O'BRIEN v. RKO Radio Pictures

• Citation: 68 F. Supp. 13
• Parties: O'BRIEN v. RKO RADIO PICTURES, Inc.
• Decision Date: 02 May 1946
• Court: U.S. District Court — Southern District of New York

68 F. Supp. 13

O'BRIEN v. RKO RADIO PICTURES, Inc.

District Court, S. D. New York.

May 2, 1946.

Richard J. Mackey, of New York City, for plaintiff.

Gordon E. Youngman, of New York City (T. Latta McCray, of New York City, of counsel), for defendant.

MANDELBAUM, District Judge.

Defendant moves for judgment on the pleadings upon the ground that the complaint herein fails to state a claim against the defendant.

The essential allegations of the complaint (assumed to be true for the purpose of this motion) are the following: That prior to July 24, 1942, the plaintiff prepared, originated and submitted to the defendant a certain motion picture idea as to a motion picture built around the colorful story of the Palace Theatre and the old vaudeville characters familiar in the days when the Palace Theatre was the shrine of the vaudeville profession.

It is further alleged, on information and belief, that the defendant examined and copied the idea and thereafter returned it to the plaintiff with the statement that it could not accept such unsolicited material. That, nevertheless, defendant appropriated and used the said idea by incorporating it into the motion picture "Show Business" starring Eddie Cantor.

Exhibit A attached to the complaint is the form in which the idea was exhibited to the defendant.

No claim of infringement of any copyright is made. So that the court is called upon to determine whether as a matter of law plaintiff's idea was literary property and as such entitled to protection as a common-law property right.

It is well-settled law that an author has no property right in his ideas unless the same are given embodiment in a tangible form. It is the means of expressing these ideas rather than the ideas themselves which warrant protection. Nichols v. Universal Pictures Corporation, 2 Cir., 45 F.2d 119; Dymow v. Bolton, 2 Cir., 11 F.2d 690; Fendler v. Morosco, 253 N.Y. 281, 171 N.E. 56.

With this basic principle in mind, the next step is an analysis of plaintiff's idea (Exhibit A) to determine whether it is in the tangible and concrete form required by law in order to place upon it the mantle of protection.

The first two pages of Exhibit A are entitled "Motion Picture Idea" and it is the contents thereof upon which plaintiff's case must stand or fall. The beginning consists of a general statement that "a motion picture built around the colorful story of the Palace Theatre, once the national shrine of vaudeville, has never been filmed and should not be lost." Additional remarks follow in the same vein until we come to the heading "Story Treatment" which is followed by a statement that the "real story of the Palace Theatre would stem naturally from the material that thorough and painstaking research would uncover."

Up to this point we have nothing which could even remotely be considered as literary property.

Going further with the exhibit, we come to what may be deemed the crux of the case. There is set forth four different possible suggestions of story treatment. All four are described with the utmost brevity.

The first treatment suggests the name of Keith or Albee as the central figures in making vaudeville a national shrine.

The second, deals with the "booking wars" among famous figures in vaudeville.

The third, suggests the story of the trials and...