Italiani v. Metro-Goldwyn-Mayer Corp.

TUTTLE, J.

This action was brought to recover damages arising out of alleged plagiarism on the part of defendant, of a moving picture scenario which was the composition of plaintiff. A general demurrer to the amended complaint was sustained without leave to amend. This appeal is prosecuted from a judgment of dismissal thereafter entered against plaintiff.

The sole question involved is whether or not the action is barred by the statute of limitations. Appellant contends that the action is governed by the

three year

period provided in section 338, subdivision 3, of the Code of Civil Procedure. If this is true, the action is not barred. Respondents contend that the action is barred by section 339, subdivision 1 of said code, which allows two years for the commencement of an action. If they are correct, the judgment must be upheld, as the action is barred.

The complaint sets forth the fact that plaintiff is an author; that he wrote a scenario entitled “Johnny of the Circus’’; that he submitted the same to defendant, Metro-Goldwyn-Mayer Corporation, but the latter rejected it as unsuitable for moving pictures, and returned it to plaintiff August 17, 1933; that within three years from the filing of the complaint ‘1 plaintiff is informed and believes and upon such information and belief alleges that the defendants and each of them, without the knowledge, consent or authority of or from the plaintiff, and continuously during said time, did deliberately and unlawfully appropriate and convert to their own use plaintiff’s said literary composition and moving picture scenario, and said defendants did, for a profit, reproduce, sell, distribute and exhibit the same in a sound and talking motion picture photoplay entitled and designated ‘O’Shaughnessy’s Boy’. That defendants, and each of them, hold, use and represent to the public in advertising, publicity upon the screen and otherwise that said motion picture photoplay entitled ‘O’Shaughnessy’s Boy’ is fully original with them and is their sole and exclusive property, but in truth and in fact the said motion picture photoplay entitled ‘O’Shaughnessy’s

[466]

Boy’ copies, appropriates and embodies plaintiff’s said literary composition and moving picture scenario entitled ‘Johnny of the Circus’ and defendants and each of them have inextricably intermingled the same with other literary matters not found in plaintiff’s said literary composition and moving picture scenario herein referred to, but which defendants have cunningly and shrewdly combined therewith; ’ ’ that the said motion picture photoplay “ O’Shaughnessy’s Boy” was released and exhibited by defendants, and that they received profits therefrom in excess of $1,000,000.