Roberts v. Dahl, 55927

• Decision Date: 28 June 1972
• Docket Number: No. 55927,55927
• Citation: 286 N.E.2d 51,6 Ill.App.3d 395
• Parties: , 174 U.S.P.Q. 517 Sylvia ROBERTS, Plaintiff-Appellant, v. Ariene DAHL et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 51

286 N.E.2d 51

6 Ill.App.3d 395, 174 U.S.P.Q. 517

Sylvia ROBERTS, Plaintiff-Appellant, v. Ariene DAHL et al., Defendants-Appellees.

No. 55927.

Appellate Court of Illinois, First District, Fourth Division.

June 28, 1972.

Rehearing Denied July 26, 1972.

Horwitz, Anesi, Ozmon & Associates, Ltd., Chicago (Nat P. Ozman and Anthony J. Bosco, Chicago, of counsel), for plaintiff-appellant.

Granger Cook, Jr., Raymond P. Niro, Hume, Clement, Hume & Lee Ltd., Chicago, for certain defendants-appellees.

BURMAN, Justice.

Plaintiff, Sylvia Roberts, appeals from a summary judgment entered in favor of defendants, Arlene Dahl et al., in an action to recover damages for the infringement of a common law copyright in certain unpublished scripts for a television series on beauty hints. In addition to Miss Dahl, defendants are: American Broadcasting Companies, Inc., the broadcaster of the allegedly infringing television show; Clairol, Inc. and Clairol, a division of Bristol-Myers Co., the sponsors of the show; Foote, Cone & Belding, Inc., the advertising agency for Clairol; Ruder & Finn of Chicago, Inc., a public relations firm of which Clairol was a client; Gamut Productions, the producer of the allegedly infringing television series and Victor Morris.

Plaintiff, who resides in Chicago, Illinois, alleged in her complaint that prior to March 28, 1966, she created a series of television scripts entitled 'The Beauty Spot'; that the scripts were her original creation and of substantial value to her; that she never published or consented to the publication of the scripts; that prior to March 28, 1966, the defendants came into possession of the detailed contents of the scripts without the knowledge or consent of plaintiff, and that on March 28, 1966, and for approximately sixteen weeks subsequent thereto, defendants caused substantially similar scripts to be published on a nationwide television show known as 'Arlene Dahl's Beauty Spot.' Plaintiff further alleged that as a direct and proximate result of the acts of defendants, she had been deprived of her literary property, and prayed for $500,000 damages. The defendants filed answers denying plaintiff's charges.

The record reveals that plaintiff, Sylvia Roberts, is an accomplished beauty and fashion consultant, a former model and an expert in the field of cosmetics and hairstyling. She has appeared on several television shows and has traveled throughout the United States as a fashion and modeling consultant. Plaintiff has been employed by various large cosmetic manufacturers, has held executive positions at the Patricia Stevens School for Models in Chicago, and has had experience in both copywriting and script work. She testified on deposition that she studied advertising, journalism, drama and television writing at Northwestern University. Miss Roberts has been involved in the field of fashion and beauty consultation for approximately twenty years.

Plaintiff stated that in 1960, she began to think about a television series involving beauty hints for women. By April, 1963, she had completed several scripts and had conceived of the idea of calling her series 'The Beauty Spot.' In July, 1964, plaintiff met defendant, Victor Morris in Detroit. Morris was a frequent visitor in her home until the fall of 1965. Plaintiff testified that Victor Morris saw her scripts at least a dozen times and that she had discussed the format and outline of the show with him.

In September, 1965, Morris was employed by defendant Ruder & Finn, a public relations agency which represented defendant Clairol. In his deposition, Morris testified that he had never worked on the Clairol account. He stated that Miss Roberts told him of her idea for a television beauty show, but denied ever seeing plaintiff's scripts or knowing where she kept them. When plaintiff asked him in 1966 if he had ever spoken to anyone at Ruder & Finn about her idea for a television series, he assured her that he had not.

Defendant, Arlene Dahl, a resident of Hollywood, California, is the movie and telvision personality featured on the 'Beauty Spot' television show broadcast on ABC-TV from March 28, 1966, to June 24, 1966. Her affidavit discloses that she has been active in the beauty consulting field for the past fifteen years and has become known as a beauty and fashion expert. Since 1954, she has written syndicated feature articles dealing with a variety of beauty tips for women. In 1960--61, Miss Dahl began working on a book, 'Always Ask A Man--The Key To Femininity,' which was published by Prentice-Hall in 1965. In 1962, she began giving beauty clinics for women in which she offered advice and counsel on beauty and fashion, using women from the audience as models.

In April, 1965, Arlene Dahl conceived of the idea of a television show featuring her beauty consulting services and disclosed the idea and format to Noel Rubaloff, her agent. She and Rubaloff contacted defendant, Gamut Productions, which taped a beauty clinic given by Miss Dahl in San Francisco in June, 1965. From the tape, Gamut made five 30-minute shows which were telecast in San Francisco on station KGO-TV. From the five 30-minute shows, a single 30-minute pilot film was made. Television networks, television stations and advertising agencies were contacted. In June or July, 1965, defendant Dahl's show was presented to Foote, Cone & Belding, an advertising agency whose clients included defendants Clairol and Clairol, a division of Bristol-Myers. Foote, Cone & Belding was not interested in the half-hour format, but was interested in a five-minute format. In December, 1965, defendant Foote, Cone & Belding bought Miss Dahl's beauty program, comprising 65 five-minute shows. Various topics were selected from defendant's syndicated newspaper articles and from her book. These topics were submitted to Foote, Cone & Belding, which made the final selection. The scripts were written between January and March, 1966, by the same writers Miss Dahl had used to help her write her newspaper features and her book. From March 28 through June 24, 1966, defendant's television shows were broadcast on ABC-TV.

Miss Dahl's account of the development of her television program was substantially corroborated by the affidavits of Noel Rubaloff, her agent; Richard Gottlieb, a principal in Gamut Productions; John Owen, Vice President and Director of Broadcast for Foote, Cone & Belding; Jack Shor, Vice President and Director of Public Relations for Clairol; David Sacks, General Manager of KGO-TV, and James Shaw, a sales account executive at ABC.

In her affidavit, Miss Dahl further stated that since 1946 she has used a beauty spot and lip imprint as her personal 'logo' and that she first used the name 'Beauty Spot' on her syndicated feature articles in 1963. It was her idea to use the same name for the television program in order to continue her personal 'logo'. She also asserted that prior to the filing of this action, she was never aware of the existence of Sylvia Roberts or of Miss Roberts' idea for a television show. Nor was she aware of the existence of Victor Morris. She stated that her television series was conceived solely by her and developed completely independently of and without knowledge of Sylvia Roberts' idea or scripts. She also asserted that the idea and format for the Arlene Dahl beauty show was original with her and in no way derived from either Sylvia Roberts or Victor Morris, and that the format was substantially identical to that which she had used in her beauty clinics throughout the United States. In their affidavits, Richard Gottlieb Jack Shor, John Owen, Noel Rubaloff, David Sacks and James Shaw, each denied being aware of the existence of either Sylvia Roberts or Victor Morris, and stated that to the best of the affiant's knowledge, the Arlene Dahl television beauty show was created and developed by Arlene Dahl independently of and without knowledge of Sylvia Roberts' idea or scripts.

Harry F. Hunter testified on deposition that he was employed by the firm of Ruder & Finn from 1957--1970 as Vice President and General Manager of the Chicago office, and that he hired Victor Morris in September of 1965 as account executive. In his affidavit, Hunter stated that Morris was under his supervision and that at no time did Morris report to anyone but him. He also asserted that Morris had never had contact with the Clairol account. He said, 'in fact, the Clairol account was serviced exclusively from the New York office.' Hunter stated that prior to the filing of this lawsuit, he was unaware of the existence of Sylvia Roberts or of her idea for a television beauty series.

Dee Granger testified on deposition that she was employed by the firm of Ruder & Finn from 1964--1970 as an account executive. From 1964--1966, she worked on the Clairol account, including the Clairol Color Carousel, a massive promotion at the Randhurst Shopping Center. She testified that Victor Morris had driven her to the Randhurst Center in a company car because he had an account located beyond Randhurst, but she denied being aware of the existence of Sylvia Roberts or of her idea for a beauty show prior to the filing of this lawsuit.

The trial court considered the entire record, including the pleadings, depositions of the respective parties, and affidavits of the defendants. In granting summary judgment to the defendants, it held, in a comprehensive memorandum opinion, that Miss Dahl had independently developed her scripts without the benefit of plaintiff's ideas or scripts. Furthermore, the court found that Miss Dahl and the persons who assisted her did not have access to plaintiff's scripts, and that there was no evidence that Victor Morris had disclosed the contents of plaintiff's scripts to anyone involved in developing Arlene Dahl's television series. The court went on to say that, 'Where, as here, there is clear evidence of 'independent development' and no 'access', summary judgment...