
    Sidney Stone, Appellant, v. Mark Goodson et al., Doing Business as Goodson-Todman Productions, Respondents.
    Argued March 31, 1960;
    decided April 28, 1960.
    
      
      Otis Mark Waters for appellant.
    I. A question of first impression is presented. II. When both works are presented for comparison, the court has before it all the data necessary to decide the question of user. (Park v. Warner Bros., 8 F. Supp. 37.) III. The two productions■ constitute “the only evidence of similarity which could possibly be offered.” (Weitzenkorn v. Lesser, 40 Cal. 2d 778.) IV. Summary judgment is available “in any action”. (Felberose Holding Corp. v. New York R. T. Corp., 244 App. Div. 427; Tracy v. Danzinger, 249 App. Div. 46; Pross v. Foundation Props., 158 Misc. 304; Lederer v. Wise Shoe Co., 276 N. Y. 459.) V. Deciding the question of user on motion for summary judgment is not only proper and desirable, but customary. (Weitzenkorn v. Lesser, 40 Cal. 2d 778; Park v. Warner Bros., 8 F. Supp. 37; Lowenfels v. Nathan, 2 F. Supp. 73; Cohen v. Eleven West 42nd St., 115 F. 2d 531; Christianson v. West Pub. Co., 53 F. Supp. 454; Lewis v. Kroger, 109 F. Supp. 484; Ornstein v. Paramount Prods., 9 F. Supp. 896; Wiren v. Shubert Theatre Corp., 5 F. Supp. 358, 70 F. 2d 1023; Hammond & Co. v. International College Globe, 146 F. Supp. 514; Harms v. Woolworth Co., 163 F. Supp. 484; Home Art v. Glensder Textile Corp., 81 F. Supp. 551; Harms v. Tops Music Enterprises, 160 F. Supp. 77.) VI. Confiding to a jury the construction of the legal obligation of a written agreement is an abdication of the court’s function and constitutes reversible error. (Brady v. Cassidy, 104 N. Y. 147; Brainard v. New York Cent. R. R. Co., 242 N. Y. 125; Hartigan v. Casualty Co. of America, 227 N. Y. 175; City Bank Farmers Trust Co. v. Ernst, 263 N. Y. 342; Heller & Henretig v. 3620-168th St., 302 N. Y. 326; Bonime v. Cummings, 5 A D 2d 976; Cadman Mem. Cong. Soc. of Brooklyn v. Kenyon, 197 Misc. 124, 279 App. Div. 1015, 306 N. Y. 151; Bethlehem Steel Co. v. Turner Constr. Co., 2 N Y 2d 456.)
    
      Milton Pollack, Warren S. Tenney, Samuel N. Greenspoon and Francis E. Koch for respondents.
    I. As a matter of law, defendants are not liable on their contract. Defendants have not used plaintiff’s “ ideas, format and other literary material.” (Kennedy v. Rolfe, 174 App. Div. 10; Dymow v. Bolton, 11 F. 2d 690; Burtis v. Universal Pictures Co., 40 Cal. 2d 853; Cain v. Universal Pictures Co., 47 F. Supp. 1013; Nichols v. Universal Pictures Corp., 45 F. 2d 119; Harris v. Fawcett Pub., 176 F. Supp. 390; Park v. Warner Bros., 8 F. Supp. 37; Hewitt v. Coward, 180 Misc. 1065, 266 App. Div. 992; Heywood v. Jericho Co., 193 Misc. 905; Lowenfels v. Nathan, 2 F. Supp. 73; Sheldon v. Metro-Goldwyn Pictures Corp., 81 F. 2d 49, 298 U. S. 669.) II. Plaintiff has not established the originality of his submission. (Soule v. Bon Ami Co., 201 App. Div. 794, 235 N. Y. 609; Shapiro v. Press Pub. Co., 235 App. Div. 698; Lueddecke v. Chevrolet Motor Co., 70 F. 2d 345; Masline v. New York, N. H. & H. R. R. Co., 95 Conn. 702.) III. Plaintiff is bound by his agreement to allow defendants to determine questions of originality and use. (Goltra v. Weeks, 271 U. S. 536; Wynkoop Hallenbeck Crawford Co. v. Western Union Tel. Co., 268 N. Y. 108; Trimble v. New York Life Ins. Co., 234 App. Div. 427; Burgess v. First Nat. Bank, 219 App. Div. 361; Champagne v. Powell Medicine Co., 48 App. Div. 344; McNevin v. Solvay Process Co., 32 App. Div. 610, 167 N. Y. 530; Reynolds v. Manhattan Athletic Club, 2 Misc. 581.) IV. As a matter of law, the issues must be tried if summary judgment is not awarded to defendants. (Harris v. Fawcett Pub., 176 F. Supp. 390.) V. Whether defendants’ program is based upon plaintiff’s " ideas, format and other literary material” is an issue for the jury. (Cole v. Phillips H. Lord, Inc., 262 App. Div. 116; La Varre v. Warner Bros. Pictures, 282 N. Y. 68; Desny v. Wilder, 46 Cal. 2d 715.) VI. The originality of plaintiff’s “ideas, format and other literary material” is an issue for the jury. (Cole v. Phillips H. Lord, Inc., 262 App. Div. 116; Healey v. Macy & Co., 251 App. Div. 440, 277 N. Y. 681; Weitzenkorn v. Lesser, 40 Cal. 2d 778; Kurlan v. Columbia Broadcasting System, 40 Cal. 2d 799; Stanley v. Columbia Broadcasting System, 35 Cal. 2d 653; Kovacs v. Mutual Broadcasting System, 99 Cal. 2d 56; Utica Carting, Stor. & Contr. Co. v. World Fire & Mar. Ins. Co., 277 App. Div. 483, 278 App. Div. 629; National Electrotype Co. v. Pennie, 157 Misc. 26, 243 App. Div. 764; Brawer v. Mendelson Bros. Factors, 262 N. Y. 53; Utica City Nat. Bank v. Gunn, 222 N. Y. 204; Brondfield v. Paramount Pictures Corp., 200 Misc. 883.) VTI. The independent origin of defendants’ program is an issue for the jury. (Bernstein v. 
      Kritzer, 224 App. Div. 387; Miner v. Reinhardt, 225 App. Div. 530; Healey v. Macy & Co., 251 App. Div. 440, 277 N. Y. 681; Bailey v. Haberle Congress Brewing Co., 193 Misc. 723; Hanna v. Mitchell, 202 App. Div. 504, 235 N. Y. 534; Connor v. Commercial Travelers Mut. Acc. Assn, of America, 247 App. Div. 352.) VIII. The first affirmative defense in the answer is an issue for the jury. IX. Expert testimony is required to resolve the factual issues involved in plaintiff’s claims. (Arnstein v. Porter, 154 F. 2d 464; Heim v. Universal Pictures Co., 154 F. 2d 480; B. M. Heede, Inc., v. Roberts, 303 N. Y. 385; Gumbinsky Bros. Co. v. Smalley, 203 App. Div. 661, 235 N. Y. 619; Cole v. Phillips H. Lord, Inc., 262 App. Div. 116.)
   Burke, J.

In this action for breach of a written contract the Appellate Division has reversed Special Term’s order granting summary judgment for the plaintiff and certified the following question—“ Was the order of this Court * * * properly made? ” We are of the opinion that a triable issue is presented, and, therefore, answer the question certified in the affirmative.

On December 7, 1953 plaintiff made a written submission of his proposed television series which he called “ The Price Is Right ”, and characterized as a “ Quiz Audience Participation ”. In this agreement the plaintiff stated that the idea was original with him but that he would abide by defendants’ ultimate determination of questions of use, priority, and originality in connection with any substantially similar idea. The agreement further stated that, if defendants find that the idea had priority and originality, payment for its use was to be negotiated.

On January 29, 1954 the parties entered into a written contract whereby plaintiff sold all his “ right title and interest in and to the ideas, format and other literary material heretofore submitted” in return for defendants’ promise to pay stipulated weekly royalties in the event of its ultimate use. Except for a warranty of originality the plaintiff did not by this agreement abdicate his right to contest the question of use and priority. It is significant, therefore, that this agreement expressly stated that it was entire and complete and embodied all understandings between the parties.

Three years later (Nov. 1, 1956) the parties entered into the written agreement upon which this action is founded. By this covenant the defendants (for $1,000) purchased outright all rights in and to the title “ The Price Is Right ”. Although this sum was to be in lieu of any payment under the prior agreement, the defendants further stipulated that: “in the event that we should at any time broadcast programs based upon the ideas, format and other literary material heretofore submitted and sold by you to us (exclusive however of the title ‘ The Price Is Right ’ being sold by you to us hereunder), we agree to make payments to you in accordance with the terms and conditions of said prior written agreement.”

Approximately one month later the program “ The Price Is Right ’ ’, which plaintiff claims is a use of his submission, was broadcast by defendants.

The complaint alleges, inter alia, that both plaintiff’s submission and the defendants’ program have the same basic concept, i.e., the promotion of merchandise with a fixed standard retail price, and that, therefore, the program so produced by defendants was and is based upon the ideas, format and literary material previously submitted.

Upon the motion for summary judgment both the submission and the defendants’ script and program were before the court. Special Term found that “ [cjlearly the material submitted by the plaintiff and the defendants’ program utilize a gimmick ’ in relation to the presentation of merchandise which differentiates both from every other quiz or merchandising show and that is the standard of fixed retail price.” The court found further that although there are differences in the programs ‘ ‘ they produce no real distinction in idea or combination. ’ ’ Finding, therefore, that plaintiff’s submission was “substantially lifted ” the court granted summary judgment.

The Appellate Division reversed upon a finding that issues of fact exist (1) as to whether the defendants undertook to pay for the use merely of the central idea of the plaintiff’s submission, or whether they were to pay only for the use of the ideas, format and literary material as embraced in the submission, and (2) in either event whether or not there was a user of such.

Once again we are faced with the propriety of the granting of summary judgment, and our sole inquiry, therefore, is to the existence of a material issue of fact. It now seems well established that if the issue is fairly debatable a motion for summary judgment must be denied (Falk v. Goodman, 7 N Y 2d 87, 91; Sillman v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395, 404).

However, we believe the Appellate Division was wrong in making its first finding (supra), i.e., that an issue of fact exists as to whether the agreement was to pay only for the central idea or merely for the material as presented. In our opinion it would be a perverse construction that would allow the defendants to substantially pirate the fruits of the plaintiff’s creation merely by rearranging its organization and main theme. It surely could not have been within the contemplation of the parties to allow remuneration solely upon a literal use of the submission. No matter how ambiguous the intention of the parties may have been prior to November 1, 1956, it was certainly dispelled by the agreement entered into that day. It provided in simple and unequivocal terms that the plaintiff would be paid if defendants at any time broadcast programs based upon the ideas, format and other literary material submitted. Since the construction of an unambiguous written contract is a question of law for the court (Lachs v. Fidelity & Cas. Co., 306 N. Y. 357; Bethlehem Steel Co. v. Turner Constr. Co., 2 N Y 2d 456; Bonime v. Cummings, 5 A D 2d 976, 977), it was, therefore, proper for Special Term to so construe the agreement.

We disagree, however, with the Special Term determination of the question of user with which we will now deal. A reading of the entire record convinces us that the question of user does raise a triable issue of fact. Although in an action for the appropriation of literary material this question may be raised (by either party) on a motion for summary judgment (Rules Civ. Prac., rule 113), this is not to say that there must- necessarily be a final determination simply because both scripts are before the court. Of course, if the similarity or dissimilarity is so overwhelming, the matter may be disposed of summarily. However, this literal-or-no-application is not the test ordinarily adaptable. Quite often the plagiarism, if any, is deftly disguised, or not substantial, and, therefore, not necessarily revealed or found illusory on what might seem to be a perusal examination on the motion for summary judgment. Each case must, under these circumstances, be taken in conjunction with its peculiar set of facts (Fendler v. Morosco, 253 N. Y. 281, 292).

Although the mere presence of dissimilarities need not bar a summary disposition, we cannot agree that they were here insignificant as a matter of law. It will be apparent from the following synopsis of both scripts that the issue, if not seriously questionable, is at least arguable.

Defendants’ Program

An article of merchandise, the retail price of which is not revealed, is exhibited to a panel of four contestants, who, in an effort to estimate the price, proceed to bid for the item. At the conclusion of the bidding the retail price is made known. The article is then awarded to the contestant who comes closest, however, without exceeding the retail price. This procedure is thereafter repeated, and at the conclusion of the program the contestant who has accumulated the most (dollar wise) is invited to participate on the next program. An added attraction for the benefit of the home viewing audience is the “ Showcase ” contest, wherein a multitude of articles are displayed. The mail order participant who comes closest, without exceeding, the total value of all items displayed receives all the merchandise without charge.

Plaintiff’s Submission

A sole participant selects an item from a group of articles displayed at retail price. The master of ceremonies then asks four questions and, each time a correct answer is given, the price is automatically reduced to half. For example, if the four questions are answered correctly, a $200 item is reduced to $12.50. The participant may purchase the article at any stage of the questioning, and the money received is, at the show’s conclusion, donated to a charity. This procedure is repeated with two subsequent contestants. The fourth contestant is a representative of a charitable organization. He, too, is asked four questions, but, instead of receiving merchandise at a reduced price, a special jackpot is multiplied by two with each correct answer.

In order to demonstrate that defendants’ program is based on plaintiff’s submission, the plaintiff’s moving papers argue the substantial similarities, the most significant of which is that the essential ingredient ” or central theme ” of both is the use of retail price. In addition the plaintiff advances the defendants’ admission that the program so broadcast was the ‘ ‘ first show we had where the retail price was the central theme ”.

On the other hand the defendant Goodson, an alleged expert on audience participation programs, averred that there was no substantial similarity between the two programs ’ ’. He analyzed and emphasized the differences, and stated that, rather than fixed retail price, the central theme of plaintiff’s work “ is that of a quiz program in which merchandise is used as a ‘ gimmick ’ to differentiate the program from every other quiz program on the air ”.

In addition the defendants submitted an affidavit executed by the producer and alleged originator of defendants’ program. He certified that he created this program under its original title “ Auctionaire ”.

We are inclined to opine that plaintiff’s theme, masked in dissimilarities, was “ substantially lifted ”. However, although we agree that “ no plagiarist can excuse the wrong by showing how much of his work he did not pirate ’ ’, it cannot be said that the differences here do not at least raise an issue for the jury. We are constrained, therefore, to affirm the order denying summary judgment.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

Van Voorhis, J. (concurring).

I concur in the result. Respondents bought and paid for the title, “ The Price Is Right.” Any reasonable use of this title on TV commercials would normally involve the pricing or the transfer of merchandise as a bonus or at bargain prices. Appellant has no monopoly on the donation of merchandise prizes. Doing any one or more of those things would not constitute an appropriation of appellant’s “ideas, format and other literary material” so as to render respondents liable to make payments to appellant under the earlier agreement. The Appellate Division has held that there is a triable issue concerning whether respondents did more than they were entitled to do in making use of this title which they bought. Respondents have not appealed. Appellant is clearly not entitled to summary judgment.

Judges Dye ‘and Foster concur with Judge Burke ; Judge Van Yoorhis concurs in result in a separate memorandum; Chief Judge Desmond and Judges Fuld and Froessel dissent and vote to reverse and to grant summary judgment in favor of plaintiff with this memorandum: There is no triable issue presented. The record unequivocally established that the defendants’ show, “ The Price Is Right ”, is based upon and constitutes the use of the plaintiff’s submission to the defendants of his proposed television program.

Order affirmed, etc.  