Klekas v. EMI Films, Inc.

• Decision Date: 20 January 1984
• Citation: 198 Cal.Rptr. 296,150 Cal.App.3d 1102
• Parties: , 224 U.S.P.Q. 1044, 1984 Copr.L.Dec. P 25,629 Harry John KLEKAS, Plaintiff and Appellant, v. EMI FILMS, INC., Universal City Studios, Inc., Michael Cimino, Barry Spikings, Deric Washburn, Louis Garfinkle, Quinn Redeker, Harcourt Brace Jovanovich, Inc., and Jove Publications, Inc., Defendants and Respondents. Civ. 69535.
• Court: California Court of Appeals Court of Appeals

Page 296

198 Cal.Rptr. 296

150 Cal.App.3d 1102, 224 U.S.P.Q. 1044,

1984 Copr.L.Dec. P 25,629

Harry John KLEKAS, Plaintiff and Appellant, v. EMI FILMS, INC., Universal City Studios, Inc., Michael Cimino, Barry Spikings, Deric Washburn, Louis Garfinkle, Quinn Redeker, Harcourt Brace Jovanovich, Inc., and Jove Publications, Inc., Defendants and Respondents.

Civ. 69535.

Court of Appeal, Second District, Division 2, California.

Jan. 20, 1984.

Hearing Denied May 2, 1984.

Berger, Kahn, Shafton & Moss, A Professional Corp., Margot P. Demopoulos, Los Angeles, for plaintiff and appellant.

Youngman, Hungate & Leopold, A Professional Corp., Louis P. Petrich and Scott A. Handelsman, Los Angeles, for defendants and respondents.

COMPTON, Acting Presiding Justice.

Plaintiff Harry John Klekas instituted this action against defendants EMI Films, Inc., et al. to recover damages allegedly arising out of the unauthorized use of his unpublished literary work entitled "The Fields of Discontent." The complaint generally avers that plaintiff's work served as the basis for the production of the critically acclaimed motion picture "The Deer Hunter" and the subsequent publication of a paperback book of the same title. Following the completion of discovery by both litigants, the trial court granted defendants' motion for summary judgment and dismissed the complaint. This appeal follows. We affirm.

After a thorough review of the record and the applicable law, we conclude, as did the court below, that a substantial portion of plaintiff's case based on state law has been preempted by federal law and as to the portion of the case which is cognizable by state law there exists no factual dispute.

There is little conflict in the evidence. Since this is, however, an appeal from a summary judgment, where such conflict appears in the papers submitted in support of and in opposition to the motion, we resolve those conflicts in favor of the non-moving party (plaintiff herein). (LaRosa v. Superior Court (1981) 122 Cal.App.3d 741, 744-745, 176 Cal.Rptr. 224; MCA Records, Inc. v. Newton-John (1979) 90 Cal.App.3d 18, 21, 153 Cal.Rptr. 153.)

The evidence before the court at the time it ruled on defendants' motion revealed the following:

Plaintiff, regularly employed as a court bailiff in Salt Lake City, Utah, completed the first draft of his novel in early 1970. The story, generally dealing with the return of a soldier to his hometown after twenty years of military service, was memoralized in a 180 page typed manuscript. In January or February of 1971, plaintiff forwarded a copy of the work to defendant Anthony Fiato, a friend with reported contacts in the film industry who claimed that he might be able to help market the book. Plaintiff, however, had no further discussions with Fiato until late 1975. In November of that year, Fiato visited plaintiff at his home in Utah and indicated that he was taking the manuscript with him to Los Angeles where he planned to meet with an actor who might somehow help in publicizing the work.

During his visit, Fiato also suggested several changes in the story line which he believed would add to the dramatic development of the novel and increase its marketability. Plaintiff replied that he would consider the suggestions. He then requested that Fiato, during his trip to Hollywood, contact a literary agent named Fred Specktor and a director named William Graham. Plaintiff did not speak with Fiato again until after the release of "The Deer Hunter" in 1979. At that time, plaintiff called Fiato and accused him of being involved in "ripping off" his literary effort for use in connection with the film. Fiato did not deny the accusation and indicated that he would go to Los Angeles to "see what he could do to straighten things out." Plaintiff has not heard from or seen Fiato since their last conversation in 1979.

Plaintiff had met William Graham sometime in 1973, when the director hired him to play a small role in a motion picture that was then in production. In the hope of generating interest in his novel, plaintiff gave Graham a copy of "The Fields of Discontent." Since Graham was represented by Fred Spector of the William Morris Agency he suggested that plaintiff contact the agent regarding another novel that plaintiff had authored entitled "The White Carnation." At no time, however, did Graham or Spector do anything to promote "The Fields of Discontent." There is no indication in the record that either of the two men ever read plaintiff's work.

Soon after completing the first draft of his novel, plaintiff mailed a copy to a former girlfriend, Jan Duplain, who was then employed by the Columbia Broadcasting System (CBS). Sometime later, Duplain informed plaintiff that she had shown the manuscript to two individuals who worked in the story department at CBS' New York office. Although the novel was subsequently returned to him by Duplain, plaintiff was never contacted by anyone at CBS concerning the purchase of the story. CBS, however, apparently acquired the television rights to "The Deer Hunter" before it was produced.

In 1976, plaintiff obtained a listing of publishing companies entitled "Writers Market" and began sending letters and materials concerning "The Fields of Discontent" to some of the publishers named in the directory. One of those publishers was defendant Harcourt Brace, which published a paperback novelization of "The Deer Hunter" subsequent to the film's release. The record is unclear, however, as to whether plaintiff sent Harcourt merely a synopsis of the work or portions of the manuscript itself. Sometime in 1976, plaintiff was notified by postcard that the publishing company was not interested in the novel.

The screenplay for "The Deer Hunter" was conceived and written by defendants Deric Washburn and Michael Cimino between November 1976 and January 1977. It was based, in part, on a screenplay entitled "The Man Who Came to Play" written by defendants Louis Garfinkle and Quinn Redeker in 1975. The motion picture was directed and filmed by Cimino for EMI Films, Inc. in mid-1977 and then distributed by defendant Universal City Studios, Inc. in December 1978. Following the movie's general release in February 1979, Harcourt Brace Jovanovich, Inc. published its novelization of the screenplay. ¹

Plaintiff's complaint for damages, filed in February 1980, alleged causes of action for plagiarism, quasi-contract, breach of implied-in-fact contract, breach of a confidential relationship, and the imposition of a constructive trust. As previously noted, defendants moved for summary judgment, claiming that neither the screenplay, the film, nor the novelization of "The Deer Hunter" were substantially similar to any protectible material or expression in plaintiff's work. It was further argued that plaintiff had failed to establish sufficient access to maintain his actions for common law copyright infringement and quasi-contract.

In sustaining the motion, the trial court concluded that plaintiff's cause of action for plagiarism had, in part, been preempted by the federal Copyright Act of 1976 and that it therefore lacked subject matter jurisdiction over any claims relating to either the film or the book. After determining, however, that it did have jurisdiction over the screenplay, the court found as a matter of law that there was no substantial similarity between that work and plaintiff's novel. Based upon these findings, the court ruled that it was unnecessary for it to consider whether plaintiff had established defendants' access to the work. All other issues were resolved in favor of defendants and the court entered a judgment of dismissal. ²

The threshold issue to be resolved on this appeal concerns the impact of the Copyright Act of 1976 (See 17 U.S.C., §§ 101 et seq.) upon plaintiff's cause of action for infringement of his literary work.

Prior to the passage of the 1976 Act, there existed a dual system of federal and state copyright law. Unpublished works--those in limited distribution and unavailable to the general public--were protected by state common-law copyright. In this regard, Civil Code section 980, subsection (a) provides as follows: "The author or proprietor of any composition in letters or art has an exclusive ownership in the representation or expression thereof as against all persons except one who originally and independently creates the same or a similar composition." ³

The common law rights recognized under the statute continue until the creator allows a "general" publication of his work to occur; the work then passes into the public domain and, unless the creator has obtained a statutory copyright, anyone can copy, distribute or sell it for his or her own benefit. (Civ.Code, § 983; see also Carpenter Foundation v. Oakes (1972) 26 Cal.App.3d 784, 103 Cal.Rptr. 368; Read v. Turner (1966) 239 Cal.App.2d 504, 48 Cal.Rptr. 919; Smith v. Paul (1959) 174 Cal.App.2d 744, 345 P.2d 546; Strout Realty v. Country 22 Real Estate (W.D.Mo.1980) 493 F.Supp. 997.) Prior to the enactment of the 1976 Law, federal copyright protection was afforded to a work for a period of twenty-eight years, renewable once.

Congress, by passing the 1976 Act, intended to abolish this dual system of common-law copyright for unpublished works and statutory copyright for published works, and to adopt a single system of federal statutory copyright from "creation," that is, from the time a work is "fixed" in a copy or phono record for the first time. (See 1 Nimmer on Copyright (1983), § 1.01[B] 1-08; H.R.Rep. No. 94-1476, 94th Cong. 2d Sess. 129-131 (1976)), U.S.Code Cong. & Admin.News 1976, p. 5659. Section 301, subdivision (a) of the Act provides: "On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within...