Plaintiff's Fourth, Fifth, Sixth and Seventh Causes of Action relate to defendants' alleged infringement of plaintiff's copyrighted property. Plaintiff's Fourth Cause of Action is for unjust enrichment. In his Fifth Cause of Action plaintiff claims fraud and conspiracy between defendants Erebus and Kiester in the non-performance clause of their contract. Plaintiff's Sixth Cause of Action charges naked theft of characters and sequences to be found nowhere in material presented in discovery as from the public domain, in his Seventh Cause of Action which is against Kiester and his head writer Knize only, plaintiff claims misrepresentation, deceit and fraudulent conduct in the misappropriation and conversion of copyrighted material on deposit at certain public institutions, and of material obtained under false pretenses from plaintiff some years earlier. Plaintiff's Eighth Cause of Action is directed against the writing team assembled by the producer holding them liable asjoint tort feasors in this action.
Plaintiff's First Cause of Action claiming his original and prevailing proprietary interest in the main character of the story by virtue of its depiction of his own grandfather, whom he had indeed known as a small child and some of whose papers and effects remain in his possession, was dismissed by the trial judge holding that such grounds even if justiciable could not survive the entry of the story itself into the public domain through turn of the century press clippings, subsequent publication in Western North Carolina Sketches and elsewhere. We concur, in dismissing plaintiff's Second Cause of Action for breach of an implied contract, the judge cites Murray v. National Broadcasting Co., supra, quoting Miller v. Schloss, 218 N.Y. 400,406, 407,113 N.E. 337 (1916) stating that '(a) contract cannot be implied in fact where the facts are inconsistent with its existence; or against the declaration of the party to be charged… The assent of the person to be charged is necessary and unless he has conducted himself in such a manner that his assent may fairly be inferred he has not contracted,' and, as in Murray, '(t)he facts in this case do not support a finding of an intent to contract. On the contrary, the complaint alleges NBC's express rejection of plaintiff's proposal,' in this case the infringed work. Again we concur, as we do also with the dismissal of plaintiff's Third Cause of Action alleging fraud on the part of Kiester in his repeated changes of name to conceal his original access to the play under his original identity, since we find in defendant's Third Affirmative Defense of these name changes tor professional reasons' expressed in his own indelicate choice of words 'I'm a Jew the minute I step off the plane in LA.' to carry with them the vulgar ring of truth.
The Ninth Cause of Action contains the charges that the fraudulent conduct on the part of the defendants as herein alleged was willful, wanton, malicious and in utter disregard of the rights of the plaintiff causing him mental and professional distress and that as a result he is entitled to compensatory and treble or punitive damages, an accounting, a constructive trust for plaintiff's benefit on all profits and gross revenues from The Blood in the Red White and Blue, an injunction stopping its showing unless and until he is credited with his originative role in its creation, interest, costs and reasonable attorney's fees.' Responding to plaintiff's charge of unjust enrichment at the expense of the possibility of the sale or production of his play elsewhere, defendant has claimed in oral argument that plaintiff has received such an offer since filing his complaint, but absent clear evidence to this effect we must dismiss defendant's claim as hearsay. That it is a 'unique, artistic property' there can be no doubt, since notwithstanding and despite the district court's dismissal rejecting plaintiff's claims on these grounds, it is so described in the remedies section of the development agreement drawn between Erebus Entertainment inc. and producer director Constantine Kiester, defendants, giving Kiester the right to prevent the loss of this 'unique, artistic property' making certain that if his relationship with Erebus faltered this novel idea and property would be protected from disclosure. That its bare skeleton exists in the public domain may be granted, but only in the face of the persuasive argument that but for plaintiff's submission it is hugely unlikely that defendants would have come upon it there in the form of newspaper accounts appearing in the Castonia Tribune, Castonia, North Carolina, on June 4 and July 2, 1903, and January 14,1904, and the Rutherfordton Sun for June 4,1903, or the gist of these accounts gathered in the slim locally published Western North Carolina Sketches a half century ago. Yet even assuming this vast unlikelihood to have taken place, and whatever defendants may have applied to their purpose from the various papers and letters on file at a university library, where again plaintiff established his copyright, no evidence has been presented of the bleak mother figure common to both the play and the picture appearing in these confines of the public domain; nor of an intestate uncle (the original of the protagonist inherited from his wealthy grandfather); nor of the cheek by jowl wretched farmhouse with the extravagant plantation, nor of its proprietary major, nor its heiress wife bawdy or otherwise; nor a conniving brother in law; nor even a runaway slave; nor finally a scheming Irish figure of fun or his Italian counterpart; stereotypical as these roles may be, to find their corresponding parts in 'such plan, arrangement and combination of similar materials' coincidental taxes credulity beyond any imaginable bounds. Thus where defendant-appellees urge the defense of 'public domain' claiming that all material in that category may be used repeatedly without charge of infringement, that claim is limited by the court in Fred Fisher, Inc. v. Dillingham, D.C., 298 F. 145, 146, 150 as follows: 'Any subsequent person is, of course, free to use all works in the public domain as sources for his compositions. No later work though original, can take that from him. But there is no reason in justice or law why he should not be compelled to resort to the earlier works themselves, or why he should be free to use the composition of another, who himself has not borrowed. If he claims the rights of the public, let him use them; he picks the brains of the copyright owner as much whether his original composition be old or new. The defendant's concern lest the public should be shut off from the use of works in the public domain is therefore, illusory; no one suggests it. That domain is open to all who tread it; not to those who invade the closes of others.'
Defendant-appellee Knize, and by turn writers Afhadi, Railswort, Schultz and Probidetz, in seeking to escape liability, urge that they are not liable as infringers in that they tiad nothing to do with the production, release, or exhibition of the alleged infringing screenplay,' and that they received no profits therefrom, relying on Washingtonian Publishing Co. v. Pearson, 78 U.S. App. D.c. 287, 140 F.2d 465 to the effect that authors are not liable for profits which other infrìngers derive from the infringement, discussing profits only. There is no merit in the contention that Knize is in no way connected or responsible for the infringements in the public showing of the alleged infringing film and is not liable for damages sustained by plaintiff for his deliberate misappropriation of plaintiff's property, or in his claim that a mere employee or workman or servant is not liable for damages for the infringement of his employer, or in the convenient lapses of memory as to who contributed what at the story conferences where the screenplay was concocted and developed. Quoting Sheldon v. Metro-Goldwyn Pictures, supra, 'in concluding as we do that the defendants used the play pro tanto, we need not charge their witnesses with perjury. With so many sources before them they might quite honestly forget what they took; nobody knows the origin of his inventions; memory and fancy merge even in adults. Yet unconscious plagiarism is actionable quite as much as deliberate.'