Detroit Institute of Arts Founders Soc. v. Rose

Decision Date23 January 2001
Docket NumberNo. CIV. A. 3:99CV00221(CFD).,CIV. A. 3:99CV00221(CFD).
Citation127 F.Supp.2d 117
CourtU.S. District Court — District of Connecticut
PartiesTHE DETROIT INSTITUTE OF ARTS FOUNDERS SOCIETY, d/b/a Detroit Institute Of Arts, Plaintiff, v. Christopher S. ROSE, individually and as Executor of the Estate of Margaret Skewis Rose, James P. Rose, Rufus R. Rose, and Mildred Smith, Executrix of the Estate of Robert "Buffalo Bob" Smith, Defendants.

Stuart D. Rosen, Michael P. Ungaro, Bingham Dana, Hartford, CT, Gregory D. Hanley, Mark A. Stern, Honigman, Miller, Schwartz & Cohn, Detroit, MI, for Plaintiff.

Frank N. Eppinger, O'Brien, Shafner, Stuart, Kelly & Morris, Groton, CT, Mark E. Block, O'Brien, Shafner, Stuart, Kelly & Morris, P.C., Norwich, CT, Stephen J. Grabenstein, Van Winkle, Buck, all, Starnes & Davis, PA, Asheville, NC Frank J. Libert, Susan Mara Phillips, Morris James Busca, Suisman, Shapiro, Wool Brennan, Gray & Greenberg, New london, CT, for Defendants.

RULING ON MOTIONS FOR SUMMARY JUDGMENT

DRONEY, District Judge.

I. Introduction and Factual Background

"The Howdy Doody Show" was a television program beloved by millions of children now known as "the baby boom generation." It was produced and broadcast by the National Broadcasting Company. Inc. ("NBC") from 1947 to 1960. Hosted by Robert "Buffalo Bob" Smith, the show's main character was Howdy Doody, a puppet in the image of a freckled-faced boy in cowboy clothing. For most of its run, the show aired every afternoon after school. In that era, television programming — especially for children — was very limited, which contributed to the show's immense popularity.

This lawsuit arises out of a dispute over the ownership of the revered and now valuable Howdy Doody puppet.

A. Background1

The first Howdy Doody puppet that appeared on "The Howdy Doody Show" looked very different from the character that became so popular. The show's production team thought this first Howdy Doody was unappealing and later referred to it as the "Ugly Howdy." In 1948, NBC commissioned a well-known puppet maker, Velma Dawson, to build a new Howdy Doody to replace the Ugly Howdy. On June 3, 1948, NBC purchased the new puppet from Dawson, and this puppet became the Howdy Doody character on the show.

During the thirteen years and over two thousand shows that "The Howdy Doody Show" was on the air, several other Howdy Doody puppets were created. "Double Doody," a puppet nearly identical to Howdy Doody, served as a stand-in on the show when repairs were made to Howdy Doody. "Photo Doody," a puppet without strings, was used for public appearances and photo opportunities.2 Finally, puppets referred to as the "Canadian Howdys" were created for a version of "The Howdy Doody Show" that aired in Canada.

Most of these Howdy Doodys, like the many other puppets used in the show, were maintained and operated by several puppeteers, including Rufus C. Rose3 and his wife, Margaret ("Margo") Rose. Beginning in 1952, Rufus Rose served as the puppet master, puppeteer, and caretaker for many of the puppets that appeared on the American broadcast of the "The Howdy Doody Show." He also created some puppets and made repairs at his workshop in Waterford, Connecticut. While the American show was on the air, Rufus Rose received $75.00 per week from NBC for "storing and servicing" the puppets at his workshop as part of his compensation. Like her husband, Margo Rose repaired puppets that appeared on the show; she also designed some of the show's characters and modeled and painted their heads.

When "The Howdy Doody Show" went off the air in December 1960, Rufus Rose ended his employment by NBC but kept possession of many of the puppets used in the show, including Howdy Doody, Double Doody, and the Canadian Howdys. Pursuant to an informal agreement made at the end of the show's run with Roger Muir, the show's executive producer, Rufus Rose continued to store the puppets in his Connecticut workshop until final arrangements were made for them.4

On April 23, 1961, a fire occurred at Rufus Rose's workshop and some of the puppets were damaged. Fortunately, Howdy Doody apparently escaped serious harm. NBC, with its insurance carrier, sued Rufus Rose in Connecticut state court for allowing the puppets to be damaged.

Shortly after the lawsuit with NBC concluded in late 1965 in favor of Rufus Rose,5 he began a series of correspondence with NBC about payment for his maintenance and storage of the puppets since the end of the show in 1960, and about the future of the puppets, including Howdy Doody.6 In a June 3, 1966 letter to NBC General Manager William J. Schmitt, Rufus Rose proposed that: (1) NBC pay him for the storage and upkeep of all the puppets since the end of the show; (2) NBC allow him to keep the minor puppets (but with the understanding that he would not use them as Howdy Doody show characters); and (3) the main puppets from the show, including Howdy Doody, be turned over to a museum known as the Detroit Institute of Arts ("DIA"). Rufus Rose indicated in his letter that the DIA "houses the recognized museum of Puppetry in America." Schmitt turned Rose's letter and the matter over to Howard Singer of NBC's legal department.

On March 20, 1967, after some negotiations, Singer sent Rufus Rose a proposed general release and a cover letter which set forth an amount for the past storage and maintenance fees, agreed that Rose would send Howdy Doody to the DIA, and agreed that Rose could keep the "minor puppets."7 Rose returned the executed release with a cover letter on March 23, 1967.8

For the next few years, Rufus Rose kept the Howdy Doody puppet at his Waterford workshop.

The next chapter in the travels of Howdy Doody began in 1970. In response to a request from his friend Buffalo Bob, who was then making public appearances throughout the country in his role from the show, Rufus Rose agreed in a letter to send Howdy Doody to Buffalo Bob. In that letter, dated September 11, 1970, Rufus Rose explained to Buffalo Bob that he had agreed with NBC that the puppet would "eventually" be placed in the DIA, and it never would be used in a commercial manner. Rufus Rose went on to say that he was sending the "one and only original HOWDY DOODY" to Buffalo Bob "with this mutual understanding and responsibility." Rufus Rose died in 1975, while Howdy Doody was still in Buffalo Bob's possession. Through the next fifteen years or so, Buffalo Bob kept Howdy Doody and used him in his public appearances.

Beginning in 1992, Buffalo Bob's attorney, Edward Burns, wrote to NBC, Margo Rose (Rufus Rose's widow), and the DIA, requesting that they waive the requirement that Howdy Doody be placed in the DIA. Burns indicated that Buffalo Bob had fallen on difficult financial times, and now wished to sell the puppet and keep the proceeds. In a reply written on behalf of his mother, Margo Rose, Christopher Rose stated that it was his father's intention that Buffalo Bob honor the "condition" that Howdy be given to the DIA. NBC wrote Buffalo Bob that it also refused to release Howdy Doody to him. The DIA also declined to allow Buffalo Bob to sell the puppet. As a result, in a July 24, 1995 letter, Buffalo Bob informed the DIA that he would transfer Howdy Doody to the museum when he no longer wished to keep the puppet.

Eventually, Buffalo Bob and Christopher Rose changed their minds about Howdy Doody.9 On April 19, 1998, they executed an agreement to sell the puppet and split the profits.10 Howdy Doody was turned over by Buffalo Bob to Christopher Rose at that time, with the understanding that if it were not sold by June 1, 1999, it would be returned to Buffalo Bob under the terms of his original agreement with Rufus Rose from 1970.

In May 1998, Christopher Rose and Buffalo Bob amended their earlier agreement to recite specifically that each then owned a fifty percent interest in the puppet, and they "certified" that Christopher Rose had received from Buffalo Bob the "original Howdy Doody puppet that was used on over 2300 Howdy Doody T.V. shows." According to the DIA, on June 19, 1998, Christopher Rose entered into a consignment agreement with Leland's Collectibles, Inc., an auction house, for the sale of the "original Howdy Doody" and other puppets from "The Howdy Doody Show." A few days later, Buffalo Bob died. The DIA then brought this case to prevent the Rose family from selling the puppet and also to gain possession of it.11

During the course of discovery in this action, this Court permitted an inspection of the Howdy Doody puppet that was transferred from Rufus Rose to Buffalo Bob and then to Christopher Rose. This inspection was conducted on December 14, 1999, and was overseen by Alan Semok, a maker and restorer of puppets who had repaired Howdy Doody while it was in Buffalo Bob's possession. Velma Dawson, who created the Howdy Doody puppet that debuted in 1948, attended the inspection, but she could not identify the head of that puppet as the head that she had constructed for NBC in 1948. However, she later submitted an affidavit stating that her initial conclusion was mistaken and that she believed the head that she examined during the inspection to be her work.

B. The Lawsuit Here

The plaintiff in this case is the DIA. The defendants are Christopher Rose, both individually and as executor of his mother's estate; his two brothers, James and Rufus R. Rose; and Mildred Smith, Buffalo Bob's widow and the executrix of his estate.12

The DIA's first amended complaint requests several forms of relief.13 First, as to all the defendants, the plaintiff DIA seeks a declaration that it is the owner of the puppet and a grant of permanent possession (claim one), and damages for conversion (claim two), civil theft (claim three), violation of the Connecticut Unfair Trade Practices Act, ("CUTPA"), Conn. Gen.Stat. § 42-110b, et seq., (claim five), and breach of contract based on the 1998 agreement between Buffalo Bob and Christopher...

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