Rich v. Paramount Pictures, Inc.

DORAN, J.

This is an appeal from the judgment following a verdict of the jury in favor of respondents, and from the order denying a motion for judgment notwithstanding the verdict.

Appellant composed certain music for a moving picture called the “Wildcat” produced by Paramount Pictures in 1942. Respondents Livingston and Evans wrote and composed the words and music of a song, “Buttons and Bows,” in 1947 which was used in the motion picture “The Paleface,” also produced by Paramount Pictures. The action herein is for alleged plagiarism.

It is contended on appeal that,

“I.

“The trial court erred in limiting the owner of a musical composition to testifying

as an expert

and then instructing the jury that it may reject the testimony of

any expert.

“II.

“The evidence shows that the music of Freddie Rich was plagiarized by the music of ‘Buttons and Bows’ as a matter of law. "There is no conflict that the music is ‘basically similar.’ That Rich’s music was written and produced first, and both were distributed by the same studio. The judgment should, therefore, be reversed as a matter of law and the motion for judgment notwithstanding the verdict granted.

“III.

“It was prejudicial error to allow the defense that the music of plaintiff and defendants came from the public domain where the defense failed to plead it affirmatively as required by Section 437 O.C.P. and Livingston and Evans did not contend that ‘Buttons and Bows’ came from the public domain. This testimony was improper and misled the jury.

“IV.

“The Superior Court erred in overruling the objections to the manner of cross-examination of Freddie Rich by playing a number of melodies and asking Freddie Rich about them, which had no foundation in the evidence.

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