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Actor's Agreement Gave Merchandising Rights to Production Company

The U.S. District Court for the Southern District of New York ruled that an actor's agreement to appear in the film Office Space gave merchandising rights to the production company, though those rights weren't specifically cited in the contract. Duffey v. Twentieth Century Fox Film Corp., 13 Civ. 1354.

In 1998, Texas Resident Todd Duffey signed a Day Player Agreement (DPA) with the production company Cubicle Inc. to portray the character Chotchkie's Waiter in the movie Office Space. The DPA granted Cubicle “all rights throughout the universe in and/or to all results and proceeds of [Duffey's] services rendered hereunder, including but not limited to ' the right to ' display [Duffey's] ' likeness for commercial ' purposes in connection therewith.”

Duffey sued after he discovered his image as Chotchkie's Waiter in a Box of Flair merchandise item for Office Space licensed by Twentieth Century, which obtained its rights from Cubicle. The complaint alleged false endorsement under the Lanham Act and breach of contract. The defendants moved to dismiss, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a viable claim.

District Judge J. Paul Oetken determined the DPA should be interpreted under Texas law. “Texas is clearly the center of gravity in the dispute over the Day Player Agreement,” the district judge wrote. “The contract was negotiated, executed, and performed in Texas, and Duffey was residing in Texas when he filmed his scenes for Office Space (it is unclear whether he was domiciled in Texas).” Texas courts permit no extrinsic evidence for interpreting a contract that is unambiguous on its face

Dismissing the complaint, Judge Oetken then found: “The sale of merchandise involves a commercial purpose connected to Duffey's performance in Office Space ' merchandising falls within the plain meaning of 'commercial purposes,' and nothing in the remainder of the one-page [DPA] agreement, or the schedule that it incorporates, suggests that 'commercial purposes' should be read otherwise. Even if merchandising rights somehow fell outside the scope of 'commercial purposes,' they would be captured in the clause granting Cubicle 'all rights throughout the universe' to the results of Duffey's performance.

E-Book of English Translation of Novel Isn't Derivate Work

The U.S. District Court for the Southern District of New York decided that an e-book of an English translation of a Russian novel wasn't a derivative work. Peter Mayer Publishers Inc. (PMP) v. Shilovskaya, 12 Civ. 8867.

The Russian novel The Master and Margarita by author Mikhail Bulgakov became public domain over lack of compliance with U.S. copyright formalities. PMP's predecessor-in-interest then published an English language translation of the Russian work. In 1996, Bulgakov's descendants gained a restored U.S. copyright under the international Uruguay Round Agreements Act. PMP then filed for a declaratory judgment that it had the right to publish the English translation as an e-book without infringing on the Bulgakov descendants' copyright in the novel.

Section 101 of the U.S. Copyright Act states at the end of its “derivative work” definition “or any other form in which a work may be recast, transformed, or adapted.” District Judge Paul G. Gardephe explained: “All of the forms of 'works' [specifically] listed in the statutory definition of 'derivative work' reference changes and alterations in the content of the pre-existing work, or changes and alterations in both the content and the medium of that work. None of the listed forms describes a change in medium alone.”

Judge Gardephe noted: “No court has addressed whether the process of transferring a literary work from print to eBook form involves more than 'merely trivial' variations.”

Bulgakov's descendants claimed the e-book qualified as a derivative work as its own original work of authorship. But granting summary judgment for PMP, Judge Gardephe concluded: “While the [eBook] software itself is an 'original work of authorship,' merely inputting the contents of the eBook into this software does not create a new derivative work. The eReader software would not alter the content of the Translation at all. The software would not add to or subtract from the Translation, nor would it 'recast, transform or adapt' the Translation's pre-existing content.”

Actor's Agreement Gave Merchandising Rights to Production Company

The U.S. District Court for the Southern District of New York ruled that an actor's agreement to appear in the film Office Space gave merchandising rights to the production company, though those rights weren't specifically cited in the contract. Duffey v. Twentieth Century Fox Film Corp., 13 Civ. 1354.

In 1998, Texas Resident Todd Duffey signed a Day Player Agreement (DPA) with the production company Cubicle Inc. to portray the character Chotchkie's Waiter in the movie Office Space. The DPA granted Cubicle “all rights throughout the universe in and/or to all results and proceeds of [Duffey's] services rendered hereunder, including but not limited to ' the right to ' display [Duffey's] ' likeness for commercial ' purposes in connection therewith.”

Duffey sued after he discovered his image as Chotchkie's Waiter in a Box of Flair merchandise item for Office Space licensed by Twentieth Century, which obtained its rights from Cubicle. The complaint alleged false endorsement under the Lanham Act and breach of contract. The defendants moved to dismiss, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a viable claim.

District Judge J. Paul Oetken determined the DPA should be interpreted under Texas law. “Texas is clearly the center of gravity in the dispute over the Day Player Agreement,” the district judge wrote. “The contract was negotiated, executed, and performed in Texas, and Duffey was residing in Texas when he filmed his scenes for Office Space (it is unclear whether he was domiciled in Texas).” Texas courts permit no extrinsic evidence for interpreting a contract that is unambiguous on its face

Dismissing the complaint, Judge Oetken then found: “The sale of merchandise involves a commercial purpose connected to Duffey's performance in Office Space ' merchandising falls within the plain meaning of 'commercial purposes,' and nothing in the remainder of the one-page [DPA] agreement, or the schedule that it incorporates, suggests that 'commercial purposes' should be read otherwise. Even if merchandising rights somehow fell outside the scope of 'commercial purposes,' they would be captured in the clause granting Cubicle 'all rights throughout the universe' to the results of Duffey's performance.

E-Book of English Translation of Novel Isn't Derivate Work

The U.S. District Court for the Southern District of New York decided that an e-book of an English translation of a Russian novel wasn't a derivative work. Peter Mayer Publishers Inc. (PMP) v. Shilovskaya, 12 Civ. 8867.

The Russian novel The Master and Margarita by author Mikhail Bulgakov became public domain over lack of compliance with U.S. copyright formalities. PMP's predecessor-in-interest then published an English language translation of the Russian work. In 1996, Bulgakov's descendants gained a restored U.S. copyright under the international Uruguay Round Agreements Act. PMP then filed for a declaratory judgment that it had the right to publish the English translation as an e-book without infringing on the Bulgakov descendants' copyright in the novel.

Section 101 of the U.S. Copyright Act states at the end of its “derivative work” definition “or any other form in which a work may be recast, transformed, or adapted.” District Judge Paul G. Gardephe explained: “All of the forms of 'works' [specifically] listed in the statutory definition of 'derivative work' reference changes and alterations in the content of the pre-existing work, or changes and alterations in both the content and the medium of that work. None of the listed forms describes a change in medium alone.”

Judge Gardephe noted: “No court has addressed whether the process of transferring a literary work from print to eBook form involves more than 'merely trivial' variations.”

Bulgakov's descendants claimed the e-book qualified as a derivative work as its own original work of authorship. But granting summary judgment for PMP, Judge Gardephe concluded: “While the [eBook] software itself is an 'original work of authorship,' merely inputting the contents of the eBook into this software does not create a new derivative work. The eReader software would not alter the content of the Translation at all. The software would not add to or subtract from the Translation, nor would it 'recast, transform or adapt' the Translation's pre-existing content.”