Novak v. National Broadcasting Co., Inc.
| Decision Date | 23 June 1989 |
| Docket Number | No. 88 Civ. 5830 (RWS).,88 Civ. 5830 (RWS). |
| Citation | 716 F. Supp. 745 |
| Parties | E.J. NOVAK and Debra Studer, Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., Brandon Tartikoff, Broadway Video, Inc., Lorne Michaels, Dinah Minot, Don Novello, WNBC, Gaylord Production Company and Fries Entertainment Co., Defendants. |
| Court | U.S. District Court — Southern District of New York |
E.J. Novak and Debra Studer, New York City, pro se.
Cahill Gordon & Reindel, P.C., New York City by Thomas R. Jones, James Sandnes, Nelson Bogart, and Sandra A. Baron, W. Drew Kastner, Jeffrey Paule, for defendants N.B.C., Brandon Tartikoff, Broadway Video and Lorne Michaels.
Pryor, Cashman, Sherman & Flynn, New York City by Stephen F. Huff, Philip R. Hoffman, of counsel, for defendants Gaylord Production and Fries Entertainment Co.
Defendants National Broadcasting Company, Inc. ("NBC"), Brandon Tartikoff ("Tartikoff"), Broadway Video, Inc. ("Video"), Lorne Michaels ("Michaels"), Dinah Minot ("Minot"), WNBC (collectively, the "NBC defendants"), and defendants Gaylord Production Company ("Gaylord") and Fries Entertainment Co. ("Fries") have moved under Rule 56, Fed.R.Civ.P., to dismiss the complaint of plaintiffs E.J. Novak ("Novak") and Debra Studer ("Studer"). The defendants also seek costs and sanctions under 17 U.S.C. § 505 and Rule 11, Fed.R.Civ.P. Upon the facts and conclusions set forth below, the summary judgment motions are granted, except with respect to the cause of action based upon the Gangster scripts, and the motions for sanctions and costs are denied.
Creativity, humor, and copyrights in the entertainment world have given rise to this dispute. Specifically, Novak and Studer allege that the NBC defendants on six occasions on their television program "Saturday Night Live" ("SNL") infringed the plaintiffs' scripts portraying The Gangster, Frankenstein, and Attila the Hun. Novak and Studer have charged Gaylord and Fries with infringing a script involving The Fifth Beatle in its television program "Off the Wall." Whether there has been an appropriation of ideas, concepts, and scenes a faire or the theft of copyrighted and protected material is the issue which is decided below.
Unlike some copyright infringement claimants who are simply aspiring show business hopefuls, Novak, a New York resident, has worked in the entertainment industry for more than twenty years as an award-winning writer, producer, and performer, a show business historian and lecturer, and former national magazine editor.
Studer, also a New York resident, has been Novak's professional show business partner for more than ten years. Together they created, wrote, produced, and starred in a series of fifteen comedy segments called "The Video Vault" on New York's WOR-TV, a national satellite superstation.
NBC, a Delaware corporation with offices in New York, is what its name implies. It has for many years broadcast SNL, an amusing, acclaimed, and well-known late-night comedy show. Tartikoff is president of NBC Entertainment, a division of NBC with offices in New York.
WNBC has no corporate identity separate from NBC. It is simply the designation of a broadcast license (VHF, FM, and AM) granted to NBC, as licensee, by the Federal Communications Commission. Video, a production company, produces SNL jointly with NBC Productions, Inc., an NBC subsidiary not named as a defendant. Michaels is president of Video and SNL's Executive Producer, and Don Novello and Minot are independent contractors who are, or have been, involved in SNL's production.
Gaylord is a California corporation with offices in Los Angeles. Fries is a Delaware corporation, also with offices in Los Angeles. They produce a comedy program entitled "Off The Wall," which is broadcast by numerous stations nationally, including NBC.
Counsel for Novak and Studer filed the complaint on August 2, 1988. It alleged claims of copyright infringement by Novak against the NBC defendants (Count I), unfair competition by Novak against the NBC defendants (Count II), copyright infringement by Novak against Fries and Gaylord (Count III), unfair competition by Novak against Fries and Gaylord (Count IV), and tortious interference with business relations by Novak and Studer against all the defendants (Count V).
The defendants, prior to answer, filed the instant motions seeking dismissal which were heard on March 24, 1989. In the course of that submission, Novak and Studer sharpened the dispute by withdrawing their state law claims which the defendants had attacked as preempted by the copyright claims, see Memo of Law in Opp. p. 28.
Novak and Studer are creators, performers, and compelling and attractive personalities who now are representing themselves in this action. From July 1985 through January 1986, Novak and Studer created, wrote, produced, and starred in a series of fifteen comedy segments called the "Video Vault," which were broadcast, including reruns, over eighty times nationally on WOR-TV. Novak has described the "Video Vaults" as follows:
In August of 1985, Novak and Studer submitted copies of an eleven minute videotape demo of edited highlights from a handful of the "Video Vault" segments, both personally and through certain entertainment agents and executives, to NBC (including NBC Entertainment President Tartikoff), Video, Minot, and Michaels, who then were soliciting for demo tapes in consideration for employment as writers/performers for SNL. A total of eight separate videotapes were submitted (the "Audition Tapes"). The tapes were delivered by messenger and signed for by the recipients.
On November 12, 1985, Novak filed, among others, four of the Video Vault scripts for copyright purposes and obtained a valid Copyright # PAU 780 9H. They were "Marilyn Monroe and Attila the Hun," "Yucky Moosiano and Lola," "The Wicked Witch of the West & Frankenstein," and "The Singing Sister and Wingo, the Fifth Beatle." These scripts are attached as Appendix A.
Without prior response from NBC, Tartikoff in March 1986 returned the "Video Vault" tapes, which were resubmitted to NBC personnel in 1986. Also, in the spring of 1986 an agent on behalf of Novak and Studer submitted a copy of Novak and Studer's "Video Vault" demo tape to Gaylord in response to a trade paper ad soliciting for comedy writers and performers for a program called "Off The Wall."
After receiving the "Video Vault" submissions, SNL and "Off The Wall" broadcast programs that are the subject of the Novak and Studer claims. The dates of the "Video Vault" broadcasts and the allegedly infringing broadcasts were as follows:
The scripts of the SNL and "Off The Wall" performances are annexed hereto as Appendix B. A partial comparison of the expression of the scripts is annexed hereto as Appendix C. No comparison has been made between the entire "Video Vault" demo and the SNL and "Off The Wall" performances because Novak's copyright is limited to the scripts.
A comparison of the scripts (Appendix A & B) reveals the following:
1. Attila the Hun
Novak's Joe Franklin interview with Attila the Hun portrayed Attila as a modernday Hun who had just flown in from a show in Vegas to play the "Concord Hotel in the Catskills." Attila was on the Joe Franklin show to promote his new book, a spin-off of the book "The Joy of Sex ... from a personal angle ... called the Joy of Pillaging." This Attila is commanding and lascivious toward the other interviewee, Marilyn Monroe.
The SNL Attila the Hun was part of "Very Smart Theater," a spoof of public television's series "Masterpiece Theater." The book being presented is "Attila: The Early Years." The audience is told, by the narrator, that young Attila is plagued by "ambivalent feelings" and "inner conflicts." The play begins at a Hun banquet where Attila's father announces that Attila will be the new leader of the Huns. The youthful Attila explains to the Huns that he does not want to be their leader and runs from the room, confused and scared, to his "secret place" where he goes when he is feeling "sad and frightened." Attila spontaneously sings a very off-key song "Where do the Bluebirds Play." His father arrives on the scene and has a fatherly talk with Attila who explains that he would rather make a living selling mobiles made out of bones, pine cones, and string than by being the new leader of the Huns.
2. Frankenstein
In the script for Joe Franklin's interview with the Frankenstein monster and the Wicked Witch, Frankenstein greeted Franklin saying, "Joe Franklin — friend — Joe Franklin — good"; declined an invitation to be on the show again saying, "Grrrrrrrrr"; and remarked on Franklin's accidental melting of the witch saying, "Butterfingers." His voice was to be modified by an "echo" effect. No further lines or action were set forth.
SNL's Frankenstein was part of a spoof roundtable show called "Succinctly Speaking," with such well known "succinct speakers" as Tarzan, Tonto, and the...
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