Lutz v. De Laurentiis

211 Cal. App. 3d 1317, 260 Cal. Rptr. 106, 1989 Cal. App. LEXIS 678

• Court: California Court of Appeal
• Decided: June 29, 1989
• Docket: B029439
• Status: Published

Opinions

Opinion

COMPTON, J.

Plaintiffs George and Kathleen Lutz, along with other individuals, commenced an action which essentially sounds in unfair competition. Their fourth amended complaint contained numerous counts in which they attempted to couch their claims in theories of tort, breach of contract and statutory violations.

As to many of the counts, the trial court sustained demurrers without leave to amend and entered judgments of dismissal. As to the remainder of the counts, the trial court granted a motion for judgment on the pleadings. Plaintiffs have appealed.

Since we conclude that plaintiffs have adequately pleaded a cause of action for unfair competition, we reverse the judgment of dismissal and remand with directions.

Factual Background

In 1974, one Ronald DeFeo murdered his parents and four siblings in their home in Amityville, New York. In the subsequent criminal prosecution, DeFeo claimed he was “possessed” by demons.

In 1975, plaintiffs George and Kathleen Lutz moved into the DeFeo house with their family and for 28 days allegedly experienced psychic phenomena traditionally associated with a “haunted” house.

After the Lutzes moved out, they hired Jay Anson to write a book, entitled The Amityville Horror, about their experiences in the DeFeo home during these 28 days. The book was a national bestseller, selling over three million copies.

In 1977, the Lutzes and Anson entered into an agreement with Professional Films, Inc. (PFI) in which they granted PFI and its assignees the right to produce a motion picture based upon the book, The Amityville Horror. PFI was also given the right to use the Lutzes’ name in publicizing the film. The agreement reserved to the Lutzes the right to make sequels based upon the events which happened to them after they fled the Amity-ville house.

Following the publication of the book and the execution of the agreement with PFI, the Lutzes commenced an extensive publicity campaign, which included newspaper and radio interviews, television appearances, college lectures, and travels abroad, to promote the book and its forthcoming cinematic interpretation. During these appearances, the Lutzes also spoke of “the additional unique events and happenings” which occurred after they had left the Amityville house and promised there would be both literary and motion picture sequels depicting those events.

Meanwhile, PFI assigned its rights to American International Pictures (AIP). In 1979, pursuant to the agreement, AIP released the motion picture film entitled The Amityville Horror. The movie generated box office receipts in excess of $75 million.

In 1980, the Lutzes contracted with John Jones and Paul Kimatian to write and publish a book about the Lutzes’ experiences after they had moved out of the Amityville house. The Lutzes also granted Jones and Kimatian the option to produce a motion picture about those events. In return, the Lutzes received the right to share in the money generated by the book and movie. Jones and Kimatian thereafter partially assigned those rights to plaintiff Gotham Press Publishing, Inc.

In 1981, the book, The Amityville Horror II, authored by Jones, was published. This book chronicled the events the Lutz family experienced after leaving the house in Amityville. It was a bestseller and was also published in a serialized form in a national magazine with a weekly circulation of four and one-half million copies.

In 1982, defendant Orion Productions, the successor in interest to PFI, released a movie entitled Amityville II: The Possession. This film was produced by defendants Dino De Laurentiis, Dino De Laurentiis Corporation, and Productions, Ltd. The film depicted, in a fictionalized manner, the events which occurred at the house before the Lutzes moved into it.¹ In the film’s promotional advertising in newspapers, on television and radio, and in movie theaters, defendants used the phrase: “The Night of February 5, 1976, George and Kathleen Lutz and their three children fled their home in Amityville, New York. They got out alive! Their living nightmare shocked audiences around the world in ‘The Amityville Horror.’ ”

In response to defendants’ release of Amityville II: The Possession, plaintiffs initiated the present action.² In order to moot plaintiffs’ request to enjoin distribution of the movie, defendants modified the promotional advertising to eliminate references to the Lutzes and to include the statement: “This film is not a sequel to ‘The Amityville Horror.’ ”

In 1983, defendants released another motion picture called Amityville 3-D. Using special effects to give the viewer a three-dimensional perception, this film concerned totally fictitious events set in the Amityville house.

Plaintiffs’ Contentions

Plaintiffs essentially claim that defendants’ use of the word “Amityville” in each of the films’ titles in conjunction with the designation “II” or “3-D”, supplemented by the reference to the Lutzes in the initial promotional campaign for the first film, misled the public into believing its two movies were the sequels to the Lutzes’ story and so diluted the value of their sequel that their plans to produce it collapsed.

Discussion

In Tomlin v. Walt Disney Productions (1971) 18 Cal.App.3d 226, 230 [96 Cal.Rptr. 118] [hg. den.], we held that “[t]he title to a literary . . . composition is not protectible by copyright, however, the owner of such a composition has been held to acquire a property right in the title when that title has acquired a ‘secondary meaning’ identifying it in the public mind with the literary work. [Citations.]”

We there noted that an action aimed at vindicating such a property right could not be based on an “appropriation” theory but could only be based on a theory of public deception or confusion. “An action for damages for copying a title which has acquired a secondary meaning requires that the damages be specially pleaded and proved and coupled with a showing that they are the result of (1) a failure of the defendant to take reasonable precautions to prevent public confusion, (2) with the intent to deceive the public as to the source of the literary work.” {Id. at p. 235.)

“Reduced to fundamentals, secondary meaning is a shorthand phrase which describes the existence of conditions from which public confusion will flow if the defendant is permitted to pursue his deceptive scheme [citation]. If words have been used or employed by an author or manufacturer in such a manner that the public has learned to associate them with the thing desci ibed, they acquire a secondary meaning [citation].” (Metro-Goldwyn-Mayer, Inc. v. Lee (1963) 212 Cal.App.2d 23, 30 [27 Cal.Rptr. 833] [hg. den.], italics in original.)

On the other hand, “[a]nyone may use a title if there is no secondary significance. Unfair competition consists in palming off one’s goods as those of another. The mere use of a substantially similar title, if not used in such manner as to induce the public to believe that the work to which it is applied is the identical thing which it originally designated, does not constitute unfair competition.” (Curtis v. 20th Century-Fox Film Corp. (1956) 140 Cal.App.2d 461, 469 [295 P.2d 62] [hg. den.].)

Whether words have, in fact, achieved the status of secondary meaning can only be determined after an inquiry into the facts. It cannot be determined at the demurrer stage of the proceedings. (Dino, Inc. v. Boreta Enterprises, Inc. (1964) 226 Cal.App.2d 336, 339 [38 Cal.Rptr. 167].)

Defendants assert that as a matter of law no secondary meaning could attach³ because the word “Amityville” is identified with multiple sources as it is the actual name of a town and because the word was used in the titles of several works. The argument misses the mark as those are merely factors to consider in making the factual evaluation of whether or not plaintiffs ever acquired a protectible secondary meaning. (See, e.g, Allied Artists Pictures Corp. v. Friedman (1977) 68 Cal.App.3d 127, 134 [137 Cal.Rptr. 94] [“The question of whether a particular title has acquired a secondary meaning is one of fact.”]; Metro-Goldwyn-Mayer, Inc., supra, 212 Cal.App.2d at p. 30 [“The sufficiency of public notoriety to establish an association in the minds of the public which will support a finding of secondary meaning is a question of fact.”]; and Johnston v. 20th Century-Fox Film Corp. (1947) 82 Cal.App.2d 796, 813 [187 P.2d 474] [“The question whether a title has acquired a secondary meaning is one of fact.”].)

Because defendants prevailed upon a demurrer and a judgment on the pleadings, the dispositive question is whether plaintiffs have pleaded sufficient operative facts to establish a cause of action. In resolving this question, the allegations in the complaint are to be regarded as true and are to be liberally construed with a view to attaining substantial justice between the parties. (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 20 [223 Cal.Rptr. 806]; Barney v. Aetna Casualty & Surety Co. (1986) 185 Cal.App.3d 966, 973-974 [230 Cal.Rptr. 215] [review den.].)

At bench, plaintiffs allege that their extensive promotional efforts, the release of the first movie, and their well-publicized plans to make a movie sequel created a secondary meaning in the word “Amityville” such that defendants’ inclusion of that word in the title of their two movies, in tandem with defendants’ use of “II” or “3-D” which by custom and practice designate a movie as a sequel, misled the public into believing defendants’ two movies were the anticipated sequel about the Lutzes.

Further they allege that defendants intentionally and deceptively titled and advertised the movie to mislead the public into believing the film was the anticipated sequel to the first movie which would chronicle what happened to the Lutzes after they fled their home. In particular, plaintiffs allege the film was initially to be entitled Murder in Amityville but that defendants “ . . . instituted a plan to change the title to [Amityville II: The Possession] with the purpose of trading off of and appropriating for themselves the valuable secondary meaning created by plaintiffs’ efforts and expense.”

We conclude that plaintiffs have properly pleaded a cause of action for unfair competition.

Conclusion

Here there was one set of operative facts establishing that plaintiffs’ right to be free from unfair competition was violated by defendant.

Plaintiffs’ attempt to turn their single cause of action into multiple causes of action based on other legal theories was either improper or surplusage. The sustaining of the demurrer and the granting of the judgment on the pleadings was correct as to all counts—save one. (See 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 19, p. 63 et seq.)

The judgment of dismissal is reversed. The matter is remanded to the trial court with directions to vacate its order sustaining the demurrer to a single cause of action for unfair competition as pleaded in count I and permit plaintiffs to proceed to trial on that cause of action. Plaintiffs to recover costs on appeal.

Gates, J., concurred.

1 The movie was taken from the book Murder in Amityville written by Hans Holzer and published in 1979. The book dealt with the DeFeo trial.

2 Because George and Kathleen Lutz had declared bankruptcy, they were joined in the action by their trustee in bankruptcy. The other plaintiffs were: (1) Paul Kimatian and John Jones, whom the Lutzes had granted (a) the right to write and publish a book chronicling the Lutzes’ life after leaving Amityville and (b) an option to produce a motion picture based upon those events; and (2) Gotham Press Publishing, Inc. which had received a partial assignment of the rights granted Kimatian and Jones.

The named defendants included: (1) Orion Pictures Corporation, the successor in interest to the rights granted PFI in 1977; (2) Dino De Laurentiis; (3) Dino De Laurentiis Corporation; and (4) Productions Ltd. Plaintiffs also sued Columbia Pictures Industries, Inc., and EMI, Inc., but those entities are not parties to this appeal.

3 Defendants have never claimed that plaintiffs in the 1977 agreement authorized them to title and/or publicize their two movies as they did. At oral argument, they specifically disavowed any reliance upon the agreement’s provisions to justify their conduct; instead, they merely asserted plaintiffs had failed as a matter of law to establish a secondary meaning.