Columbia Pictures Corp. v. National Broadcasting Co.

• Decision Date: 09 December 1955
• Docket Number: No. 16876.,16876.
• Citation: 137 F. Supp. 348
• Court: U.S. District Court — Southern District of California
• Parties: COLUMBIA PICTURES CORPORATION, a corporation, Plaintiff, v. NATIONAL BROADCASTING CO., Inc., Defendant.

137 F. Supp. 348

COLUMBIA PICTURES CORPORATION, a corporation, Plaintiff, v. NATIONAL BROADCASTING CO., Inc., Defendant.

No. 16876.

United States District Court S. D. California, Central Division.

December 9, 1955.

Mitchell, Silberberg & Knupp, Peery Price, and George Benedict, Jr., Los Angeles, Cal., for plaintiff.

O'Melveny & Myers, W. B. Carman, and Richard R. St. Johns, Los Angeles, Cal., for defendant.

JAMES M. CARTER, District Judge.

Like Loew's Incorporated, v. Columbia Broadcasting System, Inc., D.C., 131 F. Supp. 165, now on appeal, this case represents another collision between the economic interests of the motion picture industry and the youthful and growing television industry. Since in this case we hold for the defendant, and the case is therefore the reverse or counterpart of Loew's Incorporated, v. Columbia Broadcasting System, Inc., supra, we had hoped to be able to write at least a short opinion. The press of other work and the desire to speed this case on its way to the Appellate Court, prevents our so doing. These few remarks are therefore intended to assist counsel in the preparation of findings of fact, conclusions of law and judgment.

We hold for the defendant on the issues raised by the first and second count. The third count has been dismissed by stipulation.

Comment

Dr. Smith's extended testimony, like Dr. Baxter's in Loew's Incorporated, v. Columbia Broadcasting System, Inc., is informative and captivating, but most of it is beside the point. Its only impact in the case at bar could be on the question of whether the television showing of "From Here to Obscurity" is a true burlesque. How that determination aids us in a solution in this case is difficult to see.

We realize we are working in a new field of law, trying to decide particularly what T.V. may take from motion pictures for its shorter productions, and what it may not take. In Loew's, Incorporated, v. Columbia Broadcasting System, Inc., we stated you cannot take substantially all of a copyrighted work and defend upon the ground that the alleged infringing work was burlesque or the mere conversion of the work from the serious to the comic. We said also, one cannot take a substantial part, and that although difficulty confronts the court in drawing the line, it must be drawn in each case.

It seems clear and was conceded at the trial, that at one end of the spectrum were situations where clearly the burlesque would be plagiarism, e. g. where a defendant took verbatim the dialogue of a copyrighted script and transferred it from a serious vein to a comic one. On the other end of the spectrum, it seems equally clear that where the burlesque took a theme, the locale, or a situation, that there would be no infringement. This would be true because such matters are ordinarily not subject to protection and secondly, because the taking, if any, would not be substantial.

With some hesitation, but with the assurance that there is logic and fairness behind them, as well as general support in the law, we suggest these principles:

(a) When the alleged infringing work is of the same character as the copyrighted work, viz., a serious work with a taking from another serious copyrighted work, then the line is drawn more strictly than when a farce or comedy or burlesque takes from a serious copyrighted work or vice versa.

(b) In historical burlesque a part of the content is used to conjure up, at least the general image, of the original. Some limited taking should be permitted under the doctrine of fair use, in the case of burlesque, to bring about this recalling or conjuring up of the original.

(c) Burlesque may ordinarily take the locale, the theme, the setting, situation and even bare basic plots without infringement, since such matters are ordinarily not protectible.

(d) The doctrine of fair use permits burlesque to go somewhat farther so long as the taking is not substantial. It may take an incident of the copyrighted story, a developed character (subject to the limited right of an author in certain situations, Loew's Incorporated v. Columbia Broadcasting System, Inc., note 1) a title (subject to right of protection under unfair competition, Loew's Incorporated, v. Columbia Broadcasting System, Inc., note 38) some small part of the development of the story, possibly some small amount of the dialogue.

(e) When burlesque takes more than the matter ordinarily not protected, and referred to above, it runs a calculated risk, that on all the facts involved, a trier of fact may find the taking substantial.

(f) The defense, "I only burlesqued" the copyrighted material is not per se a defense. To hold otherwise would seriously jeopardize rights of property in copyrights and investments in such works, and would ultimately seriously damage the prices to be paid to authors for their literary works. A studio with no assurance it could protect an investment in a copyrighted work from infringement by unlimited use through burlesque of the work, would tend to pay less and less for an author's work. Unlimited and unrestrained taking by burlesque could destroy the Copyright Act, 17 U.S.C.A. § 1 et seq., undermine the motion picture industry, the legitimate stage, and reduce the author to his status of 300 years ago, — dependent on the largess of the Prince or Patron.

Some higher court may decide burlesque was a defense per se. I do not choose to do so.

We trust we have not followed the system of Judge Bridlegoose of Rabelais, and stacked plaintiff's papers on one end of the table and defendant's on the other, before determining in whose behalf we would first cast the judicial dice. Actually, this case tests the general principle and the dictum in Loew's Incorporated, v. Columbia Broadcasting System, Inc. It is an excellent companion case for Loew's and we hope that they may stride together through the hazard of judicial review and still remain consistent companions. Unlike Loew's, here there was a taking of only sufficient to cause the viewer to recall and conjure up the original. This is a necessary element of burlesque. As Dr. Baxter stated at the trial of Loew's Incorporated, v. Columbia Broadcasting System, Inc., the defendant has taken a small part and then "`taken off into the blue.'" 131 F. Supp. 183.

Defendant will prepare findings of fact, conclusions of law and judgment within the time provided by the Rules. Defendant will include suitable citation of authority in the conclusions of law.

Findings of Fact

1. The claim stated in the first count of plaintiff's complaint arises under the laws of the United States relating to and governing copyrights. The claim stated in the second count of plaintiff's complaint is a claim for unfair competition, arises under the laws of the State of California, and is based upon the same transaction as that stated in the first count. The third count of plaintiff's complaint has been heretofore dismissed by order of this court on stipulation of the parties.

2. Plaintiff Columbia Pictures Corporation (hereinafter referred to as "Columbia") is a New York corporation doing business within the Southern District of the State of California. Columbia is engaged in the production and distribution of motion pictures. Defendant National Broadcasting Company, Inc. (hereinafter referred to as "NBC") is a Delaware corporation doing business within the Southern District of the State of California. NBC is engaged in the business of broadcasting and televising and licensing others to broadcast and telecast radio and television programs.

3. Prior to February 26, 1951, one James Jones created and wrote an original novel entitled "From Here To Eternity", which novel in book form was first published on February 26, 1951, with due and proper notice of copyright. Copyright of said novel was duly registered in the name of James Jones with the Register of Copyrights of the United States. On or about March 18, 1951, James Jones consented in writing to Columbia's creating and producing a motion picture based upon said novel and to Columbia's securing in its own name and as its own property the copyright and registration to such motion picture.

4. In the year 1953 Columbia produced a motion picture based upon the James Jones novel, said motion picture being entitled "From Here To Eternity". General release and publication in the United States of said motion picture commenced on September 1, 1953. Columbia published said motion picture with due and proper notice of copyright in the United States and duly registered its claim to the copyright in said motion picture with the Register of Copyrights of the United States. At all times Columbia was and still is the owner of all right, title and interest in and to the copyright of said motion picture.

5. The motion picture "From Here To Eternity" has an exhibition running time of approximately one hour and 40 minutes. Said motion picture was viewed by this Court in the course of the trial herein. Attached hereto as Exhibit A is a summary of the said motion picture.

6. On September 12, 1953, NBC broadcast over a nationwide network of television stations owned by or affiliated with NBC a televised playlet or skit entitled "From Here To Obscurity". In the course of the telecast thereof the said playlet or skit was reproduced on motion picture film by means of kinescopic process. The performance time of the playlet or skit "From Here To Obscurity" was approximately 20 minutes. The kinescope recording of said playlet or skit was viewed by this Court in the course of the trial herein. Attached as Exhibit B is a summary of said playlet or skit.

7. The playlet or skit "From Here To Obscurity" was telecast by NBC without the knowledge or consent of Columbia.

8. The playlet or skit "From Here To Obscurity" was intended to be and was a burlesque of the motion picture "From Here To Eternity". Burlesque is a recognized form of literary art. In a burlesque, a part of the content is used...