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ETTORE v. PHILCO TV BROADCASTING CORP.

November 23, 1954

Albert ETTORE, Plaintiff,
v.
PHILCO TELEVISION BROADCASTING CORPORATION and Chesebrough Manufacturing Company, Consolidated, Defendants



The opinion of the court was delivered by: WATSON

An agreed statement of facts, which facts the plaintiff would adduce in his case in chief, with exhibits attached thereto, was filed by the parties.

 The following was stipulated by the parties:

 
'1. Plaintiff, Albert Ettore, is a citizen of the Commonwealth of Pennsylvania residing in Philadelphia.
 
'2. Defendant, Philco Television Broadcasting Corporation, is a Delaware Corporation, and at the times in question, to wit, December 30, 1949, and December 8, 1950, and at the time of the institution of this suit, was doing business in Philadelphia, Pennsylvania, at the Architects Building, 17th and Sansom Streets, Philadelphia, where it owned and operated television station WPTZ, an independent station affiliated with the National Broadcasting Company, Inc.'s television network.
 
'3. Defendant, Chesebrough Manufacturing Company, Consolidated, is a New York Corporation authorized to do business in Pennsylvania, with offices at 1421 Chestnut Street, Philadelphia, Pennsylvania.
 
'4. Paragraph 4 of the complaint alleges that the amount in controversy exclusive of interest and costs exceeds $ 3000, which allegation defendants deny.
 
'5. Defendant, Chesebrough Manufacturing Company, Consolidated, is engaged in the manufacture and sale of a hair preparation and other petroleum base products, and for purposes of advertising its products causes to be secured and used all types of advertising media including television programs. This defendant sponsored and secured the production of a certain television program which was entitled 'Greatest Fights of the Century'.
 
'6. This television program utilized motion pictures of outstanding boxing contests of the past thirty years, which were telecast by the National Broadcasting Company, Inc.'s network. Station WPTZ was an independent station affiliated with said network and the program of the defendant Philco could be viewed in Pennsylvania, New Jersey, Delaware and possibly in other states, under unusual atmospheric conditions.
 
'Insofar as the defendant, Chesebrough, was concerned, the program was also telecast in New York and elsewhere.
 
'7. On September 22, 1936, the plaintiff, Al Ettore, fought Joe Louis at Municipal Stadium in Philadelphia. At the time of the fight motion pictures of the said fight were taken with the knowledge and consent of the plaintiff, Ettore. The promoters of the fight were Herman Taylor of Philadelphia, on behalf of Al Ettore, plaintiff in this case, and Michael S. Jacobs, who controlled Joe Louis.
 
'8. Al Ettore, the plaintiff, was to receive in addition to other provided compensation a twenty per cent percentage of all proceeds derived from the sale of motion picture rights in connection with said boxing contest.
 
'10. The said motion picture film was telecast as set forth above in the manner more fully described hereinafter on December 30, 1949, and December 8, 1950.
 
'11. The original fight lasted five rounds, and in the 5th round the plaintiff, Al Ettore, was knocked out by Joe Louis. When the film was telecast the third round was deleted, as were also deleted the slow-motion pictures of the knockdown of Al Ettore, plaintiff, in the first round, and also the slow-motion picture of the knockdown of Al Ettore in the 4th round.
 
'12. The program 'Greatest Fights of the Century' is a program of fourteen minutes twenty-five seconds duration, of which three minutes is allocated to commercials or advertising. In order to bring the program within the time schedule it is ...

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