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CAPANO MUSIC v. MYERS MUSIC

February 5, 1985

CAPANO MUSIC, a division of Britone, Inc., Plaintiff, against MYERS MUSIC, INC., Defendant, DANIEL WALDSTEIN, Intervenor, MOLLIE GOLDSTEIN, Intervenor.


The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, U.S.D.J.

This is a suit for declaratory judgment to determine the successor to Max Freedman's copyright interest in the song, "Rock Around the Clock." Plaintiff and defendant, as well as intervenors Mollie Goldstein and Daniel Waldstein, have moved for summary judgment.

The following facts are not in dispute: Max Freedman and James Myers (a/k/a Jimmy DeKnight) co-authored the song "Rock Around the Clock." The song was published with notice of copyright and registered in the United States Copyright Office on March 31, 1953, by and in the name of Myers Music, Inc. ("Myers Music").

 Max Freedman, a resident of Pennsylvania, died on October 8, 1962. He was survived by his widow, Ray Freedman, but left no issue. He left a will, made jointly with Ray Freedman, under which each bequeathed to the survivor "all of [his or her] worldy possessions," except for specific legacies totalling $2,000. The will was duly admitted to probate on February 13, 1964, and Ray Freedman was appointed administratrix cum testamento annexo (c.t.a.) of Max Freedman's estate.

 On January 9, 1978, Ray Freedman assigned to plaintiff Capano Music ("Capano") her rights in the copyright of "Rock Around the Clock" for $2,000. She died on December 28, 1980, leaving a wall which left all her copyright and royalty rights and interests to Mollie Goldstein, her sister. The will was duly admitted to probate on January 5, 1981. Aaron Baer was appointed executor of Ray Freedman's estate.

 On January 26, 1981, the copyright in the song was renewed by and in the name of James Myers, the surviving co-author.

 That same day, Aaron Baer executed and delivered to Capano a document entitled "Addendum." The "addendum" stated that Baer, as executor of Ray Freedman's estate, "acknowledge[d] approval of the terms and conditions" of the January 9, 1978 assignment of Ray Freedman's interests in "Rock Around the Clock" to Capano. The document states that Baer was also acting on behalf of Mollie Goldstein, Ray Freedman's sister and legatee, but Goldstein now contends that her consent to the execution and delivery of the addendum was induced by fraud.

 On December 28, 1982, intervenor Daniel Waldstein, a nephew of Max Freedman, assigned his interest in the copyright to Capano. Waldstein claimed ownership of the copyright interest through his deceased mother, Ann Freedman Waldstein, who was Max Freedman's sister and sole surviving next of kin.

 On May 5, 1983, Baer, the executor of Ray Freedman's estate, was appointed administrator de bonis non cum testamento annexo (d.b.n.c.t.a.) of Max Freedman's estate. Two days earlier, Baer (apparently in anticipation of the appointment) had executed a document distributing Max Freedman's interest in the copyright to Mollie Goldstein. He stated that he was doing so as administrator of Max Freedman's estate, pursuant to the bequest made by Max Freedman to Ray Freedman and the bequest made by Ray Freedman to Goldstein. The, on July 1, 1983, Goldstein assigned her interest in the song to Myers Music in exchange for a $10,000 payment and a guarantee of at least $156,000 in royalties. In a separate document dated the same day, Baer joined with Goldstein in conveying the copyright interest to Myers Music.

 At his deposition of February 23, 1984, Baer was notified that the May 3 purported conveyance to Goldstein preceded his actual appointment as administrator of Max Freedman's estate. On May 28, 1984, Baer executed a document purporting to confirm and certify the May 3 transfer.

 From this set of facts, the parties suggest three paths along which the copyright interest may have traveled. Waldstein argues that upon Ray Freedman's death, the interest bounced back to Max Freedman's estate and then proceeded through Ann Freedman Waldstein (Max Freedman's next of kin) to Waldstein, and then on to Capano. Capano adopts Waldstein's argument, and argues in the alternative that the interest passed from Max Freedman to Ray Freedman upon the admission to probate of the former's will, and from Ray Freedman to Capano via either the January 9, 1978 assignment or the January 26, 1981 addendum. Myers Music and Goldstein argue that the interest passed from Max Freedman's estate to Ray Freedman, from Ray Freedman's estate to Goldstein, and from Goldstein to Myers Music.

 DISCUSSION

 Under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., works which obtained statutory copyright before January 1, 1978, and which did not enter the public domain before that date are protected for an initial term of twenty-eight years. During the twenty-eighth year, the copyright may be renewed for a second term of forty-seven years. § 304(a). If the copyright is not renewed, the work passes into the public domain.

 In the instant case, "Rock Around the Clock's" first term of protection lasted from March 31, 1953, to December 31, 1981. *fn1" Max Freedom had assigned his first term interest to Myers Music, in whose name the song was initially copyrighted. There is no dispute about that. Assignment of an author's first term interest, however, does not include assignment of the renewal rights. Fred Fisher Music Co. v. M. Witmark and Sons, 318 U.S. 643, 87 L. Ed. ...


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