Uproar Co. v. National Broadcasting Co., 5494.

• Decision Date: 10 October 1934
• Docket Number: No. 5494.,5494.
• Citation: 8 F. Supp. 358
• Parties: UPROAR CO. v. NATIONAL BROADCASTING CO. et al.
• Court: U.S. District Court — District of Massachusetts

8 F. Supp. 358

UPROAR CO. v. NATIONAL BROADCASTING CO. et al.

No. 5494.

District Court, D. Massachusetts.

October 10, 1934.

Arthur Berenson, Bernard Berenson, and Israel Gorovitz, all of Boston, Mass., for plaintiff.

Powers & Hall and Leland Powers, all of Boston, Mass., for defendant Texas Co.

Stuart C. Rand, Warren B. Manhard, and Choate, Hall & Stewart, all of Boston, Mass., and A. L. Ashby and E. Stuart Sprague, both of New York City, for defendant National Broadcasting Co.

BREWSTER, District Judge.

This suit was begun as an action at law. The plaintiff, in its declaration, alleged that by mesne assignment it had acquired of Ed Wynn, or his sole representative, the right to publish in pamphlet form the subject-matter of his broadcasts over the N. B. C. chain as a part of the advertising program sponsored by the defendant the Texas Company. It alleged: That it was essential that the right to sell, to distribute, and to advertise the publication be enjoyed simultaneously with the broadcasting of the program; that the defendants had conspired to prevent the plaintiff from advertising the publication over the broadcasting chains controlled by the defendant National Broadcasting Company, and had unlawfully interfered with and caused to be canceled contracts entered into with other broadcasting companies for advertising, by means of the radio, the publication; and that it was entitled to damages both at common law and under the anti-trust laws.

Each defendant, in an amended answer, has interposed a defense which it asserts is an equitable defense, and has asked for affirmative relief. The gist of the defense, thus pleaded, is that the sale, distribution, and advertising of the publication will infringe contract rights which have accrued to the defendants, respectively, entitling them to injunctive relief.

The defendants further claim that the matters set up in the amended answers constitute a complete defense to the plaintiff's action at law.

The issues raised by this defense were heard by the court, sitting in equity, upon evidence submitted by the defendants which fully establishes the facts alleged in the defendants' amended answers. There is little room for controversy regarding the pertinent facts, which may be briefly stated as follows:

Prior to October 1, 1932 (the date when the plaintiff's assignor acquired the alleged publication rights from Wynn), the defendant the Texas Company had entered into a contract with Wynn and/or his exclusive representative, by the provisions of which Wynn agreed to render service as an artist "and to supply the necessary personal script for broadcasting over the radio" for a broadcast of one-half hour each week, for which the Texas Company agreed to pay the sum of $5,000 for each broadcast. The contract in force October 1, 1932, was entered into on August 31, 1932. It was a renewal of an earlier contract in which the consideration stipulated was $3,500 for the performance alone, and $5,000 if the artist furnished the script. It is a fair inference that the parties intended that the compensation paid was not only for the performance, but for the script as well, and I so find.

The contract provided for one broadcast each week for 7 weeks beginning September 6, 1932, with an option for 52 additional weeks, which was exercised.

On March 16, 1932, the defendant the Texas Company, through its agent, entered into an agreement with the defendant National Broadcasting Company, whereby it obtained the facilities of an extensive chain of broadcasting stations for the presentation over the air of its advertising program, the material for which was to be furnished by the National Broadcasting Company and/or by the agent of the defendant the Texas Company which had, on its behalf, entered into the contract with Wynn, above referred to. This contract, by mutual agreement, was extended and was in force on October 1, 1932, and so far as appears was effective up to the date of hearing.

The defendant National Broadcasting Company on the 3d day of December, 1929, entered into a written contract with Graham McNamee, whereby McNamee granted to this defendant the right "to the exclusive management of his services, trade name or names and productions for all purposes of whatsoever kind and nature"; McNamee agreeing that during the period of the contract he would not make any contract or contracts with others for his "services, trade name or names and/or productions except by and through" this defendant. He further agreed that he would not, during the term of the agreement, permit his name or photograph to be used in any manner for commercial purposes without the written consent of the broadcasting company, which was granted the right to use the name and photograph of the artist in any proper way in connection with advertising and publicity campaigns and for commercial purposes of any nature whatsoever, and to quote or write articles concerning the artist and publish the same. The rights granted could be sold by the broadcasting company on a royalty basis, or otherwise, or could be assigned to advertising agencies, advertising clients, or other parties who might be negotiating for the services of the artist. In consideration for the services of the artist, McNamee was to receive a certain percentage of the amounts received for broadcasting. The contract further provided that all publicity in reference to the artist should, during the period of the contract, be under the sole direction of the National Broadcasting Company. This contract, by mutual agreement, was from time to time extended and was in force on October 1, 1932, and was in effect up to the date of the hearing.

The defendant National Broadcasting Company through its artist's service, has created a commercial value in the name "Graham McNamee." He has been identified with the National Broadcasting Company for several years, and has never been identified with any other broadcasting company. He is known as one of the leading announcers in the field of radio broadcasting. The use of the word "Graham" would, in the public mind, mean Graham McNamee, especially if used in connection with the radio programs sponsored by the Texas Company.

The plaintiff never received any authority from McNamee or the National Broadcasting Company to use the name "Graham," and under the statutes of New York, securing the right of privacy, the unauthorized use of the name would subject the plaintiff to an injunction. New York Civil Rights Law (Consol. Laws, c. 6), art. 5, §§ 50 and 51. Binns v. Vitagraph Company, 210 N. Y. 51, 103 N. E. 1108, L. R. A. 1915C, 839, Ann. Cas. 1915B, 1024.

On March 16, 1932, the Texas Company, through its agent, entered into a contract with the defendant National Broadcasting Company by which the Texas Company engaged the artistic services of McNamee for broadcasting a series of radio programs for which the Texas Company agreed to pay $250 for each performance. By the terms of this agreement the defendant broadcasting company agreed that the artist would render services called for by the contract and granted to the defendant the Texas Company the right to use the name and/or likeness of the artist in any proper way in connection with the advertising of and/or the giving of publicity to the radio program sponsored by the defendant the Texas Company. In this contract Ed Wynn is not mentioned; but the dates correspond with the dates in his contract, and, in view of the programs which have been broadcast by the Texas Company, there can be no doubt that the services of Graham McNamee were secured to be utilized in connection with the broadcasting of the advertising program of this defendant.

There was in evidence a sample copy of the publication which the plaintiff proposed to advertise and sell. This purported to contain the full text of the "operas" which constituted a material part of the script furnished by Wynn under his contract. Part II, entitled "The Wynn-Mill" represented the dialogue which took place during the performance between Graham and Ed Wynn. In this part the name "Graham" appears no less than 45 times. The plaintiff solicits trial subscriptions to the "Uproars" (the title of the publication) for 10 weeks for $1; the regular price being $5 a year, single copies 10 cents. It was this publication, reproducing the subject-matter of the performance sponsored by the Texas Company, so far as Wynn and McNamee contributed to it, that the plaintiff intended to advertise over the radio. The plaintiff's charge is that the defendants have interfered with its rights to secure broadcasting facilities for the purpose of advertising over the air the "Uproars."

It is the contention of the defendant the Texas Company that the plaintiff acquired no rights to publish the script used during the course of these broadcasts; that the publication violates exclusive rights acquired by this defendant, and that it is entitled to injunctive relief against the advertising, selling, and distributing of the publication. The contention of this defendant that the plaintiff secured no publication rights in the material produced for the Texas Company's broadcast is, in my opinion, sound. The script was prepared by Wynn under his contract with the Texas Company. He was employed at a munificent salary to furnish this materal in addition to his services as star performer during the half hour of each week. Under these circumstances, his production belonged to the employer. The applicable doctrine would be analogous to that which controls when an inventor has been employed to exercise his inventive genius for his employer in a definite field. The employer, and not the inventor, owns the invention....