MANSFIELD, District Judge.
In this suit by the author of a novel entitled "Dark Passage" for damages based on alleged infringement of his copyright (17 U.S.C. §§ 1 and 101) in the novel through television broadcast of a motion picture series entitled "The Fugitive," defendant moves for summary judgment on two grounds (1) that "Dark Passage" is in the public domain, and (2) that in any event defendant is through mesne assignments, the holder of rights under an agreement signed by plaintiff, dated December 20, 1945, entitling defendant to make television broadcasts of "The Fugitive" motion picture film or photoplay series. The undisputed facts are as follows:
David Goodis, the original plaintiff in this action, who died during its pendency,
Paragraph 19 (referred to in Par. 1(f), supra) reserved to Goodis, as "Owner", certain specific rights, including the right to present television broadcasts "by living actors" based on the novel (provided such right should not be exercised within 8 years after the release of the "first" photoplay produced thereunder), while reaffirming Warner's right to present television broadcasts of "any" photoplay or motion picture based on the novel, as follows:
The agreement (Par. 9) gave Warner unlimited authority to assign the granted rights and the right to such successors or assigns "to make as many motion pictures * * * from such Writings as desired, either as re-makes or as separate original motion pictures." Goodis warranted (Par. 2) that he, as the sole owner, had full authority to grant the unimpaired rights conveyed, including the motion picture rights; that the novel was original and not in the public domain; that he would not do anything to impair the right. He agreed (Par. 2) to indemnify and hold harmless Warner and its successors or assigns by reason of any breach of the warranty thus given.
Goodis further agreed (Par. 21) that after publication of "Dark Passage" in book form by Julian Messner, Inc., in April 1946 he would have it copyrighted in his name and assign the granted rights to Warner Brothers. "Dark Passage" was first published, however, during the summer of 1946, pursuant to Goodis' authorization for a one-time serialization in return for payment of $12,000
Defendant United Artists, the present holder of all rights thus granted by Goodis to Warner under the December 20, 1945 agreement, is the supplier and distributor of the motion picture film series known as "The Fugitive," which is broadcast for one hour each week over the television network of defendant American Broadcasting Company, Inc., pursuant to a license from United Artists.
Upon the foregoing undisputed facts, plaintiff is precluded from asserting any copyright in "Dark Passage" for the reason that his grant to the Saturday Evening Post of a license to publish the novel in serialized form, without assignment or sale to it of his rights in the work, followed by general publication of the serialized work in that magazine in July, 1946, constituted a dedication of his rights to the public domain. Egner v. E. C. Schirmer Music Co., 139 F.2d 398 (1st Cir. 1943), cert. denied, 322 U.S. 730, 64 S.Ct. 947, 88 L.Ed. 1565 (1943); Morse v. Fields, 127 F.Supp. 63 (S.D.N.Y.1954). Since the copyright notice filed on October 1, 1946 was not yet in existence at the time of the serialized magazine publication, the notice could not provide the basis for protection for the earlier general publication of the serialized version; and since the Saturday Evening Post was neither the owner nor assignee of Goodis' copyright in the serialized publication, plaintiff could not acquire copyright protection through the general notice and registration of each issue of the magazine. Mail & Express Co. v. Life Pub. Co., 192 F. 899 (2d Cir. 1912); Kaplan v. Fox Film Corp., 19 F.Supp. 780 (S.D.N.Y.1937).
While this Court is disposed to strain toward adopting any plausible theory that might avoid surrender or dedication by an owner of his copyright to the public domain, before it can do so some basis must appear. Here there is none. On the contrary, the undisputed record reveals that plaintiff was well aware of his copyright, that he retained ownership of it in himself rather than make any grant or assignment of it to the Saturday Evening Post, and that in the course of his pretrial deposition he did not suggest any error or mistake but frankly conceded that he had agreed to permit the magazine to make a one-time serialization in return for $12,000. Absent the possibility of the magazine's being an assignee, no basis exists, therefore, for adopting a "constructive trust" theory, National Comics Publications, Inc. v. Fawcett Publications, Inc., 93 F.Supp. 349, 353-354 (S.D.N.Y.1950), rev'd on other grounds, 191 F.2d 594 (2d Cir. 1951); Cohan v. Richmond, 19 F.Supp. 771 (S.D.N.Y.1937), or for finding mistake. 17 U.S.C. § 21. To do so would be to stretch protection under the copyright law well beyond established bounds.
Even if plaintiff had not dedicated his copyright to the public domain, the unequivocal and undisputed terms of his December 20, 1945 agreement with Warner (to whose rights defendants succeed) require summary dismissal of the present claim. The language of that agreement constituted a broad general grant by Goodis of all motion picture or photoplay rights in "Dark Passage" to
After thus broadly defining the term "photoplay" in Paragraph 1(b) to include any motion picture version or adaption of the novel, the parties made radio and television rights the subject of the typewritten provision in Paragraph 19 to the effect that Goodis would reserve "the right to broadcast said Writings by television from performances given by living actors" on certain conditions, and that "The Purchaser shall have the right to broadcast and transmit any photoplay produced hereunder by the process of television", provided such broadcasts should be given from the film and "not directly from the performance of living actors" (emphasis added). It is clear that the motion picture film series known as "The Fugitive" constitute performances of photoplays, as defined in Paragraphs 1(b) and 19(c) and not "performances of living actors".
No basis is offered for plaintiff's allegation (Compl. Par. 16) and its contention that the television rights granted under the agreement were limited to "the original motion picture" or to "the photoplay" made from "Dark Passage." The plain language of the written agreement is to the contrary. It granted television rights with respect to "any" photoplay (Par. 19(c)) and broadly defined the term "photoplay" as stated above. The agreement discloses a clear intent that except for television programs given by living actors, all television film broadcast rights were granted to the Purchaser.
The excision by the parties of the last five and a half lines of Paragraph 1 (f) of the standard printed form agreement, which refers to television broadcasts, is not inconsistent with their clear intent. The excision was made for the reason that the parties more completely articulated their respective rights with respect to radio and television rights in Paragraph 19. In view of this paragraph's precise definition, the excision was required to avoid any inconsistency or ambiguity. Furthermore plaintiff's construction of his rights under the agreement would render meaningless the restrictions put upon live television rights expressly retained by him, since it would give him greater rights in television film broadcasts than in live television broadcasts. Although he could not engage in live broadcasts for at least eight years (Par. 19(b)), his interpretation would permit him to compete in the field of film telecasts immediately. This construction of similar agreements has been rejected as illogical. Wexley v. KTTV, 108 F.Supp. 558 (S.D.Cal.1952), affd., 220 F.2d 438 (9th Cir. 1955).
Quite aside from the clear language of the agreement, under New York law (which is expressly made applicable by Par. 13) the broad grant of motion picture rights in Paragraph 1(a) of the agreement, absent explicit reservation, grants television rights in such films. Hollywood Plays, Inc. v. Columbia Pictures Corp., 77 N.Y.S.2d 568 (Sup.Ct. 1947), revd. on other grounds, 299 N.Y. 61, 85 N.E.2d 865 (1949); Bartsch v. Metro-Goldwyn-Mayer, Inc., 270 F.Supp. 896, 154 U.S.P.Q. 616 (S.D.N.Y.1967);
Defendants' motion for summary judgment is granted.