have this play made into a motion picture, and why. Also include your choice of stars to play the leading roles. The best letter received each week will receive an award of $500 from our sponsor. The award is based not on the style of your letter, not on brilliant writing, but entirely on the reasons you set down as your opinion. And believe me, Hollywood is waiting for your vote. Whether or not you win a prize, your vote will help decide whether or not to film 'So Gallantly Gleaming.' The American picture-going public has long said it wished a voice in the choice of stories presented on the screen. Here is the chance for you to have that voice and make it heard across the nation. Write your letter now tonight. Address Walter Wanger, Hollywood, California.

"Last week Mr. Wanger presented 'Out of the Night', the sensational novel which has attracted such nationwide comment. A storm of argument was aroused. Sixty-eight thousand letters have been received to date, and we are happy to announce that Warner Brothers Studio have arranged to make this startling story into a film in the near future. So, thanks to your letters, you have helped Warner Brothers to their decision to film 'Out of the Night.'

"Last week's best letter was from Mrs. William Wentworth of Brockton, Massachusetts. Congratulations, Mrs. Wentworth! Your check for $500 goes forward immediately.

"Now, Mr. Wanger, I think we are all anxious to hear the opinions of your guests about tonight's show.'

(Interview with Board of Experts)

'Wanger: 'Thank you. Thank you very much. Thank you, Joan Bennett, Henry Hathaway, Hector Chevigny. Do you ladies and gentlemen, agree with the opinions of our guests? Do you agree that 'So Gallantly Gleaming' should become a motion picture? And who do you think should play the leading roles? Won't you write and tell us. Remember that whether your letter is best and wins the prize or not, you are helping Hollywood decide on what to give you on the screen. Next week we will have something totally different for you, a story called 'Two Arabian Knights.' Until then, this is Walter Wanger saying, Good night.'

'Announcer: 'Walter Wanger Presents is brought to you at this time each week by our sponsor. Original music for tonight's show was written and directed, as always, by Robert Armbruster. The cast included Hollywood's outstanding radio stars Lurene Tuttle, Lou Crosby, Norman Field, Elliott Lewis, Lou Merrill, Frederick Shields, Paul Whitley, Norene Gamille, Gayne Whitman.

"This is John Hiestand hanging out the

'Goodnight' sign until we meet again next week at this same time. This is the National Broadcasting Company."

The following is a portion of the broadcast preceding and following the drama as actually put on the air by defendant:

'Announcer: 'Its The Flying Red Horse * * * the sign that identifies the Mobilgas and Mobiloil dealers who bring you * * * 'Hollywood Preview' * * * with Mr. Otto Kruger!'

'Announcer: 'Tonight, on behalf of your Mobilgas and Mobiloil dealer * * * Mr. Otto Kruger, eminent star of radio, stage and screen brings you another Hollywood Preview of a motion picture of the future! Tonight's story * * * 'Growing Pains' * * * a comedy by Aurania Rouveral now scheduled for production by RKO Pictures.

"And as our star * * * Miss Marcy Maguire!

"Now * * * ladies and gentlemen * * * ...