Bit Parts

The U.S. District Court for the Western District of North Carolina allowed a breach of contract claim brought by actor James Best to proceed, in which he alleges underpayment through 1981 of merchandising royalties related to his role as Sheriff Rosco P. Coltrane in The Dukes of Hazzard TV series. Best v. Time Warner Inc., 5:11-cv-00104. District Judge Richard L. Voorhees decided the case under California law, per a choice-of-law clause in Best's 1978 agreement with Warner Bros. District Judge Voorhees found that, although a 1981 Warner Communications Annual Report ' that cited the TV show as having “achieved retail sales of $190 million in 1981, making the show one of the most valuable for licensing in television history” ' ultimately led Best to file his 2011 suit, “the Court will not presume Plaintiff's omniscience and finds that the alleged underreporting was sufficiently difficult to detect as to merit the application of the delayed discovery rule. Moreover, in light of Plaintiff's request for the 1982 audit [conducted by an accounting firm he hired], the Court is persuaded that reasonable minds could find as sufficient Plaintiff's diligence in discovering Defendants' breach of contract. Therefore, whether Plaintiff exercised reasonable diligence under the circumstances is a question of fact left for the jury.”

Replacement Rollers Members' Breach Claim Is Dismissed

The U.S. District Court for the Southern District of New York ruled that two replacement members of The Bay City Rollers couldn't rely on the band's 1975 agreement with Arista Records as the basis for an anticipatory breach of contract claim, in which they seek a proportionate share of royalties from the group's separate suit against Arista. Mitchell v. Faulkner, 10 Civ. 8173. Chief U.S. District Judge Loretta A. Preska explained that the contract “require[s] that substitution of any signatory member with a new band member 'shall be done only upon the prior written approval and consent of' Arista, and those new band members 'shall agree in writing to be bound by all the terms and conditions of this Agreement.' Accordingly, even if Plaintiffs [Ian] Mitchell and [Pat] McGlynn had the 'knowledge and consent' of Arista confirmed orally, they do not allege that they had Arista's acknowledgement of the substitution in writing and they do not allege that they agreed in writing to be bound by the terms of the 1975 Agreement.” Judge Preska went on to find that “open-ended oral agreements for the payment of royalties” are generally barred by New York's statute of frauds.

Copyright Ownership Issue Properly Sent to Jury

The U.S. Court of Appeals for the First Circuit decided that a district court properly sent the question of song ownership to a copyright infringement jury. Latin American Music Co. Inc. (LAMCO) v. Media Power Group Inc., 11-2108. Music publisher LAMCO and the performing rights society Asociaci'n de Compositores y Editores de M'sica Latinoamericana sued a radio stations owner and its president for alleged airplay of unlicensed songs. The U.S. District Court for the District of Puerto Rico granted partial summary judgment for the defendants as to 12 of the songs and a jury ruled for the defendants at trial on the remaining nine songs. As part of its appeal, LAMCO argued that the district court erred by allowing the jury to consider the issue of ownership of the latter nine songs. But affirming in full, the First Circuit noted: “Not only did LAMCO fail to object to jury instructions on the issue of ownership, but its own proposed instructions stated that LAMCO had the burden of proving ownership of each song as an element of the claim. LAMCO even objected to the defendants' Rule 50(a) motion for judgment as a matter of law by arguing that it was for the jury to determine whether LAMCO owned the songs. Furthermore, although the special verdict form asked the jury to determine whether LAMCO proved ownership of the songs, LAMCO did not object to it on the ground that ownership was an established fact. The jury found that LAMCO failed to prove that it owned the songs, and, as instructed, did not proceed to decide whether LAMCO proved infringement.”

1981 Merchandising Royalties Underpayment Claim Can Proceed

The U.S. District Court for the Western District of North Carolina allowed a breach of contract claim brought by actor James Best to proceed, in which he alleges underpayment through 1981 of merchandising royalties related to his role as Sheriff Rosco P. Coltrane in The Dukes of Hazzard TV series. Best v. Time Warner Inc., 5:11-cv-00104. District Judge Richard L. Voorhees decided the case under California law, per a choice-of-law clause in Best's 1978 agreement with Warner Bros. District Judge Voorhees found that, although a 1981 Warner Communications Annual Report ' that cited the TV show as having “achieved retail sales of $190 million in 1981, making the show one of the most valuable for licensing in television history” ' ultimately led Best to file his 2011 suit, “the Court will not presume Plaintiff's omniscience and finds that the alleged underreporting was sufficiently difficult to detect as to merit the application of the delayed discovery rule. Moreover, in light of Plaintiff's request for the 1982 audit [conducted by an accounting firm he hired], the Court is persuaded that reasonable minds could find as sufficient Plaintiff's diligence in discovering Defendants' breach of contract. Therefore, whether Plaintiff exercised reasonable diligence under the circumstances is a question of fact left for the jury.”

Replacement Rollers Members' Breach Claim Is Dismissed

The U.S. District Court for the Southern District of New York ruled that two replacement members of The Bay City Rollers couldn't rely on the band's 1975 agreement with Arista Records as the basis for an anticipatory breach of contract claim, in which they seek a proportionate share of royalties from the group's separate suit against Arista. Mitchell v. Faulkner, 10 Civ. 8173. Chief U.S. District Judge Loretta A. Preska explained that the contract “require[s] that substitution of any signatory member with a new band member 'shall be done only upon the prior written approval and consent of' Arista, and those new band members 'shall agree in writing to be bound by all the terms and conditions of this Agreement.' Accordingly, even if Plaintiffs [Ian] Mitchell and [Pat] McGlynn had the 'knowledge and consent' of Arista confirmed orally, they do not allege that they had Arista's acknowledgement of the substitution in writing and they do not allege that they agreed in writing to be bound by the terms of the 1975 Agreement.” Judge Preska went on to find that “open-ended oral agreements for the payment of royalties” are generally barred by New York's statute of frauds.