Desny v. Wilder
Court | California Court of Appeals |
Citation | 286 P.2d 55 |
Decision Date | 15 July 1955 |
Parties | Victor DESNY, Plaintiff and Appellant, v. Billy WILDER, Paramount Pictures Corporation, a corporation, and Paramount Film Distributing Corporation, a corporation, Defendants and Respondents. Civ. 20705. |
Milo V. Olson and Frank De Marco, Jr., Los Angeles, for appellant.
O'Melveny & Myers, W. B. Carman, William W. Alsup, Everett B. Clary, Los Angeles, for respondents.
This cause has narrowed on appeal into an action in quasi plagiarism--one for recovery of the price of a story drawn from the public domain of news and history and furnished to defendants upon an implied promise to pay the reasonable value in case of use by them in a motion picture. The appeal is taken from a summary judgment in favor of defendants. Plaintiff's amended complaint is in three counts, two of which sound in plagiarism and the other (count I) in quasi-contract. Under the impact of Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d 947; Kurlan v. Columbia Broadcasting System, 40 Cal.2d 799, 256 P.2d 962; and Burtis v. Universal Pictures Co., Inc., 40 Cal.2d 823, 256 P.2d 933, present counsel for plaintiff rely upon that first cause of action only and urge error in granting a summary judgment with respect thereto.
The Weitzenkorn, Kurlan and Burtis decisions establish these principles as California law: Whereas, prior to the amendment of Civil Code § 980 in 1947, protection was afforded to the author of any product of the mind with respect to the 'idea' as well as the form and manner of its expression, Weitzenkorn v. Lesser, supra, 40 Cal.2d 778, 256 P.2d 947, 956, that amendment '* * * has eliminated the protection formerly given to 'any product of the mind." And , namely, that 'ideas 'are free as air'.' Id., 40 Cal.2d at page 789, 256 P.2d at page 955. This is equally true of historic events. Echevarria v. Warner Bros. Pictures, D.C., 12 F.Supp. 632, 638; Fendler v. Morosco, 253 N.Y. 281, 171 N.E. 56, 59. A contract implied in law cannot arise from submission to another of material from the public domain, unprotectible matter, for the same considerations apply to that situation as to a claim of plagiarism. Weitzenkorn v. Lesser, supra, 40 Cal.2d 778, 794-795, 256 P.2d 947. But the submission of such matter under an express contract or one implied in fact may form the basis for a cause of action. Id., 40 Cal.2d at pages 791-794, 256 P.2d at pages 957-959. Weitzenkorn v. Lesser, supra, 40 Cal.2d 778, 794, 256 P.2d 947. Appellant now disclaims plagiarism and stands upon an asserted contract implied in fact through words and conduct.
The first count of the amended complaint alleges: Attached as an exhibit is a copy of the story which is 57 pages in the original pleading. The complaint further avers that It is also alleged that defendants made, distributed and exhibited a motion picture entitled 'Ace in the Hole' or 'The Big Carnival'; that they used and copied 'Plaintiff's Property' in and in connection with said motion picture, knowing that he expected to be paid for such use. He seeks recovery of $150,000 as the reasonable value of his said answer admitted the production and distribution of said photoplay and denied most of the other material allegations.
Shortly after a pretrial hearing defendants gave notice of a motion for summary judgment, to be based upon the records and files, the deposition of plaintiff taken by defendants, affidavits of Jacob H. Karp, Billy Wilder and Marian Elliott, the notice of motion and an attached memorandum of points and authorities. It had developed upon plaintiff's deposition that he never did submit to defendants the story attached to the complaint as Exhibit 1, but, at the request of Wilder's secretary, had submitted a synopsis of same. And defendants in their supporting memorandum said that (Emphasis added.) The memorandum quotes the entire outline or synopsis. Plaintiff's deposition has been treated by counsel for both sides as an opposing affidavit of plaintiff and we so consider it. Before testing its sufficiency to show the existence of a cause of action it is well to bring it into focus through a quotation from appellant's opening brief.
Plaintiff's deposition told of two telephone conversations with defendant Wilder's secretary. Wilder was employed by Paramount '* * * either as a writer, producer or director, or a combination of the three' at various times. The secretary was also a company employee. When plaintiff first called to make an appointment with Wilder she insisted on knowing his business. Plaintiff wanted to send her a copy of his story; after 'I explained to her in brief the plot and the sensational interest in this country twenty-five years ago she seemed to be interested' and asked how many pages; when told it was sixty pages she said Wilder would not read it and it must go to the script department there to be condensed into three or four pages for submission to producers and directors if considered 'fantastic and wonderful'; plaintiff said he preferred to make his own synopis and send it to her; she acquiesced; he made a condensation or outline of three or four pages, called the secretary two days later and told her of the synopsis; she said she would take it down in shorthand and show it to Wilder and let plaintiff know. Plaintiff read his outline to her over the telephone. She took his telephone number but never communicated with him.
Plaintiff did not recall...
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