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Szczesny v. W.g.n. Continental Broadcasting





APPEAL from the Circuit Court of Cook County; the Hon. HARRY S. STARK, Judge, presiding.


Rehearing denied December 8, 1977.

This appeal involves an action by John Szczesny (plaintiff) for infringement of a common law copyright and for breach of an implied contract for use of the subject matter of that copyright by defendants W.G.N. Continental Broadcasting Corporation (W.G.N.) and Jewel Companies, Incorporated (Jewel). Before trial, summary judgment was entered for the defendants, but on appeal of that order this court reversed and remanded for trial, finding that a material issue of fact remained, thus precluding summary judgment. (Szczesny v. W.G.N. Continental Broadcasting Corp. (1974), 20 Ill. App.3d 607, 315 N.E.2d 263.) On remand the matter proceeded to trial and the jury found for the defendants. Plaintiff then brought this appeal, alleging three grounds for reversal: (1) defendants failed to establish the affirmative defense of independent development of their program; (2) the jury was erroneously instructed that a contract for the use of an idea is valid only when the idea submitted was novel; (3) the trial court erred in submitting to the jury two special interrogatories which asked for findings of evidentiary rather than ultimate facts.

We affirm the judgment of the trial court.

At trial plaintiff testified that in February 1959 he telephoned Bruce Dennis at W.G.N. about a television program idea involving horse racing. *fn1 Dennis sent the plaintiff a release form with a cover letter indicating that W.G.N. required submission of the signed release form along with a description of the idea being submitted. Plaintiff modified the language of the release form, signed it, and sent it to Dennis along with a two page letter listing a number of program ideas. One of those ideas 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 could be the actual mutuels or any prearranged amounts."

Dennis then sent the plaintiff a letter acknowledging receipt of the letter and stating that W.G.N. was not soliciting new program material and would not be able to consider additions to their schedule.

In January 1967 plaintiff viewed a television program broadcast by W.G.N. entitled "Let's Go To The Races." This was a weekly game show sponsored by Jewel. On each telecast films of five horse races were shown. Tickets available to the public at Jewel stores listed one horse by number for each race. The tickets were coded by number and color for each week's program. The television viewer whose card number for a race matched the number of the winning horse in that race could redeem a cash prize at Jewel. Plaintiff believed that his program suggestion was the basis of the show and he ultimately instituted the action now before us.

Defendants presented the testimony of Walter Schwimmer, a television producer who developed programs and sold them to individual stations, networks, and advertising agencies. This involved the creation of an original idea and its development into a completed film program for sale. Schwimmer testified that in 1956 he and his program director, Arthur Pickens, began to develop the idea of a horse racing television show. They designed their own methods of filming actual horse races so as to enable the viewer to better follow the progress of an individual horse. In 1958 they made a film of a horse race at a local race track using those techniques.

At the same time Schwimmer was working on the audience participation aspect of the show, which he had perceived from the outset as being crucial to the show's success. In an undated memorandum, which Schwimmer recalled writing in the fall of 1958, he outlined his plans at the time for the show, which would consist of five filmed races. Home viewers could pick up a ticket at retail outlets on which they could write in the numbers of the horses they thought would win. The tickets would be mailed in for determination of winners. Later in 1958 Schwimmer and his associates determined that it would be too expensive to process all those mailed entries. Late that year, or at least within the first two months of 1959, they decided that the cards should already have the numbers printed on them when they were distributed so that only the winning cards would be mailed, thereby saving much of the processing expense.

In March of 1959 Schwimmer mailed a letter, which he described as a trial balloon, to a number of television stations requesting their reaction to his idea for a television show involving filmed horse races. The only audience participation feature proposed was that viewers could get copies of the racing program for each race prior to the broadcast. Indeed, the letter specifically stated that no prizes would be involved. At trial Schwimmer explained that he only wanted the stations' reactions to the racing aspect of the show. He was aware of possible problems with the Federal Communications Commission concerning the broadcasting of gambling-related events and he did not wish the stations to react to that aspect.

Further development of the show was delayed while an F.C.C. ruling on its legality was sought. In 1962 when such programs were finally approved, Schwimmer made the decision to produce the show and attempt to sell it to sponsors. That same year he first approached Joseph Klinge, involved in special promotions at Jewel, about the show. Klinge was interested but wanted to see how the program worked out in other areas. The program was eventually sold to Jewel in 1966 after it had run in a number of other cities.

Schwimmer testified that although he knew Bruce Dennis when Dennis served as the news director of W.G.N. television in 1962 and 1963, Dennis never mentioned plaintiff, plaintiff's letter, or anything about a television show on horse racing. Nor was Schwimmer ever told by any other employees of W.G.N. about plaintiff or plaintiff's idea. On cross-examination he stated that he did not recall discussing his idea for the show with W.G.N. employees although he might have done so. But he categorically stated that no one from W.G.N. had ever told him that they had received an idea which was similar to his. More broadly, Schwimmer stated that prior to the filing of the lawsuit no one had spoken to him about plaintiff or plaintiff's idea; nor had he seen the plaintiff's letter.

Arthur Pickens, who worked for Schwimmer during the development of the program, corroborated Schwimmer's testimony about the process of that development. Beginning in 1955 Pickens, Schwimmer, and a third man, Bernie Cross, developed the concept of showing horse racing on television. He too recalled that in 1958 they decided to use cards preprinted with the horses' numbers because of the cost of processing entries if people wrote in entries. Following F.C.C. approval in 1962 they began to attempt to sell the program to retail chains doing business in local markets. The show was first sold to a food store chain in Minneapolis and was broadcast there in 1963. In 1966 Jewel took an option on the show, and ultimately purchased time on W.G.N. Prior to Jewel's selection of W.G.N. Pickens ...

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