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BOOSEY & HAWKES MUSIC PUBLRS., LTD. v. WALT DISNEY

August 8, 1996

BOOSEY & HAWKES MUSIC PUBLISHERS, LTD., Plaintiff, against THE WALT DISNEY COMPANY and BUENA VISTA HOME VIDEO, Defendants.


The opinion of the court was delivered by: DUFFY

 KEVIN THOMAS DUFFY, D.J.:

 Defendants have moved for partial summary judgment on the third and fifth causes of action in the Complaint. Defendants have also moved for dismissal of the second claim on the grounds of forum non conveniens. Plaintiff has filed a cross-motion for summary judgment on the first and second claims as alleged in the Amended Complaint. For the following reasons, Defendants' motion for summary judgment is granted. Defendants' motion to dismiss on the grounds of forum non conveniens is also granted. Plaintiff's cross-motion is granted as to the first claim and denied as to the second claim.

 Background

 This case involves a musical composition by Igor Stravinsky, "Le Sacre De Printemps," also known as "The Rite of Spring." Plaintiff is the assignee of Stravinsky's rights to "The Rite of Spring," pursuant to an agreement entered into in 1947. (Am. Compl. P 12). Plaintiff admits, however, that Stravinsky never had any copyright protection under the laws of the United States for this work. (Id. P 5; Affid. of Marcia B. Paul P 4).

 
In consideration of the sum of Six Thousand ($ 6,000.) Dollars, receipt of which is hereby acknowledged, the undersigned does hereby give and grant unto Walt Disney Enterprises, a California corporation, (hereinafter called the "Purchaser"), . . . the nonexclusive, irrevocable right, license, privilege and authority to record in any manner, medium or form, and to license the performance of, the musical composition hereinbelow set out, . . . and to make copies of such recordings and to import said copies of recordings into any country covered by this license . . .
 
. . .
 
3. . . . . The music of said musical composition may be used in one motion picture throughout the length thereof or through such portion or portions thereof as the Purchaser shall desire. The said music may be used in whole or in part and may be adapted, changed, added to or subtracted from, all as shall appear desirable to the Purchaser in its uncontrolled discretion.. . . The title "Rites of Spring" or "Le Sacre de Printempts", or any other title, may be used as the title of said motion picture and the name of the undersigned may be announced in or in connection with said motion picture.
 
. . .
 
5. The right to record the musical composition as covered by this agreement is conditioned upon the performance of the musical work in theatres having valid licenses from the American Society of Composers, Authors and Publishers, or any other performing rights society having jurisdiction in the territory in which the said musical composition is performed.

 (1939 Agreement) (emphasis added).

 In 1940, Disney released the animated motion picture Fantasia, which contained more than twenty-two minutes of music from "The Rite of Spring." According to Plaintiff, Fantasia enjoyed phenomenal success and has become an animation classic. (Pl. Statement of Material Facts P 21). Also according to Plaintiff, "The Rite of Spring" as it appears in Fantasia is altered from the original version as composed by Stravinsky.

 In November, 1991, Disney released Fantasia on videocassette and laser disc (the videocassette and laser disc are referred to collectively as the Fantasia video). Plaintiff alleges that Disney has sold twenty-one million Fantasia videos. (Id. P 24). The Fantasia video is the same in relevant part as the movie was when first released in 1941. (See Pl. Opp'n Mem. at 9).

 Plaintiff asserts that the following narration within the Fantasia video gives a false impression that the video features the original version of Stravinsky's "The Rite of Spring":

 
When Igor Stravinsky wrote his ballet "The Rite of Spring", his purpose was in his own words to express primitive life. So Walt Disney and his fellow artists have taken him at his word. Instead of presenting the ballet in its original form as a simple series of tribal dances, they have visualized it as a pageant, as the story of the growth of life on earth. It's a coldly accurate reproduction of what science thinks went on during the first few billion years of this planet's existence. So, now imagine yourselves out in space, billions and billions of years ago looking down on this lonely tormented little planet spinning through an empty sea of nothingness.

 (Pl. Opp'n Mem. at 10-11). Plaintiff also asserts that "in the promotional piece which accompanies the Deluxe Commemorative Edition of the Video, Disney takes pains to highlight the historical significance of Stravinsky's 'The Rite of Spring.'" (Id. at 11). The allegedly offensive language is as follows:

 
The Disney interpretation retains a feeling similar to the original ballet, yet departs radically from its form, story and character. Walt Disney had been intrigued for years by the power and the savagery of prehistoric creatures. He decided "The Rite of Spring" would depict a scientific conception of the beginning of the universe and follow the history of earth from a primordial molten mass with brilliant gases through the era of the extinction of the dinosaurs--a symbolic cycle from creation to death. Doing painstaking research, the artists consulted noted astronomers and paleontologists, studied scholarly papers, and reconstructed skeletons, only to discover that the scientific community was in disagreement. Much of the presumed knowledge of the Proterozoic, Paleozoic, and Mesozoic Ages was actually based on conjecture. Nevertheless, the artists came up with a tense and dramatic visualization of prehistoric life. Tied to the suggestive rhythms of the haunting score, the Tyrannosaurus Rex with his carnivorous appetites provides one of the most powerful elements of the film.

 Moreover, the laser disc package lists "The Rite of Spring" as one of the works in the video and associates Stravinsky with the work.

 Plaintiff initiated this suit after Defendant released the Fantasia video. The Amended Complaint alleges five causes of action. The first claim seeks a declaratory judgment that the license granted by Stravinsky to Disney did not include the use of "The Rite of Spring" on videocassette. The second claim is for copyright infringement in at least eighteen countries *fn1" other than the United States by reason of Disney's allegedly unauthorized copying and exploitation of a substantial portion of "The Rite of Spring" on videocassette. The third claim alleges that Disney has violated Section 43(a) of the Lanham Act, 15 U.S.C. ┬ž 1125(a), by falsely advertising that the video release of Fantasia contains a full and accurate recording of "The Rite of Spring." The fourth claim alleges that Disney breached its license agreement with Stravinsky by marketing video copies of Fantasia without Plaintiff's consent. The fifth claim is for Disney's unjust enrichment allegedly obtained by copying and reproducing portions of "The Rite of Spring" without Plaintiff's consent.

 Discussion

 Defendants have moved for summary judgment on Plaintiff's Lanham Act claim and on Plaintiff's claim for unjust enrichment. Defendants have also moved to dismiss Plaintiff's "foreign damages" claims on the ground of forum non conveniens. In response to the latter motion, Plaintiff filed a cross-motion seeking (a) summary judgment on the first claim, which seeks a declaratory judgment that Disney's license did not include authorization to use "The Rite of Spring" on videocassette; (b) partial summary judgment on the breach of contract claim; (c) a summary determination that "The Rite of Spring" is subject to valid copyright protection in eighteen countries in which Disney sold Fantasia on videocassette; (d) to preclude Disney from offering certain ...


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