Cameo Clips

Copyright Infringement/Res Judicata

The U.S. District Court for the Southern District of New York decided that res judicata barred a copyright-infringement suit by relatives of the late Cab Calloway over his grandson's sale of audio and video recordings of the famous jazz entertainer. Creative Arts by Calloway LLC v. Brooks, 05-CV-8638 RO. Calloway's grandson Christopher Brooks founded and performs with The Cab Calloway Orchestra. Creative Arts by Calloway had previously sued Brooks in 2001 for service-mark infringement and dilution, unfair competition and unfair-business practices. Both the district court and U.S. Court of Appeals for the Second Circuit sided with Brooks.

In the current case, the district court noted that the central issue was 'whether the claims asserted here 'were, or could have been, raised in the prior action' ' During discovery in the Prior Action, plaintiff's counsel received a letter dated March 26, 2001 explicitly referencing a CD and a videotape of defendant's music. Plaintiff concedes receiving this letter. I find that this letter was enough to put plaintiff on notice that defendant was making audio and video recordings of 'his act' and the resulting sales could have been discovered with due diligence.'

The court added: 'The plaintiff's complaint in the Prior Action bolsters this conclusion. The complaint refers to 'concert (and other) performances ' merchandising, or anything else, including the sale, manufacture, publication, dissemination, circulation, reproduction, imitating, broadcasting, airing in the media, promotion, marketing and/or advertisement of any such services or merchandise, including performances ” (emphasis added). The complaint in the Prior Action encompassed the audio and video recordings at issue here, and as a result I find that the copyright claim as to these recordings could have been raised therein.'

However, the court denied Brooks motion for summary judgment on Creative Arts' infringement claim over the posting of Cab Calloway lyrics on Brooks' Web site. '[T]here is an issue of fact as to when the lyrics were posted on the website and therefore whether the plaintiffs could have brought this claim in the prior action,' the district court stated.

Minor's Contracts/Disaffirmance

The California Court of Appeal, Second District, Division 2, held that Craig Lamar Traylor, who acted in the TV series 'Malcolm in the Middle,' could exercise his statutory right as a minor to disaffirm both a personal management contract and an arbitration award that gave Traylor's manager commissions from his work. Berg v. Traylor, B188554. Traylor's mother Meshiel had signed her name and Traylor's to a management agreement with Sharyn Berg when Traylor was 10 years old. Meshiel later sent notice to Berg terminating the agreement, which gave Berg 15% of Traylor's gross income. An arbitrator awarded Berg commissions and interest, attorney fees and costs, and repayment of personal loans. The trial court granted Berg's motion to confirm.

Reversing in part, the court of appeal explained: 'Meshiel remain obligated for commissions due under the agreement regardless of whether Craig disaffirmed the agreement. Thus, we have no difficulty in reaching the conclusion that Craig is permitted to and did disaffirm the agreement and any obligations stemming therefrom, while Meshiel remains liable under the agreement and resulting judgment. Where our difficulty lies is in understanding how counsel, the arbitrator and the trial court repeatedly and systematically ignored Craig's interests in this matter. From the time Meshiel signed the agreement, her interests were not aligned with Craig's. That no one-counsel, the arbitrator or the trial court-recognized this conflict and sought appointment of a guardian ad litem for Craig is nothing short of stunning. It is the court's responsibility to protect the rights of a minor who is a litigant in court.'

The court added: 'Such an appointment was required here due to the inherent conflict of interest between Craig and Meshiel ' It was ' not in Meshiel's interest to have Craig disaffirm the agreement because Berg would look to her, personally, for satisfaction of Craig's obligations under the agreement.'

Berg argued in part that Traylor couldn't disaffirm the management agreement because it provided for his and his family's necessities. But the court pointed out that there was '[no] evidence that Meshiel was unable to provide for the family in 1999 at the time of the agreement.' The court also noted that Craig's 'minority status coupled with the absence of the appointment of guardian ad litem entitled him to disaffirm the arbitration award and judgment even after the statutory deadline for moving to vacate the arbitration award had passed.'

Theatrical Productions/Contract, Publicity Claims

The U.S. District Court for the Southern District of New York ruled that actress Patty Duke can proceed with breach-of-contract and right-of-publicity claims over the national touring production of the play 'Golda's Balcony.' Pearce v. Manhattan Ensemble Theater Inc., 06 Civ. 1535(KMW). Duke and the defendants had negotiated for her to appear as former Israeli prime minister Golda Meir. The defendants then issued press releases and ad materials announcing Duke's participation. Duke filed suit after actress Valerie Harper appeared in the production as Meir.

On breach of contract, the district court noted that the complaint 'alleges that 'the parties reached an [oral] agreement' with definite terms and conditions ' and that Plaintiff 'spent a substantial amount of time learning her lines and otherwise preparing for her role' and 'forewent other career opportunities.” The court also found no bar under the state Statute of Frauds, which requires a writing for an agreement that can't be performed within one year. Here, the district court explained: 'Plaintiff has alleged that the parties agreed she would receive 'no fewer than fifteen (15) weeks of full salary (even if the show closed).' ' Given this allegation, Plaintiff may be able to prove that the parties contemplated termination and agreed that Defendants would have the right to terminate the arrangement even before the fifteen-week mark, in which case Plaintiff would receive no less than fifteen weeks' salary. Such an express provision, if proven, would remove the agreement from the ambit of the Statute of Frauds.'

The defendants had argued that Duke had failed in her claim under N.Y. Civil Rights Law Sec. 51 to establish that her name, likeness or voice had been used in New York 'because Plaintiff's alleged engagement was for the 'national' tour of Golda's Balcony.' But the district court replied that 'Defendants offer no support for their assumption that a national tour would exclude New York.'

Nevertheless, the court dismissed Duke's claim for breach of covenant of good faith and fair dealing as duplicative of the contract claim. The court also dismissed her employment-discrimination claims under New York City and state human rights laws. (Duke suffers from a heart ailment.) 'Plaintiff is not a New York citizen and, Defendants contend, the alleged acts of discrimination did not [actually] take place in New York City or State ' though it can reasonably be inferred from the Complaint that Defendants' allegedly discriminatory decision to terminate Plaintiff was made in New York City.'

Copyright Infringement/Res Judicata

The U.S. District Court for the Southern District of New York decided that res judicata barred a copyright-infringement suit by relatives of the late Cab Calloway over his grandson's sale of audio and video recordings of the famous jazz entertainer. Creative Arts by Calloway LLC v. Brooks, 05-CV-8638 RO. Calloway's grandson Christopher Brooks founded and performs with The Cab Calloway Orchestra. Creative Arts by Calloway had previously sued Brooks in 2001 for service-mark infringement and dilution, unfair competition and unfair-business practices. Both the district court and U.S. Court of Appeals for the Second Circuit sided with Brooks.

In the current case, the district court noted that the central issue was 'whether the claims asserted here 'were, or could have been, raised in the prior action' ' During discovery in the Prior Action, plaintiff's counsel received a letter dated March 26, 2001 explicitly referencing a CD and a videotape of defendant's music. Plaintiff concedes receiving this letter. I find that this letter was enough to put plaintiff on notice that defendant was making audio and video recordings of 'his act' and the resulting sales could have been discovered with due diligence.'

The court added: 'The plaintiff's complaint in the Prior Action bolsters this conclusion. The complaint refers to 'concert (and other) performances ' merchandising, or anything else, including the sale, manufacture, publication, dissemination, circulation, reproduction, imitating, broadcasting, airing in the media, promotion, marketing and/or advertisement of any such services or merchandise, including performances ” (emphasis added). The complaint in the Prior Action encompassed the audio and video recordings at issue here, and as a result I find that the copyright claim as to these recordings could have been raised therein.'

However, the court denied Brooks motion for summary judgment on Creative Arts' infringement claim over the posting of Cab Calloway lyrics on Brooks' Web site. '[T]here is an issue of fact as to when the lyrics were posted on the website and therefore whether the plaintiffs could have brought this claim in the prior action,' the district court stated.

Minor's Contracts/Disaffirmance

The California Court of Appeal, Second District, Division 2, held that Craig Lamar Traylor, who acted in the TV series 'Malcolm in the Middle,' could exercise his statutory right as a minor to disaffirm both a personal management contract and an arbitration award that gave Traylor's manager commissions from his work. Berg v. Traylor, B188554. Traylor's mother Meshiel had signed her name and Traylor's to a management agreement with Sharyn Berg when Traylor was 10 years old. Meshiel later sent notice to Berg terminating the agreement, which gave Berg 15% of Traylor's gross income. An arbitrator awarded Berg commissions and interest, attorney fees and costs, and repayment of personal loans. The trial court granted Berg's motion to confirm.

Reversing in part, the court of appeal explained: 'Meshiel remain obligated for commissions due under the agreement regardless of whether Craig disaffirmed the agreement. Thus, we have no difficulty in reaching the conclusion that Craig is permitted to and did disaffirm the agreement and any obligations stemming therefrom, while Meshiel remains liable under the agreement and resulting judgment. Where our difficulty lies is in understanding how counsel, the arbitrator and the trial court repeatedly and systematically ignored Craig's interests in this matter. From the time Meshiel signed the agreement, her interests were not aligned with Craig's. That no one-counsel, the arbitrator or the trial court-recognized this conflict and sought appointment of a guardian ad litem for Craig is nothing short of stunning. It is the court's responsibility to protect the rights of a minor who is a litigant in court.'

The court added: 'Such an appointment was required here due to the inherent conflict of interest between Craig and Meshiel ' It was ' not in Meshiel's interest to have Craig disaffirm the agreement because Berg would look to her, personally, for satisfaction of Craig's obligations under the agreement.'

Berg argued in part that Traylor couldn't disaffirm the management agreement because it provided for his and his family's necessities. But the court pointed out that there was '[no] evidence that Meshiel was unable to provide for the family in 1999 at the time of the agreement.' The court also noted that Craig's 'minority status coupled with the absence of the appointment of guardian ad litem entitled him to disaffirm the arbitration award and judgment even after the statutory deadline for moving to vacate the arbitration award had passed.'

Theatrical Productions/Contract, Publicity Claims

The U.S. District Court for the Southern District of New York ruled that actress Patty Duke can proceed with breach-of-contract and right-of-publicity claims over the national touring production of the play 'Golda's Balcony.' Pearce v. Manhattan Ensemble Theater Inc., 06 Civ. 1535(KMW). Duke and the defendants had negotiated for her to appear as former Israeli prime minister Golda Meir. The defendants then issued press releases and ad materials announcing Duke's participation. Duke filed suit after actress Valerie Harper appeared in the production as Meir.

On breach of contract, the district court noted that the complaint 'alleges that 'the parties reached an [oral] agreement' with definite terms and conditions ' and that Plaintiff 'spent a substantial amount of time learning her lines and otherwise preparing for her role' and 'forewent other career opportunities.” The court also found no bar under the state Statute of Frauds, which requires a writing for an agreement that can't be performed within one year. Here, the district court explained: 'Plaintiff has alleged that the parties agreed she would receive 'no fewer than fifteen (15) weeks of full salary (even if the show closed).' ' Given this allegation, Plaintiff may be able to prove that the parties contemplated termination and agreed that Defendants would have the right to terminate the arrangement even before the fifteen-week mark, in which case Plaintiff would receive no less than fifteen weeks' salary. Such an express provision, if proven, would remove the agreement from the ambit of the Statute of Frauds.'

The defendants had argued that Duke had failed in her claim under N.Y. Civil Rights Law Sec. 51 to establish that her name, likeness or voice had been used in New York 'because Plaintiff's alleged engagement was for the 'national' tour of Golda's Balcony.' But the district court replied that 'Defendants offer no support for their assumption that a national tour would exclude New York.'

Nevertheless, the court dismissed Duke's claim for breach of covenant of good faith and fair dealing as duplicative of the contract claim. The court also dismissed her employment-discrimination claims under New York City and state human rights laws. (Duke suffers from a heart ailment.) 'Plaintiff is not a New York citizen and, Defendants contend, the alleged acts of discrimination did not [actually] take place in New York City or State ' though it can reasonably be inferred from the Complaint that Defendants' allegedly discriminatory decision to terminate Plaintiff was made in New York City.'