(e), or a "customer" within the meaning of subsection 2(d) of the Act, 15 U.S.C. § 13 (d) and (2) the tickets are not "commodities" within the meaning of subsections 2(a), 2(d) and 2 (e) of the Act, 15 U.S.C. § 13(a), (d), and (e).
The initial issue, which faces the Court, is whether defendant is a "purchaser" within the meaning of Sections 2(a) and 2(e) of the Robinson-Patman Act, 15 U.S.C. § 13 (a) and (e), or a "customer" within the meaning of Section 2(d) of the Act, 15 U.S.C. § 13(d). Initially, it should be noted that the term "customer" in Section 2(d) and the term "purchaser" in Section 2(a) and (e) are synonymous, American News Co. v. F.T.C., 300 F.2d 104, 109 (2d Cir.), cert. denied, 371 U.S. 824, 9 L. Ed. 2d 64, 83 S. Ct. 44 (1962), and the term "purchaser" has been defined as meaning "* * * simply one who purchases, a buyer, a vendee", Sorrentino v. Glen-Gery Shale Brick Corp., 46 F. Supp. 709, 712 (E.D. Pa. 1942). In the cases dealing with the issue whether a sale has occurred within the meaning of the Act, the courts have generally looked to the indicia of sales law and transfer of title. See e.g. Students Book Co. v. Washington Law Book Co., 98 U.S. App. D.C. 49, 232 F.2d 49 (1955), cert. denied, 350 U.S. 988, 100 L. Ed. 854, 76 S. Ct. 474 (1956) (upholding jury finding of consignment); Loren Specialty Mfg. Co. v. Clark Mfg. Co., supra. But c.f. Simpson v. Union Oil Co., 377 U.S. 13, 12 L. Ed. 2d 98, 84 S. Ct. 1051 (1964).
Defendant argues that the transactions involved constitute a consignment in that defendant is acting as an agent on behalf of principal; defendant obtains no title to the admission tickets; defendant remits to his principals all money collected; and no consideration passes from defendant to his principals upon the transfer of the right to create and sell the admission tickets. Defendant further argues that since it is a consignment agent on behalf of its principals, it is not a purchaser or customer within the purview of Section 2 of the Act, and Count III of the complaint, therefore, should be dismissed.
We must reject defendant's contentions at this time for the following reason: The Court is by no means bound by the characterization of the transaction as presented by defendant, for it is substance rather than form which governs the issue whether defendant is a purchaser within the meaning of the Act. Reines Distributors, Inc. v. Admiral Corp., 256 F. Supp. 581 (S.D.N.Y. 1966). Since plaintiffs have not had adequate time to complete discovery to meet defendant's contentions on this issue, we conclude that defendant's motion is premature at this time.
The second issue before the Court is whether the right to create and sell admission tickets for entertainment attractions is a "commodity" within the meaning of subsections 2(a), 2(d) and 2(e) of the Act. Plaintiff, however, argues that it is not the right to sell the tickets which is here in question, but the sale of the tickets themselves. In making our determination of this question, we will, for the purpose of this motion, accept plaintiff's characterization of the issue. The question, therefore, is whether an admission ticket for entertainment transactions is a "commodity" within the meaning of Subsections 2(a), 2(d) and 2(e) of the Act.
Admission tickets have been uniformly defined as revocable licenses issued as convenient evidence of the right of the holder to be admitted to a particular place of entertainment at a specific time and date for the privilege of being entertained. See Marrone v. Washington Jockey Club, 227 U.S. 633, 637, 57 L. Ed. 679, 33 S. Ct. 401 (1913); Jordan v. Concho Theatres, Inc., 160 S.W. 2d 275, 276 (Tex. Civ. App. 1941); Collister v. Hayman, 183 N.Y. 250, 76 N.E. 20, 20-21 (1905). In Taylor v. Cohn, 47 Ore. 538, 84 P. 388 (1906), the Court therein held:
"A theater ticket or a ticket to any other place of amusement is a mere license, revocable at the pleasure of the theatrical manager. It does, however, constitute a contract to the extent that the proprietor is bound to perform or respond in damages for breach of his contract, but he is not liable in an action for trespass or tort." 84 P. at 388.