Weitzenkorn v. Lesser

• Citation: 40 Cal.2d 778,256 P.2d 947
• Court: United States State Supreme Court (California)
• Decision Date: 29 April 1953
• Parties: , 97 U.S.P.Q. 545 WEITZENKORN v. LESSER et al. L. A. 22045.

Page 947

256 P.2d 947

40 Cal.2d 778, 97 U.S.P.Q. 545

WEITZENKORN v. LESSER et al.

L. A. 22045.

Supreme Court of California, in Bank.

April 29, 1953.

Rehearing Denied May 28, 1953.

Fendler, Weber & Lerner, Harold A. Fendler, Daniel A. Weber and Robert W. Lerner, Beverly Hills, for appellant.

Aubrey I. Finn, Hollywood, Pacht, Tannenbaum & Ross, Clore Warne, Gordon Stulberg and Maxwell E. Greenberg, Los Angeles, amici curiae on behalf of appellant.

Mitchell, Silberberg & Knupp and Arthur Groman, Los Angeles, for respondents.

Thelen, Marrin, Johnson & Bridges, Loeb & Loeb, Herman F. Selvin and Harry L. Gershon, Los Angeles, amici curiae on behalf of respondents.

EDMONDS, Justice.

Ilse Lahn Weitzenkorn has sued Sol Lesser, Sol Lesser Productions, Inc., and RKO Radio Pictures, Inc., charging that they have unlawfully used literary property of which she is the owner. Her appeal is from a judgment of dismissal which followed an order sustaining the demurrers of the defendants without leave to amend.

In the first cause of action, against Lesser and Lesser Productions only, Weitzenkorn alleges that she originated, created and wrote a literary composition entitled, 'Tarzan in the Land of Eternal Youth', of which she is the exclusive owner. A copy of the composition is attached to the complaint. This composition was submitted to Lesser and the corporation at their special request, 'pursuant to an express oral understanding and agreement' that, in consideration of such submission, she would be paid the reasonable value thereof and given the customary screen credit as author if they should use all or any part of it. Lesser and Lesser Productions accepted submission of the document, she states, retained it in their possession for several months, and 'became fully familiar with the contents'.

Thereafter, according to the complaint, Lesser and Lesser Productions produced a motion picture, entitled 'Tarzan's Magic Fountain', which they distributed and exhibited in conjunction with RKO Pictures. This motion picture, Weitzenkorn alleges, 'is patterned upon and copies and uses' her composition. By reason of its nature and bulk, and because it is in the possession of the defendants, a copy of the motion picture film is not attached to the complaint. Damages of $50,000 are claimed as the reasonable value of her composition, and the same amount for the reasonable value of the screen credit which she did not receive.

The second count, also against Lesser and Lesser Productions only, incorporates by reference all of the allegations of the first except the averments with respect to an express agreement. In addition, it alleges that Weitzenkorn submitted the composition to Lesser and Lesser Productions at their request for the purpose of sale to, or use by them, upon payment to her of its reasonable value.

The third count, against all of the defendants, incorporates by reference the material allegations of the first, with the exception of those relating to an express agreement and damages. Weitzenkorn then alleges that, without her knowledge, authority or consent, the defendants produced and distributed 'Tarzan's Magic Fountain', substantially copying and misappropriating her composition. General damages of $100,000 are alleged to have been sustained.

Lesser and Lesser Productions demurred to the complaint upon the grounds that each count fails to state facts sufficient to constitute a cause of action and that, in certain particulars, each of them is ambiguous, unintelligible or uncertain. RKO demurred to the third count upon the same grounds. At the request of the defendants, pursuant to section 426 of the Code of Civil Procedure, the court made an order for a viewing of the motion picture prior to and in connection with its ruling on the demurrers. The order also directed 'that the contents of such production be deemed a part of the complaint to the same extent and with the same force as though such production had been attached to the complaint'.

The composition or synopsis which is the basis of the controversy may be summarized as follows:

Tarzan, Jane, Boy and Cheta are interrupted by the arrival of an airplane 'breaking the peace of their jungle idyl'. The visitors are Jane's British cousin, Peter Selton, and his manservant, Gus. Peter is an 'aging dandy'. Gus provides comic relief, aided and abetted by the monkey, Cheta. Tarzan is not too happy to have guests; the travelers appear to be prepared for an indefinite stay.

Peter is 'rather cagey about the reason' for his visit and Tarzan 'senses there is more to Peter's expedition' than Peter is willing to reveal. Peter flies about the countryside seeking, and eventually finding, the Fountain of Youth located in the 'Land Between Dusk and Sunrise', of which he has a map. Boy, without Tarzan's permission, accompanies Peter and Gus on the day they fly to the mysterious land. The three are captured by warriors of the beautiful but cruel Queen Lility who rules the land of eternal youth. Queen Lilith offers them the choice of eternal youth or death. No one can leave her land.

Tarzan, meanwhile, worried by the absence of Boy, sets off with Jane and Cheta to rescue him. Tarzan and Jane themselves are captured by Lilith's warriors. Tarzan escapes with Jane and Boy and, after getting them to safety, attempts to free Peter and Gus. In the ensuing battle, Peter dies a hero. Tarzan destroys the land and its inhabitants by throwing a flame into the fountain of youth. The queen and her subjects wither into extreme old age, shrink, disintegrate and vanish.

The motion picture has been viewed by the Justices of this court. It also features Tarzan, Jane and Cheta, but has no character corresponding to Boy. Tarzan freely enters and leaves Blue Valley, the land of eternal youth. The kindly king of the land is his friend. Tarzan's first visit is upon a mission of mercy. He is seeking Gloria James, an aviatrix missing for twenty years, whose testimony is needed to free a man from prison. Gloria leaves the valley with Tarzan, goes to England and marries. Having aged rapidly after leaving the valley, she comes back to Africa with her husband to seek Tarzan's help in returning to the land of eternal youth.

Tarzan refuses Gloria's request, but in his absence Jane offers to lead them to Blue Valley. Tarzan follows the party to teach Jane a lesson, rescues them from a flood, and secretly conveys Gloria and her husband to the land of eternal youth, leaving Jane to return home. The king of the valley permits Tarzan to leave in friendship, but rebel warriors capture and attempt to blind him.

Tarzan escapes to discover Jane in peril. Dodd and Trask, the villains of the picture who are seeking the land of eternal youth for profit, have forced Jane to show them the way. Tarzan rescues Jane. Dodd and Trask die at the hands of valley guards.

Weitzenkorn contends that her complaint tenders issues of fact with respect to originality, similarity and copying which are questions of fact requiring a trial on the merits. These issues, she says, should not have been determined on demurrer as questions of law. In addition, she argues that the first and second counts, based upon express and implied contracts, tender issues of fact as to whether Lesser and Lesser Productions promised to pay for the use of her composition regardless of whether it was original.

It is also argued that section 426 of the Code of Civil Procedure, as amended in 1947, does not authorize the determination upon demurrer of factual issues such as originality, similarity, access and copying. The section is said to apply only to 'infringement' cases, not to those concerning breach of express or implied contract.

The defendants take the position that section 429 was amended to create a statutory method for determining upon demurrer whether a complaint for plagiarism and related contract theories states facts sufficient to constitute a cause of action. Originality and similarity, they say, are questions of law to be determined by the court in the first instance. Upon the issue of originality, they contend, the court should apply the doctrine of judicial notice.

Section 426(3), Code of Civil Procedure, as amended in 1947, in part provides: 'If the demand be for relief on account of the alleged infringement of the plaintiff's rights in and to a literary, artistic or intellectual production, there must be attached to the complaint a copy of the production as to which the infringement is claimed and a copy of the alleged infringing production. If, by reason of bulk or the nature of the production, it is not practicable to attach a copy to the complaint, that fact and the reasons why it is impracticable to attach a copy of the production to the complaint shall be alleged; and the court, in connection with any demurrer, motion or other proceedings in the cause in which a knowledge of the contents of such production may be necessary or desirable, shall make such order for a view of the production not attached as will suit the convenience of the court, to the end that the contents of such production may be deemed to be a part of the complaint to the same extent and with the same force as though such production had been capable of being and had been attached to the complaint.'

The effective date of the statute was subsequent to the filing of the complaints in Stanley v. Columbia Broadcasting System, 35 Cal.2d 653, 221 P.2d 73, 23 A.L.R. 216, and Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 221 P.2d 95. The question as to the effect of the enactment here arises for the first time.

Weitzenkorn asserts that the code section is not applicable to her first and second causes of action. As she construes the statute, it is limited to the tort action for 'infringement'. The defendants claim its benefits as to both the tort action and related contract actions.

The statute is similar to Rule 2 of the Supreme Court Rules for Practice and...