Loew's Incorporated v. Columbia Broadcasting System

• Decision Date: 06 May 1955
• Docket Number: No. 15602.,15602.
• Citation: 131 F. Supp. 165
• Court: U.S. District Court — Southern District of California
• Parties: LOEW'S INCORPORATED, a corporation and Patrick Hamilton, Plaintiffs, v. COLUMBIA BROADCASTING SYSTEM, Inc., a corporation, et al., Defendants.

131 F. Supp. 165

LOEW'S INCORPORATED, a corporation and Patrick Hamilton, Plaintiffs, v. COLUMBIA BROADCASTING SYSTEM, Inc., a corporation, et al., Defendants.

No. 15602.

United States District Court S. D. California, Central Division.

May 6, 1955.

COPYRIGHT MATERIAL OMITTED

Loeb & Loeb, Los Angeles, Cal., Allen E. Susman, Harry L. Gershon, Herman F. Selvin, Los Angeles, Cal., for plaintiffs.

Wright, Wright, Green & Wright, Los Angeles, Cal., Richard M. Goldwater, Los Angeles, Cal., for defendant, Jack Benny.

O'Melveny & Myers, Los Angeles, Cal., Homer I. Mitchell, W. B. Carman, Ernest M. Clark, Jr., Los Angeles, Cal., for defendants, Columbia Broadcasting System, Inc., and American Tobacco Co.

JAMES M. CARTER, District Judge.

This is an action for infringement of copyright pursuant to Title 28 U.S.C.A. § 1338(a) and Title 17 U.S.C.A. Ch. 2, §§ 101 to 116. A cause of action for unfair competition has been joined pursuant to Title 28, § 1338(b). Plaintiffs have waived damages and seek only an injunction.

The case presents novel questions in the law of literary property and is a case of first impression. It presents a major issue — Is a charge of copyright infringement, where the defendant has taken a substantial part of the copyrighted work, defeated by the fact that the appropriated material was used in or as part of a burlesque or parody of the copyright work, rather than in or as part of a serious or independent work? Stated in another way, is a burlesque, which takes a substantial part of a copyrighted motion picture, a fair use?

Loew's Inc., hereafter Loew's, seeks to enjoin Columbia Broadcasting System Inc., hereafter C.B.S., American Tobacco Company, hereafter American, and Jack Benny, hereafter Benny, from the performance of a humerous sketch, "Autolight," burlesquing the motion picture, "Gaslight," the literary property of Loew's.

In addition to denials of various of the allegations of Loew's complaint, defendants set forth three affirmative defenses.

1. That the use made by the defendants of "Gaslight" was a fair use, since it was a burlesque;

2. That Loew's complaint is barred by laches;

3. That the use by the defendants of "Gaslight" was a fair use, in that no one viewing the burlesque could reasonably think he was viewing the motion picture, and in that the showing of the burlesque did not and will not satisfy, in whole or in part, the demand that may exist or may have existed, for said motion picture.

Prior to December 5, 1938, Patrick Hamilton, a British subject and one of the plaintiffs¹ conceived and wrote an original play entitled "Gaslight." The play was first published in the English language and copies of the play were first issued to the public in England, on February 17, 1939. By virtue of the British Copyright Act of 1911, this constituted publication and the work was immediately protected,² and shortly thereafter was publicly performed, first in Richmond and later in London, both in England.

On November 18, 1941, Hamilton deposited in the United States Copyright office a copy of the edition published in England,³ and on December 5, 1941, this dramatic composition opened on Broadway under the name "Angel Street." The drama was successful, running 1,295 consecutive performances, extending over a period of more than thirty seven months. In September 1942, the play "Gaslight" was republished in the United States under the name of "Angel Street" and Hamilton copyrighted this publication in the United States.⁴

The exclusive motion picture rights of "Gaslight" were acquired by Loew's from Hamilton and his assignee on October 7, 1942,⁵ and commencing in December of that year Loew's expended $2,458,000 in the production and distribution of an original motion picture photoplay of the drama. The production by Loew's involved the labor and skill of many persons, employing the services of Charles Boyer, Ingrid Bergman and Joseph Cotton, artists in the cinema field. The actual making of the film extended over a period of almost two and one-half years before it was released in national and international distribution on May 5, 1944. Thereupon, Loew's copyrighted the motion picture photoplay.⁶

The picture "Gaslight" was exhibited by Loew's and its licensees in the United States, U. S. Army and Navy installations here and abroad, and in fifty-six foreign countries. Approximately 52,000,000 persons paid admission here and abroad to see the picture and approximately $4,857,000 was received in gross rental.

The picture was withdrawn from domestic release in November 1946. The international distribution still continues. It is a customary and usual practice in the motion picture industry to reissue pictures which have been highly successful in their initial release, five or more years after their first release. Substantial rentals are often received for such reissues. Loew's have not reissued "Gaslight." The script and the film is in evidence and the film has been viewed by the court.

On or about October 14, 1945, during Loew's domestic distribution of "Gaslight", Benny, a performer in the field of comedy, caused to be written, produced, performed, and broadcast over a national radio network, a half hour show featuring a fifteen minute burlesque of the drama "Gaslight" with Benny and Ingrid Bergman in the leading roles. American was at this time sponsor of the show.

Loew's did not have prior notice of the Benny show, except as shown by Benny's testimony, hereafter. Bergman furnished to Benny's writers her copy of the shooting script of the motion picture "Gaslight." Loew's did not have notice of her act nor did it consent thereto. Prior to the preparation of the script, the Benny writers viewed the motion picture "Gaslight," and the stage play "Angel Street." Clearly the defendant Benny, had access to the copyrighted material. The point is not in issue. A record transcription of this radio program is in evidence and has been heard by the court. A script of the program is also in evidence.

The radio program was publicly performed at the U. S. Army Redistribution Center in Santa Barbara, California, and from there put on the National Broadcast system.

However, it was stipulated that if Benny were called as a witness, he would testify that prior to this performance and to enable the prospective audience to fully appreciate the burlesque, Benny had requested of Loew's that a print of the then current photoplay "Gaslight" be sent to the Center for exhibition in the week preceding the radio program, and that Loew's furnished such a print. In the performance of the burlesque Benny burlesqued Charles Boyer, the male star in the picture, and Miss Bergman, appearing as Benny's guest star, performed a travesty upon her original screen role in "Gaslight." No claim of infringement was even made regarding this burlesque.⁷ We credit Benny's testimony and find the radio program was done with Loew's consent.

More than six years later, on January 27, 1952, C.B.S. caused to be written and produced a Benny half hour television program featuring Benny and Barbara Stanwyck in the leading roles. This was again a burlesque of "Gaslight," and was on January 27, 1952, broadcast over the C.B.S. networks, and sponsored by American. Again the burlesque occupied about fifteen minutes of the half hour show, this performance however, being in an audio-visual medium made some use of stage props. The actual performance was kinescoped⁸ for transmission over those stations of the C.B.S. network, which were physically unable to receive the live broadcast. A copy of the film of television program and the script is in evidence and the court has seen the film. Benny received compensation for his services from C.B.S. and C. B.S. received compensation from American.

Loew's, on January 30, 1952, despatched a letter to C.B.S. inferring that they considered the latter burlesque an infringement of their property. Loew's further notified C.B.S. that they intended to "enforce our rights if they be infringed." C.B.S. acknowledged receipt of this letter but denied infringement claiming "fair use" including the "right to parody literary properties." Loew's then informed C.B.S. that the program constituted a copyright infringement. The dispute was not settled.

About May 28, 1953, C.B.S. commenced the preparation of a motion picture for television, burlesquing "Gaslight" and starring Benny and Barbara Stanwyck. On June 9, 1953, Loew's received notice that defendants contemplated this further remake of the "Gaslight" burlesque for the Benny television show. On June 9, 1953, Loew's gave notice that they considered the prior performance and the proposed remake, an infringement of their copyright.

Loew's commenced this action on June 10, 1953, and a restraining order was issued. It was modified by consent to permit the filming of the proposed television show and the film was impounded by court order. A copy is in evidence and has been viewed by the court. It was stipulated that defendants intend to and will, unless and except as restrained by this court, exhibit and cause to be exhibited the film throughout the United States over all the television channels and networks of C.B.S. Prior to June 10, 1953, C.B.S. had paid or obligated itself in the sum of $54,167 for the cost of the script and filming of the proposed television show.

The program was planned for the year commencing September 1953. The parties have stipulated that Benny's television program, between September and December 1953 reached from 6,073,000 to 8,882,000 homes and 18,826,000 to 27,534,000 viewers, the exact number differing on various dates.

I.

There was a Substantial Taking by Defendants.

A detailed comparison of plaintiffs' "Gaslight" and defendants' "Autolight" appears in the margin.⁹ The comparison leads the court to the following conclusions of fact; (1) that the locale and period of the works are the same; (2) the main setting is the same; (3) the...