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TOTAL VIDEO, INC. v. MILLER

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK


November 19, 1981

TOTAL VIDEO, INC., Plaintiff,
v.
Benson MILLER and Tele-Bingo Communications International Corporation, Defendants

The opinion of the court was delivered by: DUFFY

MEMORANDUM & OPINION

Plaintiff, Total Video, Inc. ("Total Video") has charged the defendants Benson Miller and his company Tele-Bingo Communications International Corporation ("Tele-Bingo") with breach of contract and fraud arising out of a joint venture to produce a television bingo show. This instant motion seeks to compel defendants to assign to Total Video all "trademark, copyright and related rights" (Plaintiff's Notice of Motion for a Preliminary Injunction) to various television bingo game shows. Plaintiff is also asking this court to preliminarily and permanently enjoin defendants from interfering with Total Video's production of such a television bingo game show and from separately producing, marketing, or selling such a show. Jurisdiction is based on diversity of citizenship.

 FACTS

 The dispute arises out of an agreement entered into between Total Video and Benson Miller, the president of Tele-Bingo Communications, Inc., on or about April 21, 1981, for the "Sales, Production & Syndication of the Federal Copyrighted "Tele-Bingo' Home Participation Game Show." (Exhibit A, Plaintiff's Notice of Motion for a Preliminary Injunction). Total Video invested $ 100,000 in the joint venture, $ 75,000 of which was directly transferred to Benson Miller. These funds were to be used for initial production costs of the venture. The contract also provided in pertinent part:

 

(A) TOTAL VIDEO, INC. WILL BE THE EXCLUSIVE "MARKETING/SYNDICATOR" FOR "TELE-BINGO" (TV "CELEBRITY BINGO") ON A "PERPETUITY BASIS" AT 45% (FORTY FIVE PERCENT), "ACROSS THE BOARD" ON ALL PROFIT FACTORS OF "TELE-BINGO" FOR $ 100,000.00, "ADVANCE OPERATING CAPITAL" TO THE "TELE-BINGO" COMMUNICATIONS INTERNATIONAL CORPORATION ...

 

(C) IT IS AGREED THAT THE $ 100,000.00 WILL BE RETURNED TO "TOTAL VIDEO, INC." WITHIN 26 WEEKS, (TWO 13 WEEK CYCLES) STARTING, JUNE 1st 1981 & THAT THERE WILL BE A "BONUS" TO TOTAL VIDEO, INC. OF $ 100,000.00, "THE FIRST YEAR OF "TELE-BINGO' OPERATION" ...

 

(G) BEN MILLER WILL ASSIGN TO TOTAL VIDEO, INC., THE "TELE-BINGO" FEDERAL COPYRIGHTS, TRADEMARKS, WRITERS GUILD OF AMERICA & OTHER LEGAL CREDENTIALS & DOCUMENTS FOR "TELE-BINGO" UNTIL THE $ 100,000.00 IS RETURNED TO TOTAL VIDEO, INC., "WITHIN TWO 13 WEEK CYCLES"

 

(Exhibit A, Plaintiff's Notice of Motion for a Preliminary Injunction).

 Total Video alleges that Benson Miller and Tele-Bingo have breached the agreement by failing to return advanced operating capital or to report to plaintiff any expenditures, failing to assign the Tele-Bingo copyrights, trademarks and related rights, and failing to request plaintiff's consent prior to the release of any invested monies (Affidavit of David DeBusschere, September 17, 1981). The plaintiff also claims to have invested significant amounts of time and money in preparation of a television bingo game show scheduled to be aired shortly.

 Benson Miller, in pro se responsive "pleadings," claims to have made significant efforts to produce the game show in question by developing contacts with the Golden Nugget Casino in Atlantic City, New Jersey, and potential hosts, such as Bert Parks and Tug McGraw, and by making arrangements for additional financing. He also alleges that Dave DeBusschere, President of Total Video, continually failed to lend promised support to the venture by refusing to attend various events related to the production and financial backing of the show. Finally, Benson Miller accuses DeBusschere and Total Video of attempting to defraud him of his copyrights, trademarks and related rights by, inter alia, making arrangements to produce the show without him.

 PRELIMINARY INJUNCTION

 In support for its motion for a preliminary injunction, plaintiff argues that it will suffer irreparable injury in that it will be unable to proceed with the show it has produced without risking suit by Benson Miller for copyright infringement. Plaintiff also contends that the continuing uncertainty as to the ownership of the copyrights, trademarks and related rights is hampering its ability to continue with the venture and harming its good will. Finally, it urges that defendants will not be harmed since the injunction requested would merely require them to perform as agreed to in the contract.

 "A preliminary injunction is an extraordinary remedy which will not be granted except upon a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the relief." Division 580, Amalgamated Transit Union, AFL-CIO v. Central New York Regional Transportation Authority, 556 F.2d 659, 662 (2d Cir. 1977). Plaintiff herein does not meet either standard for such an extraordinary remedy.

 The papers before this court present significant factual disputes and therefore, do not establish plaintiff's probable success on the merits. While plaintiff has alleged a cause of action for breach of contract, there are valid counter claims in defendant's pleading. The validity of any of these claims cannot be determined at this point.

 Under the second prong of the preliminary injunction test, although there appear to be serious questions addressed to the merits, the hardships in this case do not tip decidedly in favor of either party. As the parties on both sides appear to have expended much energy and/or money in promotion of this venture, it would be a hardship to either party to allow the other to proceed unilaterally prior to a full determination of their relative rights. While a delay in the project might forestall potential profits to the plaintiff, the injunction requested could strip the defendant of his entire stake in the venture prematurely. Accordingly, no injunction will issue until there is a determination on the merits of the parties' claims.

 As plaintiff has not met the standards required for the issuance of a preliminary injunction, the instant motion is denied. It will be required that Tele-Bingo Communications International Corporation be represented by an attorney. It is suggested that the individual defendant also obtain counsel. All discovery is directed to be completed within 60 days of the date hereof. There will be no extensions.

 SO ORDERED.

19811119

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