Kurlan v. Columbia Broadcasting System

• Decision Date: 29 April 1953
• Citation: 256 P.2d 962,40 Cal.2d 799
• Court: California Supreme Court
• Parties: , 97 U.S.P.Q. 556 KURLAN v. COLUMBIA BROADCASTING SYSTEM, Inc. et al. L. A. 22094.

Page 962

256 P.2d 962

40 Cal.2d 799, 97 U.S.P.Q. 556

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

L. A. 22094.

Supreme Court of California, in Bank.

April 29, 1953.

Rehearing Denied May 28, 1953.

Fendler, Weber & Lerner, Harold A. Fendler and Daniel A. Weber, Beverly Hills, for appellant.

Aubrey I. Finn, Hollywood, Pacht, Tannenbaum & Ross, Clore Warne, Gordon Stulberg and Maxwell E. Greenberg, Los Angeles, amici curiae on behalf of appellant.

O'Melveny & Myers, Homer I. Mitchell, W. B. Carman, Los Angeles, and Harned Pettus Hoose, Beverly Hills, for respondents.

Thelen, Marrin, Johnson & Bridges, Loeb & Loeb, Herman F. Selvin and Harry L. Gershon, Los Angeles, amici curiae on behalf of respondents.

EDMONDS, Justice.

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, Cal.Sup., 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 McKenney '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 photoplay 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, McKenney transferred to him 'the sole and exclusive right to use for radio broadcasting purposes said leading 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, McKenney 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 programs. The defendants' recordings are in their possession and control, it is said. Kurlan makes profert of his recording and consents that the records which he 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. Kurlan'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 loudmouthed Texan boor who, thanks to Eileen, forces his crude attentions upon Ruth. Among other characters are in eccentric old landlady and an ill-tempered canine monstrosity. Ruth's boy friend, Lloyd...