Mailer v. RKO Teleradio Pictures, Inc.
| Decision Date | 10 January 1963 |
| Docket Number | Civ. A. No. 134-176. |
| Citation | 213 F. Supp. 294 |
| Parties | Norman MAILER, Plaintiff, v. RKO TELERADIO PICTURES, INC. and Warner Bros. Pictures, Inc., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Rembar & Zolotar, New York City, George Zolotar, New York City, of counsel, for plaintiff.
Regan, Goldfarb, Powell & Quinn, New York City, Sidney P. Howell, Jr., Edwin E. McAmis, New York City, of counsel, for defendant RKO Teleradio Pictures, Inc.
Joseph D. Karp, New York City, for defendant Warner Bros. Pictures, Inc.
This action arises under the Copyright Laws of the United States, 17 U.S.C. § 101. At the time of the commencement of the action plaintiff was a citizen of Connecticut. The defendants are incorporated under the laws of Delaware. The requisite amount is in controversy so the Court has jurisdiction both under the copyright laws and by reason of diversity of citizenship.
A pre-trial order was entered on December 28, 1961. Certain facts were stipulated. Other facts were developed at the trial of the action.
The Court finds the following facts:
Plaintiff, who prior to May 6, 1948 was and ever since has been a citizen of the United States, was the author of the novel "The Naked and the Dead" (hereinafter referred to as "the novel"). In accordance with the copyright laws and regulations, plaintiff received exclusive rights and privileges in the novel and secured from the Registrar of Copyrights a certificate of copyright registration applicable to the novel.
The novel met with considerable success. Sales in the United States and Canada totaled more than two million copies as of June 1958 when this suit was instituted. Foreign sales were extensive and were in excess of one million copies.
Beginning about 1954, plaintiff conducted negotiations looking toward production of a motion picture based upon the novel. After various unsuccessful attempts, a written agreement was entered into by the plaintiff, dated October 14, 1954, with Gregory-Goldman Pictures (now known as Gregjac Pictures) for the production of a motion picture based upon the novel. The respective parties were represented by counsel well versed in the motion picture business in connection with the drafting of the agreement.
Gregory-Goldman Pictures assigned its rights under the agreement to RKO Teleradio Pictures, Inc. (hereinafter referred to as "RKO") by written agreements dated October, 1956. RKO then entered into a written agreement, dated October 18, 1957, with Warner Bros. Pictures, Inc. (hereinafter referred to as "Warner") for distribution of the photoplay. Under agreements between defendants RKO and Warner, RKO has agreed to indemnify Warner in the event any money judgment against Warner is awarded in this action.
The agreement between plaintiff and RKO provided that the plaintiff was to receive $100,000 and approximately 12½% of any profits which might be realized from the picture. The agreement contained a reversionary clause which is the subject of this action and which reads as follows:
Since the agreement was dated October 14, 1954 the critical date for the production of the completed feature length photoplay, under this agreement, was April 14, 1958.
On April 23, 1958 plaintiff gave written notice to the defendants of his claim that production of the completed photoplay of feature length based upon his novel had not been completed by April 14, 1958 and that he claimed a reversion of all the rights. Nevertheless the defendants continued to distribute the picture.
The primary issues, as defined by the pre-trial order, are as follows:
The steps taken by RKO to comply with the contract were essentially as follows:
It first assigned a group of writers to deliver a screen play. This screen play was produced in acceptable form by June, 1957. The screen play was then taken to the Production Department and divided into scenes and arrangements made for the cast, location, shooting of the film and any special arrangements which might be needed. By October 1957 most of this pre-production work had been completed. During the summer of 1957 the production crew was assembled. A final budget was prepared and approved on December 9, 1957. The estimated amount of the budget was $1,983,750. By this date Panama had been selected as the location for exterior shots and the cast was on location on that date.
The actual start of filming in Panama began on December 12, 1957. The production crew returned from Panama early in 1958 and began additional filming at the Warner lot in California. Filming at this lot lasted about a month.
Principal photography was completed on February 10, 1958. A few retakes were taken after that date, particularly on March 14 and 27, 1958.
The film was shown on March 14, 1958 to the Motion Picture Association of America, Inc. (hereinafter "MPAA") to get a certificate of approval. Certain suggestions for changes were made; one scene, involving a dance, was thought to be objectionable and two other scenes that were thought to be particularly brutal were objected to. These were the scenes that were redone on March 14th and 27th, 1958. The MPAA seal of approval was given on April 1, 1958 after the retakes were viewed and approved. By this time all editing had been completed; all photography had been completed. The schedule of production shows that the "1st complete re-recording was started April 2, 1958 and completed April 14, 1958." (Plaintiff's Ex. 45.)
On March 20 and 24, 1958, the executives of major theater chains were shown the movie to convince them it should be booked by their chains. The film shown to the theater executives was the same as that shown to the MPAA, except for the scene that was redone on March 27, 1958. By April 14, 1958, therefore, the defendants had a motion picture which had received the MPAA seal of approval and which had been shown to theater executives to secure bookings at various theater chains.
The first showing of the film to the public was on April 17, 1958 at the Fox Riverside Theater in Riverside, California. This was described in the testimony as a "sneak preview." A representative of plaintiff was invited to be present at this showing. A sneak preview occurs when a film is shown to the general public without advance notice and is for the purpose of judging audience reaction. The picture shown to the public on April 17, 1958 was the same one which had been completed by April 14, 1958. On April 15, 1958 this picture had also been shown at the Warner Studio, with various executives in attendance.
Warner, under the contract above mentioned, was to be in charge of distribution within the United States. On March 7, 1958 Warner and RKO had agreed upon a release date to the public which was set for August 9, 1958. On this date it was released nationally by Warner. It was shown at the Capitol Theater in New York and thereafter throughout the United States. There was no delay in the timetable for distribution. The movie was released on schedule. It was shown in many theaters and plaintiff has been entitled to receive his share of the profits therefrom. The picture was not a great financial success considering its cost of production. It had cost $1,845,379 to produce of which $1,827,106 had been incurred or expended by the defendant as of the week ending April 12, 1958.
The issue in the case has been stated to be whether there was a completed motion picture on April 14, 1958. The only changes made in the picture after that date were as follows:
(1) The background music used at the sneak preview and the showings before April 14, 1958 was different from the background music used in the final version released to the public in August 1958. The sound track of a movie consists of many parts, including music, dialogue and special effects. The musical score for background music is necessarily one of the final items to be completed, since the composer requires a finished production in order to time the length of each scene and compose music appropriate to it. When the component parts of the sound track are completed and approved they are merged into a single sound track. This is done by a recording engineer and is essentially a technical process.
The sound track that the public heard at the sneak preview and which had been heard prior to April 14, 1958, was not identical with that which was released in August in the theaters. The preview production and the prior showings contained what is known as stock music. This is background music which is not written especially for a particular movie. It is one of several compositions in the studio library that can be used for a motion picture with which the studio is connected. In February, 1958, defendant...
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Berger v. Simon & Schuster
...contract and contended that the district court lacked jurisdiction. 684 F.2d at 229. 3 Plaintiff also relies on Mailer v. RKO Teleradio Pictures, 213 F.Supp. 294 (S.D.N.Y.1963) aff'd, 332 F.2d 747 (2d Cir.1964), a case involving a contract with an automatic reversion-of-rights clause where ......
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Mailer v. RKO Teleradio Pictures, Inc.
...a "feature length photoplay" had been completed within the time specified, and accordingly rendered judgment for the defendants. 213 F.Supp. 294 (S.D.N.Y.1963). In finding the solution to the question posed we must examine the state of completion of the photoplay on April 14, 1958, the cruc......