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STILLMAN v. NICKEL ODEON

April 30, 1985

JOHN WHITNEY STILLMAN d/b/a/ STILLMAN INTERNATIONAL, Plaintiff, against NICKEL ODEON, S.A., JOSE ESTEBAN ALENDA, JOSE LUIS GARCI also known as JOSE LUIS GARCIA MUNOZ, ENRIQUE HERREROS, SIMON/REEVES/LANDSBURG PRODUCTIONS INC., RICHARD A. WALDBERG and SHAPIRA FILMS, LTD., Defendants


The opinion of the court was delivered by: SAND

SAND, J.

Plaintiff, a New York foreign language film licensing and sales agent, has instituted this action based on an alleged oral agreement entered into by plaintiff and defendant Nickel Odeon, a Spanish film company owned by defendants Alenda and Garci, making plaintiff the exclusive licensing agent for a Spanish film entitled "Volver a Empezar." *fn1" Defendants have moved for summary judgment with respect to plaintiff's contract claims. *fn2" Defendants contend that Spanish law governs the resolution of plaintiff's contractual claims and that such claims must be dismissed pursuant to Spanish legal standards. As an initial matter, this Court must first determine what law is to be applied in resolving the parties' contractual dispute. For the reasons discussed below, we conclude that the law of New York should be applied. Accordingly, defendants' motion for summary judgment is denied.

Introduction

 The first issue which this court must resolve is what law to apply in the instant action. At the October 25, 1984 oral argument of this motion, the parties agreed that this choice of law issue would be separated from all other issues in the case and submitted to the Court for resolution. the parties have stipulated, by the submission of certain documents, affidavits, and testimonial evidence, to the facts upon which this court is to base its decision. *fn3" The parties' stipulation as to these facts has been made solely for purposes of resolving this choice of law question. The Court has also examined the affidavits of plaintiff's and defendants' Spanish law experts in making this Determination. See F.R.Civ.P. 44.1.

 Facts4

 Plaintiff is engaged in the business of licensing foreign language films for distribution on an international bases. On May 5, 1982, plaintiff and Irene Stillman, his wife, met with defendants Garci and Alenda at the offices of defendant Nickel Odeon in Madrid, Spain, to discuss the defendants' film "Volver a Empezar" ("To Begin Again" or "Begin the Beguine") (hereinafter "the Film"). Garci (the Film's director) and Alenda (the Film's producer) are the sole shareholders and officers of Nickel Odeon. these parties met again the following day at the offices of Nickel Odeon. At this meeting, plaintiff entered into an oral agreement with Nickel Odeon to distribute the film on a worldwide basis, except for Spain. Rachlin Affidavit § 5; Dep. Stillman 75-79. according to plaintiff's deposition testimony, Nickel Odeon agreed to pay plaintiff a commission equal to 20% of the gross revenues (less special expenses) generated by plaintiff from his licensing of the Film for distribution. Neither party suggested that this agreement be reduced to writing at that time. Dep. Stillman 79-80. The parties did agree that the duration of their agreement would be determined at the upcoming Cannes Film Festival in France. Plaintiff thereafter commenced his promotional efforts in anticipation of the film festival.

 On May 19, 1982, plaintiff and Irene Stillman met with Alenda in Cannes, France. At that meeting, the parties agreed orally that the term of their agreement would run from May 6, 1982 to January 15, 1983, with a provision for automatic six-month renewal periods unless Nickel Odeon notified plaintiff of its intention to cancel the agreement 45 days prior to its termination. This agreement was not reduced to writing.

 During the following year, plaintiff engaged in extensive efforts to license the Film for distribution all over the world. Plaintiff wrote to various film production companies and other interested parties as part of his promotional and licensing efforts. See, e.g., PX 47 (letter from Australian production company); 84 (telegram from Czechoslovakian film commission); 102 (letter from Netherlands broadcasting company); 103 (letter from Norwegian broadcasting company); 104 (letter from Belgian film company); 105 (letter to West German film company); 109-13 (letters to Swedish film company); 114 (letter to Switzerland film company); 115 (letter to French film company); 116 (letter to British film institute); 129 Letter to Japanese film company). Plaintiff attended various film festivals as well. See, e.g., PX 20 (Montreal); 104, 106 (Berlin); 107-10 (Goteborg); 133 (Milan). Plaintiff's promotional efforts were reported in at least two issues of Variety Magazine, a major entertainment industry publication. Rachlin Aff. Ex. G. (reporting that film was "repped for world sales by Stillman International of New York"). Plaintiff also communicated to Nickel Odeon his efforts to promote and license the Film on a worldwide basis. Rachlin Aff. § 5; PX 25, 123.

 Plaintiff's efforts bore fruit in the form of an agreement with Richard A. Waldberg to distribute the Film in Australia, Rachlin Aff. Ex. H, and an agreement with Shapira Films, Ltd. to distribute the Film in Israel. Id. Ex. J. The former agreement was entered into on May 23, 1982, in Cannes, France; the latter agreement was entered into on December 31, 1982, in New York City. Both agreements indicated that payments by the respective licensees were to be made to plaintiff's New York office or New York bank account (or, in Shapira's case, to Nickel Odeon, if plaintiff so specified). Copies of these agreements were forwarded to Nickel Odeon. Rachlin Aff. Ex. J.

 Sometime during late July or early August of 1983, plaintiff drafted a representation agreement which embodied the terms of the oral agreement described above. Seife Aff. Ex. E; Dep. Stillman 88-90. Plaintiff presented this agreement to Garci at the Montreal Film Festival in August 1982. Rachlin Aff. § 5. This agreement was not signed by either party to the alleged oral agreement. on August 30, 1982, Nickel Odeon entered into a written agreement with Twentieth Century Fox International Corp., granting Fox exclusive rights to distribute the Film in various Latin American countries. PX 5. In December 1982, plaintiff wrote to Alenda, describing his efforts to promote and license the Film world wide and asking him to sign the representation agreement which he had presented to Garci in Montreal. PX 25. The agreement was not signed by either party.

 On February 16, 1983, plaintiff and Nickel Odeon entered into a written agreement which "confirm[ed] in writing that Whit Stillman . . . has acted with the authorization of Nickelodeon S.A. in the negotiation of the sale of our film "Volver a Empezar" (Begin the Beguine), to the countries of Australia and Israel" and stated that Nickel Odeon "com[m]its itself to fulfill the clauses of the contracts" with Australia and Israel. Rachlin Aff. Ex. L. This agreement contained sales commission terms similar to those orally agreed upon previously by the parties. It also specified particular payment terms with respect to the Australian and Israeli sales contracts and stated that failure to comply with these terms would result in Nickel Odeon's cancellation of the contracts. Id.

 On March 1, 1983, Nickel Odeon cancelled its written agreement with plaintiff, claiming that Waldberg and Shapira had failed to comply with its payment terms. In response, plaintiff asserted that Waldberg and Shapira had complied with the contract terms and stated that it would pursue legal action to enforce its May 6, 1982 oral agreement if defendants did not honor the Australian and Israeli film distribution agreements. PX 24.

 On May 23, 1983, during the Cannes Film Festival in France, Nickel Odeon entered into an agreement with Waldberg granting him the right to distribute the Film in Australia. Rachlin Aff. Ex. U. This agreement was virtually identical to the film distribution agreement previously entered into by plaintiff and ...


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