Universal Pictures Co. v. Harold Lloyd Corporation

• Decision Date: 20 June 1947
• Docket Number: No. 11286.,11286.
• Citation: 162 F.2d 354
• Parties: UNIVERSAL PICTURES CO., Inc., et al. v. HAROLD LLOYD CORPORATION. HAROLD LLOYD CORPORATION v. UNIVERSAL PICTURES CO., Inc., et al.
• Court: U.S. Court of Appeals — Ninth Circuit

162 F.2d 354 (1947)

UNIVERSAL PICTURES CO., Inc., et al. v. HAROLD LLOYD CORPORATION.

HAROLD LLOYD CORPORATION v. UNIVERSAL PICTURES CO., Inc., et al.

No. 11286.

Circuit Court of Appeals, Ninth Circuit.

May 12, 1947.

Petition for Modification Denied June 20, 1947.

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Julian T. Abeles, of New York City, Guy Knupp and Mitchell, Silberberg & Knupp, all of Los Angeles, Cal., for appellant Universal Pictures Co.

Lewinson & Armstrong and Joseph L. Lewinson, all of Los Angeles, Cal., for appellant Bruckman.

Harold A. Fendler, of Los Angeles, Cal., for appellant Harold Lloyd Corp.

Before MATHEWS, STEPHENS and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

The Harold Lloyd Corporation filed its complaint against Universal Pictures Co., Inc. and Clyde Bruckman, in the United States District Court for damages, injunctive and other relief. The action arises out of alleged infringements upon the copyright of the motion picture photoplay entitled "Movie Crazy". The defendants deny infringement but admit production and distribution of the alleged infringing motion picture photoplay entitled "So's Your Uncle".

The trial court found and awarded judgment to the plaintiff and against defendants for damages in the sum of $40,000, $10,000 for attorney fees, and granted injunctive relief against further violation of plaintiff's rights under its copyright. The court found the total amount of profits realized by the Universal Pictures Co. from distribution of the infringing photoplay was in excess of $20,000, 20% of which had been derived from the infringements. However, profits as such were not allowed in the award. The defendants appeal. The Harold Lloyd Corporation cross-appeals on the ground that the damages are inadequate. We shall occasionally refer to the plaintiff-appellee and cross-appellant as Lloyd and defendant-appellants and cross-appellees as Universal and Bruckman.

The motion picture photoplay "Movie Crazy", starring Harold Lloyd, was produced by appellant during the years 1931 and 1932 at a cost exceeding $650,000 and was copyrighted. Lloyd's ownership has been continuous and is unchanged. Bruckman was employed by Lloyd during production of "Movie Crazy" to assist as a writer and director and he was paid $42,900 for his services. During the year 1943, Bruckman was employed by Universal as a writer for a motion picture photoplay entitled "So's Your Uncle". the alleged infringing film.

The trial judge found that Universal and Bruckman knowingly, wilfully, and deliberately incorporated in "So's Your Uncle" a sequence of 57 consecutive scenes, constituting the "Magician's Coat Sequence", directly from "Movie Crazy". He further found that "So's Your Uncle" was exhibited in more than 5,000 theaters throughout the United States in deliberate violation of Lloyd's copyright after it had been given full information of the misappropriation.

The issues on appeal are as follows: (1) Is there substantial evidence to support the finding of fact that appellants deliberately misappropriated the sequence of 57 scenes, and if it did, does such fact constitute infringement of the "Movie Crazy" copyright; (2) Is there substantial evidence to sustain the finding that Lloyd suffered $40,000 actual damage thereby.

The Infringement

The sequence of 57 scenes or the last 300 feet of reel 7 and the first 700 feet of reel 8 of "Movie Crazy", constituting the "Magician's Coat Sequence", are reproduced in the first 57 scenes and first 600 feet of the 4th reel of "So's Your Uncle". In "Movie Crazy", the star of the film attends a dinner dance given by a movie magnate's wife, having gained possession of an invitation by mistake. After being admitted, the star goes into the washroom and removes his coat. The coat falls and a magician hangs his coat on the hook just vacated. The star mistakenly puts on the magician's coat and returns to the dining room. He is introduced and is seated at the hostess' table and soon is dancing with her. Numerous comedy incidents begin to happen. He changes partners and the happenings continue — doves flutter, white mice crawl, eggs roll down the sleeves, all from the magician's coat when loosened. During the resulting melee, the magician enters and reproaches the star for stealing the coat. The star is discovered to be present without intended credentials and is literally thrown out.

In "So's Your Uncle", the leading character or star, disguised as his own uncle, two ladies and another man, go to a night club. While there, it becomes necessary for the star to appear as himself as well as his own uncle. Through the aid of a friend, a waiter in the club, he seeks a change of clothing. The waiter goes to the dressing room, takes a magician's coat and passes it to the star, who puts it on without knowing it to be a magician's coat. So clothed, he returns to the table in the character of himself. He dances with one of his table companions, and the comedy incidents occur, almost exactly as they do in "Movie Crazy" with practically the same results. The star leaves with his dancing partner and the waiter is blamed by the magician for the loss of his coat.

The main contention of both Universal and Bruckman is that Lloyd's photoplay is not a proper subject for copyright, hence no action for infringement lies. Secondly, they contend that there has not been such an appropriation as to constitute infringement. Universal asserts that there was not an appropriation of a substantial and material part of copyrightable material; the "gags" and "stage business" of the "Magician's Coat Sequence" have no dramatic quality; they are a subordinate sequence of events; the copyright does not cover any particular sequence of combination of "gags" or "stage business"; the scenes are merely comedy accretion to the story and having no story structure, are not dramatic; and finally, they are but a mere subsection of a plot and, therefore, not susceptible of copyright protection. Bruckman contends that the "comedy routine" of "Movie Crazy" is not within the Copyright Act because it is commonplace; it is dissimilar in the two pictures; it is entertainment but not dramatic composition, and it is slapstick and not dramatic composition. He further contends that he is not liable as an infringer as he had nothing to do with the production, release or exhibition of "So's Your Uncle".

The pertinent parts of the Copyright Act, 17 U.S.C.A. 1 et seq., are as follows:

Section 1. "Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right:

"* * * * *

"(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever;".

Section 5. "The application for registration shall specify to which of the following classes the work in which copyright is claimed belongs:

"* * * * *

"(d) Dramatic or dramatico-musical compositions;

"* * * * *

"(1) Motion-picture photoplays;

"(m) Motion pictures other than photoplays.

"The above specifications shall not be held to limit the subject matter of copyright as defined in section 4 of this title, nor shall any error in classification invalidate or impair the copyright protection secured under this title."

We agree with the trial court that the appellee's photoplay is a dramatic work and within the meaning of Section 1(d) of the Copyright Act. In Vitaphone Corporation v. Hutchinson Amusement Co., D. C., 19 F.Supp. 359, the defendants made the contention that motion pictures consisting of one or more reels of "slapstick comedy" are not copyrightable under the Copyright Act, and the court made its answer at page 360: "I do not think there is much merit to this contention. All of the pictures are what are known in the trade as `shorts'; that is, they run for periods from ten to twenty minutes, and are used as fill-ins between the feature pictures, newsreels, and other pictures on the program. The subjects are comedy, and while they are of the `slapstick' type, they, nevertheless, have a story to them. * * * In the instant case, the reduction of the story such as it is to a motion picture is a dramatization of its work. I, therefore, find and rule that the copyrighted pictures in question are within the meaning and terms of the copyright law."¹ The subject is treated in 18 C.J.S. Copyright and Literary Property, § 117, p. 233, where the commentator states that motion-picture photoplays are dramatic works within the statute and may be infringed by any other motion picture making use of parallel situations.

Nor does the fact that Section 5, above quoted, of the Act lists dramatic compositions and motion pictures separately, imply that motion pictures are not, as suggested by appellants, dramatic compositions. Section 201.4, entitled "Subject matter of copyright", from the Code of Federal Regulations, Chapter II, Title 37 as Amended to October 1, 1941, relied upon by appellants, provides: "The designation `dramatic composition' does not include the following: Dances, motion-picture shows; stage settings or mechanical devices by which dramatic efforts are produced, or `stage business'; animal shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; scenarios for, or descriptions of motion pictures or of settings for the production of motion pictures. * * *." This section is part of the description of Section 5 of the Copyright Act, which names 13 classes of works for which copyright may be secured, stating that the application for registration shall...