Burtis v. Universal Pictures Co., Inc. , 40 Cal. 2d 823 ( 1953 )

EDMONDS, J.

Thomson Burtis, the author of an assertedly plagiarized screen play, was awarded damages for the unauthorized use of his literary property. The principal question presented for decision upon the appeal from the judgment concerns the sufficiency of the evidence to support the verdict of the jury.

In 1938, Burtis, an established professional writer, submitted an untitled story synopsis to Universal Pictures Company, Inc. The synopsis interested Universal to the extent that it entered into a written agreement with Burtis providing that, for $250, he would write an original story of not less than 10,000 words “suitable for a Danielle Darrieux photo-play” to be tentatively entitled “Manhattan Masquerade.” He gave Universal an option, to be exercised within two weeks following delivery of the story, to purchase it for $3,250. In the event Universal did not exercise the option, it was to obtain no right, title or interest in the story.

Subsequently, Burtis wrote a story of about 20,000 words, which he delivered to Universal. The company did not exercise its option but retained both the untitled synopsis and the screen script in its files until this action was filed. A review of the synopsis, in mimeographed form, prepared by an employee of Universal, was available to all writers and producers on the lot.

In lieu of developing the personalities of characters in “Manhattan Masquerade,” Burtis, in most instances, utilized the device of naming well known motion picture stars “to aid the reader in visualizing the characters” which he had in 'mind. The story may be summarized as follows:

Adolph Menjou is an impecunious bon vivant whose current economic objective is to marry Spring Byington, “the wealthiest widow in America.” He is the author of “At Twenty—I Have Lived,” a risqué novel written under the pen name of “Nanette.” Andy Devine, a gardener formerly in Menjou’s employ, has stayed with him in the capacity of valet while he awaits payment of wages now five years past due. Menjou’s publisher is Horatio Livermore, a hypocritical and ruthless businessman who invents artistic excuses to justify .the publication of sexy novels. Lionel Stander, Liver-more’s press agent, is a frustrated writer who conceals his sensitivity with a sardonic, jeering attitude.

Despite Menjou’s protests that he does not want to write any more of that “rot,” Livermore insists upon a sequel to Nanette’s first book, telling of her girlhood experiences in European boarding schools. To secure background material, Livermore sends Menjou to Paris. Before his departure, Menjou discovers that Prince Miseha Auer of Wetsalia has moved into the Byington ménage as a permanent, and unscrupulous, house guest.

In Paris, Menjou meets Gabrielle Roulet, a teacher of English in a finishing school. Although at heart a mischievous, if naive, flirt, at school she wears horn-rimmed spectacles and draws her hair “severely around her face.” At home, with her hair down, she is charming. Her housekeeper is Vera Gordon, a Russian with an earthy sense of humor who delights in stuffing guests with her cooking. In between bouts of indigestion induced by Vera’s culinary efforts, Menjou subtly secures from Gabrielle the information which he desires without disclosing his purposes.

Menjou returns to New York and, shortly thereafter, “At Eighteeen—I Had Also Lived” is published. It becomes an immediate best-seller, Nanette’s identity being a question of public interest. The press clamors for information and Walter Winehell serves an ultimatum upon Livermore that he will discover Nanette if her identity is not revealed exclusively to him. Menjou, Livermore and Stander are desperate. Disclosure of Menjou as Nanette, it is feared, will ruin his plans to marry Mrs. Byington and also destroy the market for the books. They decide to bring Gabrielle to New York to act the role of Nanette.

Despite the instructions of Rene Petain, Livermore’s exuberant Parisian agent, that she is not to leave her cabin during the trip, Gabrielle ventures forth and is seen by John Castle, young career diplomat. Castle manages to become acquainted with her by impersonating the steward serving her cabin. In a comedy sequence, Vera and Gabrielle discover his pretense. However, they keep their mission secret.

By the time Gabrielle reaches New York, the publicity concerning the mysterious Nanette has reached a crescendo. Stander has caused a Boston bookseller to be arrested for selling one of the books. When Gabrielle arrives, she and Vera are secretly installed in a swank apartment and coached as to their roles. Suitable wardrobes and beauty treatments are provided. In a coup designed for the dual purpose of providing authenticity to the act and ridding himself of competition, Menjou employs Prince Mischa to pretend to have been one of Nanette’s European lovers.

For the first time, Gabrielle reads the books which she is to pretend to have written. She is shocked and angered, but Vera, reveling in the story, persuades her to continue with the deception. Prince Mischa already has undertaken his role with vigor, running up fantastic bills to outfit himself and a growing host of fellow princes and blackmailing Menjou into meeting the overhead.

Once during her tutelage for the role she is to play, Gabrielle has slipped away from Andy Devine, now functioning as her bodyguard, to see young Castle, with whom she is in love. She still has not disclosed her dual identity to him.

As Nanette, Gabrielle is introduced to the press and society with a lavish, all-day program. She captivates the reporters, while Vera stuffs them with her cooking. Society is pleased, albeit somewhat shocked, by this vivacious siren with the naive manner. Alexander Woollcott is completely captivated by her frankness.

Disaster overtakes Gabrielle at a dinner party given by Mrs. Byington. There she is introduced to Castle’s aristocratic parents and prospective fiancée as the notorious Nanette. Silently, she pleads with her eyes for Castle to understand her plight. He reacts with scorn and contempt.

Thereafter, the mad social whirl continues in an ever-mounting frenzy of publicity. Stander, realizing Gabrielle loves Castle, hides his own love for her and urges even more publicity. The Immigration Department begins an investigation of Nanette’s entry into the country. Meanwhile, the FBI has taken an interest in her reputed activities as an espionage agent and her close association with Prince Mischa, a known foreign spy. Pretending a reconciliation, John Castle tricks Gabrielle into coming to Washington, where she is subjected to interrogation by J. Edgar Hoover. Gabrielle flees to the French Embassy for sanctuary.

There the story reaches its climax and conclusion as the principals gather and the full truth of the hoax is revealed. At Castle’s request, Hoover threatens Gabrielle with deportation unless she marries an American citizen. Castle offers to marry Gabrielle, and a happy reconciliation is effected. Mrs. Byington is delighted to discover that Menjou has written the books. Woollcott broadcasts the entire story and comments that the books have true literary quality. Prince Mischa, suddenly discovering himself again unemployed, promptly recoups his financial position by offering to marry Vera, who will receive 50,000 francs as payment for her part in the hoax. All ends happily in the marriages of the three couples.

On cross-examination, Burtis testified that the idea of a book being written under an assumed name was not original and that he had done the same thing himself many times during his career. The idea of attributing authorship of a risqué book to a woman when, in fact, it had been written by a man was, he said, a reverse twist upon actual occurrences in the literary lives of French authoresses Colette and George Sand. The climax of the story, possible deportation for moral turpitude, Burtis testified, was suggested by the true inci-¡ dent of Countess Cathcart who was refused admission to this: country upon similar grounds.

According to Burtis, certain characters in his story had been suggested to him by various previously issued motion pictures. As he said: “All that a professional writer can do is take elements of recognizable characters, recognizable to anybody, and combine them in a new form, like a new chemical combination makes a new material, until boy meets girl becomes an original story because of the way that all the common elements are combined.”

Almost eight years after Burtis had presented his story to Universal, it produced and released the motion picture “She Wrote The Book.” The picture, which is a part of the evidence in the case, has been viewed by the Justices of this court.

As the picture opens, “Always Lulu” has become a best seller of such magnitude and questionable repute that it is banned in all of the important cities of the world. George Dixon, publisher, and Jerry Marlowe, his breezy, confident advertising manager, are worried because they know neither who, nor where, Miss Lulu Winters, the authoress, is. The press is demanding information. Unexpectedly, they receive a telephone call from Lulu announcing that she is coming to New York to pick up her royalty checks, amounting to more than $80,000. At her insistence, they promise no publicity.

Actually, Lulu is Phyllis Fowler, wife of the Dean of Croyden College, a small and financially foundering school in Great Falls, Indiana. She has kept her secret for fear of ruining her husband and the college. The faculty, ignorant of the situation, has banned “Always Lulu” and threatened to expel any students found reading it, of whom there have been a number. However, Mrs. Fowler believes that the royalty checks awaiting her must be secured to benefit the college.

Professor Jane Featherstone (played by Joan Davis), a prissy, mid-Victorian and apparently sexless female, is about to leave for New York to deliver a lecture to a scientific convention upon the “Featherstone Theory of Molecular Agglutination.” Mrs. Fowler requests Jane to impersonate Lulu long enough to pick up the royalty cheeks while she is in New York. Jane is horrified by the revelation of authorship and revolts at the suggested impersonation, but finally agrees to the proposition for the good of the college.

On the train to New York, Jane meets Eddie Caldwell, a studious young engineer with whom she carries on a learned discussion concerning the mathematics of bridge construction. Upon arrival in New York, she agrees to meet him for dinner and Eddie gives her a snapshot of himself. However, neither of them learned the other’s name.

Meanwhile, Jerry has arranged a parade with police escort, a press reception, and a round of social gatherings for Lulu when she arrives. These grandiose arrangements suddenly, are discarded when Dixon and Jerry get their first agonized look at the prim professor, posing as Lulu. While they are attempting to decide how to handle this unexpected situation, Jane learns from Dixon’s secretary of the elaborate arrangements made for Lulu’s reception. In panic, she bolts from the building, pursued by Jerry. Jane jumps into a taxicab to effect her escape, losing her purse and all means of identification in the process. Jerry follows with motorcycle patrolmen, sirens wailing. Hearing the police, the taxi driver slams his cab to a stop, throwing Jane to the floor and rendering her unconscious.

When Jane awakens, she is suffering from amnesia. Jerry, sincerely believing that she is Lulu, tries to bring back her memory by reading ‘ ‘ Always Lulu ’ ’ to her. Having no reason to believe that she is not Lulu, Jane enters into the spirit of her supposed character with relish and soon is making advances toward Jerry.

After she has been properly outfitted, Jane is introduced to the press as Lulu. During the interview, she announces that there will be no sequel to her book. Dixon and 'Jerry determine that, if they are to have another story to publish, they must part Lulu from her money with rapidity. For this purpose, they persuade a friendly bartender, Joe (played by Mischa Auer), to impersonate Count Boris Pototski, one of the many lovers mentioned in “Always Lulu.” In the book, Boris had been an expert at spending Lulu’s money and Joe promises to be equally adept at this pastime. Without further ado, Joe moves in as Jane’s constant, and costliest companion. However, Joe’s task soon is complicated by Horace Van Cleve, a middle-aged tycoon and would-be playboy who begins throwing money at Jane almost faster than the imaginative Joe can spend it. Jerry decides to end this problem by arousing Mrs. Van Cleve’s jealousy.

As Jane’s social life becomes more and more hectic, news of her role reaches Croyden College by way of “Vanity” magazine, which features a cover picture of Lulu. The shock is profound, and the faculty decide to have nothing more to do with her. Meanwhile, Jane has met Eddie again at the Van Cleve shipyard and asks him to dinner. Her only recollection of him is the picture, all that had remained of her possessions after the taxi accident. A companion informs Eddie of Lulu’s identity and Eddie, after reading “Always Lulu,” reacts with disgust.

That evening, the situation reaches a climax with almost the entire cast gathered in Jane’s suite. Joe, the first to arrive, retires diplomatically to the bedroom as Eddie enters, kisses Jane violently, and then berates her for her supposed deception. Just as Eddie finishes telling Jane how contemptible he thinks she is, Mrs. Van Cleve appears brandishing a revolver, of which Eddie has the thoughtfulness to relieve her. Van Cleve walks into the melee dangling a diamond necklace for Jane, which he quickly transfers to his wife. Joe, his dignity unruffled, is discovered reclining in the bedroom. Jerry bursts upon the scene and, in attempting to defend Jane against Eddie’s accusations, receives a punch on the jaw. Soon all are gone but Joe, who proposes marriage to Jane. She accepts, but unfortunately mentions that she now has no money left. Joe politely, hut hastily, departs, reporting to Jerry that his job is completed.

But Jerry’s task is far from over. If he is to get another book for Dixon, he must help Jane recover her memory. ' Because Eddie has said he met her on a train from Great Falls, Jerry decides to take her there. On the Croyden campus, they accidentally walk into a faculty meeting, where Jane is greeted with bitter accusations. She does not understand what is happening, and Jerry explains her illness to the faculty members, who do not relent. As Jerry and Jane are leaving the campus, Jane happens to wander into her former classroom. Absentmindedly, she corrects a mathematical error in a problem on the blackboard, and suddenly her memory returns.

Mrs. Fowler confesses to her husband that she is the author of “Always Lulu.” But the disclosure means little now; Croyden College is about to close for lack of funds. Jane decides to return to New York to ask Van Cleve to provide money for the school. Her first approach as Professor Feather-stone is a complete flop. But, with Jerry’s help, she tries again as the flamboyant Lulu. Disrupting a very formal party at Van Cleve’s estate, she literally blackmails him into buying her off by providing money for the school. At the height of the confusion, Eddie arrives with important blueprints for Van Cleve. In short order, he is fired, slugs Jerry, and turns Jane over his knee and spanks her, all without allowing anyone an opportunity to explain the situation to him.

Everything ends happily with Jane back on the Croyden campus. Eddie follows her to Great Falls. Van Cleve’s money staves off immediate disaster. Jerry’s release of the full story to the newspapers creates a sudden influx of students anxious to study literature under Lulu, promising continued prosperity for the school.

The jury found in favor of Burtis. The motion of the defendants for a new trial was denied and their appeal is from the judgment entered upon the verdict.

The defendants contend that the evidence is insufficient to sustain the implied finding of plagiarism because there are no substantial similarities between their production and protectible portions of Burtis ’ story. The determination of the extent to which a literary work is entitled to protection is, they say, a question of law which may be determined by the appellate court regardless of any implied finding by the jury. They also complain that the trial court erroneously instructed the jury upon the elements of plagiarism, proteetible property, and damages. In addition, it is contended that the award of damages is excessive and that counsel for Burtis committed prejudicial misconduct. For the purposes of this appeal, it is conceded that some similarity exists between the productions as to a portion of the basic theme. Another concession is that the originality of Burtis’ story, and the defendants’ access to it, have been adequately proved.

, Burtis disputes each of the contentions of the defendants. 'He argues that the questions of originality, proteetibility, access, similarity and copying are for the trier of fact, and may not be determined as a matter of law. A plot, or theme, he says, is protectible. Furthermore, he claims that the evidence shows misappropriation of his major characters, characterizations, motivation, treatment, and a substantial sequence of scenes and events.

The appellate court may determine whether the evidence of originality, protectibility, access, similarity, and copying is sufficient to support the verdict. (Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 695, 698-699 [221 P.2d 95]; Stanley v. Columbia Broadcasting System, Inc., 35 Cal.2d 653, 662-663 [221 P.2d 73, 23 A.L.R.2d 216]; Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 357; cf. Weitzenkorn v. Lesser, ante, p. 778 [256 P.2d 947]; Hurlan v. Columbia Broadcasting System, Inc., ante, p. 799 [256 P.2d 962].) If there is sufficient evidence to establish these elements of the tort, the verdict of the jury upon the questions of fact raised by the evidence will not be disturbed. However, in the final j analysis, the sufficiency of the evidence is a question of law. <

The defendants contend that a “theme,” “idea,” or “subsection of a plot” is not protectible and that the monopoly of common law copyright extends only to the treatment and manner of expression. However, at the time this cause of action arose, section 980 of the Civil Code provided that, ‘ ‘ The author of any product of the mind, . . . has an exclusive ownership therein, and in the representation or expression thereof.” Relying upon this former wording of the statute, the court held, in the Golding case, that the “product of the writer’s creative mind” (p. 695) is protectible and extended protection to his idea, “the basic dramatic core” (p. 697) of his play. Thus, under the earlier form of the statute, a “theme” or “idea” was protectible, although at common law and under the 1947 amendment to the statute protection is extended only to “the representation or expression” of a composition. (Cf. Weitzenkorn v. Lesser, supra.)

One of the instructions of which the defendants complain was given in the language of the statute as it read at the time this cause of action arose. As applied to the facts of this case, the instruction is not erroneous.

A careful comparison of Burtis’ story and the defendants’ motion picture shows no similarity between them as to form and manner of expression. The motivation, characterizations, and sequence of events is essentially different in each. However, the defendants concede that there is some similarity between the productions as to a portion of the basic theme. This consists of a risqué book written under a pseudonym by an author who, for personal reasons, does not wish to be identified. The public, naturally, is interested in the author’s identity. A female schoolteacher is requested to impersonate the author, and a succession of events occurs, including the inevitable “boy meets girl” routine. The boy is disillusioned and disgusted when he is led to believe that the girl has a lurid past.' All finally ends happily when ‘ ‘ girl gets boy. ’ ’

These similarities between parts of the basic dramatic core of each story are the only similarities discoverable from a comparison of the productions: Therefore, the question is whether they are sufficient, by themselves, to sustain the implied finding of copying of a substantial portion of Burtis’ protectible property.

In holding the “basic dramatic core” of a literary production protectible in the Golding ease, the court looked to the entire theme of the story. It said:-“Literary property in the fruits of a writer’s creative endeavor extend to the full scope of his inventiveness. This may well include, in the case of a stage play or moving picture scenario, the entire plot, the unique dialogue, the fundamental emotional appeal or theme of the story, or merely certain novel sequences or combinations of otherwise hackneyed elements.” (Pp. 694-695.) In other words, under the statute as it formerly read, the original combination of unoriginal ideas into a dramatic theme might , create a protectible property interest in the combination, ' although the separate ideas were not themselves protectible. As stated in the Stanley case, the isolated ideas may not be original, “But when all of these elements are joined to make one ideas for a radio program, it is the combination which is new and novel.” (Pp. 663-664.)

\ Here, it is conceded that the combination of ideas is original. Therefore, the basic dramatic core of Burtis’ story was protectible under the former wording of the statute. But there is no admission that each of the ideas in the combination ■ was original and, in fact, Burtis’ testimony shows the opposite. He states that the idea of a risqué book written under a pseudonym by an author who, for personal reasons, does not wish to be identified, was not original. Nor is there anything original in public interest in the identity of a notorious author. What was original, and thus protectible, was the combination of these and other ideas into a basic theme for a story.

Although the court will dissect a literary production to determine what portion thereof is protectible (Golding v. R.K.O. Pictures, Inc., supra, p. 700), it will not examine the protectible portion to discover isolated similarities as to each segment of the whole. (Stanley v. Columbia Broadcasting System, Inc., supra, p. 662.) Instead, as was held in the Golding ease, upon the issue of similarity the standard of the ordinary observer should be applied and comparison of the protectible portions should be made without dissection and without expert or elaborate analysis. (Pp. 699-700.) In that case, the basic dramatic core, the psychological situation, in each production was similar to the other in its entirety.

The only similarities which here appear may be found only as the result of dissection of the basic dramatic core of each story. Given only the elements of each story which are sim- : ilar, and subtracting therefrom those which are admittedly ¡ unoriginal, there is no basic dramatic core. No framework. ¡ is created by these elements alone which requires only body: and filling to expand the central situation into a recognizable story. There is, in fact, no central situation. From these isolated elements, almost any basic dramatic core could be created and virtually any plot developed. '

For the evidence to be sufficient to support a finding of similarity, and thus of copying, the two works must present a substantial similarity insofar as the plaintiff’s property in his work is concerned. (Golding v. R.K.O. Pictures, Inc., supra, p. 699; Stanley v. Columbia Broadcasting System, Inc., supra, p. 663; cf. Weitzenkorn v. Lesser, supra.) “In determining whether the similarity which exists between a copyrighted literary, dramatic or musical work and an alleged infringing publication is due to copying, the common knowledge of the average reader, observer, spectator or listener is the standard of judgment which must be used.” (Stanley v. Columbia Broadcasting System, Inc., supra, p. 662.) Here, without unnecessarily dissecting the basic dramatic core of each work, there is no substantial similarity between them to justify the finding of the jury, as the “average, reasonable man,” that there was copying.

To have anything of value, Burtis had to add to the ideas above discussed certain vital ingredients which would create a dramatic situation. These included a deliberate hoax to be perpetrated upon the public by the male author and his publisher acting together. A reason for the hoax was essential, and Burtis supplied it in the form of economic necessity, sale of the book and marriage to a wealthy widow. It was also essential for his dramatic purpose that the hoax be discovered under spectacular circumstances, so the deportation investigation is included. These elements, added to' the others, establish a recognizable framework upon which to build a story.

However, none of the latter elements appear in the defendants ’ motion picture. No one perpetrates a deliberate hoax upon the public; the one attempted is upon the unsuspecting publisher. The essential ingredient is a victim of amnesia who honestly believes that she is the author of the lurid novel and that it accurately depicts her past. By this device, the motion picture is made essentially humorous, whereas Burtis’ story is serious drama with some comedy relief. In the motion picture, the central problem is to assist the principal character in recovering her true identity; in Burtis’ work it is how to hide identity. Thus, in the picture, there is no necessity for a spectacular explosion of a myth. Here, again, is a basic dramatic core when these elements are added to the others, but there is no similarity between it and the framework of Burtis’ story.

| Burtis also contends that five major characters in both productions are substantially the same in characterization, motivation and treatment. The very fact that Burtis failed to develop in detail any of the characters in his story weakens his contention considerably. Any similarities are only of the A" most general nature. Gabrielle and Jane both are schoolteachers, naive, and possessed of the common trademarks of | fictionalized female teachers. But Gabrielle is a vivacious and '! mischievous flirt; Jane is so strait-laced that she finds it l( ’ I necessary to screen a partially undraped statuette and can ! strike up an acquaintance with a strange man only by dis-I cussing mathematical formulae. John and Eddie both possess | morally correct ideas of conduct and are dismayed at the } supposed identities of their respective girl friends. However, I John is the thoroughly trained, unruffled, gentle-mannered ÍÍ socialite sophisticate. Eddie, on the other hand, is a roughly and-tumble engineer who engages in public brawls and thinks 1 nothing of crushing a girl in his arms and then berating ' her lack of morals or of administering a public spanking to a woman. Livermore and Dixon are both publishers of a notorious book, but the former is a confirmed hypocrite, the latter solely a businessman. The press agents are vastly different, Stander being a hard-bitten cynic who refuses to permit even love to stand in the way of his duty while Jerry is a sympathetic soul anxious to assist Jane in every possible way. Mischa Auer, of course, remains Miseha Auer, portraying his usual role. Certainly it cannot he said that an author may forever prevent an actor from earning his living by the simple device of casting him as a character in an unpublished story.

Although it might be possible that an author could so carefully delineate a character as to secure a protectible property interest in that character, generally it is held that a character is not included within the monopoly of copyright. (Warner Bros. Pictures v. Columbia Broadcasting System, 102 F.Supp. 141, 147; Detective Comics v. Brums Publications, 111 F.2d 432, 434.) Here there has been no such careful development of characterizations. Only the barest outlines have been drawn, leaving the remainder to the talents of the particular actors chosen to fill the roles. “It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” (Nichols v. Universal Pictures Corp., 45 F.2d 119, 121, cert, denied 282 U.S. 902 [51 S.Ct. 216, 75 L.Ed. 795].)

These conclusions make it unnecessary to consider the contentions concerning the propriety of certain instructions, the award of damages, and the conduct of counsel for Burtis. In this case, all of the possible evidence bearing upon the issue of similarity has been presented to the court in the form of the productions themselves. There being no evidence of substantial similarity between the motion picture and protectible portions of Burtis’ production, the implied finding of copying of Burtis ’ property has no support in the record. Under these circumstances, this court may direct entry of a proper judgment. (Code Civ. Proc., § 53; cf. Pollitz v. Wickersham, 150 Cal. 238, 251 [88 P. 911]; Schroeder v. Schweizer L.T.V.G., 60 Cal. 467, 471-472 [44 Am.Rep. 61].)

The judgment is reversed with direction to the superior court to enter a judgment for Universal Pictures Company, Inc., Warren Wilson, Oscar Brodney and Joseph Gershenson and denying-relief to Thomson Burtis.

Gibson, C. J., and Shenk, J., concurred.

Traynor, J., and Spence, J., concurred in the judgment.