Desny v. Wilder

CourtCalifornia Court of Appeals
Citation286 P.2d 55
Decision Date15 July 1955
PartiesVictor 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.

ASHBURN, Justice pro tem.

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 'The statute as it now exists * * * provides protection only 'in the representation or expression' of a composition. The Legislature has abrogated the rule of protectibility of an idea and California now accepts the traditional theory of protectible property under common law copyright', 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. 'The only distinction between an implied-in-fact contract and an express contract is that, in the former, the promise is not expressed in words but is implied from the promisor's conduct. Silva v. Providence Hospital of Oakland, 14 Cal.2d 762, 773, 97 P.2d 798; Smith v. Moynihan, 44 Cal. 53, 62; Grant v. Long, 33 Cal.App.2d 725, 736-737, 92 P.2d 940; Civ.Code, §§ 1619-1621. Under the theory of a contract implied in fact, the required proof is essentially the same as under the * * * count upon express contract, with the exception that conduct from which the promise may be implied must be proved. Cole v. Phillips H. Lord, Inc., supra [262 App.Div. 116, 28 N.Y.S.2d 404].' 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: 'Prior to November 17, 1949, Plaintiff conceived, originated and completed a certain untitled literary and dramatic composition (hereinafter called 'Plaintiff's Property') based upon the life of Floyd Collins. Plaintiff has, at all times prior to and since November 17, 1949, been, and now is, the sole and exclusive owner of Plaintiff's Property, and has at all times retained all common law rights of ownership and authorship therein.' Attached as an exhibit is a copy of the story which is 57 pages in the original pleading. The complaint further avers that 'Within two years last past and on or about November 17, 1949, Plaintiff submitted Plaintiff's Property to the Defendants Billy Wilder and Paramount Pictures Corporation. In making said submission, Plaintiff stated to said Defendants Billy Wilder and Paramount Pictures Corporation that it was made for the purpose of sale of Plaintiff's Property to Defendants to be used by Defendants only if Defendants paid to Plaintiff the reasonable value thereof. Defendants accepted submission of Plaintiff's Property, and became fully familiar with the contents thereof, thereby indicating their consent to pay Plaintiff the reasonable value of said material if used by them.' 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 'property'. Defendants' 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 '* * * because plaintiff testified in his deposition taken on October 22, 1953 that what he claims to have submitted to defendants and to have been appropriated by defendants is not Exhibit 1 to the amended complaint, as alleged in said complaint, but rather, an outline or summary of said Exhibit 1, we believe that the case now can, and should be, decided for defendants on the issues of law involved. For purposes of this motion we are assuming that plaintiff did make a submission to defendants in accordance with his testimony in his deposition. At a trial of the action the purported fact of such submission would be contested, but to simplify the issues it is not contested in the making of this motion.' (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. 'It is conceded for purposes of argument that the synopsis submitted by plaintiff to defendants was not sufficiently unique or original to be the basis for recovery under the law of plagiarism or infringement. It is conceded that the plaintiff first obtained the central idea or theme of his story, which involves the entrapment of a man in an underground cave and the national interest promoted by the attempt to rescue him, from the Floyd Collins incident which occurred in the 1920's.'

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. 'I told her about this fantastic, unusual story. * * * I described to her the story in a few words. * * * I told her that it was the life story of Floyd Collins who was trapped and made sensational news for two weeks, headlines, front page right-hand corner, all over the country, and I told her the plot. * * * I described the entrapment. I told her that it was not only the governor but even the White House and President Coolidge was involved in it, and that it was national news which kept the people in suspense for two weeks. I described to her the entrapment and the death, in ten minutes, probably. * * * That is right. I described the central idea. The main emphasis was the central idea, which was the entrapment, this boy who was trapped in a cave eighty-some feet deep. I also told her the picture had never been made with a cave background before. * * * I told her that the story starts from the time that he was a boy, until he dies at the end of the story, when he dies, and I described to her--not very accurately, but I described to her the main features of the story.' 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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