Palmer v. Metro-Goldwyn-Mayer Pictures

DORAN, J.

The action herein is predicated upon a complaint alleging that, prior to March 29, 1948, the plaintiff-appellant had invented, originated and composed a certain literary composition and play entitled, “Base Hits and Bloomers”; that during the year 1948 appellant submitted copies thereof to the respondents who deliberately and unlawfully copied and appropriated the composition, producing and selling the same by way of a motion picture entitled, “Take Me Out to the Ball Game,” to appellant’s damage in the sum of $100,000.

Respondents demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. A copy of appellant’s composition was attached to the complaint as an exhibit but a copy of the motion picture produced by respondents was not attached thereto because of its nature, bulk and unavailability. In connection with the demurrer, and pursuant to stipulation, the trial court made an “order for a view of the production,” as provided by section 426(3) of the Code of Civil Procedure. After an examination and comparison of the motion picture and appellant’s composition, the demurrer was sustained without leave to amend, upon the stated ground “that there is insufficient similarity between the two works.” Plaintiff has appealed from the judgment entered thereon.

The trial court, in a memorandum opinion, states that “similarity between two artistic or literary productions is to be resolved by a comparison of the two productions, not by the testimony of witnesses about them,” and that “If the evidence of similarity is such that there would appear to be no grounds for a difference of opinion among impartial readers and viewers, the matter may be treated on demurrer as the evidence may be treated upon a motion for nonsuit or a directed verdict. This would seem to be the legislative intent in the amendment of the section (Code of Civil Procedure, section 426(3)).”

[458]

Section 426(3), referring to the requisites of a complaint, as amended in 1947, provides that:

“If the demand be for relief on account of the alleged infringement of the plaintiff’s rights in and to a literary, artistic or intellectual production, there must be attached to the complaint a copy of the production as to which the infringement is claimed and a copy of the alleged infringing production. If, by reason of the bulk or the nature of the production, it is not practicable to attach a copy to the complaint, that fact and the reasons why it is impracticable to attach a copy of the production to the complaint shall be alleged; and the court, in connection with any demurrer, motion or other proceeding in the cause in which a knowledge of the contents of such production may be necessary or desirable, shall make such order for a view of the production not attached as will suit the convenience of the court, to the end that the contents of such production may be deemed to be a part of the complaint to the same extent and with the same force as though such production had been capable of being and had been attached to the complaint.”