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BERNSTEIN v. UNIVERSAL PICTURES

June 28, 1974

Elmer Bernstein et al., Plaintiffs
v.
Universal Pictures, Inc. et al., Defendants


Brieant, D.J.


The opinion of the court was delivered by: BRIEANT

BRIEANT, D.J.:

This class action was commenced on February 7, 1972 by 71 composers and lyricists as named party plaintiffs. These authors and composers of original words and music for motion picture and television films sue on behalf of themselves, and all others similarly situated. Defendants are motion picture and television producers. The Association of Motion Picture and Television Producers, Inc. (hereinafter "AMPTP"), a trade association to which most of the defendants belong, has been dismissed as a defendant by stipulation.

 Plaintiffs invoke our jurisdiction under §§ 4 and 16 of the Clayton Act (15 U.S.C. §§ 15 and 26) and §§ 1 and 2 of the Sherman Act (15 U.S.C. §§ 1 and 2), to secure injunctive relief and damages for alleged antitrust violations.

 An order of this Court dated June 18, 1973 determined, conditionally, that this litigation be maintained as a class action pursuant to Rule 23(b) (1), F.R. Civ. P. A further order dated October 5, 1973 defined the class as:

 
"all composers and lyricists, and in the case of deceased composers and lyricists, their representatives, who have composed music and/or lyrics for any of the defendants for motion pictures and television shows. . . ." *fn1"

 The complaint alleges that defendants, acting in concert, refuse to contract for the services of composers, *fn2" except upon certain standard terms and conditions imposed upon them by the defendants, and that the imposition of these terms by the defendants is part of a conspiracy aimed at monopolizing the (sheet) music publishing industry by preventing plaintiffs and others from entering the industry, in violation of the antitrust laws.

 The standard terms referred to are contained in agreements between defendant producers and composers. In essence, these terms relate to ownership by producers of copyrights of the compositions created by the composers for motion picture and television sound tracks. *fn3"

 The named plaintiffs are all members of the Composers and Lyricists Guild of America, Inc. ("CLGA"), which was formed in 1954, as are most of the members of the plaintiff class. Notice of the pendency of this action, and an invitation to join as parties plaintiff was sent to all 427 members of CLGA, except the 71 plaintiffs. Some 291 members did not reply or replied negatively. Approximately 65 responded affirmatively, but the record shows no additional plaintiffs intervened or asked to be listed as plaintiffs.

 In July 1973, plaintiffs moved pursuant to Rules 12(f), 56 and 65 for an order:

 
"striking, or in the alternative, granting summary judgment dismissing defendants' affirmative defenses based on (1) the labor exemption of the antitrust laws, and (2) the claim of primary and exclusive National Labor Relations Board jurisdiction, and for an order enjoining defendants during the pendancy (sic) of this action from imposing upon plaintiffs standard terms regarding the right to publish and exploit plaintiffs' musical compositions or from making any contracts having the effect of restraining plaintiffs from making use of their musical compositions or surrendering to defendants the copyrights in said musical compositions. . . ."

 The motion was heard on February 28, 1974.

 A motion for summary judgment seeking dismissal of affirmative defenses is clearly improper, and therefore relief pursuant to Rule 56 must be denied plaintiffs.

 
"It is difficult to see how the elimination of affirmative defense could lead to any judgment, summary or otherwise. It would merely narrow the area of dispute; and the Rules do not appear to contemplate the use of the summary judgment procedure in situations such as the present one." Seacoast Liquor Distributors, Inc. v. Kips Bay Brewing Co., Inc., 8 F.R.D. 74, 75 (S.D.N.Y. 1947).

 In Old Dutch Farms, Inc. v. Milk Driv. & Dairy Emp. Loc. U. No. 584, 281 F. Supp. 971 (E.D.N.Y. 1968), the Court considered a motion for summary judgment brought pursuant to Rule 56 to dismiss affirmative defenses as a motion to strike under Rule 12(f), stating:

 
"Although at one time the proper procedure for raising objection to the sufficiency of a defense troubled some courts, it seems that the 1946 amendment to Rule 12(f) was designed to provide a specific method of ...

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