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LARRY SPIER, INC. v. BOURNE CO.

November 8, 1990

LARRY SPIER, INC., PLAINTIFF,
v.
BOURNE CO., DEFENDANT.



The opinion of the court was delivered by: Haight, District Judge:

MEMORANDUM OPINION AND ORDER

In this action under the Copyright Act between two music publishers, plaintiff seeks a declaration that defendant's rights in certain songs have been terminated and an accounting. Defendant moves under Rule 56, Fed.R.Civ.P., for summary judgment dismissing the complaint.

Background

Plaintiff Larry Spier, Inc. ("Spier") and defendant Bourne Co. ("Bourne") are music publishers.

The late Dave Dreyer was a composer of popular songs. During the period 1925 through 1931, Dreyer, in collaboration with such legendary figures as A1 Jolson and Billy Rose, co-authored five songs: "Me and My Shadow", "Wabash Moon," "There's a Rainbow Round My Shoulder," "Back In Your Own Backyard," and "Cecilia." Shortly after their composition, Dreyer assigned his copyrights to the songs to Bourne's predecessor in interest, Irving Berlin, Inc. Those assignments were for the initial term of the copyrights. In 1951 Dreyer assigned the renewal terms of the copyrights to Bourne.

On January 5, 1965 Dreyer executed his last will and testament, adding a first codicil on March 8, 1965. Dreyer died on March 2, 1967.

After making certain specific bequests, Dreyer's will provided as follows:

  THIRD: I anticipate that among the assets of my
  estate will be copyrights, renewal copyrights and
  extensions thereof, and publishing contracts with
  respect to musical compositions written by me,
  and the rights deriving from my membership, as a
  writer, in the American Society of Authors,
  Composers and Publishers (ASCAP), in accordance
  with its rules. All of such property will
  hereinafter be referred to collectively, for
  convenience, as my "music assets".

The Fifth Article of Dreyer's will placed those "music assets" into a testamentary trust. The will provided:

  FIFTH: All of my assets other than those which
  shall have been set apart as principal of Trust
  "A", and after ANNA's death those music assets
  which theretofore had constituted a part of Trust
  "A", I give and bequeath to my Trustee to hold,
  manage, invest and reinvest the same, and to
  collect the income therefrom, upon the following
  uses and purposes: . . .

Dreyer was survived by his widow Anna Dreyer, his son Lewis Dreyer, and his daughter Marie Dreyer Rothblum. The will was probated, the trust came into being, and trustees were appointed. Under the will Anna Dreyer received a certain portion of the net income from copyright and renewal rights, with remaining income divided between Dreyer's son Lewis, his daughter Marie Dreyer Rothblum, and Mynna Granat, his mistress. Upon the death of Anna Dreyer, all the net income from copyright and renewal rights was to be distributed equally between Mynna Granat, Marie Dreyer Rothblum and Lewis Dreyer. The will provided that the trust would survive at least until the death of two of these named beneficiaries.

In 1972, prior to expiration of the initial and renewal terms of the copyrights to the songs in question, Lewis Dreyer died, leaving his wife Beth and two sons Steven D. Dreyer and Dean Dreyer. In 1984 Anna Dreyer died intestate. In 1989 Dean Dreyer died intestate.

In accordance with Dreyer's will, the American Society of Composers, Authors and Publishers ("ASCAP") and the Song-writers Guild are distributing royalties in respect of Dreyer's compositions. The present schedule of distribution is: one-third to Mynna Granat, one-third to Marie Dreyer Rothblum, one-sixth to Steven D. Dreyer and one-sixth for the benefit of Dean Dreyer's son.

In April 1981, Anna Dreyer, Marie Dreyer Rothblum, Steven D. Dreyer, and Dean Dreyer executed and mailed to Bourne notices of termination, purportedly pursuant to the Copyright Act, 17 U.S.C. § 304(c) and 37 C.F.R. § 201.10, seeking to terminate Bourne's rights to the songs in question. In 1988 Steven D. Dreyer and Dean Dreyer executed assignments of their rights to the songs to Spier. It appears from plaintiff's amended complaint that in May 1990, in apparent response to defendant's present ...


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