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BROWN v. TWENTIETH CENTURY FOX FILM CORP.

July 27, 1992

JAMES BROWN, et al., Plaintiffs,
v.
TWENTIETH CENTURY FOX FILM CORPORATION, et al., Defendants.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 The complaint *fn1" in this case challenges defendants' use in their movie "The Commitments" of a 27-second "clip" of plaintiff's performance on a 1965 television show. The complaint alleges violations of the Copyright Act, 17 U.S.C. § 101 et seq., the Lanham Act, 15 U.S.C. § 1051 et seq., as well as several commonlaw causes of action including unfair competition and violation of the right of publicity. The matter comes before the Court on defendants' motion for summary judgment. Plaintiff has filed an opposition to the motion and several supplements thereto, and a hearing was held on June 15, 1992. For the reasons that follow, defendants' motion will be granted.

 I.

 Rule 56(c) of the Federal Rules of Civil Procedure directs the Court to grant summary judgment when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Evaluation of a motion for summary judgment requires a view of the facts in the light most favorable to the non-moving party. That is, if there is evidence in the record from which a reasonable jury could find for the non-moving party in accordance with the governing law, summary judgment must be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Washington Post Co. v. Department of Health & Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). In this case, there is no genuine issue as to any of the following material facts.

 Defendants are the owners/distributors of the successful motion picture "The Commitments" (the "film"), which was released in 1991. Plaintiff is the well-known entertainer and songwriter James Brown. *fn2" The film tells the story of a group of young Irishmen and women who form a soul music band. In the film the leader of the band, Jimmy, tries to teach the band members what it takes to be successful soul music performers. Toward that end, Jimmy shows the band members a videotape of plaintiff's energetic performance of the song "Please, Please, Please" (the "performance"). This performance comes from plaintiff's appearance in 1965 on a program called the TAMI Show. Portions of the performance are shown in "The Commitments" in seven separate "Cuts" for a total of 27 seconds, sometimes in the background of a scene and sometimes occupying the entire screen. *fn3" Plaintiff's name is not mentioned at all during this relatively brief scene. It is mentioned only once later in the film, when Jimmy urges the band members to abandon their current musical interests and tune into the great soul performers, including plaintiff:

 Listen, from now on I don't want you listening to "Guns & Roses" and "The Soup Dragons." I want you on a strict diet of soul. James Brown for the growls, Otis Redding for the moans, Smokey Robinson for the whines, and Aretha for the whole lot put together.

 On October 22, 1964, prior to a rehearsal for the TAMI Show performance, plaintiff entered into a letter agreement with the producer of the TAMI Show, Electronovision Productions, Inc., ("Electronovision"). The relevant portions of this agreement, which are determinative of the outcome of this case, are as follows:

 A. You hereby grant to Producer the sole and exclusive right to photograph or otherwise reproduce in connection with the Theatrofilm *fn4" all or any part of your acts, poses, plays and appearances of every kind and nature made or done by you in connection with the Performances and/or your services hereunder; and all instrumental, musical or other sound effects produced by you in connection with the Performances and/or your services hereunder; to reproduce, re-record and transmit the same in connection with the Theatrofilm in conjunction with such acts, poses, plays and appearances, and perpetually and throughout the world to exhibit, transmit, reproduce, distribute, broadcast and exploit, and license or permit others to exhibit, transmit, reproduce, distribute, broadcast and exploit, any or all of such photographs, reproductions and recordations in connection with all or any portion of the Theatrofilm, or the advertising or exploitation thereof, in and by all media and means whatsoever.

 B. Producer shall have the right throughout the world to use and display, and to license or permit others to use and display, your name and likeness for advertising of publicizing the Performance in conjunction with the Theatrofilm provided, however, that Producer shall not have the right to utilize your name, voice or likeness in connection with any so-called "commercial tie-ups." Without limiting the generality of the foregoing, Producer shall have the right to use your name and likeness in the Theatrofilm and issued in connection with the advertising and exploitation thereof. . . .

 In consideration for his performance on the show and this grant of rights to the producer, plaintiff was paid the sum of $ 15,000.

 In December 1984, Electronovision transferred all of its interests, including its rights in plaintiff's TAMI Show performance, to Screen Entertainment. Screen Entertainment subsequently granted to "dick clark" teleshows, inc. a limited transfer of the copyright for movie theater release. In 1985, Screen Entertainment merged with UPA Productions of America ("UPA"). On September 11, 1990, defendant Beacon Communications ("Beacon") acquired from UPA the right to use "no more than 2 minutes of the song 'Please, Please' (sic) by James Brown from the TAMI Show" for all "theatrical, non-theatrical, videocassette and videodisc" uses through the world. Additionally, Beacon obtained from "dick clark" media archives the television rights to the TAMI Show performance. Finally, Beacon separately obtained the right to use the musical composition and lyrics of the song "Please, Please, Please" from the entities to whom plaintiff had transferred the copyright in 1956.

 II.

 Plaintiff contends that the 1964 letter Agreement is ambiguous with respect to whether the grant of rights included the right to uses his performance in films, film promotions and videocassettes. He argues that this ambiguity creates a factual issue that must be resolved by a jury. It is a question of law, for court decision in the first instance, whether a contract is ambiguous, or whether it is clear and therefor subject to application as matter of law. See Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866, 871 (9th Cir.) (applying California law, which governs the interpretation of the 1964 agreement), cert. denied, 444 U.S. 981, 62 L. Ed. 2d 407, 100 S. Ct. 483 (1979); Tokio Marine & Fire Insurance Co. v. ...


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