# Golding v. R.K.O. Pictures, Inc.

> California Supreme Court · August 4, 1950 · 35 Cal. 2d 690

URL: https://www.frixlaw.com/law-library/cases/9584399

## Case

- **Full name:** SAMUEL R. GOLDING Et Al., Respondents, v. R.K.O. PICTURES, INC. (A Corporation) Et Al., Appellants
- **Court:** California Supreme Court
- **Decided:** August 4, 1950
- **Citations:** 35 Cal. 2d 690; 221 P.2d 95; 86 U.S.P.Q. (BNA) 537; 1950 Cal. LEXIS 418
- **Precedential status:** Published
- **Opinion:** Dissent by Schauer
- **Judges:** Edmonds, Traynor, Schauer
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9584399

## Opinion text

SCHAUER, J.
I dissent.
Certainly there was no necessity for the defendants to read plaintiffs’ “The Man and His Shadow” in order to obtain the “basic plot,” or its subordinates, as depicted in “The Ghost Ship”; they needed only to turn to “The Universal Plot Catalog” (Henry Albert Phillips) or to “Story Plotting Simplified” (Erie Heath). In the last named work (which admittedly only suggests further subelassifieations or applications of the fundamental law 1 proclaimed by Georges Polti 2 ) we find in chapter XIX (subsituation 15 of the sixteenth situation) the following listing:
“Madman Victim The Cause”
“ A sea-captain His crew Insanity”
And in chapter XXVII we find:
“Superior Rival Inferior Rival The Object”
“A sea-captain His first mate A native girl”
*711 These situations, it seems to me, are too well and widely known and have been too often written about, to admit of present proprietorship in them merely as such. They might he used in something original hut they are not original. Yet it is only in relationship to these situations that any similarity between play and picture can be found. They fit “The Ghost Ship ’ ’ almost precisely; indubitably they constitute the so-called “basic plot” or “central core” of the pictured story; they fit it far more closely than does any situation portrayed in plaintiffs’ sketch; and they were free to defendants’ use.
Plaintiffs’ sketch, likewise, uses formulae plot and subordinates. It avails of a mad sea-captain, a passenger instead of a crewman, and, as the cause, descends to jealousy—mad jealousy. Jealousy, in the Thirty-Second Situation of Polti, is labeled “Mistaken Jealousy.” “The reason,” says Heath, “is that jealousy in itself is not dramatic.” Even “Mistaken Jealousy” has poor emotional value and “the usual solution [which plaintiffs have adopted] . . . —a murder, suicide, divorce, or separation—is extremely hackneyed and undramatic.” (Italics added.) Plaintiffs’ use of the equally hackneyed ‘1 pursuit-escape ’ ’ technique and1 ‘ A hurricane A vessel Seamanship” may be found clearly depicted and specifically listed in Heath’s exposition of Polti’s law. (Fifth Situation, chap. VIII.)
Regardless of whether similarity or protectibility should be first determined it seems obvious in this case that plaintiff cannot recover. The majority opinion admits that “the basic dramatic core of the plaintiffs’ play constitutes the truly original and valuable feature of it . . . [That,] in the present ease, the plaintiffs’ property rights extend only to the dramatic core . . . ” It might as well be claimed on behalf of plaintiffs that they possess a common law copyright to the origination and use of some certain word already in common usage. To see if the claim to originality and proprietorship in such combination of letters could possibly be tenable we should first turn to a dictionary and if we found that combination as a recognized word in the “public domain” of the English language we should go no further in listening to plaintiffs’ claim. Here we need only turn to the dramaturgic equivalent of a dictionary—a catalog of plots in the public domain of literature—to find the “central core”—the admittedly sole basis of plaintiffs ’ claim of a protectible element.
So far as I know, no copyrights or other forms of literary *712 protection have heretofore been granted as to the literary use of madmen, sea-captains or murders, as such. I find nothing jof literary novelty in the portrayal, by either plaintiffs or defendants, of dominant and secondary characters; nor in the concept that a ship’s captain has supreme authority over his command on the high seas and may demonstrate a mad lust for or brutal exercise of power; nor in the proposition that a paranoiac may captain a ship or be a killer; nor in the manner in which the above elements, or any of them, have been put together by either plaintiffs or defendants. In any event the similarity, if any, between the story by plaintiffs and the picture by defendants lies exclusively in the plots which are in the public domain, not in the treatment thereof which originality could make protectible.
As I view the film, if it possesses any quality at all which may be said to give it character, originality or any element of literary protectibility, that quality would seem to be a combination of details in production, an imprint of the artistries of director and actor. But, insofar as plot or, as the majority denominate it, “central core,” is concerned, I am satisfied that neither the story told by plaintiffs nor that "pictured in the film, can be said to possess in this decade any element of originality qualifying it to be the subject of exclusive literary property rights and protectibility. In some aspects each plot is at least as old as Shakespeare 3 and, since Polti, the whole substance of each has been but a published formula. And if either work does possess originality in substance, structure or form sufficient to make it protectible as literary property, then, measured by an equal standard, it surely follows that the film is so different from plaintiffs’ story as to preclude plaintiffs’ recovery for plagiarism.
The Ghost Ship sailed but I think neither it nor its author was engaged in piracy; and I think upholding the judgment in this case supports a result which approaches closer to piracy than did any act of the defendants. Certainly the individual writer should have ample protection for his literary enterprise but zeal to protect him should not lead to straitjacketing producers against what appears here to have been but a legitimate exercise of their own freedom of enterprise in an open field.
*713 For the reasons stated I would reverse both the judgment and the order denying the motion for judgment notwithstanding the verdict.
Appellants’ petition for a rehearing was denied August 31, 1950. Traynor, J., Schauer, J., and Spence, J., voted for a rehearing.
“There are only thirty-six fundamental dramatic situations, various facets of which form the basis of all human drama.” (“The Thirty-Six Dramatic Situations,” by Georges Polti, 1916.)
Recognition of the “law” antedates Polti; Goethe relates that “Gozzi maintained that there can be but thirty-six tragic [dramatic] situations. Schiller took great pains to find more, but he was unable to find even so many as Gozzi.”
See MacBeth, Hamlet, Othello, King Lear; see also the works listed by Polti under examples of the Twenty-Fourth Situation, subclassification A (9).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9584399. Public record. Not legal advice.