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MULLER v. WALT DISNEY PRODUCTIONS

May 26, 1993

HERMAN E. MULLER, JR., as the Executor under the Last Will and Testament of Leopold Stokowski, Plaintiff,
v.
THE WALT DISNEY PRODUCTIONS, THE WALT DISNEY COMPANY, and BUENA VISTA HOME VIDEO, Defendants.



The opinion of the court was delivered by: GERARD L. GOETTEL

 In 1937, Walt Disney and Leopold Stokowski, a world-famous conductor, began a collaboration that culminated in the production of the motion picture "Fantasia" and its release to the movie-going public in 1940. Disney's relationship with Stokowski was defined in a series of written contracts executed between December 16, 1937 and December 14, 1956. As part of their contractual agreements, Stokowski conducted the members of the Philadelphia Orchestra, *fn1" whose services he had procured, in the playing and recording of the music, arranged by Stokowski, that became the major part of the soundtrack for "Fantasia." *fn2" The music was completed over the course of four sessions with the orchestra.

 "Fantasia's" initial release in November 1940 met with little financial success. However, things changed with the passage of time. In 1991, fifty years later, "Fantasia" was released on home videocassette and laser discs. The result was an unqualified financial success. Indeed, we are told that "Fantasia" is the number one selling videocassette of all time.

 Needless to say, at the time Disney and Stokowski commenced their project, few if any could have predicted the advancement in communications technology and the leap of media production onto an international scale. Further, no one likely envisioned that an unsuccessful motion picture would experience a phenomenal revival five decades after its original release. Success, however, has its price. Since the release of "Fantasia" on video, a number of lawsuits have commenced against Disney, mainly stemming from the inability to anticipate in the original contracts concerning the sharing of profits and distribution royalties from the sales of "Fantasia" in media forms not yet in existence when the motion picture was first produced.

 In May 1992, the Philadelphia Orchestra Association (the "Association") commenced an action against the Walt Disney Company and Buena Vista Home Video in the federal court for the Eastern District of Pennsylvania. See The Philadelphia Orchestra Ass'n v. The Walt Disney Co. and Buena Vista Home Video, 821 F. Supp. 341 (E.D.Pa.) (McGlynn, J.). The orchestra claimed entitlement to a share of the profits resulting from "Fantasia's" sale on home videos based upon, inter alia, the 1909 Copyright Law, the Lanham Act, and common law copyright infringement, misappropriation, unfair competition, and conversion. The Association's underlying contention is that it was paid under its contract with Disney for its performance of "Fantasia's" music in conjunction with its release as a feature film but not for use of its performance or name and likeness in home video releases. Resolution of the Association's action will rest, in large part, on the interpretation of a one-page contract, dated January 11, 1939, between the Association and Michael Myerberg, agent for Disney and Stokowski.

 On December 30, 1992, Disney filed suit against Herman E. Muller, Jr., the Executor of Stokowski's Last Will and Testament. *fn3" This action was also filed in the Eastern District of Pennsylvania. See The Walt Disney Co. v. Muller, No. 92-CV-7440 (E.D. Pa.) (McGlynn, J.). In it, Disney seeks a declaratory judgment that the Estate of Stokowski retains no rights of any kind related to the sale or distribution of "Fantasia." Disney also demands that Stokowski indemnify it in the event that Disney is deemed liable to the Association for a share of "Fantasia's" profits.

 On January 22, 1993, Muller filed suit against The Walt Disney Productions, The Walt Disney company, and Buena Vista Home Video in the federal court for the Southern District of New York. *fn4" Muller relies primarily upon the four written agreements executed between Disney and Stokowski that relate to "Fantasia's" production. Many of Muller's claims mirror the claims made by the Association against Disney. In addition, Muller alleges a breach of contract based upon the contractual requirement that Stokowski be given equal billing with Disney on screen and in all advertising and publicity in connection with "Fantasia." Plaintiff contends that Disney ignored this requirement when it released the videocassette version of "Fantasia." Plaintiff also seeks an accounting of the royalty payments due and owing to Stokowski pursuant to the December 14, 1956 agreement.

 Before the court today is Disney's motion to transfer venue to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). In the alternative, Disney requests a stay of this action pending resolution of the suits in Pennsylvania by Disney and the Association. Naturally, plaintiff opposes this motion.

 Section 1404(a) of Title 28 reads, "For the convenience of parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The decision of whether to transfer venue rests with the sound discretion of the court. Filmline (Cross-Country) Productions, Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989). In making this determination, the court must consider several factors including the convenience of the witnesses and parties, plaintiff's choice of forum, the relative ease of access to sources of proof, the forum's familiarity with the governing law, trial efficiency, and the overarching interests of justice. See Don King Productions, Inc. v. Douglas, 735 F. Supp. 522 (S.D.N.Y. 1990).

 The parties agree that the first factor, convenience of witnesses, is not a major factor in this action since the events involving the creation of "Fantasia" occurred more than fifty years ago. Disney claims that the few witnesses who remain alive will be musicians from the Philadelphia Orchestra and former Disney employees. Disney argues that this gives Philadelphia a slight edge over New York as the most convenient forum for witnesses.

 While this factor is certainly not the weightiest in this action, we view it as even weaker than defendants do. No former Disney employees with information regarding the intent of the parties to the original "Fantasia" contracts and production have been identified. Whether New York or Pennsylvania would be the most convenient forum for them is impossible to say. Indeed, since Disney was based in California during the 1930s and 1940s, California seems a likely contender as the most convenient forum based on witness convenience. Moreover, the contracts in question between Disney and Stokowski were signed in California and Texas. *fn5"

 Further, nothing suggests that any former musicians in the Philadelphia Orchestra who still reside in Pennsylvania (none are identified by name) would offer any evidence relevant to the claims in this action. While they might offer material evidence regarding the Association's claims against Disney, we fail to see how they could shed any evidentiary light on the contractual issues between Disney and Stokowski. There is no indication that they played any role in the events surrounding the execution of the contracts. If any unidentified former musicians are living and still reside in Philadelphia, facts presently unknown, the only thing we might say with certainty is that they might be able to testify to the events concerning the recording of "Fantasia's" musical score. And even that assumes that they can recall any details about events that occurred fifty years ago. Beyond that, any weight they might add onto the balance of convenience is mere speculation at this point.

 The second major factor in considering the transfer of venue is the convenience of the parties. Disney argues that Muller's true clients, the beneficiaries of Stokowski's Estate (whoever they may be), have no meaningful connection to New York. Therefore, defendants argue, plaintiff's interest in keeping the action in New York is minimal. Moreover, Disney argues that a substantial part of Stokowski's work on "Fantasia" took place in Philadelphia. The four sessions in 1939 at which "Fantasia's" music was recorded occurred at the Philadelphia Academy of Music. Defendants also contend that Philadelphia was Stokowski's home during the period when he worked on the "Fantasia" project. Thus, Disney argues, this action not only could have been commenced in the Eastern District of Pennsylvania, but trying the case in Philadelphia will provide easier access to its sources of proof.

 Aside from conflating the convenience of the parties with access to sources of proof, we view this argument as weak. Disney's convenience does not appear to weigh heavily in Pennsylvania's favor. Although, Disney has already commenced an action against Muller in Philadelphia, to our knowledge, Disney has no offices in Pennsylvania. While headquartered in California, Disney does maintain offices in New York City.

 We disagree that plaintiff has only minimal interests in litigating in New York. Stokowski's Estate is located in New York. Stokowski lived out his life in Scarsdale, New York and died a domiciliary of this state. His Last Will and Testament were probated in the Westchester County Surrogate's Court in New York. Moreover, the royalties that Disney has to date paid to Stokowski, or his Estate, were paid through Mr. Muller in New York. Muller, the Executor of Stokowski's Estate, maintains his office in New York City. Obviously, New York was the plaintiff's chosen forum for reasons of his convenience.

 The location where the Orchestra recorded the music for "Fantasia" and Stokowski's residence in Philadelphia many years ago may be relevant to claims based upon a failure of the Orchestra or Stokowski to provide the performances called for under their contracts with Disney. They are not relevant to the present issues regarding what performance or royalty rights, if any, Stokowski retained concerning "Fantasia's" release on home video. We are more sensitive to plaintiff's choice of forum in large part because, as a far-reaching commercial enterprise conducting its business nationwide, it is ...


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