Author of screen play - Breach of contract - Loss of publicity - Screen credit - Damages
The Plaintiffs were engaged by the defendants to write a screen play based upon a novel and by a collateral agreement the defendants were to give the plaintiffs screen credit and their names were to be thrown upon the screen with a statement that they were joint authors of the work. The defendants wrongfully refused to accept the plaintiffs' work and the plaintiffs sued them for breach of contract:-
Held: an author, as well as an actor, is entitled to recover damages for loss of publicity. Substantial damages should be awarded, and there must be a separate assessment in respect of each plaintiff.
[EDITORIAL NOTE. The refusal to award damages for loss of publicity in Turpin v. Victoria Palace Ltd. [1918] 2 K. B. 539; 42 Digest 913, 89, was reversed in Marbe v. George Edwardes (Daly's Theatre) Ltd. [1928] 1 K. B. 269; 42 Digest 911, 71, and the principle that such damages can be awarded was finally approved in the House of Lords in Herbert Clayton and Jack Waller Ltd. v. Oliver [1930] A.C. 209; Digest Supplement. In all these cases the parties claiming such damages were actors and in the present case the principle is extended to authors. For the law on the point, see Halsbury, Hailsham ed'n. Vol. 10 p.132 para.169; and for cases, see Digest Vol. 17 p.104 No. 181 and Supplement.]
ACTION for damages for breach of contract contained in a memorandum of agreement made between the plaintiffs and the defendants, dated August 15th, 1935, and in a letter written by the defendants to Akos Tolnay, one of the above named plaintiffs, dated August 15th, 1935.
The agreement made between the plaintiffs and the defendants was to produce for them a screen play to be a full adaptation of a novel called the "Amateur Gentleman". While the plaintiffs were engaged on the work and when they had nearly finished it, the defendants suddenly stopped the work. The defendants made an offer in respect of this breach of contract, which the plaintiffs refused. The defendants refused to accept the play, and instead of using the work done by the plaintiffs, turned to an authoress and got her to produce a play very largely on the basis of the plaintiffs' work. By the letter of August 15th 1935, the defendants undertook to give the plaintiffs screen credit, i.e., to have the plaintiffs' names thrown upon the screen as joint authors of the work. In the circumstances they could not do this, and the plaintiffs claimed to be entitled to substantial damages in respect of the breach of this collateral or supplemental agreement. It was contended for the defendants that the damages (if any) recoverable under this head could only be nominal. The case is only reported upon this point.
J. Busse for the plaintiffs D. N. Pritt, K..C. and C. H. Duveen for the defendants
Goddard, J.: [His Lordship dealt with the principal breach of contract and found for the plaintiffs.] I now come to another part of the case which gives me a very great deal of difficulty, and that is with regard to the claim for the breach of the collateral contract claimed in the letter of August 15th, under the screen credit that was promised to these gentlemen. It seems to me that really the same principles must apply in the case of the author of a play as apply to an actor or actress in a play, and as I understand the authorities that have been cited, it has been held, and has been upheld by the Court of Appeal and approved in the House of Lords, that if a manager undertakes to allow an artiste to appear upon the stage and breaks his contract, the artiste is entitled to damages for the loss, not for injury to reputation already acquired, but for loss of advertisement or publicity, which, I suppose, would enhance the artiste's reputation in the future.
I do not think it would be possible to draw a distinction between an author and an actor. They are both of them artistes. One is a creative artiste and the other is an artiste who interprets. The value of publicity is no doubt the same to both of them, although I think it may be a matter which might affect my mind as a juryman and in assessing damages in this case I have to assess them as best I can as a jury would. I should think myself that the loss to an actor or actress of publicity, the actor or actress being persons who are actually seen in the flesh by the public and whose worth the public can only estimate by seeing them perform with their own eyes, is more serious in their case than it is in the case an author. But I doubt not that the loss of publicity is serious to an author. All persons who have to make a living by attracting the public to their works, be they artistes in the sense of painters or be they literary men who write books or who perform in other branches of the arts, such as pianists and musicians, must live by getting known to the public. An unknown author, we all know, has a great struggle in the same way as an unknown musician or actor has a great struggle. Mr. Williams in this case is already known in this country, and Mr. Tolnay, I think, is not known as an author in this country. One way in which they can expect remuneration and expect employment is by getting their name before the public. Therefore, I think that as they have been deprived here of screen credit, it must be that they have suffered damage, and it must mean that they have suffered damage which is not nominal, and I am bound to give a separate sum to each of them.
Judgment for each plaintiff for £100 in respect of loss of publicity.
Solicitors: Samuel Tonkin, Booth & Co. (for the plaintiffs); F. M. Guedella & Co. (for the defendants).
Reported by Leslie Carnegie Esq., Barrister-at-law
Click to return to the top of this file. Return to AKME's Law Library index. Return to The Remedy + options. Return to Making Names. Return to The History of AKME
e-mail: akme@btinternet.com