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ROBERTS v. ATLANTIC RECORDING CORP.

May 22, 1995

CHAPMAN ROBERTS and TREBOR PRODUCTIONS, INC., Plaintiffs, against ATLANTIC RECORDING CORPORATION, THE L&S BROADWAY COMPANY and THE L&S BROADWAY COMPANY LIMITED PARTNERSHIP, Defendants.


The opinion of the court was delivered by: SHIRA A. SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 I. INTRODUCTION

 Plaintiff Chapman Roberts ("Roberts") is a musical arranger for the currently running Broadway show "Smokey Joe's Cafe" (the "Play") *fn1" pursuant to an Agreement entered into by Roberts and defendant L&S Broadway Company ("L&S") on May 1, 1994. The cast album for the Play is to be released by defendant Atlantic Recording Corp. ("Atlantic") on or about May 26, 1995. Roberts and plaintiff Trebor Productions Inc. ("Trebor") *fn2" have moved by Order To Show Cause, for a Temporary Restraining Order ("TRO") and a Preliminary Injunction ("PI") to enjoin the album's release asserting it infringes on Roberts' copyright of the vocal arrangements. *fn3"

 II. FACTUAL BACKGROUND

 A. The Agreement

 Under the May 1, 1994 Agreement between Roberts and L&S, *fn4" Roberts was retained as the Play's vocal arranger and was responsible for creating the arrangements for all the vocal numbers in the Play. See Exhibit A to Complaint.

 The Agreement gave L&S certain rights to use Roberts' vocal arrangements:

 
Vocal Arranger's orchestrations may be used by Producer without compensation to Vocal Arranger in connection with (a) an archival taping or filming or documentary on "The Making of The Leiber & Stoller Project"; (b) television commercials for The Leiber and Stoller Project; (c) newscasts and reviews; (d) performances on talk and/or variety shows and (e) award ceremonies.

 Id. at P 5.

 The Agreement also reserved certain rights in the arrangements to Roberts:

 
... Under no circumstances (other than those specified herein) may his [Roberts'] vocal arrangements be performed, transcribed, recreated, copied, published or recorded outside of theatrical presentations without his express permission, approval and compensation. These rights, when his arrangements are used by the Producer or with the Producer's authorization, include cast albums, use on television, cable television, radio, motion pictures, cassettes, videocassettes, videodiscs, or any other medium in use or yet to be invented.

 Id. at P 8.

 As to any use of the vocal arrangements which was not specifically granted to L&S or reserved for Roberts, the Agreement required the parties to negotiate for such use in good faith:

 
Subsequent Use: Any use of the vocal arrangements not specifically provided herein shall be negotiated in good faith and will be in keeping with industry standards for Broadway cast albums or the appropriate non-live performance uses.

 Id. at P 4.

 B. The State Court ...


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