Wrench v. Universal Pictures Co.

• Decision Date: 18 January 1952
• Citation: 104 F. Supp. 374
• Parties: WRENCH v. UNIVERSAL PICTURES CO., Inc. et al.
• Court: U.S. District Court — Southern District of New York

104 F. Supp. 374

WRENCH v. UNIVERSAL PICTURES CO., Inc. et al.

United States District Court S. D. New York.

January 18, 1952.

Paul, Weiss, Rifkin, Wharton & Garrison, New York City (Samuel J. Silverman and Richard H. Paul, New York City, of counsel), for plaintiff.

Adolph Schimel, New York City (Charles S. Rosenschein and Murray H. Warschauer, New York City, of counsel), for defendant Universal.

Stern & Reubens, New York City (Dodd, Mead, Arthur E. Farmer, New York City, of counsel), for defendant.

RYAN, Judge.

Plaintiff and both defendants have moved separately for summary judgment contending that as to their respective right to such relief there are no factual issues requiring trial. Rule 56, Fed.R.Civ.P., 28 U.S.C.

The claims asserted by plaintiff are for moneys she alleges are due her from defendant, Universal, under a written contract made on April 22, 1948.

By this contract plaintiff sold to Universal all motion picture rights for the entire world to three stories written by her (two of which had been published), and contracted to sell the rights to such additional story or stories and all adaptations and revisions which she might write and publish based upon the theme and idea of plaintiff's experiences as a lecturer. All of these stories were to be known and entitled collectively as It Gives Me Great Pleasure; and all were referred to in the contract as the "property." Universal was also given the right to use the title of the property or of any story as the title of any motion picture production based on the same theme. In the contract plaintiff agreed that she would protect and preserve the copyright on the property sold and to be sold from coming into the public domain so far as might be legally possible, by affixing to each "copy or arrangement of said work or any part thereof published or offered for sale any notice necessary for copyright protection in the United States or necessary for like protection under the laws of other countries." Plaintiff undertook that as each story was published with proper copyright notice she would duly register the same "wheresoever its protection so requires." She also agreed to procure the execution and delivery of an instrument by any publisher to Universal assigning all rights sold to Universal, and contracted to specifically reserve Universal's rights in the conveyance and transfer or any rights in the property to another.

Upon execution of the contract it was further provided that plaintiff was to receive from Universal a down payment of $10,000., a further payment of $25,000. upon commencement of principal photography of the first photoplay, if any, based on the property sold or within one year from the contract date. Universal also agreed to pay plaintiff $.25 for each copy of the regular trade edition of a full-length compilation of the stories published in book form and sold in the United States and Canada within 18 months of the first publication, these payments, however, not to exceed the sum of $25,000.

The complaint admits receipt by plaintiff of the first payment of $10,000. and alleges as a breach of the contract Universal's failure to pay the balance allegedly due amounting to $50,000. Plaintiff asks judgment in that amount against Universal.

Universal by answer admits the making of the contract in suit, but denies any breach on its part. It affirmatively alleges that plaintiff did not duly perform in that she neglected and omitted, (1) to preserve the copyright on the property in the United States and throughout the world, (2) to specifically preserve and protect the rights of Universal when assigning rights in the property to others, (3) to procure the execution and delivery of assignments by publishers to Universal, and (4) to give Universal the legal and exclusive right to use the title to said property. Universal alleges that by reason of this failure of plaintiff to duly perform, the property became "unmarketable" and that title thereto was rendered "unmarketable, defective, clouded and doubtful."

As separate defenses Universal pleads its election to rescind the contract and alleges readiness to restore to plaintiff everything it received under the contract. As a further defense it alleges the failure of plaintiff to furnish statements of sales of the book, a "condition precedent" to Universal's obligation to pay the additional $25,000. which was to be calculated on the number of books sold. By counterclaim it seeks to recover the $10,000. it paid plaintiff on the signing of the contract.

Plaintiff has asserted an alternative claim against Dodd, Mead, the publisher of her book It Gives Me Great Pleasure. Dodd, Mead, on May 17, 1948, undertook by contract with plaintiff to copyright the property and "to take all the usual precautions to protect said copyright." Plaintiff's position is that if Universal's counterclaim is sustained, she is entitled to judgment against Dodd, Mead for the damage to her resulting from any of the alleged imperfections in the copyright on the property arising from the publication of the book. Plaintiff, however, "does not concede that any such imperfections exist."

Defendant Dodd, Mead's answer denies any breach of its contract with plaintiff, and asserts affirmatively failure on the part of plaintiff to furnish complete or necessary information and assignments on prior copyrights and publications. Dodd, Mead also alleges that any injury plaintiff has sustained arises solely from her own failure to duly perform her contract with Universal, and that in this Dodd, Mead did not participate.

From the pleadings, affidavits and documents submitted the following facts appear undisputed:

Plaintiff is well-known as a lecturer and author of several books and short stories. Many of her works have appeared in leading magazines and some have been made into successful motion pictures. Based on the theme of her experiences as a lecturer plaintiff wrote several short stories recounting numerous amusing anecdotes. The first, entitled "My Heart's In My Mouth", was published and copyrighted by the Atlantic Monthly in June, 1944; the second, a story entitled "Luggage For the South," was published and copyrighted in May, 1945 by the New Yorker magazine; the third story, entitled "Cincinnati and I," was not published until October, 1948. It was the picture rights to these three stories which were specifically sold to Universal by contract of April 22, 1948.

Following the making of the contract, plaintiff wrote nine additional stories. These plaintiff had contracted to sell Universal before they were written. Six of them were published and copyrighted in the New Yorker, prior to November; four were written but were not published in any magazine. In November, 1948, the book It Gives Me Great Pleasure was published by Dodd, Mead.

Deriving its title from the first story it contained the book collected as chapters under their original titles but with revisions, the eight stories previously published and copyrighted by the Atlantic Monthly and the New Yorker magazines, and the four unpublished stories. The book was based entirely on the theme and idea of plaintiff's experiences as a lecturer, each chapter relating a separate incident. The book as published represented the "property", the rights to which plaintiff had agreed to and did sell to Universal.

The copyright notice affixed to the reverse of the front or fly leaf of the book reads: "Copyright, 1945, 1948 by Emily Kimbrough." There appears beneath this a further notation that several of the chapters (named) "originally appeared in somewhat different form as stories in the New Yorker." Neither "1944," the year of the Atlantic Monthly copyright of the chapter entitled "My Heart's In My Mouth," nor the fact that it had once appeared in that magazine as a story is mentioned. That the chapter in the book and the story of the same name originally published and copyrighted by the Atlantic Monthly recount the same incidents is not disputed; that plaintiff is the sole author is not questioned.

At the time the book was published the record owner of title to the copyright on the story "My Heart's In My Mouth" was the Atlantic Monthly. Since it retained no interest in the story after its first publication in that magazine, the Atlantic Monthly readily reassigned the copyright to plaintiff upon her request. This, however, did not take place until December 10, 1948 — after publication of the book — and was not recorded until January 6, 1949.

Early in 1949, in anticipation of its obligation to pay plaintiff on April 22, 1949, the $25,000. due under the contract, Universal had the title to the copyright searched. Upon examination of the results of this search, Universal questioned the sufficiency of the notice of copyright in the book. Acting on the advice of counsel on April 8, 1949, Universal sent a letter advising plaintiff that it elected to and did rescind the contract on the ground that the copyright was "incorrect and insufficient." Universal, at the time, offered to return to plaintiff "everything of value" received under the contract "on condition that plaintiff repay the $10,000. paid upon execution of the contract."

On April 22, 1949, plaintiff's attorneys wrote in reply refusing "to accept or accede to this purported rescission." Later when Universal advised that it was standing firm on its notice of rescission, plaintiff filed this suit.

We will first consider the motion of the defendant Universal for summary judgment. Here, we have presented the question whether the copyright on the book It Gives Me Great Pleasure published by defendant Dodd, Mead in 1948 is sufficient to protect the copyright on that part of it which consists of the story "My Heart's In My Mouth."

The book contains as a chapter the story originally published and copyrighted in the July, 1944 issue of the Atlantic Monthly magazine. It is the contention of...