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Alice M. Donahue V. Warner Brothers Pictures Distributing Corporation Et Al : Brief of Respondents Utah Supreme Court

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Alice M. Donahue V. Warner Brothers Pictures Distributing Corporation Et Al : Brief of Respondents Utah Supreme Court Brigham Young University Law School BYU Law Digital Commons Utah Supreme Court Briefs (pre-1965) 1953 Alice M. Donahue v. Warner Brothers Pictures Distributing Corporation et al : Brief of Respondents Utah Supreme Court Follow this and additional works at: https://digitalcommons.law.byu.edu/uofu_sc1 Part of the Law Commons Original Brief submitted to the Utah Supreme Court; funding for digitization provided by the Institute of Museum and Library Services through the Library Services and Technology Act, administered by the Utah State Library, and sponsored by the S.J. Quinney Law Library; machine- generated OCR, may contain errors. Van Cott, Bagley, Cornwall & McCarthy; Dennis McCarthy; C. Vernon Langlois; R. W. Perkins; Morris Ebenstein; Of Counsel; Recommended Citation Brief of Respondent, Donahue v. Warner Brothers, No. 7965 (Utah Supreme Court, 1953). https://digitalcommons.law.byu.edu/uofu_sc1/1924 This Brief of Respondent is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs (pre-1965) by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. In the Supreme Court of the State of Utah ALICE M. DONAHUE, BARBARA D 0 N A HUE, and CONSTANCE MARILYN DONAHUE, Plaintiffs and Appellants, vs. Case No. WARNER BROTHERS PICTURES 7965 DISTRIBUTING CORPORATION, INTERMOUNTAIN THEATRES, INC., ARCH E. OVERMAN and C. E. OVERMAN, Defendants and Respondents. BRIEF OF RESPONDENTS VAN COTT, BAGLEY, CORNWALL, &McCARTHY, DENNIS McCARTHY, Attorneys for Warner Brothers Pictures Distributing Corporation and Inter­ mountain Theatres, Inc. C. VERNON LANGLOIS, Attorney for Arch E. Overman and C. E. Overman. R. W. PERKINS, MORRIS EBENSTEIN, Of Counsel. ARROW PRESS, SALT LAKE Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors. TABLE OF CONTENTS Page STATEMENT OF THE CASE 1 PRELIMINARY OBSERVATIONS ............ ~. 35 STATEMENT OF POINTS RELIED UPON . 38 ARGUMENT ............................. 0 • 0 0 • • 39 POINT I. THE UTAH STATUTE MUST BE CONSTRUED TO A VOID AN UNCONSTITU­ TIONAL RESULT . 39 POINT II. THE STATUTORY PROHIBITION AGAINST USES "FOR ADVERTISING PUR­ POSES OR FOR PURPOSES OF TRADE" DOES NOT APPLY TO THE EXHIBITION OF MOTION PICTURES . 62 POINT III. THE ERRATIC AND DECADE-NT FORMULA DEVISED BY THE NEW YORK COURTS IS INAPPLICABLE TO THE PRES- ENT CASE 0 0 0 ••••• 0 0 0 0 0 ••••• 0. 0 0 0. 0 ••••• 0 0 ·69 POINT IV. THE UTAH STATUTE IS A CODIFI­ CATION OF A LIMITED RIGHT OF PRIV- ACY - PERSONAL IN NATURE . 77 POINT V. THE UTAH c·ONFLICT OF LAWS R U L E REQUIRES PLAINTIFFS' SUB­ STANTIVE RIGHTS TO BE DETERMINED BY. THE LAW OF CALIFORNIA ........ 0 0 • • 85 CONCLUSION ....... 0 0 ••• 0 ••• 0 •• 0 • 0 • 0 0 0 0 0 0 0 • 0 • • 96 APPENDIX A 0 0. 0 0 0 0 0 0 •• 0 0 0 0 0 • 0 • 0 0 • 0 0 0 0 0 0 0 0 0 0 0 0 i APPENDIX B .... 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 • 0 0 0 0 • 0 xv Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors. TABLE OF CONTENTS-Continued Page AUTHORITIES CITED Altvater v. Freeman, 319 U. S. 359, 62 S. Ct. 1115 . 38 American Federation of Labor v. Watson, 327 U. S. 582, 66 S. Ct. 761 . 36 Banks v. King Features Syndicate, (D. C., S. D., N. Y.), 30 F. Supp. 352 . 89 Beard v. Board of Education, 81 Utah 51, 16 P. (2d) 900 .................................. 65, 66 Binns v. Vitagraph, 210 N.Y. 51, 103 N. E. 1108 .. 70, 73,77 Blumenthal v. Picture Classics, 235 App. Div. 570, 257 N. Y. S. 800 ............. ~ . 71 Burstyn v. Wilson, 303 N. Y. 242, 101 N. E. (2d) 665, reversed, 343 U. S. 495, 72 S. Ct. 777 ............ 37, 40, 42, 43, 44, 45, 46, 47, 61, 62, 65, 77 Buhler v. Maddison, 109 Utah 267, 176 P. (2d) 118, 168 A. L. R. 177 . 87 Cantwell v. Connecticut, 310 U. S. 206, 307-8, 60 S. Ct. 900, 905 . 50 Carlo v. Okonite-Callender Cable Co., 3 N. J. 253, 69. A. (2d) 734, 740 . 96 Cason v. Baskin, 155 Fla. 198, 20 So. (2d) 243 . 85 Chaplinsky v. New Hampshire, 315 U. S. 568, 572, 62 S. Ct. 766, 769 . 48 Cohen v. Marx, 94 Cal. App. (2d) 704, 211 P. (2d) 320 . 51 Corliss v. Walker, 64 Fed. 280, 282 . 51 Colyer v. Richard K. Fox Publishing Co., 162 App. Div. 297, 146 N. Y. S. 999, 1001 . 60 Dennis v. United States, 341 U. S. 494, 71 S. Ct. 857 . 49 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors. TABLE OF CONTENTS-Continued Page Donahue v. Warner Bros. Pictures, 194 F. (2d) 6, 12, 15 ...................................... 3, 68 Edison v. Edison Polyform Mfg. Co., 73 N. J. Eq. 136, 67 Atl. 392 ....................... ; . 85 Feiner v. New York, 340 U. S. 315, 320; 71 S. Ct. 303, 306 . .. : . 49 Flake v. Greensboro News Co., 212 N. C. 780, 195 S. E. 55 . ~ . 85 Gelling v. Texas, 343 U. S. 960, 72 S. Ct. 1002 .... 45, 46 Gray v. Defa, 103 Utah 339, 135 P. (2d) 251, 155 A. L. R. 495, anno. at 507-9 . 38 Hannegan v. Esquire, 327 U. S. 146, 157-8, 66 S. Ct. 456, 462 ................................... 48, 61 Hilton v. Guyot, 159 U. S. 113, 163, 16 S. Ct. 139. 95 Hinish v. Meier & Frank Co., Inc., 166 Or. 482, 113 P. _(2d) 438 ,._ . 85 Humiston v. Universal Film Mfg. Co., 189 App. Div. 467, 178 N. Y. S. 752 . 71 Hunter v. Derby Foods, Inc., 2 Cir., 110 F. (2d) 970. 92 Johnson v. Union Pacific Coal Co., 28 Utah 46, 76 Pac. 1089 ............... ·. 87 Koussevitzky v. Allen, Towne and Heath, Inc., 188 Mise. 479, 68 N. Y. S. (2d) 779, 781, aff. 272 App. Div. 759, 69 N. Y. S. (2d) 432 ...... 71, 73, 79 Krieger v. Popular Publications, 167 Misc. 5, 3 N. Y. S. (2d) 480 . 71 LeForest v. Tolman, 117 Mass. 109, 19 Am. Rep. 400. 92 Malony v. Boy Comics Publishers, Inc., 277 Div. 166, 98 N. Y. S. (2d) 119 . .. 73 Melvin v. Reid, 112 Cal. App. 285, 297 Pac. 91 . 80 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors. TABLE OF CONTENTS-Continued Page Metter v. Los Angeles Examiner, 35 Cal. App. (2d) 304, 95 ·P. (2d) 491, 494 .................. 80, 89 Munden v. Harris, 153 Mo. App. 652, 134 S. W. 1076. 85 Mutual Film Corp. v. Industrial Comm. of Ohio, 236 U. S. 230, 35 S. Ct. 387 ....... .·: ........... 40, 42 Near v. State of Minnesota, 283 U. S. 697, 51 S. Ct. 625 . 49 ~iblock v. Salt Lake City, 100 Utah 573, 582, 111 P. (2d) ·800, 804 . 96 Niemotko v. Maryland, 340 U. S. 268, 271-2, 71 S. Ct. 325, 327 . .- . 50 \ Pavesich v. New England Mutual Life Ins. Co., 122 Ga. 190, 200, 50 S. E. 68, 72 ................ 51, 85 Paramor Theatre Co. v. Trade Commission, 95 Utah 354, 81 P. (2d) 639 ......................... 65, 66 ·Railroad Commission of Texas v. Pullman Co., 312 U. S. 496, 61 S. Ct. 643 . 36 Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P. (2d) 133, 138 . 80 Rhodes v. Sperry & Hutchinson Co., 193 N. Y. 223, 85 N. E. 1097, aff. 200 U. S. 502 ......... 58, 59, 63 Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442 .................... 59, 63, 64, 65 Sandberg v. McDonald, 248 U. S. 185, 195, 39 S. Ct. 84, 86 . .. 95 Sartin v. Oregon Short Line R. Co., 27 Utah 447, 76 Pac. 219 . 87 Schuyler v. Curtis, 147 N. Y. 434, 42 N. E. 22 .... 80, 81,83 Spector Motor Service v. McLaughlin, 323 U. S. 101, 65 S. Ct. 152 . 36 State v. Devot, 66 Utah 319, 242 Pac. 395 . 88 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors. TABLE OF CONTENTS-Continued Page Stoltz v. Burlington Transportation Co., (C. C. A. 10), 178 F. (2d) 514, 15 A. L. R. (2d) 759 . 88 United States v. Paramount Pictures, Inc., 334 U. S. 131, 166, 68 S. Ct. 915, 933 . 40 Valentine v. Christensen, 316 U. S. 52, 62 S. Ct. 920 . 49 Wells v. Simonds Abrasive Co., 344 U. S. 815, 73 . S. Ct. 856 . .. : . 89 Winters v. People of State of New York, 333 U. S. 507, 510, 68 S. Ct. 665, 667 ........ : ... 46, 47, 61, 77 Wyatt v. Hall's Portrait Studio, 71 Misc. 199, 128 N. Y. S. 247 ............................... 80, 82 TEXTS Cooley's Constitutional Limitations, 8th Ed. Vol. 1, pp. 154, 248 . 95 A Guide to the Best Historical Novels and. Tales by Jonathan Nield (Elkin Matthews & Marrot, London, 1929) .
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