United States v. Albert C. Drebin, Budget Films, Inc., Lawrence S. Fine and Bruce M. Venezia

ORDER

Before CHAMBERS and KENNEDY, Circuit Judges, and JAMESON, District Judge.

In a petition for rehearing appellants contend, inter alia, that agreements between Columbia Pictures and American Broadcasting Company for the right to televise “The Way We Were” (Count Six), “Forty Carats” (Count Eight), and “The Take” (Count Nine) are identical in their provisions to the agreement between the same parties for “Funny Girl”, (Count Seven) in United States v. Wise, 550 F.2d 1180 (9 Cir. 1977). It is true, as appellants contend, that each of these agreements contains as part of paragraph 9(a) the language: “At ABC’s election and cost a file-screening copy shall be retained notwithstanding subparagraph 9(c).” Here, as in Wise , there was no evidence as to whether ABC exercised its option, or, if it did, whether it resold that print. We held in Wise that in the absence of such proof the Government had failed in its burden of proving absence of a first sale.

This question was not raised in the district court or in the initial briefs filed by appellants in this court. We have had some difficulty in locating the agreements, but find they were introduced in evidence as exhibits. In view of…