Lynch v. Warner Bros. Pictures
| Decision Date | 11 April 1940 |
| Citation | 32 F. Supp. 575 |
| Parties | LYNCH v. WARNER BROS. PICTURES, Inc., et al. |
| Court | U.S. District Court — Southern District of New York |
Conboy, Hewitt, O'Brien & Boardman, of New York City (David Asch, of New York City, of counsel), for plaintiff.
Thomas & Friedman, of New York City (George E. Quigley and Joseph D. Karp, both of New York City, of counsel), for defendants.
This action is for an injunction and accounting of profits and damages resulting from the alleged infringement of the plaintiff's literary property, an uncopyrighted story. Jurisdiction is predicated on diversity of citizenship.
In April or May of 1932 the plaintiff wrote a story entitled "When Homer Comes Marching Home," which, on August 2, 1932, he submitted to Warner Brothers Pictures, Inc. He told Deakin, the Warner representative, that he thought it was suited particularly for the talents of the defendant Joseph E. Brown, an actor. The defendant Warner Brothers thereafter rejected the story and returned the manuscript.
Lynch said that at that time Deakin observed that the story was returned with very favorable comment and showed Lynch a synopsis of the story set forth in perhaps two-thirds of the sheet, at the bottom of which was the comment of the reader, a Virginia May Cooke. This synopsis was not produced. Lynch's recollection of the comment was that the story had possibilities for a comedy picture and reference was made to the wild ride in the airplane, an incident of the story.
There is no denial by the defendants of access to the story; nor that someone prepared a synopsis, for the letter of January 12, 1934, sent to plaintiff's attorney, refers to a paper in his files of
Moreover, Lynch testified that on October 24, 1932 he met the defendant Brown and pursuant to an arrangement with him left his story in Brown's mail box in the Mastbaum Theatre in Philadelphia. Returning two nights later, he says that Brown sent word that the story was not acceptable and returned it. It must be observed that there is no testimony about a letter accompanying either the transmission of the story or its return.
The challenged play is "Son Of A Sailor", in which Brown acts the lead part, a sailor.
The picture follows a scenario which went through a process of writing and rewriting in which a number of authors contributed, among them Paul G. Smith, Al Cohn, Peter Milne, Ernest Pagano and H. M. Walker. The depositions of all of these writers were taken with the exception of that of Walker, deceased. The origin of the play dates back to "The Gob", a vaudeville skit written by Smith in 1922 for use in the Greenwich Village Follies. Brown appeared in that production. Smith testified that the skit "had to do with the idea of a sailor who won the affections of ladies by appealing to their maternal instinct, exhibiting the shoes of a baby which he claimed as his sister's child, a hundred per cent lie, and during the course of the action he told the same lie, embellished, to four different girls." This sketch was subsequently acted in vaudeville over a period of twelve years. Later it was sold by a partner of Smith to the defendants, Warner Brothers; and Smith was thereupon employed, in collaboration with Cohn, to write a screen play based on the skit. Such material as was adaptable for the screen was retained and such dialogue, situations and actions were added as they thought would make a suitable screen play for Joe E. Brown.
These authors conceived the idea of a sailor attempting to win the interest of a young girl, not aware that she was the daughter of his superior officer, visiting her home at her invitation, the concoction of various adventures at the admiral's home, culminating in the pursuit of a member of the house party who had stolen plans which related to a secret airplane device. This device, set at a certain wave length, would cause the plane automatically to return to its home destination, a sort of mechanical homing pigeon. The playwrights devised the incident disclosing Brown as the hero in the airplane in a series of extraordinary gyrations which finally landed him on the deck of an obsolete battleship. The battleship was to be used as a target in gunnery practice. Their scenario describes the blowing up of the ship with Brown (rather "Handsome", the name of the character in the play) pushed into the water and (as Smith described his first draft of the scenario) "everything ending happily".
After Smith and Cohn had worked out a rough draft it was handed to two other writers, Pagano and Walker, for polishing. Later Smith was assisted by Milne, when the scenario was returned to him. There were further changes made. Subsequently Smith and Cohn eliminated a great deal of...
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