## Facts

- Edgar Rice Burroughs, Inc. owned rights associated with the fictional character Tarzan and related literary properties.
- In 1931, the parties executed a contract granting Metro-Goldwyn-Mayer, Inc. (MGM) rights to create an original Tarzan story and produce a first photoplay, plus the right to reissue and remake the first photoplay and to produce additional photoplays based on the same story.
- The contract required that any remake or additional photoplay be “based substantially upon the same story” used for the first photoplay and contain no “material changes” or “material departures” from that story.
- MGM produced the first photoplay, *Tarzan, the Ape Man* (1932).
- In 1959, MGM produced a second photoplay under the same title as a remake, making changes characterized as updates while maintaining that the essential story remained the same.
- Edgar Rice Burroughs, Inc. sued for breach of contract, alleging the 1959 remake contained material changes and departures from the 1932 story beyond what paragraph 14 permitted.
- The plaintiff amended its pleadings multiple times; the scripts were attached as exhibits and the films were treated as incorporated by reference. The trial judge viewed both films.
- The trial court sustained MGM’s demurrer to the second amended complaint without leave to amend and entered a judgment of dismissal.

## Issues

1. Whether the 1959 photoplay breached the contract’s remake limitation requiring substantial reliance on the same story and prohibiting material changes or departures from the first photoplay’s story.
2. Whether the sufficiency of the breach allegations could be resolved on demurrer as a matter of law where the relevant scripts (and the films as incorporated) were before the court.

## Decision

- The Court of Appeal affirmed the judgment of dismissal.
- It held that, as a matter of law, the 1959 photoplay did not materially change or materially depart from the story of the 1932 photoplay within the meaning of the contract.
- Because the underlying works were before the court, their legal effect and the contract-compliance question could be decided at the pleading stage; the second amended complaint therefore failed to state a cause of action.

## Legal Principles

- Contract language granting a right to “remake” a motion picture permits changes commonly associated with remakes (including updates), so long as the essential story remains substantially the same and the changes do not alter the basic plot or storyline in a material way.
- “Based substantially upon the same story” does not require literal identity; it requires substantial similarity in the core story, not sameness of every detail.
- On demurrer, when the written instruments forming the basis of the claim (and incorporated works) are before the court, the court may determine their legal effect and decide, as a matter of law, whether the pleaded facts state a claim.

## Conclusion

The court upheld dismissal on demurrer, concluding that the alleged differences between MGM’s 1932 Tarzan film and its 1959 remake were not material under the parties’ remake clause and thus could not support a breach-of-contract claim.


Edgar Rice Burroughs, Inc. v. Metro-Goldwyn-Mayer, Inc., 205 Cal. App. 2d 441 (Cal. Ct. App. 1962)