Benny v. Loew's Incorporated

• Decision Date: 26 December 1956
• Docket Number: No. 14928.,14928.
• Citation: 239 F.2d 532
• Parties: Jack BENNY, Appellant, v. LOEW'S INCORPORATED, a corporation, and Patrick Hamilton, Appellees. COLUMBIA BROADCASTING SYSTEM, Inc., and American Tobacco Company, Appellants, v. LOEW'S INCORPORATED, a corporation, and Patrick Hamilton, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

239 F.2d 532 (1956)

Jack BENNY, Appellant, v. LOEW'S INCORPORATED, a corporation, and Patrick Hamilton, Appellees.

COLUMBIA BROADCASTING SYSTEM, Inc., and American Tobacco Company, Appellants, v. LOEW'S INCORPORATED, a corporation, and Patrick Hamilton, Appellees.

No. 14928.

United States Court of Appeals Ninth Circuit.

December 26, 1956.

Wright, Wright, Green & Wright, Loyd Wright, Richard M. Goldwater, Los Angeles, Cal., for appellant Jack Benny.

O'Melveny & Myers, Homer I. Mitchell, W. B. Carman, Warren M. Christopher, Los Angeles, Cal., for appellants Columbia Broadcasting System and others.

Allen E. Susman, Herman F. Selvin, Loeb & Loeb, Los Angeles, Cal., for appellee.

Before BONE, McALLISTER, and CHAMBERS, Circuit Judges.

McALLISTER, Circuit Judge.

Patrick Hamilton, an English author and a British subject, some time prior to December, 1938, conceived and wrote an original play entitled, "Gas Light." It was published and protected by copyright in February, 1939. Shortly thereafter, it was publicly performed in England, first, in Richmond, and later, in London. On December 5, 1941, it was produced as a play in New York under the name, "Angel Street," and had a successful run of 1,295 consecutive performances, extending over a period of more than 37 months.

On October 7, 1942, the exclusive motion picture rights for "Gas Light" were acquired by Loew's, Inc., better known under its trade name of Metro-Goldwyn-Mayer.

Loew's spent $2,458,000 in the production and distribution of the motion picture photoplay of "Gas Light." The actual making of the film extended over a period of more than two and a half years.

In producing the motion picture, Loew's acquired the services of three great artists in the cinema field, Charles Boyer, Ingrid Bergman, and Joseph Cotten.

The photoplay, "Gas Light," was exhibited in the United States and fifty-six foreign countries. Approximately fifty-two million persons paid admission to see it. The gross receipts in rentals for the play amounted to $4,857,000.

There is no question of the right of the dramatic work to protection under the copyright laws of both Great Britain and the United States.

On October 14, 1945, Jack Benny, a successful performer in the field of comedy, after securing Loew's consent to present a parody of "Gas Light" on radio, caused to be written, produced, performed, and broadcast over a national radio network a fifteen-minute burlesque of the play. In preparing the program, the radio writers for Benny had access to the acting script of the motion picture, "Gas Light."

More than six years later, on January 27, 1952, the Columbia Broadcasting System caused to be written and produced a half-hour-long television show burlesquing "Gas Light," with Jack Benny in the leading role. It was broadcast over the Columbia Broadcasting System network and was "sponsored" by the American Tobacco Company. Neither Mr. Benny nor the Columbia Broadcasting System nor the American Tobacco Company secured consent from Loew's or Mr. Hamilton to publish and broadcast the television burlesque, or, as it is sometimes called, the parody.

Immediately after the presentation of the television show, Loew's dispatched a telegram to the Columbia Broadcasting System, notifying that company that Loew's was the owner of the exclusive rights of production and recording of the play, "Gas Light," and adaptations thereof by means of talking films, sound tracks, and television; that Columbia had used substantial portions of the play in its television program; and that Loew's intended to enforce its rights against infringement. A short time thereafter, counsel for Columbia replied to the above telegram, informing Loew's that its burlesque appropriation of the play, "Gas Light," was a "fair use" of the dramatic work, and that Columbia had the right to parody it as it did in the television show. Loew's, in turn, informed Columbia that the burlesque television show constituted an infringement of the copyright of "Gas Light"; and when Columbia prepared for a similar presentation over several television channels, Loew's filed this action, and secured a temporary restraining order.

Upon a trial of the issues, the district court found that the Benny television play was copied in substantial part from Loew's motion picture photoplay, "Gas Light"; that the portion so copied was a substantial part of the copyrighted material in such photoplay; and that the Benny television presentation was an infringement of the copyrighted photoplay, "Gas Light." The court, accordingly, granted injunctive relief, restraining the showing of the television play, all of which appears in the able and comprehensive opinion by Judge James M. Carter, reported in 131 F.Supp. 165.

On review, the chief contention advanced by appellants is that the burlesque presentation of "Gas Light" was a "fair use" of appellees' photoplay; that, although the play was copyrighted, and neither Benny, Columbia, nor the American Tobacco Company had received any consent on the part of the copyright owners to adapt the play in the way they did, nevertheless, they had the right to adapt the original copyrighted dramatic work of the author of the play and of the photoplay version as a burlesque, and to present, vend, and appropriate it thus, for their own profit.

Appellees submit that the Copyright Act insures to the copyright owners the exclusive right to any lawful use of their property, whereby they may get a profit out of it. They further submit that there is no doctrine of fair use which justifies the appropriation of substantial copyrighted material of a dramatic work without the consent of the copyright owner, whether such appropriation is made for the purpose of pirating the work openly, or under the guise of a burlesque or a parody.

In considering the law and its application to this case, the facts themselves are most important. The play is a remarkable dramatic production. As outlined by appellees and somewhat supplemented by the record, the play tells the story of a man who sets out upon a deliberate plan to drive his wife insane. He is motivated in this endeavor by the need of having access to a house which was inherited by his wife and in which they live. Some years prior, he had murdered the aunt of his wife for the sake of some valuable jewels which he had intended to steal, but in which he had been frustrated. His method of achieving his objective of finding the jewels without the wife's knowledge, and, at the same time, avoiding her suspicion, is to keep her attention diverted by inducing in her the belief that she is having hallucinations, suffering great lapses of memory, and gradually losing her mind. He does this by abstracting, without her knowledge, articles which he had entrusted to his wife, and by removing a portrait from the wall, making her believe that she had been responsible for the misplacement of the articles and the removal of the picture, of which she had lost all recollection. He fosters such a belief in her, in part, by causing the servants to bear witness that they did not remove the portrait. The suspense aroused by the picture is focused upon whether he will succeed in his scheme of finding the jewels and driving his wife insane. He fails, because of the intervention of a detective from Scotland Yard who, suspicious of the husband's conduct, has become interested in, and then obviously enamoured, of the heroine. The detective apprehends the husband at the climax of the plot, binds him to a chair in his own home to secure his arrest, and then reveals the truth, which he has learned, to the wife. At her request, she is given an opportunity to talk to the husband, who attempts once again, through his personal charm, to subdue her to his will. She, however, resists. In this scene, at her husband's request, she procures a knife, which he has kept nearby. The suspense is heightened by the question whether she will use the knife to cut her husband's bonds, as he has asked her to do, or whether she has come to a determination to kill him. She does neither, but contents herself with denouncing him, and...