Scott v. WKJG, Inc.

Citation376 F.2d 467
Decision Date02 May 1967
Docket NumberNo. 15611.,15611.
PartiesFlorence SCOTT, formerly Florence Mesler Montague, an individual, Plaintiff-Appellant, v. WKJG, INC., and National Broadcasting Company, Inc., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Albert L. Jeffers, Fort Wayne, Ind., for appellant.

John E. Hoffman, Fort Wayne, Ind., Eugene L. Girden, New York City, Hoffman, Moppert & Solomon, Fort Wayne, Ind., Coudert Brothers, New York City, for defendants-appellee.

Before DUFFY, Senior Circuit Judge, and CASTLE and SWYGERT, Circuit Judges.

DUFFY, Senior Circuit Judge.

This suit for damages and injunctive relief was brought by the plaintiff for the alleged infringement by defendants of a copyright owned by her.

Plaintiff Scott testified that when she wrote "Discretion" in 1939, she was a housewife living in Grand Rapids, Michigan; that she wrote it as a one-act radio play as a pilot for a proposed radio series, but that "Discretion" was never broadcast as a radio play. She testified further that in 1944, after many hours of drafting and rewriting, she expanded "Discretion" into a two and a half hour three-act play. This is the play which was copyrighted by plaintiff in 1944, and with a few brief additions, was presented by an amateur group in Detroit, Michigan, for two performances in 1946.

The play "Discretion" has never been published, publicly circulated or professionally produced. The validity of plaintiff's copyright is not contested.

Up to the time of the alleged infringing telecast in 1962, plaintiff had made fifteen copies of her work some of which she still had on hand. She had circulated her work among several business agents, but without success.

Mrs. Lois Hire is the author of the allegedly infringing play "Conditional Surrender." It is a half hour TV show which was telecast on May 9, 1962 by National Broadcasting Company (NBC) and station WKJG, Inc. in Fort Wayne, Indiana, in presenting "The Loretta Young Show." Mrs. Hire testified she wrote "Conditional Surrender" in 1960 in California, and that it was based upon an idea given to her by the instructor of an adult TV play-writing class which she attended from 1958 to 1960. She testified she completed the play in a five day, twenty hour period.

Mrs. Hire is a professional writer. She has written twelve plays of which seven have been sold and produced on nationally televised productions such as "Bonanza", "U. S. Steel Hour", "Kentucky Jones" and "The Loretta Young Show."

Mrs. Hire testified she had never known of plaintiff's play nor of the plaintiff until the instant suit was commenced. She testified that she had never been in the State of Michigan, and that prior to 1958, she had had no particular interest in plays or play-writing and had never read any unpublished scripts.

There are similarities in the two plays here involved. Both have the same general stock plot, for each play involves a husband, wife and husband's girl friend situation. It cannot be said that the love triangle plot is, in itself, unique.

Involved in each play is a middle-aged couple having been married for about fifteen years. They have reached a crisis resulting from the husband's involvement with a woman who works in his place of business. In each play the wife apparently accedes to the husband's request for a divorce, but does so in a manner to show to him the disadvantages of such a situation. The wife's terms and her other actions are, in fact, devices by which the wife seeks to defeat her husband's plans for a divorce. In both plays the wife's devices include the requirement that the husband assume the custody of the children, and purchase the wife's interest in the home property.

Also involved in each play is the wife's acquisition of new clothes as a means of attracting men when the wife goes on a hunt for a new husband. There is a further similarity in that the wardrobe suggested by the wife in each case was daring and rather shocking to the husband.

Plaintiff points to certain words and groups of words which, she argues, demonstrate a copying by the defendant. With reference to the suggested divorce, the wife in defendant's play states "Since it has, there's no point in being uncivilized about it. * * *." The wife in plaintiff's play states "* * * We're two civilized people. * * *" Again, the wife in defendant's play says "* * I'll line them up and say `Boys, your father has found a new playmate'" while the wife in plaintiff's play states "* * The King is dead — long live the King."

Plaintiff also points to the use of the word "brazen." The husband in defendant's play states "I certainly didn't expect this brazen man hunt." In the plaintiff's play the husband states "You sound brazen."

Plaintiff refers to a grammatical error, the alleged use of "I'd" as a contraction for "I had." However, the use of "I'd" in defendant's "Conditional Surrender" was not a contraction for "I had."

Plaintiff makes references to some additional groups of words called by her "key words," and also additional sentences used in defendant's play which plaintiff claims indicate copying. However, the District Court found that there were no identical or copied word for word sentences or passages in the two plays.

The trial court also found the two plays were so significantly different as to sequence, characterization, characters, scenes, settings and style of writing as to be "two entirely different plays."

In addition, the District Court found there was no...

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  • Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 12 October 1977
    ...have also been accepted by other courts. See, e. g., Universal Athletic Sales Co. v. Salkeld, supra, 511 F.2d at 907; Scott v. WKJG, Inc., 376 F.2d 467, 469 (7 Cir. 1967). 7 We believe Arnstein is still good Since the intrinsic test for expression is uniquely suited for determination by the......
  • Herzog v. Castle Rock Entertainment
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
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    ...used plaintiff's work rather than resorting to independent creation. Scott v. Wkjg, Inc., 149 U.S.P.Q. 413 (N.D.Ind.1966), aff'd, 376 F.2d 467 (7th Cir.1967), cert. denied, 389 U.S. 832, 88 S.Ct. 101, 19 L.Ed.2d 91 (1967). However, Plaintiff has not shown that three months is unusually shor......
  • Fasa Corp. v. Playmates Toys, Inc.
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    ...v. Gibb, 741 F.2d 896, 904-05 (7th Cir.1984); qad. Inc. v. ALN Associates, Inc., 974 F.2d 834, 838 (7th Cir. 1992); Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir.), cert. denied, 389 U.S. 832, 88 S.Ct. 101, 19 L.Ed.2d 91 (1967); Sanford v. CBS, Inc., 594 F.Supp. 713, 717 (N.D.Ill.1984); A......
  • Klinger v. Conan Doyle Estate, Ltd.
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    • U.S. District Court — Northern District of Illinois
    • 23 December 2013
    ...Rule 56.1 Resp. ¶ 6.) “Copyright protection does not extend to ideas, plots, dramatic situations and events.” Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir.1967). The Post–1923 Story Elements, however, do not fit into any of the categories articulated by Scott and instead, as previously e......
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2 books & journal articles
  • The Heart of the Matter: the Property Right Conferred by Copyright - Douglas Y'barbo
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 49-3, March 1998
    • Invalid date
    ...685, 686 (1st Cir. 1980); Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1163 (9th Cir. 1977); Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir. 1967). 184. Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d. Cir. 1930) ("[W]e do not doubt that two plays may corresp......
  • Interpreting the Copyright Act's Section 201(c) Revision Privilege with Respect to Electronic Media.
    • United States
    • Federal Communications Law Journal Vol. 52 No. 3, May 2000
    • 1 May 2000
    ...F.2d 851. (124.) See id. at 852. (125.) Id. at 854 (citing Washington Publ'g Co. v. Pearson, 306 U.S. 30, 36 (1939); Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir. 1967) ("a copyright is intended to protect authorship"); Jondora Music Publ'g Co. v. Melody Recordings, Inc., 506 F.2d 392, 3......

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