Allen v. Goldwyn Pictures Corp.

208 A.D. 787

Opinion

Order reversed upon the law, with ten dollars costs and disbursements, and judgment unanimously directed dismissing the complaint, with costs, with leave, however, to plaintiff to serve an amended complaint within twenty days after service of the order to be entered upon this appeal, with notice of entry, upon payment of costs. This is not an action to restrain unfair competition, but is one to enforce plaintiff’s alleged common-law right in the play in controversy. Plaintiff’s contract with the author, however, recites that the play has been published, and in the absence of suitable allegations in the complaint showing that the publication was a restricted one, the word “ published ” will be given its ordinary meaning, and will be presumed to show a dedication to the public which destroyed the author’s common-law right. Plaintiff therefore, acquired no such right either in the play or the title. ( Underhill v. Schenck, 201 App. Div. 46.) Kelly, P. J., Rich, Manning, Kelby and Young, JJ., concur.