Bradbury v. Columbia Broadcasting System, Inc., 16626.

• Decision Date: 22 March 1961
• Docket Number: No. 16626.,16626.
• Citation: 287 F.2d 478
• Parties: Ray BRADBURY, Appellant, v. COLUMBIA BROADCASTING SYSTEM, INC., a corporation; Martin Manulis; and Robert Alan Aurthur, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

287 F.2d 478 (1961)

Ray BRADBURY, Appellant, v. COLUMBIA BROADCASTING SYSTEM, INC., a corporation; Martin Manulis; and Robert Alan Aurthur, Appellees.

No. 16626.

United States Court of Appeals Ninth Circuit.

January 20, 1961.

Rehearing Denied March 22, 1961.

Sanford I. Carter, Gerson Marks, Beverly Hills, Cal., for appellant.

Lillick, Geary, McHose, Roethke & Myers, William A. C. Roethke, Anthony Liebig, Los Angeles, Cal., for appellees.

Before BARNES and HAMLEY, Circuit Judges, and FOLEY, District Judge.

FOLEY, District Judge.

Ray Bradbury, owner of the copyrights in his literary works, The Fireman and Fahrenheit 451, brought this action for infringement, seeking damages and injunctive relief. He appeals from the judgment denying the relief prayed for in his complaint.

The alleged infringing work is a television production entitled A Sound Of Different Drummers televised by Columbia Broadcasting System on October 3, 1957. Columbia together with Robert Alan Aurthur, who wrote the television script, and Martin Manulis, who produced it, were named defendants.

The appellant will be hereinafter referred to as plaintiff and appellees as defendants.

Bradbury appeals, specifying as error the findings and conclusions that the script entitled A Sound Of Different Drummers was original; that Aurthur did not have access to Bradbury's copyrighted works prior to the telecast; that Aurthur did not copy from Bradbury's works; and that there is no similarity in the literary expression.

At the outset of his opinion, 174 F. Supp. 733, 734, the trial Judge stated:

"It is Bradbury\'s claim that the play lifted, in whole or part, materials from two of his books duly copyrighted, `The Fireman\' published in `Galaxy\', a Science Fiction magazine, in February, 1951, and later expanded into a copyrighted book called `Fahrenheit 451\', published in 1953. In both instances, the Copyright Act was fully complied with (17 U.S.C.A. §§ 1-22) and the copyrights are now owned by Bradbury.

"We state at the outset that the attorneys for the defendant agree with the court and concede that the material was copyrightable and fulfilled the legal requirements of originality. The problems to resolve are access and infringement."

Access.

Both plaintiff and defendants agree that in the copyright field access means not merely the opportunity to have read or known the contents of a work, it means actual reading or knowledge thereof. Harold Lloyd Corporation v. Witwer, 9 Cir., 65 F.2d 1, 16.

From the evidence it is apparent that the defendants, Columbia and Aurthur, had knowledge of plaintiff's copyrighted works prior to the writing or telecast of A Sound Of Different Drummers. Bradbury testified that in 1952 he entered into a written agreement with Columbia with respect to the television rights to The Fireman and Exhibit 3 was identified and received as an executed copy of said written contract. This testimony is not contradicted and an inference therefrom cannot be avoided that as early as 1952 defendant Columbia had actual knowledge of the contents of plaintiff's works.

Defendant Aurthur testified that he had been a free-lance writer since 1947 and was employed during the spring of 1955 at the National Broadcasting Company as associate producer of the Philco Television Playhouse, and that his duties were mainly in the area of working with writers in terms of developing scripts under the supervision of Gordon Duff, producer, and that his relation with Duff was of five or six years' duration. Aurthur testified that he gave first consideration to the plaintiff's work, Fahrenheit 451, when a Mr. Wolfe came into his office in early April of 1955. Wolfe told him that he thought there was material in the book, Fahrenheit 451, that perhaps television was prepared to accept.

After some discussion, Aurthur and Wolfe interviewed Gordon Duff and Aurthur explained to Duff what Wolfe "wanted to do," to which Duff replied, "Well, let me read the book." It is apparent that the book referred to in the discussion was Fahrenheit 451.

Following this discussion and under date of April 22, 1955, Aurthur addressed a letter to Don Congdon, Bradbury's agent. After dispatching this letter to Congdon, Bradbury had telephone conversations with Congdon relative to television rights to Fahrenheit 451. Aurthur testified that Duff had decided to produce for television Fahrenheit 451.

Bearing on this question of whether Aurthur had read or had knowledge of plaintiff's works, he testified as follows:

"Q. Well, had you discussed with Mr. Duff the matter of producing Fahrenheit 451 on the program on which you and Mr. Duff were partners? A. Yes. There was one discussion.

"Q. Did you know anything about the story of 451? A. I knew about the book burning of the future, yes, sir.

"Q. Who told you that? A. Bernie Wolfe.

"Q. Had you read any reviews or synopses of 451? A. No, sir.

"Q. Well, what did Wolfe tell you about the story of 451? Tell us what Wolfe told you? A. That it was a book about book burning in the future. You see, we had never discussed the story. We discussed his desire to do a show. The discussion of the story never came about, because it was never a point at which I came in contact with Wolfe in relation to the story.

"The Court: But the subject matter of the story was discussed because you just said —

"The Witness: Yes, sir.

"The Court: Something about book burning.

"The Witness: Yes, sir.

"The Court: All right.

"Q. By Mr. Marks: And in no greater detail? A. No, sir.

"Q. Now, in May of 1955, did you and Duff inform Wolfe that you could get the TV rights to the Fahrenheit book, if he wanted it? A. I am not sure whether we did, or whether he heard personally from Don Congdon, because he was also Congdon\'s client.

"Q. And in May of 1955, did you tell Wolfe that you and Duff were very much interested in putting on Fahrenheit 451? A. The subject involved Gordon Duff\'s doubts that we had enough money, or enough facilities to do a science fiction story.

"Q. By Mr. Marks: At the meeting that I just described with members of the technical staff, Mr. Aurthur, do you remember that you and Mr. Duff at that time indicated that Fahrenheit 451 might make an excellent opening program for the fall series, which you were then contemplating? A. Mr. Duff made the decision to enter into negotiations for Fahrenheit 451. And I acted as agent in this case on the phone calls. I don\'t recall the exact statement you called. There may have been such talk, there may have been a statement relating to the fact that 1984 the previous fall had been Studio One\'s opening show. That might have been what that discussion was about.

"Q. * * * Did you suggest to Mr. Wolfe that he prepare an outline setting forth the various technical problems involved in the television adaptation of Fahrenheit 451? A. No, sir, Mr. Duff recounted that.

"Q. I would like to have this outline marked at this time for identification.

"The Court: It may be marked for identification.

"The Clerk: Plaintiff\'s Exhibit No. 17 marked for identification.

* * * * * *

"Q. By Mr. Marks: Well, let\'s get back to the conference with Mr. Wolfe, Mr. Duff and these technical assistants of yours, and yourself, Mr. Aurthur, for a moment.

"I have handed you what has been marked for identification as Plaintiff\'s Exhibit 17, which appears to me, I believe, to be an outline of the technical problems I mentioned before. A. Yes, sir.

"Q. And I ask you, is that a copy of the outline that was made by Wolfe, pursuant to the results of this conference with yourself and Duff, and these other technical assistants? A. I don\'t know. I would imagine so, yes, sir. But specifically, I don\'t know.

"Q. Well, does it appear to you that it — A. It would appear to be what it says it is, yes, sir.

"Mr. Marks: All right. May I offer that in evidence.

"The Court: It may be received.

* * * * * *

"Q. By Mr. Marks: Now, I believe that in connection with your interrogatories, Mr. Aurthur, you indicated that the story of Fahrenheit 451 had been told to you, as I recall, in general terms. A. Yes sir.

"Q. And would you tell us what you mean by `in general terms\'? A. Would you mind reading exactly what I said, so I will know exactly what I said?

"Q. Yes, indeed. A. Because I don\'t know if I used the word `total\' or not.

"Q. * * * I will read the interrogatory and the answer. The interrogatory is: `Did anyone ever tell you the story of plaintiff\'s works or describe plaintiff\'s said works to you?\' A. Yes, sir.

"Q. And your reply is: `No, but Bernard Wolfe had told me about Fahrenheit 451 in general terms.\' A. Yes, sir.

"Q. And now, I say what were those general terms that you speak of, please?

Then an exchange of remarks by the Court with the witness.

"Q. By Mr. Marks: In other words, you have already testified as much as you are able to testify with respect to how much of this story was related to you? A. Yes, sir.

"Q. And no more? A. That\'s right, yes, sir.

"Q. Now, over all the period that these negotiations were going on, and that these conferences with respect to technical problems were going on, you never read the book? A. No, sir.

"Q. You never read the book? A. No, sir.

"Q. Or any reviews or synopses of it? A. No, sir.

"Q. Yet you were considering putting this on a top line program? A. Mr. Marks, I have already explained that my only concern was of the television play. I was in rehearsal with my own show. I was considering perhaps ten or twelve other shows at the same time.

"Q. Well, did you consider that you had any responsibility for reading this property? A. No, sir. Mr. Duff read the property.

"Q. Well, did you discuss it with Mr. Duff? A. No, sir.

"Q. Never? A. No, sir.

"Q. And he was your partner? A. Yes sir, he was the boss."

If Aurthur is to be understood as having testified that he had not read or had knowledge of The Fireman or Fahrenheit 451 prior to the production of the teleplay, such testimony, when considered with similarities...