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SIMS v. BLANCHRIS

December 9, 1986

PETER SIMS, Plaintiff,
v.
BLANCHRIS, INC., MUSE RECORDS and JOSEPH FIELDS, Defendants



The opinion of the court was delivered by: POLLACK

Pollack, J., Senior United States District Judge,

This case was tried to the Court at a Bench trial. The suit is brought under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Jurisdiction is invoked pursuant to 15 U.S.C. § 1121.

 Plaintiff, appearing pro se, alleges what essentially boils down to four claims: (1) unfair competition and false designation of origin under section 43(a) of the Lanham Act, (2) defamation, (3) breach of a contract for royalties, and (4) infliction of mental and emotional distress.

 FACTS

 Peter Sims, the plaintiff in this action, is an orchestral drummer who turned to the study and practice of law. On or about May 25, 1967 Sims, then known professionally as "Pete La Roca," performed with three other musicians for master recordings made by Alan Douglas of the Douglas International Corporation of New York ("Douglas"). Plaintiff played the drums, John Gilmore played tenor saxophone, Walter Booker was bassist, and Chick Corea was the pianist. Mr. Corea has gone on to substantial national and international fame.

 Douglas embodied the master recordings in an album he produced and entitled "Turkish Women at the Bath." The album contained seven jazz compositions written by plaintiff Sims; one of these is entitled "Bliss."

 Plaintiff claims that when the album was recorded in 1967 he signed an agreement with Douglas providing that Douglas would pay to Sims as a royalty 10% of the wholesale price or 5% of the retail price of the records and tapes sold which embodied the recorded performances and compositions. The alleged agreement was not produced at the trial and its absence was insufficiently accounted for.

 In 1972 Douglas conveyed all of its right, title, and interest in the master recording to Brooke Productions, Inc. of Malvern, Pennsylvania. Between April 1973 and December 1973 Brooke effected a conveyance of all of its right, title, and interest in the master recording to defendants Muse Records of New York, a division of Blanchris, Inc., and Joseph Fields, president of Muse.

 Upon receiving the masters, defendants in 1973 released the masters in an album entitled "Bliss! Chick Corea" (referred to hereafter as the "Original Muse Album"). On the front cover of this album, immediately below the title and in smaller type, there appeared the names "John Gilmore, Walter Booker, Pete La Roca." Below these names is a picture of the musician Chick Corea, apparently taken in a music studio.

 The back cover of the liner notes of the Original Muse Album included paragraphs, the substance of which breaks down as follows: P1-P3, general remarks introduced by a Corea quote; P5-P6, remarks on Corea; P7-P10, remarks regarding the other three musicians including the statements that "the date was originally contracted under the drummer's name," and, "Yet for one reason or another, La Roca became disenchanted with the jazz life and quietly disappeared from the scene."

 Late in 1973, after MUSE released the Original Muse Album, plaintiff brought an action in this court against Muse and Joseph Fields, 73 Civ. 5395 (MP), alleging claims for unfair competition, trademark infringement, and defamation arising from Muse's release of the album.

 On April 3, 1975 the parties settled that action, and plaintiff signed a general release reading in full as follows:

 PETER (LA ROCA) SIMS, in consideration of the sum of twenty-five hundred ($2,500) dollars received in full by him from Muse Records, Inc. and Joe Fields, hereby remises, releases and forever discharges Muse Records, Inc., and Joe Fields, individually, from all actions, causes of action, suits, debts, contracts, agreements, promises, damages, claims and demands whatsoever in law or in equity which Mr. Sims ever had or may now have in respect to the subject matter of the proceedings captioned Peter (La Roca) Sims -v- Muse Records, Inc., a division of Blanchris, Inc., and Joe Fields, President, Music Records, Inc., 73 Civ. 5395 (MJP) [sic], presently pending in the United States District Court for the Southern District of New York. The release may not be changed orally. *fn1"

 Plaintiff commenced this action on February 3, 1986, asserting claims virtually identical to those pursued in the 1973 suit. Plaintiff claims that the general release does not bar a suit based on the distribution of the Original ...


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