Borden & Barton Enterprises, Inc. v. Warner Bros. Broadcasting Corp.

DORAN, J.

The judgment from which the present appeal is taken is one of dismissal of plaintiff’s cause of action following the sustaining of a general demurrer to a third amended complaint. The original and amended complaints attempt to state a cause of action to recover damages for alleged plagiarism in the copying of plaintiff’s radio show without permission and broadcasting the same by means of radio station “KFWB.”

Appellant’s third amended complaint, differing only slightly from its predecessors, alleges that since March 23, 1948, “plaintiff has been the exclusive owner of a show, transmit by means of the radio, known as a ‘Boom Show.’ ” It is then alleged that “said show is performed on the air by means of the radio as follows: Red, yellow, green, purple balloons of various sizes and shapes are used. Seated on the stage are five contestants. Above and in back of each contestant is a wooden disc. Upon each disc is one letter of the word ‘Boom’;

. . . the exclamation mark makes the fifth. This is for identification purposes. In the center of each disc is a deflated balloon, to which is attached by a long hose an ordinary tire pump. Each contestant uses this tire pump to inflate his balloon until it goes Boom. The first to break his balloon is the winner, and prizes are awarded to the winners. ’ ’

The complaint alleges that the above show was produced and presented by appellant on June 3, 1948, through the medium of the National Broadcasting Company studios at Los Angeles, “and a recording was made of said show by plaintiff”; that a copy of the broadcast is not attached to the complaint since “it would be impracticable to attach” such a recording.

The respondents’ dereliction is alleged as follows: “That for several weeks last past, the defendants . . . without the permission or consent of plaintiff, have copies and broadcast

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a show over the air through the medium of Station KFWB, which show is entitled ‘Barrel of Dough,’ and said show contains portions copied from plaintiff’s show. Balloons are given to two rows of the theatre audience and at a Go Signal from the Master of Ceremonies, the contestants blow their balloons until three balloons explode. The winner row receive prizes.” It is then alleged “That by reason of the unlawful acts of the defendants in using the material belonging to the show owned by plaintiff, the plaintiff has been damaged in the sum of . . . $250,000.00.” In addition to the damages claimed, the complaint prays that “defendants be restrained and enjoined from using the material of said Boom Show in the future,” and be required to account “for the profits denied the plaintiff. ’ ’