Page:Landsberg v. Scrabble Crossword Game Players.pdf/7

 notational system it had taken from Landsberg in 1973, more than two years before Landsberg brought this action. Although we have held that Landsberg has no infringement remedy, we briefly discuss this issue because limitations may also be an issue in Landsberg’s contract cause of action on remand.

The two-year statute of limitations applies to an action on a contract not evidenced by a writing, such as Landsberg has alleged here. Cal.Code Civ.Proc. § 339 (West 1982). However, we cannot say that Landsberg’s action is barred. First, it is not clear that S & R’s limited use of Landsberg’s notational system in a newsletter not distributed to the general public is the sort of use for which the alleged implied-in-fact contract between Landsberg and S & R contemplated payment. See Donahue v. Ziv Television Programs, Inc., 245 Cal.App. at 611, 54 Cal.Rptr. at 141. If it is not, then the contract was not breached until S & R published its handbook, and Landsberg’s suit was timely filed. Second, even if S & R did breach its contract with Landsberg when it used Landsberg’s notational system in its newsletter, Landsberg may still be able to avoid the statute of limitations. He has alleged that S & R fraudulently engaged in bad faith negotiations for the rights to his work. If this fraud prevented him from discovering S & R’s use of his material in its newsletter, the statute of limitations was tolled until he discovered the fraud, or should have discovered it in the exercise of due diligence. Sears, Roebuck and Co. v. Blade, 139 Cal.App.2d 580, 294 P.2d 140 (1956).

E. Attorneys’ Fees.

S & R claims that the court erred in awarding Landsberg costs and attorneys’ fees. Because we have held that there was no infringement, an award of attorneys’ fees cannot be justified on the basis of the copyright statute. However, if on remand Landsberg prevails on his contract cause of action, an award of attorneys’ fees may well be justified by S & R’s vexatious, oppressive, obdurate and bad faith conduct of this litigation. Local No. 149 I.U., U.A., A. & A.I.W. v. American Brake Shoe Co., 298 F.2d 212, 214–215 (4th Cir.1962); see Kelly v. Guinn, 456 F.2d 100 (9th Cir.1972), ''cert. denied'', 413 U.S. 919, 93 S.Ct. 3048, 37 L.Ed.2d 1041 (1973).

The judgment is vacated and the cause is remanded to the district court for further proceedings on the plaintiff’s claims other than copyright infringement.