Thomson v. Floyd

• Decision Date: 15 August 1946
• Docket Number: 8812
• Citation: 71 S.D. 298,23 N.W. 924
• Parties: VERL THOMSON, Appellant, v. JOE FLOYD, Respondent.
• Court: South Dakota Supreme Court

71 SD 298, 23 NW 924 (1946)

VERL THOMSON,

Appellant,

v. JOE FLOYD,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Lucius J. Wall, Judge

#8812—Affirmed

Bailey, Voorhees, Woods & Fuller, Sioux Falls, SD

Attorneys for Appellant.

Boyce, Warren & Fairbank, Sioux Falls, SD

Attorneys for Respondent.

Caldwell & Burns, Sioux Falls, SD

Attorneys for Intervener.

Opinion Filed Aug 15, 1946

RUDOLPH, Presiding Judge.

Plaintiff seeks to be adjudged an equal owner in a certain radio program known as “G. I. Blind Date” or “Blind Date”. The plaintiff was an employee of the Sioux Falls Broadcast Association with the title of program director. His duties included the mechanics of putting programs on the air and the supervision of the people who took part in the programs. Plaintiff was experienced in radio broadcasting and had conceived and produced other radio programs. The defendant, Floyd, is the owner of the Hollywood Theater in Sioux Falls. The Sioux Falls Broadcast Association had from time to time broadcast programs from this theater. The intervener, Gingrich, was another employee of the Sioux Falls Broadcast Association whose duties were principally promotional and sales. Intervener Gingrich has not appealed from the judgment entered against him. The defendant Gill was never served with process. Plaintiff alleges that at the request of the defendant Floyd he collaborated “with the said Floyd in the origination and composition of a dramatic skit or production primarily for use at the Hollywood Theater in Sioux Falls, South Dakota, and as a radio broadcast over the local radio station at Sioux Falls, South Dakota, known as KELO ... .” In addition to asking for a determination by the court that he was an equal owner in this production the plaintiff sought an accounting of the proceeds derived from the sale thereof by the defendants. The case was tried to the court and the findings of the court were adverse to the facts as claimed by the plaintiff.

It is the general rule as stated in 18 CJS, Copyright and Literary Property, § 11, p. 145 that:

“Literary Property may be held in joint ownership, and each owner will be protected in his property. It is not necessary that the product shall be exclusively the work of one individual; it may be the work of one or of many. Whoever contributes in an intellectual way to the final result has an interest or property therein which will be protected. To constitute joint authorship there must be a common design to the execution of which the several persons contribute, and mere alterations, additions, or improvements, whether with or without the sanction of the author, will not entitle the person making them to claim to be a joint author of the work.”

It is upon this rule of law that plaintiff relies; he contends that there was a common design by him and the defendant in the execution of this particular program and that he contributed in an intellectual way to the final result. It is the contention of the defendant and the view taken by the trial court of the evidence that there was no common design between the plaintiff and the defendant but that this production or work was conceived by the defendant who simply consulted plaintiff as to certain technicalities relating to the broadcasting. Defendant further contends that any contribution of the plaintiff to this production, if any, was simply by way of alterations, additions or improvements and not such a contribution as would entitle plaintiff to be deemed a joint owner. The trial court determined the facts as follows:

“That about the first of December, 1942, the defendants Floyd and Gill met at a club in Sioux Falls and discussed the possibilities of creating a program to be used at the Hollywood Theater, particularly a program which would be in keeping with the then military atmosphere of the city and in which soldiers in uniform might appear on the stage and engage in telephone conversations, both ends of which conversations could be heard by the theater audience, and defendant Floyd attempted to call Thomson at the radio station to see if such a hook-up could be made. Defendants later that evening met in the offices at the Hollywood Theater and plaintiff came in and talked to them. At this meeting there was further discussion about a program and defendants asked plaintiff various questions about the mechanical part of putting on the program on the stage and over the radio where the use of telephones would necessarily be involved. Defendant Floyd advised Thomson that he and Gill had an idea for a program in which men in uniform would make dates by telephone with girls and that it would be a real blind date right in front of an audience and audible to radio listeners, and asked plaintiff if, in his knowledge of radio business, that kind of a two-way telephone conversation could be carried on the air. After discussion as to where the girls might be stationed, defendant Gill asked plaintiff if plaintiff had seen portable transmitters used in broadcasts from the stage of large auditoriums where the microphone was carried from one part of the building to another. Finally defendant Floyd suggested that the program be arranged with a partition down the center of the stage, the soldiers on one side and the girls on the other, so that all would be visible to the audience, and that telephones be...