Burtis v. Universal Pictures Co., Inc.

Garter, J.—I dissent.

The majority opinion in this case goes one step farther than that.in Weitzenkorn v. Lesser, ante, p. 778 [256 P.2d 947] and Kurlan v. Columbia Broadcasting System, ante, p. 799 [256 P.2d 962]. Here, after a trial by jury, this court holds that there was no similarity between the infringed and infringing productions. The effect of this opinion is to deprive an author of a cause of action for plagiarism in this state.

In the Kurlan and Weitzenkorn cases, the majority states that an author may protect his idea, etc., by an express contract. Here, plaintiff did exactly that. “In 1938, Burtis, an established professional writer, submitted an untitled story synopsis to Universal Pictures, Inc. The synopsis interested Universal to the extent that it entered into a written agreement with Burtis providing that, for $250, he would write an original story of not less than 10,000 words ‘suitable for a Danielle Darrieux photoplay’ to be tentatively entitled ‘Manhattan Masquerade. ’ He gave Universal an option, to be exercised within two weeks following delivery of the story, to purchase it for $3,250. In the event Universal did not exercise the option, it was to obtain no right, title or interest in the story.

*838‘ ‘ Subsequently, Burtis wrote a story of about 20,000 words, which he delivered to Universal. The company did not exercise its option but retained both the untitled synopsis and the screen script in its files until this action was filed. A review of the synopsis, in mimeographed form, prepared by an employee of Universal, was available to all writers and producers on the lot in several bound volumes of story materials.”

The majority points out that “the originality of Burtis’ story, and the defendants’ access to it, have been adequately proved.” And that “some similarity exists between the productions as to a portion of the basic theme.” In order to prevent recovery by plaintiff, this court determines for itself that no similarity exists between the two productions. This conclusion is reached despite the fact that the trial judge in the first instance, as provided for by section 426(3) of the Code of Civil Procedure, first determined on demurrer that there was similarity between the two, as it did on defendants’ motion for a directed verdict at the close of plaintiff’s ease, as did a jury, as did the trial court again on a motion for a new trial, and as did three members of the District Court of Appeal ((Cal. App.) 237 P.2d 41) in affirming the judgment.

In Weitzenkorn v. Lesser, supra, it is said that “The question of prot edibility need not be considered in determining the sufficiency of the allegations of the first count of the complaint, based on an express contract” and that “An idea, if valuable, may be the subject of contract. While the idea disclosed may be common or even open to public knowledge, yet such disclosure if protected by contract, is sufficient consideration for the promise to pay (citations).’ ” Here, it is said that “The only similarities which here appear may be found only as the result of dissection of the basic dramatic core of each story. Given only the elements of each story which are similar, and subtracting therefrom those which are admittedly unoriginal, there is no basic dramatic core. No framework is created by these elements alone which requires only body and filling to expand the central situation into a recognizable story. There is, in fact, no central situation. From these isolated elements, almost any basic dramatic core could be created and virtually any plot developed.” So far as an express contract is concerned, there is no need for all portions of the production to be original (see Weitzenkorn v. Lesser, supra) . Therefore, it is not necessary to “subtract” the admittedly unoriginal elements from Burtis’ story in comparing the two for the purpose of determining similarity.

*839Further, there is a basic core, or central theme, to Burtis’ story. He has an author of a risqué book who wishes to remain anonymous. The sex of the author is different in the motion picture but the book is also a risqué one. There is a hoax perpetrated on the public. In each case the hoax is developed j differently but nevertheless perpetrated for the same reason— that the real author wishes to remain anonymous. In both j cases, a schoolteacher is the person chosen to impersonate the j author. In both cases, there is a “phony” member of the j nobility to add a comedy touch, although the theme is developed differently in. the two. In both cases there is an upright j and moral young man who is horrified to find that his girl has j written such “trash.” Again, the two love stories are devel- • oped differently. In both productions there is a pecuniary j necessity for money, and here, too, the idea is developed differ-1 ently in the two.

This statement is found in the majority opinion: “Although the court will dissect a literary production to determine what portion thereof is protectible (Golding v. R.K.O. Pictures, Inc., supra, p. 700, it will not dissect the protectible portion to discover isolated similarities as to each segment of the whole.” It is admitted that the so-called protectible portion here is the basic dramatic core of Burtis’ story (held so because of the former wording of Civ. Code §980). In “dissecting” it is apparent to the average observer (as has been proved by the judicial background in this case) that the central theme, as set forth above, is similar to that found in defendant’s motion picture. Whether or not that central theme is original in its entirety is, under the pleading and proof in this case, not important because here, there was an express contract and agreement by defendants to pay for plaintiff’s story if they used it. The contract provided that plaintiff was to write a “complete original story” for which defendants would pay if it was used by them. While the ideas are not individually original, it is conceded that “the combination of ideas is original.” A plot is defined as a number of incidents which together form the action of a play or novel (Amdur, Copyright Law and Practice, 3, 703); “A plot is a connected series of motivated events or situations, forming the pattern, outline or skeleton of the story action. It is a statement of the problems or obstacles that confront certain characters, their reactions to those problems or obstacles and the result” (Ball, The Law of Copyright and Literary Property, § 171, p. 366; Shipman v. R.K.O. Radio Pictures, 100 *840F.2d 533; Roe-Lawton v. Hal E. Roach Studios, 18 F.2d 126; Nichols v. Universal Pictures Corp., 45 F.2d 119; Harold Lloyd Corp. v. Witwer, 65 F.2d 1). (Emphasis added.)

It is true that there are differences in the minor characters and the development of each one, but as Mr. Justice Edmonds said in Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 699 [221 P.2d 95], “The basic factors of the play and the moving picture show strong similarity in their respective plots although superficially there is considerable difference. But such differences go to the quality of the plagiarism, cmd not to its existence or nonexistence.” (Emphasis added.)

The majority, after admitting that the verdict of the jury upon questions of fact will not be disturbed if there is evidence to support it, states that “in the final analysis, the sufficiency of the evidence is a question of law. ” It is a question of law, but to no greater extent in plagiarism cases than in any other type of case where there has been a jury verdict. "When a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury, and when two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court (Crawford v. Southern Pac. Co., 3 Cal.2d 427 [45 P.2d 183]; Juchert v. California Water Service Co., 16 Cal.2d 500 [106 P.2d 886]; Richter v. Walker, 36 Cal.2d 634 [226 P.2d 593]; Alexander v. Angel, 37 Cal.2d 856 [236 P.2d 561]). Here, contrary to the well settled rule, this court has made a determination, de novo, on the question of similarity which had been, prior to this decision, determined favorably to plaintiff three times by the trial court, once by the jury, and once by the District Court of Appeal.

There has always been decided and strong opposition toward any change in the jury system. It is argued that to have all issues tried by the court, sitting without a jury, would add greatly to the labors of the court, tend to cause inaccuracy in and hostile criticism of its decisions of fact, and would expose the judiciary to attempts at bribery or charges of corruption which would lower its standing in popular estimation.

In Teaman, Study of Government (chapter XIII, 177, 178), it is said that “when men talk gravely of substituting the learning and experience of the court for the good sense, practical experience and unbiased instincts of an impartial jury, *841they do violence to history, and injustice to the cause of personal liberty and right. And while I would not let a jury trench a hair’s breadth upon the province of the court, I have no hesitation in saying that, for trying and settling disputed questions of fact, through the instrumentality of human testimony, where men and their motives are to be weighed and scrutinized, and balances are to be struck between conflicting witnesses, I had rather trust to the verdict of twelve fair-minded men of average shrewdness and intelligence in a jury-box, than the judgment of any one man trained to the habits of judicial investigation and accustomed to measure his conclusions by the scale and standard of the law. I had rather trust to the honest instincts of a juror, than the learning of a judge. Nor do I believe that . . . there are more instances of mistaken verdicts than of mistaken rulings of law. The most we can expect from either jurors or judge, is an approximation to accuracy in the respective spheres in which they act.” '

Whatever the origin of the jury system may have been (whether derived from Scandinavian or Roman sources) it is well established that it was not until the reign of Edward III, about 1352, that trial by jury, such as we now understand it, came into existence. From then on, however, there has persisted a strong popular conviction among English-speaking peoples, that no person should be deprived of his life, liberty or property except by the concurrent judgment of 12 of his peers. As early as 1215, there was incorporated into the Magna Charta a provision which guaranteed the people this right: “No free man shall be taken or imprisoned, nor be disseised of his freehold or liberties . . . nor shall we pass upon him or condemn him, but by the lawful judgment of his peers.”

During the Middle Ages, the jurymen were chosen because of their knowledge of the facts and performed the duties of the present day jury as well as those of witnesses; early in the 15th century in England, the system changed so that the jury made its decisions founded upon evidence supplied by witnesses; and changes in rules of evidence, as well as the right to challenge jurymen, together with improved methods of impanelling the jury, led to our modern jury system. Then, when , we consider that our American law and legal institutions had their origin in the judicial system of England, as it had been developed over centuries of human experience prior to the time of our colonization, it is not surprising that *842this heritage, so zealously guarded by the British in bygone generations, is looked upon today by American citizens as one of the most precious rights secured to- our forefathers. And whereas a century and a half of development has produced great changes in many of our political institutions, the fundamental principles of trial by jury have continued the same in most .essential respects.

The jury system, constituting as it does, an integral part in the administration of justice, is emphatically a political institution, for the administration of justice in a democracy, such as ours, constitutes the basis of free government. As Joseph H. Choate once clearly stated “The jury system as it has existed for ages is fixed as an essential part of our political institutions, and it is appreciated as the best and perhaps the only means of admitting the people to a share, and maintaining their wholesome interest in the administration of justice.”

It is therefore of greatest consequence that justice should be dispensed, not only with the utmost purity, but in a manner calculated to merit the confidence and satisfaction of the public. It should stand for the love of “fair play,” and .abhorrence of injustice. In fact, the very essence of the jury trial is its principle of fairness. The right of being tried, or having his civil controversies tried, by his equals—his fellow citizens—taken indiscriminately from the mass; who bear him neither malice nor favor, but simply decide according to what in their conscience they believe to be the truth, should instill in every man a confidence that he will be dealt with impartially, and inspire him with the wish to mete out to others the same measure of equity he would wish and expect to be meted out to himself—each man in judging his neighbor realizing that he also may be judged in turn (“Judge not, that ye be not judged.”) Jury service places the people themselves, or at least a representative group of them, upon the seat of judgment; and to this extent actually places the direction and control of society in their hands. In fact, the “trial by jury,” is the only instance of judicial power, which the people have reserved unto themselves.

“And when twelve impartial men, chosen at random from the neighborhood of the controversy, aided by the experience and authority of a judge, shall have declared under the sanction of an oath, what is the truth upon disputed facts, the -verdicts they render, assuming the jury to be representative of the citizenry of the community, may be deemed to *843represent the state of public feeling and spirit, and a tolerably correct index of the opinion entertained by society, on the rights and obligations in issue.” (“Twelve Men in a Box,” by Stanley F. Brewster, Member of the New York and District of Columbia Bars.)

The Seventh Amendment to the Constitution of the United States provides: “Sec. 1. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.” (Proposed Sept. 25, 1789; ratified Dec. 15,1791.)

Article I, section 7 of the California Constitution provides:

‘1 The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions three-fourths of the jury may render a verdict. ...”

That the jury trial has always been considered to be one of the greatest rights of free men can be seen from the fact that the Charter of 1681, granting to William Penn what came to be called Pennsylvania, extended full power to make all necessary laws (subject to royal veto) and included a “Bill of Rights” in which was an express provision of the right of trial by jury. The “Frame of Government” of the Province of Pennsylvania, confirmed by its First Provincial Council (1682) provided that “all trials shall be by 12 men, and as near as may be peers or equals of the neighborhood and men without just exception.”

The case of Plymouth Colony is typical. One of the first laws passed after the settlement declared “that all criminal facts, and also all manner of trespasses and debts between man and man shall be tried by the verdict of twelve honest men to be empaneled by authority in the form of a jury upon their oath.”

It should also be noted that the Declaration of Independence lists as one of the “repeated injuries and usurpations” of the English King, “depriving us, in many cases, of the benefit of trial by jury.”

A general constitutional provision guaranteeing inviolability of the right of trial by jury forbids any substantial infringement of that right. What is this court doing but infringing this constitutional right to a trial by jury when, as in this case, it overturns the result reached not only by a jury, but by the trial court on the motion for a directed verdict and a motion for a new trial? It appears to me that *844this court is doing indirectly what it is forbidden to do directly —that it is abrogating the right of an individual to have his case tried by a jury of his peers. It has done essentially the same thing in many recent cases and the list is an ever-growing one. Yet the members of this court, who join in the majority opinion, avidly take loyalty oaths although not required to do so. All of these oaths contain a solemn vow to support the Constitution of the United States and the Constitution of the State of California. Does not the nullification of the constitutional provisions here involved violate these oaths?

There can be no doubt that this court, by its decision here, has usurped the functions of the trial court, the jury, and the District Court of Appeal, and, in the future, such cases 'may as well be brought here in the first instance, since the well settled and established rule set forth has been abrogated. By its decision here it also puts a premium on theft which I had always understood was a crime in this state.

I would affirm the judgment.

Bespondent’s petition for a rehearing was denied May 28, 1953. Carter, J., was of the opinion that the petition should be granted.