On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Matthews, P.J.A.D.
This is an appeal from an order of the Chancery Division, Middlesex County, dismissing the plaintiff's common law copyright infringement action.
On March 13, 1980 plaintiff, an inmate at Rahway State Prison, filed a three-count amended complaint against Golden West Television Productions, Columbia Broadcasting System (CBS), Arnold Shapiro and Frank Bindhammer. The first count alleged that Golden West and Arnold Shapiro, Director of Program Development for Golden West, had infringed plaintiff's common law copyright in the Rahway Prison "Juvenile Awareness Program" by making a television documentary entitled "Scared Straight." In the second count plaintiff alleged that defendant Frank Bindhammer, an employee of Golden West, had committed a fraud upon the public by representing himself as the founder of the "Juvenile Awareness Program." The third count alleged that defendant CBS had infringed the plaintiff's common law copyright as well as his right of privacy by making a television movie based on the "scared straight" theme. The complaint sought compensatory and punitive damages and injunctive relief.
A general denial was filed by all defendants, except Bindhammer.*fn1 Defendants moved for summary judgment, which was granted. In a letter opinion the trial judge found that plaintiff did not have a common law copyright in the "Juvenile Awareness Program." He held that "the fluid, free-flowing educational 'scared straight' program, where no script existed and audience reaction and inmate participation changed with each presentation,
was not a concrete expression of an idea of plaintiff's that rose to the level of a tangible product deserving of a common law copyright." With regard to plaintiff's privacy claim, he found that except for "an insufficient bare assertion to the contrary," there was no question that plaintiff had not been "mentioned, referred to or depicted" in either film.
Plaintiff is an inmate at Rahway State Prison. According to assertions accepted as true for purposes of the summary judgment motion, sometime in January 1976 plaintiff originated a project at Rahway known as the "Juvenile Awareness Program." The essence of the program consisted of a confrontational session which was conducted by inmates serving life sentences and attended by juveniles who had begun experiencing difficulties with the law. During the course of each session the inmates exposed the youths to the realities of prison life by depicting the harshness and brutality of their incarceration in a raucous and uncensored manner. Each session differed from the other, depending on the reactions of the youths in attendance. It was the basic hope of the program that the juveniles would be "scared straight."
Plaintiff asserts that he is the sole originator of the format of the program. Moreover, though the actual sessions themselves are unscripted, he explains that he "instructed the inmates as to the contents of their talks with the juveniles as well as the method of conveying these thoughts to the juveniles." Rehearsals were also held "to insure that the correct message would be delivered to the children."
In early 1978 defendant Shapiro, who had read about the "Juvenile Awareness Program" in a Reader's Digest article, contacted officials at the prison about the possibility of filming a session. Though he subsequently spoke with inmates who were participants in the programs and obtained their consent to and cooperation in the making of the documentary, Shapiro neither met plaintiff at this time nor received his permission for the filming. On May 1, 1978 Shapiro filmed 17 youths before,
during and after a three-hour visit to Rahway which predominantly consisted of a confrontational session with the life-term inmates. The film was edited down to an hour, a narration was added and the completed documentary was first broadcast on television in March 1979.*fn2 The program has since been rebroadcast on numerous occasions.
In December 1978 CBS entered into an agreement with Golden West to produce a television film inspired by the documentary. The television film "Scared Straight-Another Story," a fictional dramatization, was produced by Shapiro and broadcast in November 1980.
Plaintiff maintains that he has a common law copyright in the Juvenile Awareness Program. Common law copyright protection is afforded under New Jersey law to "literary property" which is the result of "mental labor" and which has been embodied in some "material form." More specifically:
The established rule defining the rights of the owner of such [literary] property may be stated as follows: every new and innocent product of mental labor, which has been embodied in writing, or some other material form, while it remains unpublished , is the exclusive property of its author, entitled to the same protection which the law throws around the possession and enjoyment of other kinds of property. Whether the product of such labor consists in literary, dramatic or musical compositions, or designs for works of ornament or utility, planned by the mind of an artist, they are equally inviolable while they remain unpublished, and their owner may exercise the same ...