Summary
In Desmond v 20th Century Fox Record Corp., (36 AD2d 925, 926 [1st Dept 1971]), the Appellate Division, First Department, upheld contractual language by which the plaintiff/recording artist had granted defendant the unreserved "right to reproduce and sell phonographic records of any size or speed, tape cartridges, cassettes and reels of plaintiffs performances, and to use plaintiff's name and picture in connection therewith," and dismissed the plaintiff's breach of contract claim.
Summary of this case from ELLISON v. THE ISLAND DEF JAM MUSIC GROUPOpinion
May 13, 1971
Order, Supreme Court, New York County, entered September 10, 1970, unanimously reversed, on the law, defendants' cross motion granted, plaintiff's motion to strike the first affirmative defense of defendants' answer denied, and the complaint dismissed. Appellants shall recover of respondent $50 costs and disbursements of this appeal. In his brief and on the argument, the plaintiff contends that, on the basis of his complaint, he has a cause of action for alleged violation of section 51 Civ. Rights of the Civil Rights Law (violation of right of privacy), in the alleged unauthorized use of plaintiff's name and picture in the manufacture, advertisement and sale of a long playing 33 1/3 rpm record album under the title "Johnny Desmond On Location"; and to a cause of action for unfair competition in the alleged unauthorized reproduction of such album comprising a performance by plaintiff as a professional singer and the sale of the album which is alleged to be of inferior quality and degrading to the art of plaintiff. But the plaintiff fails to present any factual support for the causes of action as alleged. The defendants' acts in the recording and sale of the particular album, and in the use of plaintiff's name and picture, were authorized by the plain terms of the written "Artist's Agreement" whereby the plaintiff gave the defendant 20th Century Fox Record Corporation (Fox) the right to record and sell plaintiff's performances. Such agreement provides for the employment of plaintiff by Fox for the "purpose of making, in Company's studios or at such other places as Company may from time to time designate, a minimum of two (2) 45 rpm phonograph record sides or the equivalent thereof and so many more as Company shall prescribe, during each contract year of the original and any renewal terms hereof. Company, in its sole discretion, shall determine the compositions to be recorded." There is also a provision for the payment of royalties to the plaintiff "on records included in albums, jackets, boxes or any other type of package or container", thereby indicating that the agreement contemplated the recording and sale of plaintiff's performances other than on the "minimum of two (2) 45 rpm phonograph record sides". The agreement further provides: "8. All master records, tapes, pressings and other reproductions made by Artist hereunder and Artist's performances thereon shall be entirely Company's property, free and clear of any and all claims whatsoever by Artist or any person or persons claiming under, by or through Artist. Without limiting the generality of the foregoing Company shall at all times have the unrestricted right: (a) to reproduce, by any method or methods now or hereafter known, any performance made by Artist for Company hereunder, (b) to determine when and if to release any record made by Artist hereunder and the nature and extent of any advertising and promotion in respect thereto, (c) to label, entitle and package all such reproductions and sell and deal in the same in any manner and on any terms and conditions it sees fit, except that all records shall bear Artist's known professional name or any name agreed to by Artist and Company, (d) to obtain and register trademarks, trade names and copyrights in respect to any such reproduction or performance and to perform the same, publicly or privately, in whole or in part, singly or in combination with any other work or works, (e) to publish and broadcast in any form and over any medium and to publish commercially or otherwise any musical score, instrumentation, arrangement or orchestration owned or copyrighted by Artist in respect thereto, (f) under such terms and conditions as it shall in its sole discretion determine, to license others to do all or any such things, and * * * 9. Artist acknowledges that the prestige of being associated with Company as one of Company's recording artists enhances Artist's professional reputation and has been a substantial inducement to Artist to execute this Agreement. Company shall have the right at any time to use and authorize others to use, without restriction, including, without limitation, for the purpose of selling, promoting and distributing any recording made by Artist hereunder for the Company and for any other commercial, advertising, trade or non-commercial purpose, except the endorsement of any product not made, sold or distributed by Company or any affiliate of Company: (a) The name and likeness of Artist; (b) Any biographical material respecting Artist". In view of the aforesaid provisions of the "Artist's Agreement" and the clear proof presented by defendants that the uniform and well established custom and usage of the music and recording industry permitted the production and sale by Fox of any written recording of plaintiff's performances as a singer, including at any speed and including albums reproduced at the speed of 33 1/3 rpm, the record fails to disclose any issue of fact relating to the causes of action as alleged. The motion being for summary judgment, and the plaintiff having been challenged by prima facie proof that his causes of action were without merit, he was bound to come forward and present evidentiary data supporting his alleged causes of action. (See Indig v. Finkelstein, 23 N.Y.2d 728, affg. 29 A.D.2d 851; Shapiro v. Health Ins. Plan, 7 N.Y.2d 56; Lemarr v. Klein, 35 A.D.2d 248; Ball v. United Artists Corp., 13 A.D.2d 133, 141; Di Sabato v. Soffes, 9 A.D.2d 297.) Absent such presentation, it indisputably appears that the plaintiff, by the express provision of the Artist's Agreement, has consented in writing to the use of his name and picture (see Civil Rights Law, § 51), and, furthermore, that the defendants have not in any way acted unfairly or in derogation of any lawful rights of plaintiff in the production and sale of the 33 1/3 rpm album "Johnny Desmond On Location". Generally, by virtue of the Agreement, Fox had the right to reproduce and sell phonographic records of any size or speed, tape cartridges, cassettes and reels of plaintiff's performances, and to use plaintiff's name and picture in connection therewith, provided, of course, it acted fairly without any material deviation or deletion in the composition of plaintiff's performances. (Cf. Granz v. Harris, 198 F.2d 585; Bartsch v. Metro-Goldwyn-Mayer, 391 F.2d 150, 154, 155; Geisel v. Poynter Prods., 295 F. Supp. 331, 354; see, also, Kupferman, Rights In New Media, 19 Law Contemp. Prob. 172 [1954].) The plaintiff having failed to come forward with any proof that the defendants acted unfairly or made any such deviation or deletion in any of his performances, the cross motion by defendants for summary judgment should have been granted. Finally, as admitted on the argument, the plaintiff's causes of action are framed solely for the purpose of recovery of damages for alleged injury to his professional reputation and, consequently, the one-year Statute of Limitations (CPLR 215) applies to bar the suit. (See Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 459.)
Concur — McGivern, J.P., Markewich, Kupferman, Tilzer and Eager, JJ.