Murray v. National Broadcasting Co., Inc., 515
| Decision Date | 18 April 1988 |
| Docket Number | D,No. 515,515 |
| Citation | 844 F.2d 988 |
| Parties | , 1988 Copr.L.Dec. P 26,266, 6 U.S.P.Q.2d 1618, 15 Media L. Rep. 1284 Hwesu S. MURRAY, Plaintiff-Appellant, v. NATIONAL BROADCASTING COMPANY, INC. and Brandon Tartikoff, Defendants- Appellees. ocket 87-7695. |
| Court | U.S. Court of Appeals — Second Circuit |
Joseph J. Santora, New York City (Michael S. Allen, Santora & McKay, New York City, of counsel), for plaintiff-appellant.
Thomas R. Jones, New York City (Susan Buckley, Lisa Pearson, Ellen L. Weintraub, Cahill Gordon & Reindel, New York City, of counsel), for defendants-appellees.
Before WINTER, PRATT and ALTIMARI, Circuit Judges.
It was almost a generation ago that a young comedian named Bill Cosby became the first black entertainer to star in a dramatic network television series. That program, I Spy, earned Cosby national recognition as an actor, including three Emmy Awards (1966, 1967 and 1968) for best performance in a dramatic series, and critical acclaim for the portrayal of a character without regard to the actor's race. Although keenly aware of the significance of his achievement in breaking the color line on network television, Cosby set his sights then on "accomplish[ing] something more significant for the Negro on TV." 1 In an interview in 1965, he envisioned a different approach to the situation comedy genre made popular by The Dick Van Dyke Show. The Daily News described Cosby's "dream" series as not
unlike other situation comedies. There'll be the usual humorous exchanges between husband and wife.... Warmth and domestic cheerfulness will pervade the entire program.
Everything on the screen will be familiar to TV viewers. But this series will be radically different. Everyone in it will be a Negro.
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... "I'm interested in proving there's no difference between people," [explained Cosby]. 2
Nearly twenty years later, on September 20, 1984, Cosby's dream for a "color-blind" family series materialized with the premier of The Cosby Show--a situation comedy about a family known as the Huxtables. Bill Cosby stars in the leading role as Heathcliff ("Cliff") Huxtable together with his TV wife Clair and their five children.
Plaintiff-appellant Hwesu Murray, an employee of defendant-appellee ("NBC"), claims in the instant case that in 1980, four years prior to the premier of The Cosby Show on NBC's television network, he proposed to NBC a "new" idea for a half-hour situation comedy starring Bill Cosby. In a written proposal submitted to NBC, Murray described his series called "Father's Day" as "wholesome ... entertainment"
which will focus upon the family life of a Black American family.... The leading character will be the father, ... a devoted family man and a compassionate, proud, authority figure....
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... The program may well resemble "Father Knows Best" and "The Dick Van Dyke Show." It will be radically different from "The Jeffersons," "Good Times," "Different Strokes," and "That's My Mama." The father will not be a buffoon, a supermasculine menial, or a phantom.... The program will show how a Black father can respond with love ..., and will present ... a closely-knit family....
On this appeal from an order of the United States District Court for the Southern District of New York (Cedarbaum, J.) granting defendants-appellees' motion for summary judgment, we are asked to determine whether, under New York law, plaintiff has a legally protectible interest in his idea which he maintains was used by NBC in developing The Cosby Show. Because we agree with the district court's conclusion that, under New York law, lack of novelty in an idea precludes plaintiff from maintaining a cause of action to prevent its unauthorized use, we affirm the district court's order granting summary judgment and dismissing the complaint.
Plaintiff Hwesu S. Murray has been employed in the television industry for the past ten years. Murray holds a Bachelor of Arts degree in English and graduate degrees in broadcast journalism and law. In 1979, defendant-appellee NBC hired Murray as a Unit Manager and financial analyst in its sports division. A year later, plaintiff contacted an NBC official outside of NBC Sports about some "extracurricular" ideas he had for future television programs, and the official apparently instructed him to submit his proposals in writing. Soon thereafter, in June 1980, plaintiff submitted five written proposals, one of which was entitled "Father's Day." Murray allegedly informed NBC that if it were interested in any of the proposals, he expected to be named executive producer and to receive appropriate credit and compensation as the creator of the eventual program. Plaintiff also allegedly told NBC that his ideas were being submitted in confidence.
Murray's proposal for "Father's Day" is the subject matter of this action. The NBC official who originally had requested it encouraged Murray to "flesh out" his proposal and submit it to Josh Kane, then an NBC vice-president and a top official with NBC Entertainment, the division of NBC responsible for network television programming. Plaintiff thereupon submitted to Kane an expanded proposal for "Father's Day." In a two-page memorandum dated November 1, 1980, Murray first suggested that Bill Cosby play the part of the father. At that time, plaintiff also made several other casting suggestions, including roles for a working spouse and five children, and again indicated that the proposed series would "combine humor with serious situations in a manner similar to that of the old Dick Van Dyke Show " but "with a Black perspective." Murray's expanded proposal concluded with the observation that, "[l]ike Roots, the show will attempt to depict life in a [closely-knit] Black family, with the addition of a contemporary, urban setting."
NBC apparently decided not to pursue Murray's proposal. On November 21, 1980, Kane returned the "Father's Day" submission to plaintiff and informed him that "we are not interested in pursuing [its] development at this time."
Four years later, in the fall of 1984, The Cosby Show premiered on NBC. The Cosby Show is a half-hour weekly situation comedy series about everyday life in an upper middle-class black family in New York City. The father, played by Bill Cosby, is a physician, and the mother is a lawyer. In its first season, The Cosby Show soared to the top of the Nielsen ratings and has become one of the most popular programs in television history. The show is highly regarded by critics and is also a huge commercial success.
Less than a month after viewing the premier, plaintiff wrote to NBC to advise it that The Cosby Show had been derived from his idea for "Father's Day." In January 1985, NBC responded through its Law Department, stating its position that " 'Father's Day' played absolutely no role in the development of 'The Cosby Show' ... [since m]uch of the substance and style of 'The Cosby Show' is an outgrowth of the humor and style developed by Bill Cosby throughout his career." NBC further maintained that The Cosby Show was developed and produced by The Carsey-Werner Company ("Carsey-Werner"), an independent production company and the executive producers of the series.
In his complaint, plaintiff claimed that The Cosby Show's portrayal of a strong black family in a nonstereotypical manner is the essence of "Father's Day," and "[i]t is that portrayal of Black middle-class life that originated with plaintiff." Murray also alleged that Josh Kane showed plaintiff's "Father's Day" proposal to his superiors at NBC, including defendant-appellee Brandon Tartikoff, President of NBC Entertainment. Tartikoff, together with Cosby and Carsey-Werner, have been credited with the creation and development of The Cosby Show. Plaintiff maintains that NBC and Tartikoff deliberately deceived plaintiff into believing that NBC had no interest in "Father's Day" and then proceeded to develop and eventually produce plaintiff's idea as The Cosby Show.
Plaintiff's complaint stated a number of causes of action arising out of defendants' alleged appropriation of his idea. Among those relevant to this appeal are plaintiff's claims of race discrimination under 42 U.S.C. Secs. 1981 and 1982, false designation of origin under the Lanham Act, 15 U.S.C. Sec. 1125, and various state law claims, including misappropriation, conversion, breach of implied contract, unjust enrichment and fraud. Plaintiff sought, inter alia, damages and declaratory and injunctive relief as the "sole owner of all rights in and to the idea, proposal and property [known as] 'Father's Day.' "
In a decision dated July 15, 1987, 671 F.Supp. 236 (S.D.N.Y.), the district court considered whether plaintiff's idea was "property" that could be subject to legal protection. Since the parties agreed that New York law applied to plaintiff's claims, the district court proceeded to analyze defendants' motion for summary judgment in light of the New York Court of Appeals decision in Downey v. General Foods Corp., 31 N.Y.2d 56, 334 N.Y.S.2d 874, 286 N.E.2d 257 (1972). In Downey, the New York court established the general proposition that "[l]ack of novelty in an idea is fatal to any cause of action for its unlawful use." 334 N.Y.S.2d at 877, 286 N.E.2d at 259 (quoting Bram v. Dannon Milk Prods., Inc., 33 A.D.2d 1010, 307 N.Y.S.2d 571, 571 (1st Dep't 1970)) (emphasis added). The district court, therefore, determined that the "sole issue" before it was the novelty of plaintiff's "Father's Day" proposal, and accordingly assumed, for purposes of defendants' motion, that defendants in fact used plaintiff's idea in the development of The Cosby Show. See Ed Graham Productions, Inc. v. National Broadcasting Co., 75 Misc.2d...
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