Cameo Clips

F.G.G. partner and producer Richard Gottehrer argued in his affidavit that Sirico had forfeited her right to royalties by recording for another label while signed to an exclusive written agreement with F.G.G. And Davidson admitted she didn't sign a F.G.G. recording agreement. When F.G.G. moved for summary judgment to dismiss the royalty complaint, the supreme court found that an affirmation and memorandum of law from the plaintiffs' counsel were by themselves insufficient to withstand the dismissal motion.

The plaintiffs then filed a motion to renew on the ground that Gottehrer's statements were conclusory and that the plaintiffs hadn't yet engaged in discovery. But the lower court denied the motion and refused to accept affidavits from Sirico and Davidson, submitted with their renewal motion, in which they attempted to clarify their royalty bids.

Reinstating the complaint in part, the appellate division noted that “plaintiffs' affidavits are admissible. Each contains the affiant's statement that she was duly sworn and believes the affidavit's contents to be true and correct, and the notary's statement that the affiant personally appeared, proved her identity, and 'did further acknowledge that she executed the foregoing for the purposes therein contained.'”

The appeals court then ruled that Sirico could proceed, under New York's statute of limitations, with her breach of contract claim for royalties dating back six years from when the suit was filed. The court also ruled that Davidson could proceed with her statutory right-of-publicity claim going back one year because “it is undisputed that Davidson had no written contract of any kind with FGG. ' The requirement of a writing is explicit in the statute” for use of an individual's name and image on recordings.

The court further found that the supreme court correctly dismissed the plaintiffs' other claims “on the grounds that they were time-barred, violated the statute of frauds, or failed to state a cause of action.”

The California Court of Appeal, Second District, decided that Sony Pictures didn't breach a 1960 agreement ' under which the studio's predecessor had acquired rights to make feature movies that included The Three Stooges film shorts ' when Sony licensed video and DVD compilations of the shorts without compensating the company that owns the rights to the Stooges' intellectual properties. C3 Entertainment Inc. v. Columbia Pictures Television Inc., B208179. The 1960 license had granted the “unlimited right to produce, exhibit, distribute or otherwise exploit, in any medium or by any method whatsoever, whether now known or hereafter discovered, feature motion pictures utilizing therefor and therein any or all short subjects featuring the performances of The Three Stooges.” In exchange, The Three Stooges were to receive 25% of the proceeds. Then under a 1996 agreement, C3 Entertainment, the owner of the Stooges' rights, licensed the late comedy trio's “names, likenesses, rights of publicity, and so on” to Sony Pictures for a TV special and “one or more television Series.”

In upholding a referee's ruling for Sony Pictures on the video compilations issue, the Court of Appeals noted in an unpublished opinion: “The 1960 Agreement recognizes two kinds of product, Shorts and feature motion pictures. It allows Sony to create a feature motion picture from the Shorts, but does not address distribution of the Shorts themselves. Distribution of the Shorts cannot be said to fall under the Agreement, and the Shorts cannot be said to be feature motion pictures, even when more than one Short is placed on a DVD.”

The Court of Appeals then found in part that, under the 1996 agreement, Sony Pictures didn't owe C3 a portion of fees from the licensing of the Shorts used in TV series made by the AMC and Spike cable channels. The court explained that the 1996 agreement “applies to series which Sony produces. A license of the Shorts is not a license of a Series.” But the court went on to note: “As to the home entertainment market, the [trial] referee found that Sony did not use reasonable good faith efforts ['to maximize the gross receipts' for Stooges series episodes it produced], but also found that while 'some damages' were proximately caused by Sony's breach, C3 had not proved proximately caused non-speculative damages.”

C3 didn't move for a new trial on this issue. As a result, the Court of Appeals concluded: “C3's contentions are that substantial evidence did not support the referee's ruling that [C3 damages expert, entertainment attorney Steven] Madoff's opinion lacked foundation, that the referee's belief that Madoff did not use the right comparables was not supported by the evidence, and that 'Sony failed to introduce evidence contrary to Madoff's opinion.' C3 thus contends that the referee wrongly evaluated the evidence. It cannot raise this contention for the first time on appeal.”

MUSIC ROYALTY CLAIMS/MOTION TO RENEW

The New York Appellate Division, First Department, granted a motion to renew two claims by former members of the 1960s girl group the Angels ' known primarily for the 1963 hit “My Boyfriend's Back” ' over the exploitation of sound recordings on which the plaintiffs sang. Sirico v. F.G.G. Productions , 2010 N.Y. Slip Op. 01733. With its ruling, the appeals court accepted contested affidavits that the plaintiffs had submitted with their motion.

Angels members Phyllis Sirico and lead singer Linda Davidson filed suit in New York Supreme Court, New York County, in 2005, alleging that production company F.G.G. owed them back royalties for 40 years from record sales and third-party licensing. The causes of action included one by Sirico for alleged breach of her written contract, claims by Davidson for alleged breach of an implied contract and for violation of her right of publicity, as well as additional claims by both artists alleging unjust enrichment and for an accounting or rescission.

F.G.G. partner and producer Richard Gottehrer argued in his affidavit that Sirico had forfeited her right to royalties by recording for another label while signed to an exclusive written agreement with F.G.G. And Davidson admitted she didn't sign a F.G.G. recording agreement. When F.G.G. moved for summary judgment to dismiss the royalty complaint, the supreme court found that an affirmation and memorandum of law from the plaintiffs' counsel were by themselves insufficient to withstand the dismissal motion.

The plaintiffs then filed a motion to renew on the ground that Gottehrer's statements were conclusory and that the plaintiffs hadn't yet engaged in discovery. But the lower court denied the motion and refused to accept affidavits from Sirico and Davidson, submitted with their renewal motion, in which they attempted to clarify their royalty bids.

Reinstating the complaint in part, the appellate division noted that “plaintiffs' affidavits are admissible. Each contains the affiant's statement that she was duly sworn and believes the affidavit's contents to be true and correct, and the notary's statement that the affiant personally appeared, proved her identity, and 'did further acknowledge that she executed the foregoing for the purposes therein contained.'”

The appeals court then ruled that Sirico could proceed, under New York's statute of limitations, with her breach of contract claim for royalties dating back six years from when the suit was filed. The court also ruled that Davidson could proceed with her statutory right-of-publicity claim going back one year because “it is undisputed that Davidson had no written contract of any kind with FGG. ' The requirement of a writing is explicit in the statute” for use of an individual's name and image on recordings.

The court further found that the supreme court correctly dismissed the plaintiffs' other claims “on the grounds that they were time-barred, violated the statute of frauds, or failed to state a cause of action.”

The California Court of Appeal, Second District, decided that Sony Pictures didn't breach a 1960 agreement ' under which the studio's predecessor had acquired rights to make feature movies that included The Three Stooges film shorts ' when Sony licensed video and DVD compilations of the shorts without compensating the company that owns the rights to the Stooges' intellectual properties. C3 Entertainment Inc. v. Columbia Pictures Television Inc., B208179. The 1960 license had granted the “unlimited right to produce, exhibit, distribute or otherwise exploit, in any medium or by any method whatsoever, whether now known or hereafter discovered, feature motion pictures utilizing therefor and therein any or all short subjects featuring the performances of The Three Stooges.” In exchange, The Three Stooges were to receive 25% of the proceeds. Then under a 1996 agreement, C3 Entertainment, the owner of the Stooges' rights, licensed the late comedy trio's “names, likenesses, rights of publicity, and so on” to Sony Pictures for a TV special and “one or more television Series.”

In upholding a referee's ruling for Sony Pictures on the video compilations issue, the Court of Appeals noted in an unpublished opinion: “The 1960 Agreement recognizes two kinds of product, Shorts and feature motion pictures. It allows Sony to create a feature motion picture from the Shorts, but does not address distribution of the Shorts themselves. Distribution of the Shorts cannot be said to fall under the Agreement, and the Shorts cannot be said to be feature motion pictures, even when more than one Short is placed on a DVD.”

The Court of Appeals then found in part that, under the 1996 agreement, Sony Pictures didn't owe C3 a portion of fees from the licensing of the Shorts used in TV series made by the AMC and Spike cable channels. The court explained that the 1996 agreement “applies to series which Sony produces. A license of the Shorts is not a license of a Series.” But the court went on to note: “As to the home entertainment market, the [trial] referee found that Sony did not use reasonable good faith efforts ['to maximize the gross receipts' for Stooges series episodes it produced], but also found that while 'some damages' were proximately caused by Sony's breach, C3 had not proved proximately caused non-speculative damages.”

C3 didn't move for a new trial on this issue. As a result, the Court of Appeals concluded: “C3's contentions are that substantial evidence did not support the referee's ruling that [C3 damages expert, entertainment attorney Steven] Madoff's opinion lacked foundation, that the referee's belief that Madoff did not use the right comparables was not supported by the evidence, and that 'Sony failed to introduce evidence contrary to Madoff's opinion.' C3 thus contends that the referee wrongly evaluated the evidence. It cannot raise this contention for the first time on appeal.”