Cameo Clips

Copyright/Extraterritorial Application

A disputed issue of fact over whether defendant BMG Spain committed a predicate act of infringement in its use of songs from the film “Marjorie Morningstar” that would allow a U.S. court to extraterritorially apply federal copyright law precluded summary judgment in favor of the company, a Manhattan federal court has decided. Feiner and Co. Inc. v. BMG Music Spain, S.A., 01-0937. The plaintiff filed suit over a CD of the soundtrack from “Marjorie Morningstar.” The district court emphasized that “While defendant BMG Spain produced the allegedly infringing discs [containing the musical compositions] in Spain and sold the entirety to a Spanish corporation for European distribution, … it is alleged that BMG Spain was able to produce discs only by first copying a master copy of the recordings from the New York offices of co-defendant Bertelsmann Music Group Inc., which was then utilized in the Spanish production. …In addition, disputed issues of fact remain as to what portion of the Spanish production, if any, found their way to the U.S. market, and, more generally, as to the extent if any, of plaintiff's damages.” But the court ruled that RCA (owned by Bertelsmann Music Group), rather than the plaintiff's predecessor-in-interest Warner Bros., clearly owned the rights in all but one of the sound recordings from the film because Warner Brothers producer Ray Heindorf had signed a work-for-hire agreement with RCA when he produced the film's sound recordings. (The sound recordings, made prior to 1972 and thus not protected by federal copyright law, were covered by California common law, which allowed a party who requested and paid for production of a copyright to contractually obtain the copyright for works produced at the party's behest and expense.)

Copyright/Substantial Similarity

The defendants' TV and video production “Princess of Thieves” wasn't so substantially similar to the plaintiff's musical “sHerwood” as to constitute copyright infringement, the U.S. District Court for the Eastern District of Pennsylvania has ruled. Daley v. Granada US Productions, 02-2629. The district court found that plaintiff Brian Daley failed to establish a triable issue of fact under the extrinsic test, which focuses on whether there are objective similarities in expressive elements, such as plot, themes, dialogue, mood, settings, pace and sequence of events. According to the court, “There is no doubt that the two works do share many of the same characters … and certain common action sequences. However, this sharing of common features is only natural since both works are derived from the Robin Hood legend which has long ago been part of the public domain and which has been the subject of numerous movies, television shows and comic books. … [A] simple viewing of the two works reveals that they are entirely different with respect to plot, themes, sequence of events, mood and setting.”

Entertainment Companies/Indemnification

An individual who was founder, president, director and shareholder of a music company wasn't entitled to be indemnified by the company for a suit the company filed against the individual, the Court of Appeals of Minnesota has decided. Oarfin Records v. Delange, C0-02-931. Oarfin Records ' which included a record label, recording studio, and promotions and distribution business ' sued founder Jon Delange for, among other things, breach of contract, breach of fiduciary duty and misappropriation of trade secrets. The complaint alleged in part that after Delange resigned, he took client lists and demo tapes and solicited Oarfin's clients. After the district court dismissed most of the claims, Oarfin requested indemnification for the litigation under Oarfin's by-laws and under Minn. Stat. Sec. 302A.521 (2002). But Oarfin and then the district court denied Delange's request. Affirming, the court of appeals noted that the lower court had found that Delange failed to act in good faith with regards to the demo tapes, including because Delange had the primary responsibility for soliciting, evaluating and safeguarding the demo tapes and that he had provided no plausible or consistent explanation for the absence of tapes after he left the company. The appeals court emphasized “the evidence that Oarfin received one or two demo tapes per day, together with the evidence that the tapes that remained after Delange resigned were received more than a year before he resigned, support a conclusion that recently received tapes were missing.” The appeals court also noted that the evidence reasonably supported the lower court's finding that “Delange failed to exercise the ordinary care reasonably expected of a corporate officer” in managing the recording studio because his “explanations for the [significant] reduction in studio revenue [were] inconsistent and inadequate.”

Film Production/Implied-In-Fact Contracts

The routing of a call by Steven Spielberg's secretary at Amblin Entertainment to an executive on loan from Universal for the film “Jurassic Park” didn't create a triable issue of fact as to whether the executive thus was an agent of Amblin for purposes of establishing an implied-in-fact contract for the plaintiff to submit his materials for a proposed movie, the Court of Appeal of California, Second Appellate District, has held in an unpublished opinion. Remington v. Spielberg, B154069. Plaintiff Bruce Remington claimed that the defendants had improperly used materials he had supplied when they developed the movie “Twister.” The Los Angeles Superior Court granted summary judgment for the defendants. Affirming, the court of appeal noted that though Remington talked to the on-loan executive, Michael Lantieri, “Lantieri stated in deposition testimony that he had never been an employee of Amblin, had never been given authority by Spielberg to enter into a contract, and did not work on the film 'Twister.' Amblin did not provide Lantieri with an office at Amblin or with a nameplate. Lantieri did not have a telephone extension at Amblin, Amblin business cards, or Amblin letterhead. Remington admitted in his declaration dated February 22, 2001, that he believed that Lantieri had no authority to enter into a contract for Amblin.” The court of appeal also affirmed the trial court's sustaining of defense demurrers on other Remington claims, including breach of express contract, misappropriation of trade secrets and breach of confidence.

Character Rights/Loan Agreements

The trial court improperly found that the owner of the rights to 'Rin Tin Tin' breached a loan settlement agreement with an individual he partnered with to colorize the TV episodes and develop a feature film based on the property, the Court of Appeal of California, Second Appellate District, held in an unpublished opinion. Kleven v. Leonard, B153534. Max J. Kleven had agreed to loan money to 'Rin Tin Tin' rights owner Herbert B. Leonard to be paid out of proceeds earned from exploiting the property. Kleven later filed suit to collect, but the parties entered into a settlement agreement placed on the court record. The trial court subsequently granted Kleven's motion to enforce the settlement agreement based on Leonard's alleged breach by not giving Kleven a security interest in 'Rin Tin Tin.' On appeal, Leonard argued that the security documents Kleven presented to him didn't conform to the settlement agreement. Leonard also denied previously granting a security interest in 'Rin Tin Tin' to a third party. Reversing, the court of appeal noted, 'While it is true that Leonard and his companies entered into an agreement with a third party that granted a security interest in some of Leonard's various properties, the evidence demonstrates that he never encumbered any of his rights to the Rin Tin Tin character.'

Copyright/Expert Witness Fees

A music lawyer required to pay accrued fees owed an expert witness before the witness would testify at trial wasn't forced to do so under duress, the Court of Appeals of Tennessee, at Nashville, has decided. Harrington v. Smith, M2002-00840-COA-R3-CV. Expert witness E. Michael Harrington had been retained through John Ascione, an associate of Nashville music lawyer Grant Smith, to work on a lawsuit filed by Smith's office alleging country artist Joe Diffie's song “Prop Me Up Beside the Jukebox If I Die” infringed on the plaintiff's song “Lay Me Out By the Jukebox When I Die.” Ascione left Smith's office before the case ended. When Smith failed to pay accrued expert-witness fees, Harrington required Smith to execute a promissory note before he would testify at trial. After the district court dismissed the case, Smith, who had taken the copyright case on a contingency-fee basis, declined to pay Harrington, who then sued Smith. Smith argued in part that he had signed the promissory note under duress. The Chancery Court for Davidson County ruled, however, in favor of Harrington in the fee dispute. Affirming, the court of appeals noted, “It is no more duress for Harrington to force Smith to pay the unpaid invoices as a condition to giving his testimony than it would be for Smith to be able to compel Harrington to give his testimony before making payment to him of what was already due.”

Copyright/Extraterritorial Application

A disputed issue of fact over whether defendant BMG Spain committed a predicate act of infringement in its use of songs from the film “Marjorie Morningstar” that would allow a U.S. court to extraterritorially apply federal copyright law precluded summary judgment in favor of the company, a Manhattan federal court has decided. Feiner and Co. Inc. v. BMG Music Spain, S.A., 01-0937. The plaintiff filed suit over a CD of the soundtrack from “Marjorie Morningstar.” The district court emphasized that “While defendant BMG Spain produced the allegedly infringing discs [containing the musical compositions] in Spain and sold the entirety to a Spanish corporation for European distribution, … it is alleged that BMG Spain was able to produce discs only by first copying a master copy of the recordings from the New York offices of co-defendant Bertelsmann Music Group Inc., which was then utilized in the Spanish production. …In addition, disputed issues of fact remain as to what portion of the Spanish production, if any, found their way to the U.S. market, and, more generally, as to the extent if any, of plaintiff's damages.” But the court ruled that RCA (owned by Bertelsmann Music Group), rather than the plaintiff's predecessor-in-interest Warner Bros., clearly owned the rights in all but one of the sound recordings from the film because Warner Brothers producer Ray Heindorf had signed a work-for-hire agreement with RCA when he produced the film's sound recordings. (The sound recordings, made prior to 1972 and thus not protected by federal copyright law, were covered by California common law, which allowed a party who requested and paid for production of a copyright to contractually obtain the copyright for works produced at the party's behest and expense.)

Copyright/Substantial Similarity

The defendants' TV and video production “Princess of Thieves” wasn't so substantially similar to the plaintiff's musical “sHerwood” as to constitute copyright infringement, the U.S. District Court for the Eastern District of Pennsylvania has ruled. Daley v. Granada US Productions, 02-2629. The district court found that plaintiff Brian Daley failed to establish a triable issue of fact under the extrinsic test, which focuses on whether there are objective similarities in expressive elements, such as plot, themes, dialogue, mood, settings, pace and sequence of events. According to the court, “There is no doubt that the two works do share many of the same characters … and certain common action sequences. However, this sharing of common features is only natural since both works are derived from the Robin Hood legend which has long ago been part of the public domain and which has been the subject of numerous movies, television shows and comic books. … [A] simple viewing of the two works reveals that they are entirely different with respect to plot, themes, sequence of events, mood and setting.”

Entertainment Companies/Indemnification

An individual who was founder, president, director and shareholder of a music company wasn't entitled to be indemnified by the company for a suit the company filed against the individual, the Court of Appeals of Minnesota has decided. Oarfin Records v. Delange, C0-02-931. Oarfin Records ' which included a record label, recording studio, and promotions and distribution business ' sued founder Jon Delange for, among other things, breach of contract, breach of fiduciary duty and misappropriation of trade secrets. The complaint alleged in part that after Delange resigned, he took client lists and demo tapes and solicited Oarfin's clients. After the district court dismissed most of the claims, Oarfin requested indemnification for the litigation under Oarfin's by-laws and under Minn. Stat. Sec. 302A.521 (2002). But Oarfin and then the district court denied Delange's request. Affirming, the court of appeals noted that the lower court had found that Delange failed to act in good faith with regards to the demo tapes, including because Delange had the primary responsibility for soliciting, evaluating and safeguarding the demo tapes and that he had provided no plausible or consistent explanation for the absence of tapes after he left the company. The appeals court emphasized “the evidence that Oarfin received one or two demo tapes per day, together with the evidence that the tapes that remained after Delange resigned were received more than a year before he resigned, support a conclusion that recently received tapes were missing.” The appeals court also noted that the evidence reasonably supported the lower court's finding that “Delange failed to exercise the ordinary care reasonably expected of a corporate officer” in managing the recording studio because his “explanations for the [significant] reduction in studio revenue [were] inconsistent and inadequate.”

Film Production/Implied-In-Fact Contracts

The routing of a call by Steven Spielberg's secretary at Amblin Entertainment to an executive on loan from Universal for the film “Jurassic Park” didn't create a triable issue of fact as to whether the executive thus was an agent of Amblin for purposes of establishing an implied-in-fact contract for the plaintiff to submit his materials for a proposed movie, the Court of Appeal of California, Second Appellate District, has held in an unpublished opinion. Remington v. Spielberg, B154069. Plaintiff Bruce Remington claimed that the defendants had improperly used materials he had supplied when they developed the movie “Twister.” The Los Angeles Superior Court granted summary judgment for the defendants. Affirming, the court of appeal noted that though Remington talked to the on-loan executive, Michael Lantieri, “Lantieri stated in deposition testimony that he had never been an employee of Amblin, had never been given authority by Spielberg to enter into a contract, and did not work on the film 'Twister.' Amblin did not provide Lantieri with an office at Amblin or with a nameplate. Lantieri did not have a telephone extension at Amblin, Amblin business cards, or Amblin letterhead. Remington admitted in his declaration dated February 22, 2001, that he believed that Lantieri had no authority to enter into a contract for Amblin.” The court of appeal also affirmed the trial court's sustaining of defense demurrers on other Remington claims, including breach of express contract, misappropriation of trade secrets and breach of confidence.

New York