Lillie v. Warner Bros. Pictures, Inc.

CONREY, P. J. This is an appeal by the plaintiff from a judgment of dismissal of the action, following upon the court’s order sustaining the several demurrers of the defendants to the third amended complaint.

This appeal is presented on the judgment-roll. If the complaint stated a cause of action, the judgment should be reversed. Relying upon the authority of Westwater v. Rector etc. of Grace Church, 140 Cal. 339 [73 Pac. 1055], respondents contend that the action sounds in contract and not in tort and that as an action for breach of contract it did not state a cause of action. Appellant apparently concedes that if the action is necessarily founded on a breach of contract there is no right of action shown by the allegations of the complaint. Appellant contends, however, that by her third amended complaint she stated a cause of action for libel, committed by wrongful and unauthorized publication of a picture of appellant, whereby she was misrepresented in her professional character as an actress, with resulting injury to her professional reputation.

By a contract in writing, defendants engaged the services of appellant to appear in a Vitaphone Talking Production which they were producing under the temporary title of “Show of Shows”. In the contract it was provided as [726]follows: “It is understood, that for her services in this production, Miss Beatrice Lillie will receive a flat sum of $15,000, payable in two weekly instalments. It is understood that the one scene, which we supply her with, will not run less than six minutes or more than seven minutes, and the other scene is to run between two and three minutes. It is understood, that you are not required to do more than the above two scenes for the above amount, and that the two above scenes are only to be used in connection with this revue, and not to be used in ‘Shorts’. ... It is also understood and agreed, that Miss Lillie will do two Specialty Numbers in this production for us, one which we will furnish, and the other the' material for which she will furnish if so desired by us. It is understood and agreed, that Miss Beatrice Lillie will be given featured billing in this production in the same size type as any other member of the cast, it being understood that this is an all-star production, in which all players are being equally billed. ’ ’

Those provisions of the third amended complaint which constitute the alleged cause of action are as follows: “II. That plaintiff is an actress by profession, and at all times herein mentioned, and for a long time prior thereto was engaged in acting upon the stage and in moving pictures and talking motion pictures; that she is an actress and public performer of great artistic ability and accomplishments with a wide reputation among producers, other members of the theatrical profession, and the public as one habitually associated with and taking part only in acts and performances of major importance as the star or featured performer at a high remuneration therefor, so that appearance by plaintiff in an act or performance of minor importance, or which taken from, its original context appeared to be of minor importance, would impair her standing as a star or feature player, and would lessen her importance in the estimation of producers, other members of theatrical profession and the public, and would thereafter impair her ability to command as high a remuneration, or as important engagements as theretofore, all of which facts were, at all times herein mentioned, well known to defendants and each of them.”