Golding v. R.K.O. Pictures, Inc. , 35 Cal. 2d 690 ( 1950 )

EDMONDS, J.

In an action for ' the infringement of literary property, the producers of a motion picture appeal from a judgment awarding the authors of the assertedly plagiarized stage play damages in the sum of $25,000. The sufficiency of the evidence to support the judgment is the principal question presented for decision.

Samuel R. Golding and Norbert Faulkner, both well-established writers, collaborated in writing a play entitled, “The Man and His Shadow.” They neither published nor dedicated it to the public and it was not copyrighted. The Pasadena Playhouse produced the play in December, 1942.

After the authors made some revisions, they submitted it to R.K.O. Radio Pictures, Inc., and Val Lewton, a producer. Lewton retained the manuscript for about six weeks. At that time, according to the evidence, Lewton was looking for a story with the action on board a ship in order to utilize an old set which was available. The appellants admit access to the play in that a copy of it was in the custody of Lewton for some time.

In August, 1943, the appellants released the motion picture entitled1 ‘ The Ghost Ship ’ ’ and this action followed. Upon the trial, the play was read to the jurors and the motion picture was shown to them. After they returned a verdict for damages in the amount of $25,000, a motion for judgment notwithstanding the verdict was denied. The appeal is from the judgment and from the order denying the motion.

The central dramatic situation or core in which the plaintiffs claim property is as follows: The action takes place on board a ship. Only one person aboard, a passenger, suspects the captain of being a murderer. He accuses the captain who neither admits nor denies the accusation; in fact, to his crew and passengers the captain clearly implies that his accuser is either guilty of hallucinations or himself desires to kill him. The accuser knows that he is subject to the captain’s whims and is in a position where he can be killed or imprisoned. The captain, sure of his authority, informs the accuser that he is free to try to convince anyone on board ship of the truth of his suspicions. The passenger tells his story to the first mate and to others on the ship but they refuse to believe him and instead suspect the passenger of hallucinations or malice. Finally, however, the captain becomes aware that he is suspected by at least one other person and he threatens to kill, or does kill that person as an intermeddler. Knowledge that his murders are about to be uncovered causes him to lose his mind and brings about his own undoing and death.

In the plaintiffs’ play this basic dramatic core was filled out by placing the passengers and crew upon a pleasure cruise and making the captain an imposter who has come to show his superiority to the man in whose shadow he has worked for years. This man is the person throughout who knows the captain’s true identity. There are various other subcharacters who give body and filling to the central plot, but as testified to by both Golding and Faulkner, this matter was all superficial and could be changed in innumerable ways without affecting the literary property and its value.

The moving picture “Ghost Ship” has its captain as the dominant figure of the story. The locale of the drama is on a freighter with members of the crew having the subordinate roles. The ship carries no passengers and, to that extent, the minor characters are quite different from those in the play. However, the captain and his obsession with authority and the fact that no one aboard can successfully challenge his position is found in the picture, as is the dramatic struggle between the captain and his adversary, the one person who knows his true nature. Basically, the psychological situation is that described by the plaintiffs as the dramatic core of their work.

The producers contend that the evidence does not support the finding of plagiarism. The correct standard for making a comparison between the play and the picture, they assert, is that of an ordinary observer; if dissection, rather than observation, is necessary to determine the question of similarity, a finding of infringement is unwarranted. They also claim that the evidence is insufficient to support the award of damages. In answer, the respondents argue that “whether or not similarities are apparent to an ‘ordinary observer’ and support a finding of copying is a question of fact upon which the jury’s unanimous determination is conclusive.”

The rights asserted in this case are not based upon statutory copyright but stem from the so-called common-law copyright. (Civ. Code. § 980.) Upon such a cause of action, to recover for infringement, or piracy, of literary property, three elements must be established: (1) ownership by the plaintiff of a protectible property interest;'(2) unauthorized copying of the material by the defendant; and (3) damage resulting from the copying. (See Caruthers v. R.K.O. Radio Pictures, Inc., 20 F. Supp. 906, 907.)

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. It is, however, only the product of the writer’s creative mind which is protectible. If only a portion of the play or story is original and the remainder is but an orthodox collection of filler comprising matters in the public domain, the property right must be fully analyzed and closely defined, because in the subsequent determination of the issue of copying, it is necessary to make a comparison of the two works, and such comparison is of value only if it is based upon a correct determination of the issue as to the extent and nature of the plaintiff’s protectible interest.

The question as to whether the claimed original or novel idea has been reduced to concrete form is an issue of law. The determination of it must be made as a condition precedent to the vesting of any rights stemming from the common law copyright. The plaintiff must establish, as the subject of the cause of action, a right in the nature of property which is capable of ownership. Certainly, if the only product of the writer’s creative mind is not something which the law recognizes as protectible, that is, an idea not reduced to concrete form (O’Brien v. R.K.O. Radio Pictures, 68 F.Supp. 13), no right of action for infringement of literary property will lie even if the idea assertedly infringed is original and the result of his independent labor.

After a plaintiff has established a protectible property right, the further issue, common to all copyright eases, statutory or common law, is: Was the plaintiff’s material copied by the defendant? There will seldom be direct evidence of plagiarism, and necessarily the trier of fact must rely upon circumstantial evidence and the reasonable inferences which may be drawn from it to determine the issue.

An inference of copying may arise when there is proof of access coupled with a showing of similarity. (Shipman v. R.K.O. Radio Pictures, Inc., 100 F.2d 533, 538; O’Rourke v. R.K.O. Radio Pictures, Inc., 44 F.Supp. 480, 482.) Where there is strong evidence of access, less proof of similarity may suffice. Conversely, if the evidence of access is uncertain, strong proof of similarity should be shown before the inference of copying may be indulged. It is particularly important to keep clearly in mind, insofar as the question of similarity is concerned, that it is only similarity as to the plaintiff’s protectible property which is relevant. Thus, if the property interest entitled to protection extends only to certain sequences or characters, similarity of the plaintiff’s and the defendant’s works as to other phases of the play or scenario is wholly irrelevant.

If it is established that the plaintiff has a protectible property in his literary work and there was copying, the elements of liability for infringement or piracy are established and all that remains is the determination of damages. On this latter issue, the rules are the same with regard to literary property as apply to any other form of personal property. (Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556 [90 P.2d 371]; Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354.)

The plaintiffs do not claim that their entire play, or any particular sequence or dialogue, was directly or totally pirated. Their insistence throughout has been that the thing of value in their play is the central dramatic situation and the interplay of the dominant and secondary characters upon each other. All other characterizations and dialogue are admittedly nothing more than hackneyed filler which could be added or subtracted without affecting the value or substance of the plaintiffs’ literary property.

Golding testified that when Lewton became reluctant to purchase the play, he told the producer that a moving picture of “The Man and His Shadow” could be based upon very simple lines, and the action need not necessarily take place on a pleasure yacht. The story might well be played in all its dramatic aspects on a freighter, having an ordinary captain and an ordinary crew. There is one important dramatic figure in this play and only one, he said, the captain, with his insane lust for power, driving to carry out his sadistic objectives. And as the production on the Pasadena stage was summarized by the witness, “the sub-story of the other characters seemed very much warped and almost trivial as compared to the figure of the captain who dominated the scene when he appeared. ’ ’

The first question presented for decision is whether this basic dramatic situation constitutes protectible literary property. On the subject of the use of such plots Faulkner, who formerly had been a story editor at a studio, testified that-“the basic duty of [the story editor] is to read a book or . . . play . . . and condense the story theme into two or three pages. This material is then used for conferences with produeers and executives of the studios so they don’t have to read the whole book or play. . . . You have in studios a great problem of budget. . . . That means the studio gives a producer an assignment and says, ‘Here is a story, but ... we don’t want you to spend more than this amount of money for the production.’ . . . Now in such cases, the story editor goes in and talks over the story with the producer, he says, ‘You can do this story. . . , for the lower budget cost because you can eliminate certain incidents, certain persons, certain settings, so that you can create the same basic theme and powerful story. . . .’ ”

According to this evidence, the real value of a story or play may have little to do with specific dialogues or sequence of scenes or locale and there is ample evidence tending to prove that the basic dramatic core of the plaintiffs’ play constitutes the truly original and valuable feature of it. Further, there was testimony to the effect that this particular psychological drama, with its emphasis upon the captain’s controlling monomania for authority and power, was particularly well timed with the early days of the war and, therefore, of unusual value at that time. Nor was it a mere abstract idea. It had been reduced to the form of a full stage play. Its creators had embellished it with much of the trappings that give form, if not substance, to such literary work.

The fact that the plan or theme of the plaintiffs’ story is similar to the plots of prior stories does not defeat the claim of originality within the meaning of that word for copyright purposes. “It is not essential that any production, to be original or new within the meaning of the law of copyright, shall be different from another . . . the true test of originality is whether the production is the result of independent labor or of copying.” (Drone, Copyrights, cited with approval in Fred Fisher, Inc. v. Dillingham, 298 F. 145, 151; to same effect, Amdur on Copyrights, § 3, pp. 69, 70.) It is of no consequence that R.K.O. could have obtained the story from another source, when there is strong evidence from which the jury has reasonably concluded that the scenario of ‘ ‘ Ghost Ship ’ ’ was copied from the plaintiffs’ play. “Any subsequent person is, of course, free to use all works in the public domain as sources for his compositions. No later work, though original, can take that from him. But there is no reason in justice or law why he should not be compelled to resort to the earlier works themselves, or why he should be free to use the composition of another, who himself has not borrowed. If he claims the rights of the public, let him use them; he picks the brains of the copyright owner as much, whether his original composition be old or new. The defendant’s concern lest the public should be shut off from the use of works in the public domain is therefore illusory; no one suggests it.” (Fred Fisher, Inc. v. Dillingham,, supra, p. 150.) Or, as stated by Justice Holmes: “Others are free to copy the original. They are not free to copy the copy.” (Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249 [23 S.Ct. 298, 47 L.Ed. 460].)

Concerning the issue of copying, and its subsidiary determinations of access and similarity, the evidence as to access is strong. The producers of the motion picture have conceded access, but because the inference of copying must rest upon both access and similarity, it is necessary to examine, to a certain extent, the nature of the evidence of access.

It appears without conflict that the plaintiffs’ play was submitted to Lewton to read and consider. Both Golding and Faulkner testified to conversations with Lewton regarding the acceptability of the story for moving picture purposes. In one of the discussions of it, according to Golding, Lewton stated: “Well, Golding, I don’t have to buy my stories. I don’t have to lay out money for originals; I get my idea and I call in a couple of writers on the lot and I make my stories that way. ’ ’ It was a few days later that the manuscript was returned to plaintiffs. The evidence of opportunity and, indeed, inclination to pirate plaintiffs’ literary property is, therefore, clearly supported by the evidence.

Proof of access, however, establishes no more than the opportunity to copy and not actual copying. (Kustoff v. Chaplin, 120 F.2d 551, 560; Cain v. Universal Pictures Co., 47 F.Supp. 1013, 1015.) And liability for damages must rest upon substantial evidence of similarity between plaintiffs’ literary property and the moving picture produced by the defendants. The play was read to the jury and the picture was viewed by them. There was no other evidence of similarity offered or received, and whether such evidence is sufficient to sustain the jury’s implied finding of similarity is a question which can only be determined upon appeal by reading the play and seeing the moving picture, which have been done by this court.

The parties are directly at variance as to whether this issue of similarity presents a question of law or of fact. The only direct statements in the cases appear to confirm the playwrights’ position that it is a question of fact for the jury. (Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 360; Dam v. Kirke La Shelle Co., 166 F. 589.) However, they extend this point too far when they contend that the determination by the jury of this issue “is conclusive” upon appeal. No finding of fact is binding upon an appellate court if it is not supported by substantial evidence. The function of this court, when the contention of insufficiency is made, is to examine the record to ascertain whether there is evidence to support the verdict of the jury.

The situation presented by the issue of similarity is a peculiar one. There is always some evidence in the record. That is to say, if plagiarism is claimed there will always be a play by the plaintiff and one assertedly copied from it by the defendant. Yet the mere existence of two dramatic works in evidence does not, per se, constitute sufficient evidence of similarity. It is necessary to read or view the two works to see if they present any substantial similarity insofar as the plaintiff’s property in his work is concerned. This is not to say that the appellate court will substitute itself for the jury to decide what it thinks of the issue of similarity; it is merely a question of determining if there is any substantial evidence of similarity to support the jury’s finding.

In the present case, the movie ‘ ‘ Ghost Ship ’ ’ contains all the elements of the plaintiffs’ basic dramatic situation. It is true that the story is placed on a freighter instead of a luxury cruiser, that it showed no passengers but only the crew aboard, and that there are many differences in the minor characters. “Evidence of these differences is relevant upon the question of [similarity] . . . , but if such differences are shown to exist, the question remains for the trier of fact to decide the issue.” (Universal Pictures Co. v. Harold Lloyd Corp., supra; Maurel v. Smith, 220 F. 195, 199; Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56.) The basic factors of the play and the moving picture show strong similarity in their respective plots although superficially there is considerable difference. But such differences go to the quality of the plagiarism, and not to its existence or nonexistence.

The appellants’ main contention, however, is that in making a comparison of the two works, “the standard of the ordinary observer should be applied—that is, the comparison should be made without dissection of the works under observation and without expert or elaborate analysis.” (Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 18; Frankel v. Irwin, 34 F.2d 142, 144; Dymow v. Bolton, 11 F.2d 690, 692.) It is, therefore, argued that the court must look at the two plays as a whole to determine if they would impress the average observer as similar. The argument suffers from oversimplification. The rule of law stated is correct insofar as the issue of similarity is concerned, but it has no application to the preliminary issue of originality or a plaintiff’s protectible property interest.

It is essential from the nature of the inquiry as to originality to first dissect the play to determine wherein, if at all, plaintiffs have any protectible property right. Assuming this is established, then comparison may be made between the two works as to the original and protectible portion only. If, as may often be the case, plaintiff’s rights extend to the entire play, then the trier of fact should compare the one with the other. Whenever, as in Stanley v. Columbia Broadcasting System, ante, p. 653 [221 P.2d 73], the plaintiff establishes his ownership of an original combination and arrangement of various elements into a new plan for a radio broadcast, the comparison made by the trier of fact should be of that plan with the broadcast which was made by the defendant. But where, as in the present case, the plaintiffs’ property rights extend only to the dramatic core of the play, the issue of similarity is accordingly limited to a comparison on the basis of an average observer looking to that part of the literary work which can properly be protected from infringement. Otherwise stated, dissection may be necessary to define the existence and extent of a plaintiff’s property interest, and on the issue of similarity the test is always that of the average observer comparing such property interest with the alleged copy made by the defendant.

In support of the appellants’ contention that there is not sufficient evidence of the value of the damages sustained by the authors of the play, it is argued that all of the evidence concerning the value of the motion picture rights is found in the testimony of the respondents, no person with experience in the determination of the value of such property being called to testify on their behalf. But the testimony of Faulkner, who stated his opinion in regard to the value of the play, was not necessary as an expert for both he and his coauthor testified as owners of the property. Each of them told the jury that the value of the play before the infringement was between $25,000 and $50,000 and that it had no value after the production and distribution of the picture. It is a well recognized rule that the owner of property is competent to testify as to its worth. (10 Cal.Jur. 1023.) “Literary property is not distinguished from other personal property and is subject to the same rules and is likewise protected. Palmer v. De Witt, 47 N.Y. 532, 538; 7 Am.Rep. 480. California has held that plaintiffs may testify to the value of an unpublished manuscript prior to misappropriation in Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 90 P.2d 371.” (Universal Pictures Co. v. Harold Lloyd Corp., supra.) The testimony of the appellants’ experts that the play contained no material of value for motion picture purposes merely created a conflict in the evidence.

The judgment and the order denying the motion for judgment notwithstanding the verdict are affirmed.

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

* “The author or proprietor of any composition in letters or art has an exclusive ownership in the representation or expression thereof as against all persons except one who originally and independently creates the same or a similar composition."