CITE: 90 P.2d 371
CMON: May 1939
PLAIN: Barsha, Henry
DEFND: Metro-Goldwyn-Mayer
COURT: Court of Appeal of California, Second Appellate District, Division Two 
DATE: May 8, 1939

APPEAL from a judgment of the Superior Court of Los Angeles County and
from an order denying a motion for judgment notwithstanding verdict.
Carl A. Stutsman, Judge. Affirmed.

  Any work with pronounced/substantial similarities to another work
  is mostly likely a copy, especially if one or more persons have a 
  relationship to both works.

WOOD, J. Crail, P. J., concurred. McComb, J., dissented.


The facts are stated in the opinion of the court.

WOOD, J. -- A judgment was entered against the corporation defendants in the
sum of $ 10,000 upon the return of the verdict of a jury. The appeal is
prosecuted by the corporation defendants from the judgment and from the order
denying their motion for the entry of judgment in their favor notwithstanding
the verdict. A number of individual defendants were named in the complaint but
as to them the action was dismissed.

Plaintiffs wrote a motion picture scenario which they titled "High Fever".
A copy of plaintiffs' manuscript was delivered to appellants on January 2,
1935, for the purpose of examination and reading, appellants agreeing that
if they did not purchase the manuscript they would return it to plaintiffs.
The manuscript was delivered to Irving Thalberg, production manager for
appellants, by Mrs. Edna Schley, an agent, who, to refresh her memory, while
testifying read from her diary entry: "I also gave him (Thalberg) story for
the Marx Brothers 'High Fever' by Barsha and LaSage (Weissmann). This is a
very likely original for them and Mr. Thalberg will read personally." The
manuscript remained for five months with appellants, who refused to purchase
it and returned it to plaintiffs. Thereafter appellants produced a motion
picture under the title "A Day at the Races". It is charged by plaintiffs
that appellants deliberately and unlawfully copied and appropriated their
literary composition and produced a photoplay containing substantial
portions of the composition which was their exclusive property; that
appellants "have inextricably intermingled the same with other literary
composition and moving picture scenario, but which defendants have
cunningly and shrewdly combined therewith".  It was shown in evidence that
Mr.  Thalberg, since deceased, took active part in the production of the
picture "A Day at the Races". One of his assistants testified: "Q. Did Mr.
Thalberg have anything to do with the story 'A Day at the Races?' A. Yes.
He helped in construction. He helped in suggestions, and he helped in the
usual manner, in which all producers help in regulating and superintending
direction of author's work."

Appellants contend that the voluntary dismissal of the action as to the
individual defendants amounted to a retraxit and that they were thereby
released from liability. The motion for dismissal was made in open court
after it had appeared from depositions and otherwise that the individual
defendants were not joint tort-feasors. The motion was made for the sole
purpose of releasing plaintiffs from liability for costs to the persons
dismissed from the action.  Plaintiffs testified that they had not received
anything whatever in satisfaction of the claim upon which the action is
based. The dismissal of the action as to one tort-feasor, no satisfaction
having been received, does not release the others. (Shea v. City of San
Bernardino, 7 Cal. 2d 688 [62 P.2d 365]; Drinkhouse v. Van Ness, 202 Cal.
359 [260 P. 869].)

As is to be expected in such cases the briefs contain much discussion
on the question of the extent of the similarities between plaintiffs'
manuscript and the picture produced by appellants. A special production of
"A Day at the Races" was viewed by the jury and at the request of both
parties the members of this court also have seen a presentation of the
picture. From the manuscripts contained in the record and from the picture
itself it is to be observed that:

    both the plaintiffs' manuscript and the manuscript for the picture
    were prepared with the idea in view of having certain actors known
    as the Marx Brothers play the important parts.

    In both, a wealthy dowager conceives the idea that a certain
    veterinarian (Groucho Marx) has great medical ability,
    and she insists upon the veterinarian becoming the head of a sanitarium
    which she agrees to assist financially and does in fact assist
    financially because the veterinarian is installed as chief of staff;

    the other Marx brothers (Chico and Harpo) purport to act as assistants
    to the veterinarian, although all are ignorant of proper medical

    they perform fake examinations, sing while performing an examination,
    confuse gas service station equipment with hospital equipment and
    cause operating rooms to be flooded with water;

    the treatment which the veterinarian gives to the wealthy widow at
    the sanitarium consists largely of holding her hand and demonstrating
    spurious affections for her, but whenever he can escape from the widow
    he makes love to prettier women;

    one of the female characters attempts to betray the veterinarian
    for the benefit of another man, who seeks to profit personally
    by undermining the veterinarian's influence with the widow, expose
    him as a quack and thus destroy the sanitarium;

    the sanitarium is in financial difficulties, from which it is finally
    saved (by the outcome of a football game in plaintiffs' manuscript
    and of a horse race in the photoplay);

    although the veterinarian is exposed as a faker and his philandering
    becomes known, the widow continues to pursue him until she finally
    succeeds in winning him.

It is contended on behalf of appellants that the implied finding of the
jury that appellants made use of their composition is not supported by 
the evidence. Their argument is based largely upon the testimony of writers
in the employ of appellants who testified that they did not use plaintiffs'
manuscript. It is within the province of the jury to draw reasonable
inferences from the facts shown in evidence and the effect of inferences
reasonably drawn is not destroyed as a matter of law by the testimony of
witnesses which may be considered as contradictory thereto. An inference
which is supported by the evidence and not opposed to human experience and
reason cannot be disturbed by an appellate court.  (Rideout v. City of Los
Angeles, 185 Cal. 426 [197 P. 74].) Notwithstanding the testimony of the
writers the issue of fact remained for the determination of the jury who
were the sole judges of the weight of the testimony and who were not bound
to accept testimony as true if they were not convinced of its truth.
(Bushnell v. Yoshika Tashiro, 115 Cal. App. 563 [2 P.2d 550].) Uncontradicted
denials on the part of employees of appellants did not compel the conclusion
on the part of the jury that there had been no copying of plaintiffs'
manuscript. In Edwards & Deutsch Lith. Co. v. Boorman, 15 F.2d 35, (C.C.A.
7th) it is said: "Appellee's position, however, is that having explicitly
denied that they copied appellants' production and having sworn positively
that they got their ideas from other sources and no one having sworn to the
contrary, the court was bound to find no copying and therefore no
infringement. The cases are numerous where such situations have arisen and the
same claim has been made without avail." From many facts shown in evidence,
particularly the retention of plaintiffs' manuscript during the period of five
months by the person in charge of the production of appellants' picture,
the making of numerous suggestions by him in its production and numerous
similarities appearing in the two plays, it is manifest that the finding of
copying by the jury is supported by the evidence.

If such similarities be shown as to justify an inference of copying of
protectible material it is necessary to prove only that a substantial part
of plaintiffs' manuscript was copied to sustain liability on the part of
appellants. Although there can be no property in an author's ideas, "there may
be literary property in a particular combination of ideas or in the form in
which ideas are embodied". (Fendler v. Morosco, 253 N.Y. 281 [171 N.E. 56].)
The test is stated by appellants to be whether "the two works, when
compared, show such pronounced similarities of substantial portions of
protectible material, i. e., of details, sequence of events, and manner of
expression and treatment, as to warrant the inference of copying." Measured
by this test we are satisfied that the jury's implied finding of unlawful
appropriation is sustained by the evidence. The similarities hereinabove set
forth, together with numerous incidents contained in both the manuscript and
the photoplay, are sufficient to sustain a finding by the jury that appellants
have used the same unique combination of ideas devised by plaintiffs centering
around the sanitarium situation, the same combination of humorous scenes and
characters and a substantial number of the same situations and incidents in
similar sequence. It is true that many changes were made in the photoplay as
actually produced, but a subsequent author cannot avoid his liability by
making changes or omissions from or additions to the original plot. He cannot
excuse his unlawful appropriation by a showing that there was much of the
original work which he did not appropriate. (Maurel v. Smith, 220 F. 195;
Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49.)

Appellants complain of the ruling of the trial court admitting the testimony
of one of the parties to the effect that Mrs. Schley had told him that Mr.
Thalberg had told her that he (Thalberg) was interested in plaintiffs'
manuscript. The testimony was undoubtedly hearsay but was admissible
as impeachment, it having been shown that plaintiffs were surprised at the
testimony of Mrs. Schley, who had been called as their own witness, and the
proper foundation for impeachment having been laid. If appellants had desired 
to have Mrs. Schley's testimony limited to its purpose of impeachment an
appropriate instruction should have been requested by appellants so that the
jury could have been informed that her statements must not be taken as proof
that Mr. Thalberg had in fact read plaintiffs' manuscript. No such instruction
was requested. "Failure to ask for an instruction limiting the effect of
evidence admitted generally waives objection thereto, and complaint cannot be
made for the first time on appeal." (10 Cal. Jur. 817; Keyes v. Geary Street
Ry. Co., 152 Cal. 437 [93 P. 88]; Liebrandt v. Sorg, 133 Cal. 571 [65 P.

Some of the instructions of the trial court are criticized by appellants, the
claim being made that the instructions did not clearly define the material in
plaintiffs' manuscript which is protectible. We are satisfied that in the
numerous instructions offered by the parties and given by the court the jury
was fully and fairly instructed on the subject. However, the court of its own
motion gave instruction No. 17 which is doubtless subject to criticism. This
instruction is as follows: "You are further instructed that it is claimed by
plaintiffs that defendants retained plaintiffs' literary composition in their
possession for a period of five months, and became fully informed, and had
full knowledge of the contents thereof. In other words, it is claimed that
defendants had 'access' to the manuscript, as the law books put it. In this
respect, you are advised that if plaintiffs make out a prima facie case of
'access' -- in other words, if they prove that the opportunity to copy
existed at about the proper time, you must consider such evidence in
connection with defendants' evidence that, although having access, they
did not acquaint themselves with its contents, and then determine in your
minds which evidence preponderates, or has the more convincing force. If
the evidence shows a marked resemblance between the original and the alleged
infringing work, a presumption of piracy arises, even though there be no
eyewitness proof of copying, or direct evidence thereof. However, if you
believe from all the evidence that, although having access to plaintiffs'
manuscript, defendants, or any agent, officer or employee of defendants,
did not acquaint themselves with the contents, or the original or novel
arrangement, if any, thereof, of plaintiffs' manuscript, you cannot return
a verdict in favor of plaintiffs under the issues in this case, but you
must under such belief on your part, find for the defendants. In other
words, if the evidence on the part of the defendants, which has been
received in this case, balances the evidence of plaintiffs in convincing
force, or preponderates over the evidence offered by plaintiffs, your
verdict must be for the defendants. Manifestly, under the issues in this
case, if defendants or their agents or employees, did not know the contents
or arrangement of what plaintiffs had written, they could not intentionally
pirate or plagiarize the same. Furthermore, if the agents of defendants,
in the preparation for screen production of the photoplay 'A Day at the
Races', actually used, arranged, or employed any of the themes, words,
ideas, or locales of the plaintiffs' scenario 'High Fever', before plaintiffs'
scenario was submitted to them, or they became acquainted, if at all, with
its contents or arrangements, then plaintiffs' words, ideas, themes or
locales were not original, and cannot be protected in this action; but
before you can find for defendants, it must appear that they publicly
released their photoplay by production or publication upon the screen
without knowledge of or before acquaintance with the material or
arrangement of its contents as submitted by plaintiffs".

Complaint is made of that part of the instruction in which the court states "a
presumption of piracy arises, even though there be no eye witnesses of copying
or direct evidence thereof". Plaintiffs point out that the language criticized
is almost identical with the language used in Encyclopedia Britannica Co. v. 
American Newspaper Assn., 130 F. 460, at 464, where the court states:
"Substantial identity, or a striking resemblance between the work complained
of and that for which protection is claimed, creates a presumption of unlawful
copying, which must be overcome by the defendant.' In Copyright Law and
Practice by Drone at page 660, the author states: "Identity between the
alleged infringing work and copyrighted work raises the presumption that
the one was copied from the other." Under the California practice the court,
instead of using the word, presumption, should have instructed the jury
that it was within their province to draw an inference of piracy if the
evidence showed a marked resemblance between the two works. It would not
be reasonable to hold, however, that the jury was misled by the use of the
word, presumption, as they were clearly told in the same and other
instructions that a verdict could not be rendered in favor of plaintiffs
unless the jury should find from a preponderance of the evidence that
appellants did in fact copy protectible material from plaintiffs'
manuscript. Inferences and presumptions are both recognized as indirect
evidence (Code Civ. Proc., sec. 1957), and the line of demarcation
between them is often difficult to draw. To use the language of Justice
Thornton in White v. White, 82 Cal. 427, 438 [23 P. 276, 7 L.R.A. 799],
the distinction is "sometimes very thin". It seems inconceivable that the
jury could have been misled by the use of the word, presumption, instead
of the word, inference, when our highest courts have met with difficulty
in accurately deciding their use and application. In Mudrick v. Market
Street Ry. Co., 11 Cal. 2d 724, 734 [81 P.2d 950, 118 A. L. R. 533], the
court was considering an instruction in which the word, presumption, was
used instead of the word, inference, in stating the rule of res ipsa
loquitur. Mr. Justice Curtis, speaking for the court, pointed out that in
such a situation, "no decision has been called to our attention in which
a judgment has been reversed by reason of the erroneous use of these
words". The court in its opinion further stated that "these terms are
often erroneously used interchangeably, and as conveying the same meaning.
We find that many lawyers and courts as well make this same mistake. We
question whether the ordinary layman, to say nothing of many members of
our profession, clearly comprehends the difference in the meaning of these
two expressions."

Instruction No. 17 is also subject to criticism in that in the last several
lines of the instruction the jury were told that before they could find for
appellants it must appear that they released their photoplay without knowledge
of the material which had been submitted to them by plaintiffs. This part of
the instruction is inconsistent with other parts of the same and other
instructions given by the court. An element was omitted, apparently
inadvertently, by the trial court in the last part of instruction No. 17,
but in numerous other instructions it was made clear to the jury that if
appellants had independently conceived and prepared a composition which
was not taken or copied from plaintiffs' work they would not be liable
to plaintiffs for damages. In this case anunusually large number of
instructions were given and the trial court was not required to state all
of the law applicable to the action in one instruction. At the commencement
of his instructions to the jury the judge stated: "Mr. Reporter, the
instructions of the court will be largely oral, so I will ask you to be
kind enough to take them all down in shorthand." The judge then proceeded
to instruct the jury at length but in giving instructions which were
"largely oral" he made the inaccurate statement above mentioned. The
instructions, which considered together were fair to both parties, contained
nothing to justify a contention that the jury might have been confused in
reaching the verdict. From the commencement of the trial to its termination
they were thoroughly impressed with the fact that the question for their
determination was whether defendants had unlawfully appropriated the literary
property of plaintiffs. They would have been more than stupid if they believed
that they could return a verdict for plaintiffs without a finding on their
part that appellants had used plaintiffs' composition in the preparation
of the photoplay. An erroneous statement in one instruction will not
necessitate a reversal of a judgment where the instructions taken as a
whole do not mislead the jury. (Mosesian v. Crown Cleaners and Dyers,
122 Cal. App. 248 [10 P.2d 193]; Callet v. Alioto, 210 Cal. 65 [290 P. 438].)
"In construing the charge of the court, it must be viewed in the light of
common understanding, and the practical administration of justice should
not be defeated by a too rigid adherence to close and technical analysis
of the whole or any part thereof." (Hayden v. Consolidated Min. etc. Co.,
3 Cal. App. 136, 139 [84 P. 422].)

The trend of the latest decisions of reviewing courts, especially since the
adoption of section 4 1/2 of article VI of the California Constitution, is to
refuse reversals of judgments because of errors in instructions unless it
affirmatively appears that the appealing party has suffered substantial 
injury. We see no occasion for reversing plaintiffs' judgment because of the

The judgment and order are affirmed.

Crail, P. J., concurred.  McComb, J., dissented.