Opinion
650606/09
01-27-2012
Leo Goeke, Plaintiff, v. Naxos of America, Inc., Defendant.
For Plaintiff: Hughes Hubbard & Reed LLP, (Michael E. Salzman Benjamin S. Thompson) For Defendant: Kornstein Veisz Wexler & Pollard, LLP (Daniel J. Kornstein Emily Rosdeitcher)
For Plaintiff: Hughes Hubbard & Reed LLP, (Michael E. Salzman Benjamin S. Thompson)
For Defendant: Kornstein Veisz Wexler & Pollard, LLP (Daniel J. Kornstein Emily Rosdeitcher)
Bernard J. Fried, J.
Defendant Naxos of America, Inc. (Naxos) moves to dismiss plaintiff's amended complaint, mistakenly denominated the "second" amended complaint, pursuant to CPLR § 205 (a); CPLR 3211 (a) (1), (2), (5), and (7); and CPLR 327 (a).
Plaintiff Leo Goeke cross-moves for leave to amend his complaint to add Arthaus Musik GmbH (Arthaus Musik) and Albany Music Distributors, Inc. (Albany Records) as additional named defendants, pursuant to CPLR § 1003 and CPLR 3025 (b).
BACKGROUND
Plaintiff is a retired, world-renowned lyric tenor. Plaintiff alleges that Naxos, in collaboration with Arthaus Musik and Albany Records, has been engaged in the unauthorized distribution and sale of five audio and audiovisual recordings of live opera and choral performances, in which plaintiff appeared as a featured artist. Four of these recordings are DVDs issued by Arthaus Musik of performances of operas that took place at the Glyndebourne Opera Festival between 1974 and 1978: Mozart's "Idomeneo" in 1974; Stravinsky's "The Rake's Progress" in 1975; Mozart's "Don Giovanni" in 1977; and, Mozart's "Die Zauberflote (The Magic Flute)" in 1978 (together, the Glyndebourne Performances). The fifth recording is a compact disc, issued by Albany Records, that includes a live performance of Frank Lewin's "Mass for the Dead (Requiem for Robert F. Kennedy) that took place at the Princeton University Chapel on May 27, 1969 (the Princeton Performance).
Plaintiff alleges that each of the Glyndebourne Performances were recorded by Southern Television, a now-defunct British television producer, pursuant to a global contract with Glyndebourne. Plaintiff alleges that, for each of these performances, he entered into a letter agreement with Glyndebourne that referenced the Southern Television contract, and provided that plaintiff would receive royalty payments from Southern Television, through Glyndebourne, for the use of these recordings. In an affidavit accompanying his amended complaint, plaintiff alleges that he received periodic royalty payments from Southern Television for the use of these recordings until 1990, when the payments stopped.
Plaintiff alleges that Southern Television lost its broadcast franchise in 1982, and subsequently sold it program archive.
The complaint alleges that Arthaus Musik is a successor in interest to Southern Television, and is the assignee of the contracts that Southern Television entered into with plaintiff. Plaintiff further alleges that Naxos is the exclusive distributor of Arthaus Musik-produced DVDs in the United States and elsewhere, and that Arthaus Musik and Naxos have been distributing and selling the DVDS of the Glyndebourne Performances without paying plaintiff the compensation that is due to him under the Southern Television contracts.
The complaint alleges that Albany Records and Naxos have been distributing and selling the audio CD, containing the Princeton Performance, without obtaining plaintiff's permission to copy, distribute or sell this recording, and without paying plaintiff any compensation. Plaintiff alleges that, although he was paid for the Princeton Performance, he never entered into any agreement with respect to the commercial exploitation of a recording of that performance, and never waived his rights to royalty payments or other compensation for the use thereof.
In his original complaint in this action, plaintiff asserted various causes of action against Naxos for, inter alia, misappropriation, violation of New York Civil Rights Law § 51, and unjust enrichment. These causes of action were similar, if not identical, to certain earlier claims that plaintiff had asserted in a prior action against, among others, SONY BMG Music Entertainment, Inc. and Apple Computer, Inc., which subsequently were dismissed as time-barred (see Goeke v SONY BMG Entertainment, Inc., Index No. 600001/2007 [Fried, J.]). Based on this similarity, plaintiff's original complaint in this action also was dismissed by order dated May 13, 2010. However, the order of dismissal in this action granted plaintiff leave to re-plead such claims, to afford plaintiff an opportunity to plead facts in support of his contention that Naxos's alleged conduct fell within the one-year statute of limitations period applicable to claims brought under New York Civil Rights Law § 51.
In his amended complaint, plaintiff abandons his cause of action brought under Civil Rights Law § 51, among others, and instead, asserts causes of action for breach of contract and unjust enrichment against Naxos with respect to the Glyndebourne Performances, and causes of action for common-law copyright infringement and unjust enrichment against Naxos with respect to the Princeton Performance.
Naxos now moves to dismiss plaintiff's amended complaint, arguing that plaintiff's new causes of action merely restate plaintiff's time-barred claim under New York Civil Rights Law § 51, which provides the exclusive remedy for the injuries alleged. Alternatively, Naxos seeks dismissal of these new claims for, inter alia, failure to state a cause of action and based upon documentary evidence.
Plaintiff cross-moves for leave to amend his complaint to add Arthaus Musik and Albany Records as named defendants to this action.
DISCUSSION
Plaintiff's first cause of action alleges that Naxos has breached the agreements that plaintiff had entered into with Southern Television, by distributing and selling DVDs of the four Glyndebourne Performances without making the royalty payments due to plaintiff under those agreements. Because plaintiff has failed to allege any facts from which to infer that Naxos was a party to the Southern Television agreements, this cause of action is dismissed.
An essential element for pleading a breach of contract cause of action under New York law is that the defendant be a party to the alleged contract. In his amended complaint, plaintiff alleges only that Arthaus Musik is the successor in interest to Southern Television, and the assignee of the contracts that it entered into with plaintiff (see Amended Complaint, ¶¶ 8 and 36). Plaintiff makes no such allegation with respect to Naxos. Plaintiff argues, nevertheless, that Naxos is liable under the Southern Television contracts, as if it were a signatory, because it has assumed the obligations of these contracts, by virtue of its collaboration with Arthaus Musik in marketing, distributing, and selling the Arthaus Musik DVDs.
As plaintiff acknowledges, however, Naxos's involvement in the distribution and sale of Arthaus Musik DVDs is governed by its exclusive Distribution Agreement with Arthaus Musik (see Van Driel Aff., Exh. M: Distribution Agreement). This Distribution Agreement provides, in pertinent part, that
(a) This Agreement does not grant [Naxos] ... any right or authority to assume or to create any obligation or responsibility, expressed or implied, on behalf of or in the name of ARTHAUS in any matter or thing whatsoever without the prior written authorization of ARTHAUS. (b) The establishment of the Agreement between [Naxos] and ARTHAUS solely provides for a relationship of buyer and seller, and neither party is the legal representative of the other and neither party may assume or create any obligation of any kind, expressed or implied, on behalf of the other.(Id., § 4). The Distribution Agreement further provides, in pertinent part, that:
(c) In particular, this Agreement does not constitute an exclusive licensing agreement
and the relationship between the ARTHAUS and [Naxos] shall not be construed as that of a licensor and licensee.
ARTHAUS warrants that it either owns outright or has sufficiently in all respects to enable the full and proper performance of this Agreement licensed or acquired lawfully all recordings released on the DVDs supplied to [Naxos].(Id., § 12 [a]). The Distribution Agreement sufficiently establishes that Naxos did not, by becoming an exclusive distributor of the DVDs, become a licensee of Arthaus Musik, or otherwise assume any of Arthaus Musik's obligations under the Southern Television contracts, including the obligation to pay royalties.
Plaintiff's fourth cause of action alleges that Naxos unjustly enriched itself at plaintiff's expense by distributing and selling DVDs of the Glyndebourne Performances without compensating plaintiff for the value of the benefit he conferred by his recorded performance. However, to successfully plead unjust enrichment "[a] plaintiff must show that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011] [internal quotation marks and citations omitted]). "Although privity is not required for an unjust enrichment claim" (id., citing Sperry v Crompton Corp., 8 NY3d 204, 215 [2007]) "a claim will not be supported unless there is a connection or relationship between the parties that could have caused reliance or inducement on the plaintiff's part" (Georgia Malone & Co., Inc. v Ralph Rieder, 86 AD3d 406, 408 [1st Dept 2011], citing Mandarin Trading, 16 NY3d at 182). Here, the complaint fails to plead the existence of any connection or relationship between Naxos and plaintiff, sufficient to support this cause of action.
In his second cause of action, plaintiff alleges that the conduct of Naxos, in distributing and selling the Albany Records CD without his permission and without compensating plaintiff for the use of his work, constitutes copyright infringement. Plaintiff alleges that he "is the rightful owner of the copyright in his original performance in any recording of the Princeton Performance" (Amended Complaint, ¶42), and that, "[b]ecause there was no express assignment of copyright, ownership of the sound recording copyright rests exclusively with the performers, of which Leo Goeke was one" (Amended Complaint, ¶ 44).
Plaintiff's second cause of action for common-law copyright infringement is dismissed because, while "[a] performer has a property right in his performance that it shall not be used for a purpose not intended" (Gieseking v Urania Records, 17 Misc 2d 1034, 1035 [Sup Ct, NY County 1956], the only judicially recognized relief in New York for the violation of such right are the protections afforded against the commercial misappropriation of a person's name, picture, or voice that are provided by Civil Rights Law §§ 50 and 51 (see Hampton v Guare, 195 AD2d 366, 367 [1st Dept ], lv denied 82 NY2d 659 [1993]; see also James v Delilah Films, 144 Misc 2d 374, 377 [Sup Ct, NY County 1989][ there is no independent common law cause of action in the right to privacy or publicity], citing Stephano v News Group Publs., 64 NY2d 174, 183 [1984]). As plaintiff has alleged no facts from which to infer that the recording containing the unauthorized use of his Princeton Performance was issued within the one-year statue of limitations period applicable to such claims (see Nussenzweig v diCorcia, 9 NY3d 184 [2007]), this cause of action must be dismissed as time-barred.
While common-law copyright protection is afforded to the owner of the rights to a sound recording made before 1972 (Capitol Records, Inc. v Naxos of Am., Inc., 4 NY3d 540 [2005]), plaintiff provides no authority for his contention that "[b]ecause there was no express assignment of copyright, ownership of the sound recording copyright rests exclusively with the performers" (Amended Complaint, ¶ 44).
Finally, plaintiff's third cause of action, alleging that Naxos unjustly enriched itself at plaintiff's expense by distributing and selling a recording of the Princeton Performance without compensating plaintiff for the value of the benefit he conferred by virtue of his recorded performance, is dismissed. Not only does the complaint fail to plead a sufficient connection or relationship between the parties to sustain an unjust enrichment claim, but our courts have held that a common law claim for unjust enrichment, based on the unauthorized appropriation of a name, picture, or voice, is subsumed under the Civil Rights Law §§ 50 and 51 (see Hampton, 195 AD2d at 366-367).
In light of my decision to dismiss all of the causes of action asserted against Naxos, the only named defendant in this action, plaintiff's motion to amend the complaint to add Arthaus Musik and Albany Records as additional parties, is denied. Plaintiff is not precluded by this decision from bringing an action against either of these defendants, in order to seek any compensation that rightfully might be due him.
Accordingly, it is
ORDERED that defendant's motion to dismiss the complaint is granted, and the complaint is dismissed in its entirety, with costs and disbursements to be taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that plaintiff's motion for leave to amend the complaint is denied.
ENTER:
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