The defendants are in the business of providing motion picture entertainment in Hollywood, California. Erebus, headed by studio chief B F Leva for almost two decades, a rare event in that mercurial milieu, is well known for its lavishly budgeted 'blockbuster' offerings. Kiester is an independent producer and director whose recent Africa extravaganza Uruburu, containing scenes aptly tagged 'Not for the squeamish,' made over $300 million and his top professional reputation. While denying allegations of fraud as set forth in plaintiff's Third Cause of Action, Kiester concedes that he began his career as a television producer in New York under his given name Jonathan Livingston, later to be known as Jonathan L 5iegal, and upon arriving in Hollywood taking the name Constantine Kiester. it was to the defendant under the first of these names plaintiff contends that he originally submitted his playscript, receiving it back with a curt note of rejection, an occurrence of which defendant denies any recollection and in any event did not solicit. Defendants contend that having determined that the motion picture market was ready for a spectacular treatment of the Civil war, given the historic success of Gone With the Wind and its projected sequel by a rival studio, they cast about for a story that would provide a suitable vehicle for an actor named Bredford, just then not employed. To this end Kiester contacted a former schoolmate named John Knize whom he remembered as a Civil War 'buff who provided the story idea and at Kiester's request expanded it into a treatment. On the strength of this treatment Kiester contracted with Erebus to produce and direct the picture, assigning preparation of the screenplay to Knize and, between them, choosing Afhadí, Railswort, 5chultz and Probidetz to help him, the first three with the scenario, the fourth with the dramatic production. All these five were examined by deposition; all denied that they had ever encountered, known of, read or used the play in any way whatever; all agreed that they had based the picture on material in the public domain provided by Knize. To meet these denials, the plaintiff appeals to the substantial similarity between passages in the picture and those parts of the play which are original with them.
In granting summary judgment to defendant, the district judge felt that story idea central to the play was not sufficiently novel to create 'property interest' entitled to protection under New York law in action against the motion picture makers for unfair competition and unlawful use, misappropriation and conversion; that notwithstanding the author's alleged submission of his play to defendant there was no evidence of any intent to contract with regard to the said play by defendant and thus its alleged unlawful use could form neither any basis for action for breach of implied contract, nor any basis for plaintiff's unjust enrichment action, nor for fraud action in that the defendants could not have enriched themselves at the author's expense on the ground that 'plaintiff's alleged submissions lack the requisite novelty under applicable law' and so falling into the public domain where he could not be defrauded of property he did not own.
Plaintiff argues that in granting defendant's motion for summary judgment the court below erred in misunderstanding the applicable law and in deciding this case should have applied a different body of doctrine. The courts have frequently debated whether laws of unfair competition are similar enough to copyright jurisdiction in its aims to be preempted by Federal copyright law, to which defendant argues that preemption is not absolute in the area of intellectual property. However under the doctrine of pendent jurisdiction a Federal court may take jurisdiction over a State law if, as established by the Supreme Court in united Mine Workers v. Gibbs, that State law claim rises out of a 'common nucleus of operative fact' with the Federal claim, and here plaintiff argues for such a common nucleus residing in all his claims rising from defendant's use of his playscript. His entitlement to copyright thereof is undisputed under 17 U.S.C. 303 dealing with the transition between the Copyright Acts of 1909 and 1976, the play having been written before the 1976 Act became effective but never published thus furnishing him this protection.
Both the issues of originality and novelty were raised before the district court by defendant asserting lack of novelty as a defense to all of plaintiff's claims, the judge holding that the latter applied whereas the former did not and that even if the Issue of originality did apply plaintiff would lose since though defendants might have used the play they had taken only what the law allowed, that is, those general themes, motives or ideas where there could be no copyright and that in any case if they did copy this constituted fair use, embracing the famous dictum that even if a law does not apply, if it did the result would be thus. Should it emerge that the judge below focused on superficial differences or mere disguise ignoring identities of locale, motivation and similar persuasive factors the matter would be remanded to the district court for review; or further, if the judge assumed copying and failed to pursue the question whether similarities between the works were substantial enough to raise triable issues of fact concerning infringement thereby depriving plaintiff of trial, this would constitute an abuse of discretion.