Szekely v. Eagle Lion Films

• Decision Date: 08 May 1956
• Citation: 140 F. Supp. 843
• Parties: John SZEKELY, also known professionally as John Pen, Plaintiff, v. EAGLE LION FILMS, Inc., General Film Distributors, Ltd., J. Arthur Rank, Rod Geiger and Nat Bronsten, Defendants.
• Court: U.S. District Court — Southern District of New York

140 F. Supp. 843

John SZEKELY, also known professionally as John Pen, Plaintiff, v.EAGLE LION FILMS, Inc., General Film Distributors, Ltd., J. Arthur Rank, Rod Geiger and Nat Bronsten, Defendants.

United States District Court S. D. New York.

May 8, 1956.

Fitelson & Mayers, New York City(Benjamin Aslan, Harold J. Sherman, New York City, Howard Gotbetter, Brooklyn, N. Y., of counsel), for plaintiff.

Phillips, Nizer, Benjamin & Krim, New York City(Walter S. Beck, Seymour Shainswit, New York City, of counsel), for defendantEagle Lion Films, Inc.

DAWSON, District Judge.

This action alleges infringement of plaintiff's common law right of literary property in an original unpublished screen play and seeks an injunction and damages.The action was tried by the Court without a jury.

Although five defendants are named in the complaint, the defendantEagle Lion Films, Inc.(hereinafter called "Eagle Lion") is the only defendant remaining in the case.Three of the other defendants were never served with process, and the plaintiff consented to dismissal of the case against the defendantRod Geiger when no attorney appeared for him at the trial of the action.

The Court has jurisdiction of the action by reason of diversity of citizenship.

The Facts

The Court finds the following facts:

1.The plaintiff has been a writer by profession for thirty-five years using the name, for his literary works, of "John Pen".His writings include a half dozen books and stage plays and over forty motion picture stories.For one of the motion picture stories he received an Academy Award, otherwise known as an "Oscar".

2.The defendant Eagle Lion was engaged in the distribution of motion pictures for some years until June, 1950, at which time this defendant transferred its distribution business to Eagle Lion Classics, Inc.

3.Among the pictures that Eagle Lion distributed was one entitled "Give Us This Day" which was sometimes entitled "Salt To The Devil", which plaintiff contends was produced from his original screenplay without his consent.

4.In or about 1937, Pietro D. Donato wrote a short story entitled "Christ in Concrete" which was published in the March, 1937 issue of "Esquire" magazine; and thereafter, this story was expanded into a novel also entitled "Christ in Concrete" which was published by Bobbs-Merrill and copyrighted in 1937 and 1939.

5.Thereafter, Rod E. Geiger Productions, Inc.(hereinafter called "Geiger Productions") acquired from Di Donato an exclusive license to produce a motion picture based upon the novel.

6.On November 13, 1947, a contract was entered into between the plaintiff and Geiger Productions whereby plaintiff agreed to render services as a writer "in connection with the writing and preparation of a final screenplay based upon the literary property entitled Christ in Concrete, a novel written by Pietro Di Donato, to be produced as a motion picture film by Rod E. Geiger Productions, Inc."Geiger Productions agreed to pay the plaintiff for his services $35,000 in four installments, the last of which was to be due within three days after presentation of the final draft of the screenplay.In addition, plaintiff was to receive 5% of the producer's share of the net profits derived from the exploitation of the motion picture.Paragraph 6 of the contract provided:

"6.Title to the manuscript and the ideas therein contained, including all rights of any kind and character whatsoever in and to the said manuscript, shall be vested solely in John Pen unless and until he shall be paid the sum of $35,000 as herein provided."

Paragraph 7 provided that "Except as provided in paragraph 6", Geiger Productions would own "all rights of every kind and character whatsoever in and to all of the results and proceeds of your services hereunder."The same paragraph also prohibited the plaintiff from transferring or attempting to transfer any interest or right in the material created by himself.

7.The plaintiff received $10,000 with the contract document in satisfaction of the first two installments.He presented a final draft of the screenplay early in 1948, but received no further payments from Geiger Productions.

8.In March of 1948, Rod E. Geiger, President of Geiger Productions, wrote to the plaintiff describing financial difficulties which required cutting down on the number and magnitude of the sets.He wrote that he had "put on a local writer to make necessary script changes".Ben Barzman was named as the local writer.The letter also contained a request that the plaintiff consent to modification of the terms of payment.There is no evidence that this request was ever acted upon.

9.Sometime early in 1949, the filming of the motion picture was commenced in England.Shortly before the filming the plaintiff learned of this.His attorneys sent a telegram to Edward Mosk, attorney for Rod E. Geiger, on January 25, 1949, giving notice that the filming would violate the plaintiff's rights.In return, on the following day, Mosk wrote that he had forwarded the telegram to Geiger in England.He stated that:

"I am informed that no part of the script which was prepared by Mr. Pen is being used in the production of the motion picture as presently planned."

10.About a week later, the plaintiff's attorneys heard directly from Geiger in England who wrote that

"at this time * * * the present production plans in England has sic an entirely new script and containing no part of Mr. Pen's work."

Geiger's letter also reported the failure of Geiger Productions to finance the filming and production and stated that the English production was being undertaken by another company that he was personally interested in.The letter contained the statement that

"the financial situation here in England is somewhat stringent and by ruling of the Bank of England the Producing Company is not able to pay dollars for any participant in this production."

It then continued:

"This does not mean that I do not recognize the monies due Mr. Pen — I most certainly do — and I am willing to assign from my share of the American proceeds of the film the monies due Mr. Pen.If I were in a position to settle the matter myself personally I most certainly would.However I might add that in the event of any trouble along these lines that might jeopardise the production, which would mean that I would be in no position to pay Mr. Pen in the near future, if ever."

11.On February 28, 1949, Mosk, attorney for Geiger, wrote the plaintiff's attorney in answer to a letter that is not in evidence.Mosk advised that the plaintiff's best protection lay in the completion of the filming.

12.The plaintiff never took any legal proceedings to enjoin the production of the film in England.He testified that the belief that his best chance of getting paid was to allow completion of the filming and distribution had played a very great part in his decision to refrain from legal action.How much Geiger's assurance that plaintiff's work was not being used affected his decision was not indicated.

13.The filming was completed in England in the same year, 1949.According to the Catalog of Copyright Entries published by the United States Government, the film is described as a Plantagenet film produced by Geiger and Bronsten and copyrighted by Plantagenet.

14.Distribution rights on the film were granted to General Film Distributors, Ltd., of England.This company granted to Eagle Lion the right to distribute the picture in the Western Hemisphere and covenanted with Eagle Lion that any film delivered would not infringe upon common law rights or copyright.

15.In November, 1949, the plaintiff learned by reading "Variety", the trade paper for the theatrical business, that Eagle Lion was contemplating distributing a motion picture in this Country based on the novel "Christ in Concrete".At plaintiff's instance, his lawyer wrote a letter to Eagle Lion dated November 29, 1949 advising them that he represented the plaintiff"who was engaged to do the scenario and to whom there is still due and owing the sum of $25,000.00."This letter then continued:

"Unless arrangements are made to pay Mr. Pen, we will be obliged to take such steps for his protection as we may deem advisable, including, if need be, injunctive proceedings against the showing of the picture, with his work included."

While the president of Eagle Lion testified that he had no recollection of the receipt of the letter and could not find it in his files, sufficient competent evidence was given to prove the mailing of the letter.The same officer testified that he had no recollection of a subsequent letter of February 7, 1950 and could not find it in his files, but admitted that it was received by the defendant company.The testimony of this officer that he had not been aware of the letter is not contradictory of its receipt which must, accordingly, be presumed as a fact.News Syndicate Co. v. Gatti Paper Stock Corp., 1931, 256 N.Y. 211, 214, 176 N.E. 169;1 Wigmore, Evidence (3rd Ed. 1940) § 95.

16.Eagle Lion released the film for distribution.It was first exhibited at the Rialto Theatre in New York City on or about December 20, 1949.Certain of the newspaper reviews which followed this initial showing described it as:

"An Eagle Lion Film Release.Produced by Rod E. Geiger and N. A. Bronsten.Directed by Edward Dmytryk.Screenplay by Ben Barzman.Adapted by John Penn.From the novel by Pietro Di Donato."

On the original film so exhibited, there was credit given to the plaintiff for the "adaptation".

17.On February 7, 1950, the attorneys for the plaintiff wrote a second letter to Eagle Lion, calling attention to the contract between the plaintiff and Geiger Productions, and stating, in part:

"Pursuant to said contract there is still due our client the sum of $25,000. and no assignment, license or other disposition of any rights whatsoever has been made or executed by Mr. Szekely in regard to said screenplay.

...