APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Plaintiff, John Szczesny, appeals from a summary judgment entered in favor of defendants, Jewel Companies, Inc. (hereinafter Jewel) and W.G.N. Continental Broadcasting Corp. (hereinafter W.G.N.), in an action to recover damages for the infringement of a common law copyright in a certain retail-store promotional television program.
In his complaint plaintiff alleged that during the year 1959 he originated and caused to be prepared an original script for a television program entitled "At the Races" for the purpose of submission to prospective broadcasting companies; that plaintiff at all times retained full ownership of said program and has never authorized the use of the program at any time; that in 1959 W.G.N. was informed of the nature and contents of plaintiff's program; that in 1967 W.G.N. produced and presented a program entitled "Let's Go to the Races," substantially copying plaintiff's program, but without plaintiff's consent or authorization; that in 1967 Jewel entered into an agreement with W.G.N. to purchase "air time" to broadcast the program entitled "Let's Go to the Races"; and that Jewel knew or should have known through the exercise of ordinary care that the program was substantially copied by W.G.N. from plaintiff's program and without his consent. Plaintiff alleged unauthorized use by W.G.N. of his literary property right and misappropriation by W.G.N. and Jewel of the profits and benefits of his property right.
Defendants' answer denied plaintiff's allegation and alleged, by way of affirmative defense, that during the year 1959, plaintiff submitted to W.G.N. written suggestions for a television program entitled "At the Races," and that upon receiving plaintiff's suggestion W.G.N. sought and secured from plaintiff a formal written release regarding the use of his suggestions. Defendants further alleged that plaintiff's suggestions were not novel or original, were sketchy and incomplete and were not in a form which could be used for any broadcast purposes. Defendants also asserted that the program entitled "Let's Go to the Races," sponsored by Jewel and broadcast by W.G.N., was independently developed by persons other than plaintiff and was in no way based upon or appropriated from plaintiff's suggestions.
The record reveals that in a two-page letter dated February 18, 1959, plaintiff submitted to W.G.N. his "idea on a quiz game which I have named `At the Races' for Television or Radio programs." The first page set forth the steps involved in a program by which a code key of horses' names would appear in daily newspapers and contestants would be telephoned and asked to read the names of the winning horses and jockeys. The correct answer would allow the contestant to compete for the Daily Double or "Jackpot prize." The price money "can be the actual mutuels or a pre-set amount for win, place or show." The second page of the letter set forth variations on this game by suggesting that it can be played as "Bingo" by the use of "special dice." The final suggestion was:
"Another method which would be easily adaptable to T.V. would be the actual filming of the races as they are run at any race track. In this method people at home can be included in a nationwide game, numbered cards can be used the same as described above. The number of races can be prearranged on each card, with the cards having different combinations of numbers, for each race. There can be one winner for each race, or it can be done as it is at the race track, WIN-PLACE OR SHOW. The awards being lesser for place and show, the money won could be the actual mutuel or any prearranged amount."
In a letter to plaintiff dated February 23, 1959, Bruce Dennis, program manager of W.G.N., acknowledged receipt of plaintiff's "At the Races program idea and release form," and stated that W.G.N. was unable to consider additions to its schedule. *fn1
In June, 1966, Jewel purchased the rights to the use of the program "Let's Go to the Races" from one Walter Schwimmer and his associates. In 1967 that program was broadcast by W.G.N. Prior to its broadcast in Chicago by W.G.N., the program had been sold to other sponsors and had been broadcast by television stations throughout the country between 1962 and 1965. In 1963 Walter Schwimmer, Inc., obtained a statutory copyright on the program. "Let's Go to the Races" was a weekly broadcast of five pre-filmed horse races. Jewel made available to the public cards listing a number for each of the five races. If the number for one of the races corresponded to the number of the winning horse in that race, the holder of the card won a pre-arranged amount of money.
In support of their motion for summary judgment, defendants filed an affidavit of Walter Schwimmer stating that for the past 35 years he has been actively engaged in the creation, development, production, promotion and sale of various radio and television programs. Since 1948 affiant created, produced and sold some 20 different programs to television stations throughout the United States, including "Movie Quick Quiz," "Championship Bridge," "Championship Bowling," "All-Star Golf," and "World Series of Golf."
In 1955 Schwimmer began formulating an idea for the development of a horse racing program for television in which a series of races would first be filmed and then used in a television program in which home viewers would attempt to select winners from each race and would be awarded prize money for the correct choice. Between May and August, 1958, Schwimmer and Sid Goltz of the Peter De Met Company began negotiations with Arlington Park Race Track regarding the filming of horse races for the proposed program. On May 5, 1958, in a letter to Peter De Met, Schwimmer referred to his program idea as including the use and distribution of racing forms and entry blanks which would be used by viewers in making their selections. In a letter dated July, 1958, to a member of the Arlington Park Jockey Club, Schwimmer referred to his proposed program as "Lets Go to the Races." In 1958 a pilot program of the horse races was filmed by Schwimmer. Defendants' Exhibit H attached to Schwimmer's affidavit is an undated document setting forth the program format in detail and explaining how the viewing audience would participate. Schwimmer averred that this document was prepared by him in 1958. Another Exhibit, I, is an undated letter to television station directors across the country. This letter briefly outlined Schwimmer's idea, but stated that no prizes were involved. Schwimmer averred that this letter was prepared on March 13, 1959. The record also contains numerous negative responses, dated in 1959, from television station directors to Schwimmer, acknowledging receipt of a March 13, 1959, letter.
In 1962 Schwimmer filmed 26 1/2 hour shows and began promoting "Let's Go to the Races." Shortly thereafter the program was purchased by sponsors in various parts of the country and was broadcast by 6 to 12 television stations. On June 21, 1966, Schwimmer and Jewel entered into a contract whereby Jewel purchased rights to the use of the program. Jewel thereafter entered into a contract with W.G.N. for broadcast of the program. On January 14, 1967, "Let's Go to the Races" premiered on W.G.N. Walter Schwimmer averred that prior to the filing of this cause he had not known of plaintiff and was never aware that plaintiff had communicated to W.G.N. his ideas regarding a television program on horse racing; and that the "Let's Go to the Races" program was "conceived and created solely by me, was refined in several minor respects by one of my employees, Mr. Arthur Pickens, and was developed, produced and sold solely by Walter Schwimmer, Inc."
In a deposition taken July 15, 1971, Schwimmer stated:
"To my knowledge I originated [the idea] close to [the context in which W.G.N. produced the program]. We always refined it. The idea was to have some horse races, and * * * have a merchandising idea whereby a person had to pick up a ticket or program or something in connection with the horse races, but in a broad way, the original idea was very much like the executed idea."
Schwimmer further stated that the idea in its inception was his and that only Arthur Pickens worked on it with him. He stated: "If Pickens had worked on it, he may have worked on maybe developing one ticket as against another ...