Lloyd v. R.K.O. Pictures, Inc.

• Decision Date: 31 October 1955
• Citation: 289 P.2d 295,136 Cal.App.2d 638
• Court: California Court of Appeals Court of Appeals
• Parties: Harold LLOYD, Plaintiff and Appellant, v. R.K.O. PICTURES, Inc., Respondent. California Pictures Corporation, et al., Defendants. * Civ. 20959.

Page 295

289 P.2d 295

136 Cal.App.2d 638

Harold LLOYD, Plaintiff and Appellant, v. R.K.O. PICTURES, Inc., Respondent.

California Pictures Corporation, et al., Defendants. ^*

Civ. 20959.

District Court of Appeal, Second District, Division 1, California.

Oct. 31, 1955.

Fendler & Lerner, Beverly Hills, and Harold A. Fendler; Robert Haves, Beverly Hills, of counsel, for appellant.

Mitchell, Silberberg & Knupp, and George Benedict, Jr., Los Angeles, for respondent.

DORAN, Justice.

On September 10, 1945, a contract was entered into between the Lloyd Corporation, plaintiff's assignor, and the defendant California Pictures, for the services of Harold Lloyd in a photoplay later known as 'Mad Wednesday'. On the same day, in connection therewith, Harold Lloyd contracted with Lloyd Corporation to furnish to California Pictures 'artistic and stellar services', the agreement provided that plaintiff must 'receive star billing and screen credit, advertising credit, and publicity credit as star' of the photoplay.

According to plaintiff's complaint, California Pictures agreed with Lloyd Corporation to be bound by the contractual undertakings of the Lloyd Corporation to Harold Lloyd, and expressly agreed to 'give and guarantee the giving, directly and personally to the plaintiff, Harold Lloyd, of star billing and screen credit, advertising credit, publicity credit, and exploitation credit as the star' of the photoplay. These obligations were made binding on California's successors, assigns, licensees, distributors and exhibitors. Plaintiff Harold Lloyd guaranteed performance by Lloyd Corporation, agreed to complete the picture and gave California the right to use plaintiff's name, likeness and voice in connection with the photoplay.

It is further alleged that in return for such guarantee and undertaking, California Pictures agreed on behalf of its successors or assigns, that it would 'mention the name of Harold Lloyd as star on the positive prints of, and in all paid advertising and publicity thereafter issued in connection with the production or distribution of said motion picture photoplay'. It is alleged that plaintiff, and plaintiff's assignor, Lloyd Corporation, fully performed all obligations under the contracts.

The complaint avers that California released the film in 1947 through United Artists, at which time all contractual obligations were complied with by California. However, the film was withdrawn from release prior to December 1, 1947, and was not again publicly shown until October 10, 1950, after respondent RKO Radio Pictures took over distribution of the picture. It is alleged that about December 13, 1947, California Pictures entered into a written security contract with the defendant Hughes Tool Company which agreed to pay certain debts of California; that as a part of such agreement California assigned the photoplay 'Mad Wednesday' to Hughes as security, with rights of distribution, 'subject to the duties and obligations of said rights and contracts assigned as aforesaid'.

The complaint, as amended, alleges that on November 10, 1950, defendants Hughes and RKO 'confirmed by letter agreement in writing a previous and pre-existing oral agreement entered into prior to October 11, 1950, wherein and whereby Hughes granted to R.K.O.' world-wide distribution rights to the photoplay, 'upon substantially the same terms and conditions as those contained in the distribution agreement dated December 19, 1944, previously entered into between California and United Artists Corporation'.

As stated in respondent's brief, 'In respect to many matters, including screen credits, advertising and publicity * * * RKO agreed to follow 'the wishes and instructions' of Hughes.' RKO is alleged to have had knowledge of the California-Lloyd contract and Hughes' assumption thereof; in reference to 'Mad Wednesday', the defendants RKO, Hughes and California are alleged to have 'jointly participated in or authorized or concurred in or ratified each and every action taken, and things done'.

It is also to be noted that Howard Hughes is alleged to be the sole stockholder in California Pictures, as well as being a majority stockholder, president and director of the defendant Hughes Tool Company, and controlling stockholder, director of and in control of the defendant RKO, 'particularly with respect to the distribution, exploitation, publicity and advertising of the photoplay 'Mad Wednesday".

There are allegations that about October 11, 1950, plaintiff and the Lloyd Corporation notified defendants that objection would be made to any departure from the original contracts 'with respect to the advertising and publicity credit to be given Harold Lloyd as the star'. Defendant RKO replied by letter on October 18, 1950 that RKO had received 'full notice, advice and knowledge' of the provisions in question, and that RKO 'had complied and would continue to comply with, and to faithfully keep and perform the terms and provisions of said contract', and that all advertising and publicity would be in accordance with the original contract, which acknowledgments and assurances were made by RKO 'for the purpose of inducing plaintiff and plaintiff's assignor to forego and forebear' the commencement of legal or equitable proceedings, which representations were relied upon. In this connection it is claimed that the defendant RKO is therefore 'estopped to deny that it is bound by said provisions'.

The defendants, and each of them, are alleged to have 'impaired, and diminished the value of the name and reputation of the plaintiff, Harold Lloyd, in the motion picture industry and in the mind of the general public * * * by subordinating or eliminating the name * * * from advertising and publicity issued and caused to be issued * * * and in such a manner as to conceal from the entertainment industry and from the general public throughout the world that the plaintiff, Harold Lloyd, was the 'star' of and in said motion picture photoplay', to plaintiff's damage in the sum of $250,000.

Defendants demurred generally and specially to the complaint; the trial court deferred submission of the demurrer pending the filing of amendments by plaintiff, and thereafter sustained the demurrer of RKO without leave to amend. The case is at issue in respect to the other two defendants, and RKO is the only respondent on this appeal.

Four theories are presented by appellant on which recovery might to had, namely, (I) 'Respondent, having acquired only the right and license to distribute the photoplay, is bound by notice and knowledge to the obligations of billing and credit...