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March 27, 1986

ANGEL MUSIC, INC. on behalf of itself and all other publishers, persons or entities which own copyrighted music and which are represented by THE HARRY FOX AGENCY, Plaintiffs,
ABC SPORTS, INC. on behalf of itself and all other producers, syndicators and distributors of television programs utilizing copyrighted music and THE HARRY FOX AGENCY, Defendants

The opinion of the court was delivered by: SWEET


 Plaintiff Angel Music, Inc. ("Angel Music") brought this copyright infringement action against defendant ABC Sports, Inc. ("ABC") alleging that ABC failed to obtain a "synchronization" license to record copyrighted songs owned by Angel Music. ABC now moves pursuant to Rule 56 Fed.R.Civ.P. for summary judgment dismissing the complaint on the grounds that the copyrighted music in question was duly licensed by ABC. Angel Music has cross-moved for an order dismissing the second affirmative defense contained in ABC's answer to the complaint because it is void as a matter of federal law. For the reasons set forth below, both summary judgment motions are denied.

 Prior Proceedings.

 Angel Music filed this action on November 1, 1984 purporting to represent a plaintiff class of music publishers represented by the Harry Fox Agency, Inc. ("Harry Fox"), naming as defendants Harry Fox for alleged breach of fiduciary duty and a class of producers of television programs. On December 13, 1984, Angel Music moved for certification of its plaintiff and defendant classes, and on January 7, 1985 Harry Fox moved to dismiss the complaint for lack of federal jurisdiction, which motion was granted by order of May 22, 1985.

 ABC served its answer on January 15, 1985 asserting numerous affirmative defenses to Angel's action, and moved for summary judgment on August 19, 1985. Angel Music then filed its cross-motion for summary judgment dismissing ABC's second affirmative defense on October 15, 1985. The parties agreed to hold the class certification motion in abeyance, pending the outcome of the summary judgment motions. The motions were finally heard and submitted on December 20, 1985.

 Factual Background

 Angel Music seeks to require the purported class of television producers to obtain "synchronization" licenses from music copyright owners prior to using copyrighted music compositions as background music on soundtracks of a film or videotape in synchronization with visual images. The specific claims in this suit arise out of the airing of a three-minute documentary created by ABC entitled " Ski Jump Evolution of Style," shown in connection with ABC's coverage of the 1984 Winter Olympics in Sarajevo, Yugoslavia (the "Documentary"). To depict the evolution in ski-jumping style from 1920 to the present, ABC assembled clips from each decade and filmed or videotaped selected portions of each. ABC then recorded music from the relevant time periods onto the soundtrack of the film or videotape in synchronization with the visual images of the ski jumping. The film clip representing the ski-jumping styles of the 1950's was accompanied by nineteen seconds of a musical composition entitled "Walkin' With Mr. Lee," (the "composition"), a copyrighted song owned by Angel Music.

 On February 18, 1984, during a regularly scheduled network broadcast of the Sarajevo ski-jumping, ABC broadcast the Documentary over nationwide television. Mr. Murray Sporn ("Sporn"), president of Angel Music, saw this documentary on Mexican cable television while in Mexico in February, 1984, and initiated a series of letters to ABC complaining that ABC had failed to acquire a synchronization license for its use of "Walkin' With Mr. Lee." Mr. Albert Berman ("Berman"), then president of Harry Fox, sent similar letters to ABC requesting that it obtain a synchronization license for the composition. Mr. Charles Stanford ("Stanford"), ABC's vice president for legal and business affairs, responded in a letter of May 23, 1984 that in ABC's judgment "this incidental background use of the composition on a single occasion within our on-going coverage of the 1984 Winter Olympics was fully covered by ABC's 'blanket' performing rights licenses, and in this situation, a synchronization license was not necessary."


 The two contracts at issue in this action concern licensing agreements for copyrighted works owned by Angel Music. The first contract authorizes Broadcast Music Inc. ("BMI") to grant to others "performance rights" in Angel Music's copyrighted compositions, permitting the holders of such licenses to perform such music live, on film, on record or on tape (the "Angel Music-BMI" agreement). BMI thus acts as a "clearinghouse" for the licensing of these performance rights, and collects fees from licensees out of which BMI compensates its affiliates for the use of their compositions. Such performance rights have been granted to Angel Music by section 106(4) of the Copyright Act, 17 U.S.C. ยง 106(4). *fn1" The portions of the Angel Music-BMI agreement relevant to this controversy are as follows:

THIRD: Publisher hereby sells, assigns and transfers to BMI, its successors or assigns, for the term of this agreement:
A. All the rights which Publisher owns or acquires publicly to perform, and to license others to perform, for profit or otherwise, anywhere in the world, any part or all of the works, such rights being granted exclusively to BMI except to the extent specifically set forth on schedule A or on a clearance sheet or cue sheet submitted pursuant to subparagraph A of paragraph Tenth.
B. The non-exclusive right to record, and to license others to record, any part or all of any of the works on electrical transcriptions, wire, tape, film or otherwise, but only for the purpose of performing such work publicly by means of radio and television or for archive or audition purposes and not for sale to the public or for synchronization with motion pictures intended primarily ...

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