Opinion
Argued February 12, 1986
Decided April 3, 1986
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, John A.K. Bradley, J. to the unproduced play to defendant Warner Brothers, Inc. in exchange for $20,000. The agreement, entitled "Assignment of All Rights", stated, inter alia, that plaintiffs
"give, grant, bargain, sell, assign, transfer and set over * * * all now or hereafter existing rights of every kind and character whatsoever pertaining to said work, whether or not such rights are now known, recognized or contemplated and the complete and unconditional and unencumbered title in and to said work for all purposes whatsoever.
"2. I further give * * * the absolute and unqualified right to use said work, in whole or in part, in whatever manner said purchaser may desire, including (but not limited to) the right to make, and/or cause to be made, literary, dramatic, speaking stage, motion picture, photoplay, television, radio, and/or other adaptations of every kind and character, of said work, or any part thereof; and for the purpose of making or causing to be made such adaptations or any of them the purchaser may adapt, arrange, change, novelize * * * add to and subtract from said work, and/or the title".
In 1942, Warner Brothers released the motion picture "Casablanca", which was based on plaintiffs' play. In 1983, Warner Brothers obtained a copyright registration for another adaption of the play, which was produced for television in 1983. That production was a "prequel" story set in 1940, one year prior to the action of both the play and the movie "Casablanca". The television series was broadcast weekly from April 10 to May 7, 1983 on defendant National Broadcasting Company, Inc. Plaintiff subsequently commenced the instant action for a declaratory judgment that defendants had no rights under the 1942 agreement to use the characters of their play except for the use in the movie "Casablanca", and for $60 million in compensatory and punitive damages.
Special Term concluded that the court lacked subject matter jurisdiction owing to Federal preemption of copyright matters ( 17 U.S.C. § 301), and that, accordingly, the case should be dismissed without prejudice to commencement of an action in Federal District Court. The Appellate Division concluded that it need not determine whether plaintiffs' causes of action were preempted by Federal law since it was beyond question that plaintiffs failed to retain any rights, copyrightable or otherwise, which defendants could infringe, and have, consequently, failed to state a cause of action, thereby requiring dismissal with prejudice.
Burnett v Warner Bros. Pictures, 113 A.D.2d 710, affirmed.
Patricia J. Murphy and Michael J. Zissu for appellants.
Donald S. Zakarin and Philip R. Hoffman for respondents.
Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division ( 113 A.D.2d 710).
Concur: Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR.