Bit Parts

Actors/Moral Clauses

The U.S. Court of Appeals for the Second Circuit affirmed a ruling in favor of ABC Television over its firing of “All My Children” soap-opera actor Michael Nader after Nader was arrested for selling cocaine. Nader v. ABC Television Inc., 04-5034. Nader's suit had included a claim under the Americans with Disabilities Act (ADA). But the appeals court found in its unpublished opinion: “When ABC initially terminated his contract three weeks after his arrest, Nader was explicitly excluded from the scope of the ADA, as a current substance abuser. See, 42 U.S.C. Sec. 12114(a). In any event, even if Nader were protected by the disability discrimination laws, and were able to make out a prima facie case, ABC fired him because of his breach of his contract's morals clause, and Nader has not made any showing that this legitimate non- discriminatory explanation is pre-textual.” The court added: “Nader provides no support for his claim that the morals clause was unenforceable for being too ambiguous or vague. Morals clauses have long been held valid and enforceable.”

Copyright Infringement/Laches

The U.S. Court of Appeals for the Ninth Circuit has denied petitions for either a panel or en banc rehearing of its ruling that laches barred a copyright infringement suit by the daughter of jazz artist Kid Ory over Country Joe McDonald's 1960s anti-Vietnam-War-song “Fixin' to Die Rag.” Ory v. McDonald, 03-56586.

Copyright Litigation/Effect of French Suit

A Manhattan federal district court decided that it should stay its consideration of a copyright infringement suit by a company claiming rights in two Mexican films by the late director Luis Bunuel. Televisa S.A. de C.V. v. Koch Lorber Films, 05 Civ. 3523. French publication and New-York-case-defendant “Le Monde” had obtained a license from Films Sans Frontieres (FSF) to sell DVDs of the Bunuel film “Los Olvidados” for a subscriber promotion. Bunuel's sons then moved unsuccessfully in a Paris court for an emergency injunction against “Le Monde.” “Le Monde” in turn filed an interpleader action in France for a determination of whether FSF, Televisa or Bunuel's sons owned the film rights. According to the Manhattan federal court: “While this action has been pled as a copyright case, the issue of whether any party infringed plaintiff's copyrights is necessarily subordinate to the essential dispute in this case, which is the ownership of the movie rights. This is the same issue and involves the same interested parties as in the French action, and there is no reason to doubt that the French forum is adequate to the task. The significant parties, evidence, and witnesses are largely located in France and Mexico; New York has no connection to the primary issue in this case, and neither does American law.”

Marketing-Promotion Consultants/Personal Jurisdiction

The U.S. District Court for the Western District of Kentucky ruled that it lacked personal jurisdiction over an entertainment-marketing company in a suit over a failure to reach a satisfactory agreement to serve as a consultant to help a restaurant chain find promotional deals. Papa John's International Inc. v. Entertainment Marketing & Communications International Ltd. (EMCI), 3:04CV-655-H. Papa John's and EMCI entered negotiations for EMCI to find film promotion tie-ins for Papa John's. The district court noted: “Papa John's says that it engaged in 'active and substantial' communications with Defendants from Kentucky. Yet, it provides little actual factual detail about the substance or circumstances of those communications. … On the other hand, Defendants have provided thorough, unrebutted explanations that most of their contacts with Papa John's occurred outside Kentucky. Both the negotiation and performance here occurred largely outside of Kentucky. Defendants never physically entered Kentucky.”

TV Program Licenses/Termination

The New York Appellate Term, First Department, dismissed a breach-of-contract claim by SportsChannel Associates over an agreement for the TV rights to New York Mets baseball games. SportsChannel Assocs. v. Sterling Mets L.P., 2005 NY Slip Op 51303U. Defendant Sterling Mets had notified SportsChannel in May 2004 that the latter would lose its TV rights to the Mets games after the 2005 baseball season. Sterling also paid SportsChannel $54 million under a buyout provision in the licensing agreement between the two parties. The Supreme Court of New York, New York County, had held that SportsChannel could proceed with its claim for breach of contract. But the appellate court concluded: “It defies common sense that Sterling agreed to pay SportsChannel $54 million to curtail its license term and eliminate [SportsChannel's] 'first negotiation /first refusal' rights for a new license, but also agreed to refrain from making binding arrangements with new broadcasters for Mets games until just before the beginning of the next baseball season.”

Actors/Moral Clauses

The U.S. Court of Appeals for the Second Circuit affirmed a ruling in favor of ABC Television over its firing of “All My Children” soap-opera actor Michael Nader after Nader was arrested for selling cocaine. Nader v. ABC Television Inc., 04-5034. Nader's suit had included a claim under the Americans with Disabilities Act (ADA). But the appeals court found in its unpublished opinion: “When ABC initially terminated his contract three weeks after his arrest, Nader was explicitly excluded from the scope of the ADA, as a current substance abuser. See, 42 U.S.C. Sec. 12114(a). In any event, even if Nader were protected by the disability discrimination laws, and were able to make out a prima facie case, ABC fired him because of his breach of his contract's morals clause, and Nader has not made any showing that this legitimate non- discriminatory explanation is pre-textual.” The court added: “Nader provides no support for his claim that the morals clause was unenforceable for being too ambiguous or vague. Morals clauses have long been held valid and enforceable.”

Copyright Infringement/Laches

The U.S. Court of Appeals for the Ninth Circuit has denied petitions for either a panel or en banc rehearing of its ruling that laches barred a copyright infringement suit by the daughter of jazz artist Kid Ory over Country Joe McDonald's 1960s anti-Vietnam-War-song “Fixin' to Die Rag.” Ory v. McDonald, 03-56586.

Copyright Litigation/Effect of French Suit

A Manhattan federal district court decided that it should stay its consideration of a copyright infringement suit by a company claiming rights in two Mexican films by the late director Luis Bunuel. Televisa S.A. de C.V. v. Koch Lorber Films, 05 Civ. 3523. French publication and New-York-case-defendant “Le Monde” had obtained a license from Films Sans Frontieres (FSF) to sell DVDs of the Bunuel film “Los Olvidados” for a subscriber promotion. Bunuel's sons then moved unsuccessfully in a Paris court for an emergency injunction against “Le Monde.” “Le Monde” in turn filed an interpleader action in France for a determination of whether FSF, Televisa or Bunuel's sons owned the film rights. According to the Manhattan federal court: “While this action has been pled as a copyright case, the issue of whether any party infringed plaintiff's copyrights is necessarily subordinate to the essential dispute in this case, which is the ownership of the movie rights. This is the same issue and involves the same interested parties as in the French action, and there is no reason to doubt that the French forum is adequate to the task. The significant parties, evidence, and witnesses are largely located in France and Mexico; New York has no connection to the primary issue in this case, and neither does American law.”

Marketing-Promotion Consultants/Personal Jurisdiction

The U.S. District Court for the Western District of Kentucky ruled that it lacked personal jurisdiction over an entertainment-marketing company in a suit over a failure to reach a satisfactory agreement to serve as a consultant to help a restaurant chain find promotional deals. Papa John's International Inc. v. Entertainment Marketing & Communications International Ltd. (EMCI), 3:04CV-655-H. Papa John's and EMCI entered negotiations for EMCI to find film promotion tie-ins for Papa John's. The district court noted: “Papa John's says that it engaged in 'active and substantial' communications with Defendants from Kentucky. Yet, it provides little actual factual detail about the substance or circumstances of those communications. … On the other hand, Defendants have provided thorough, unrebutted explanations that most of their contacts with Papa John's occurred outside Kentucky. Both the negotiation and performance here occurred largely outside of Kentucky. Defendants never physically entered Kentucky.”

TV Program Licenses/Termination

The New York Appellate Term, First Department, dismissed a breach-of-contract claim by SportsChannel Associates over an agreement for the TV rights to New York Mets baseball games. SportsChannel Assocs. v. Sterling Mets L.P. , 2005 NY Slip Op 51303U. Defendant Sterling Mets had notified SportsChannel in May 2004 that the latter would lose its TV rights to the Mets games after the 2005 baseball season. Sterling also paid SportsChannel $54 million under a buyout provision in the licensing agreement between the two parties. The Supreme Court of New York, New York County, had held that SportsChannel could proceed with its claim for breach of contract. But the appellate court concluded: “It defies common sense that Sterling agreed to pay SportsChannel $54 million to curtail its license term and eliminate [SportsChannel's] 'first negotiation /first refusal' rights for a new license, but also agreed to refrain from making binding arrangements with new broadcasters for Mets games until just before the beginning of the next baseball season.”