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HANNA-BARBERA PRODUCTIONS v. SCREEN GEMS-EMI MUSIC

July 22, 1993

HANNA-BARBERA PRODUCTIONS, INC., Plaintiff,
v.
SCREEN GEMS-EMI MUSIC INC., COLGEMS-EMI MUSIC INC., and BROADCAST MUSIC, INC., Defendants.



The opinion of the court was delivered by: MICHAEL B. MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 Plaintiff Hanna-Barbera Productions, Inc. sues defendants Screen Gems-EMI Music Inc. and Colgems-EMI Music Inc. (collectively "EMI") and defendant Broadcast Music, Inc. ("BMI") for copyright infringement and violations of state law. EMI moves to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, and 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated below, plaintiff has not satisfied the test for jurisdiction of copyright infringement claims set forth in Schoenberg v. Shapolsky Publishers, Inc., 971 F.2d 926, 932-33 (2d Cir. 1992), because the theoretical foundation supporting plaintiff's claims is contract law, not copyright law. Accordingly, EMI's motion to dismiss for lack of subject matter jurisdiction is granted.

 I.

 The complaint's allegations, which must be taken as true, Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974), are as follows: from 1957 through 1963, plaintiff created and obtained copyrights in music for certain television cartoons (the "Classic Cartoons").... (Compl. PP 7-9) *fn1" EMI concedes that plaintiff owns the copyrights at issue.... ( Daniels Aff., Ex. 2 P 6) In 1958, plaintiff and Columbia Pictures Corporation agreed that Columbia would collect revenue from the music and share the revenue with plaintiff. (Compl. PP 11-12, 15) Sometime before April 1967, plaintiff and Columbia modified their agreements to confine Columbia's rights to territories outside the United States and Canada. ( Id. P 15) Later, pursuant to a 1983 agreement, Columbia's license was terminated.( Id. P 21)

 EMI asserts that Columbia conveyed its rights to EMI's predecessors in 1976. ( Daniels Aff., Ex. 2 P 10) The complaint alleges only that on a date unknown, Columbia's license "was purportedly transferred to the EMI Defendants," and plaintiff alleges that those rights were not properly transferred.( Id. PP 14, 18)

 From 1967 through 1992, plaintiff successfully collected copyright revenue, and until 1992 neither Columbia nor EMI asserted any right to the copyrights in the United States or Canada.( Id. PP 16, 19) On October 15, 1992, EMI notified defendant BMI, which had been collecting and distributing the copyright revenue, that EMI claimed a portion of the revenue and asked BMI not to distribute to plaintiff such revenue until EMI's rights were determined. (Daniels Aff., Ex. 4) Thereafter, BMI did not pay plaintiff. (Compl. P 23) BMI has assumed the role of a stakeholder.

 In November 1992 EMI filed a complaint in New York state court, later amended, against plaintiff and related entities, seeking 50% of the revenue already collected by plaintiff from the copyrights.... (Daniels Aff, Ex. 2, PP 14, 19) Plaintiff brought this action on December 23, 1992, and answered EMI's complaint in state court on December 30, 1992, denying EMI's allegations. (Id., Exs. 1, 3)

 Plaintiff argues that federal jurisdiction arises from two claims of copyright infringement in the complaint. The first alleges that EMI asserted an exclusive license to the copyrights and "purported to grant to BMI a non-exclusive license authorizing BMI to exploit the copyrights . . . ." (Compl. P 27) The second claim alleges that EMI is "without right, title or interest" with respect to the copyrights. (Compl. P 36)

 Much of plaintiff's complaint and argument is based on an October 15, 1992 letter from EMI to BMI.... The letter stated that although plaintiff is

 
the copyright proprietor of the music embodied in the Hanna-Barbera cartoons . . . EMI takes the position that, beginning on July 1, 1976, EMI was entitled to collect, in perpetuity, all of the publisher's share of performance income payable throughout the world with respect to the Hanna-Barbera Music.

 (Ex. 4 at 1) EMI attached to the letter a copy of the 1963 license agreement between Hanna-Barbera and Screen Gems and the 1976 agreement between Columbia and EMI's predecessors.... The letter requested that BMI place on hold worldwide income from the copyrights, and advised BMI that EMI was claiming all funds then and thereafter attributable to the copyrights in BMI's hands.

 
22. In or about October 1992, without justification or basis, the EMI Defendants contacted BMI wrongfully asserting a license with respect to copyrights in the music associated with the Classic Cartoons in the United States and Canada, purporting to grant BMI a non-exclusive license authorizing BMI to exploit copyrights in the music associated with the Classic Cartoons in the United States and Canada and claiming all publisher's royalties derived from the exploitation of the copyrights in the music.

 (Compl. P 22)

 Plaintiff argues that EMI infringed the copyrights by claiming an entitlement to "administer and otherwise exploit" the music and by threatening BMI.... (Pl. Mem. at 8) Plaintiff argues that the letter implies that the authority in BMI to sub-license, and to collect and distribute royalty fees with respect to the music is under EMI's authority, not plaintiff's.... Plaintiff cites the general principle that authorization of infringing use alone is sufficient to confer subject matter jurisdiction.See, e.g., Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1443 (9th Cir. 1986).

 Finally, plaintiff argues that its grant of a license to BMI is analogous to a compulsory license, and therefore BMI's failure to pay royalties after receiving EMI's demand and threat constitutes copyright infringement by EMI.See Essex Music Inc. v. ...


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