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VIDEO-CINEMA FILMS, INC. v. DEUTSCH

November 1, 2005.

VIDEO-CINEMA FILMS, INC., Plaintiff,
v.
THE LLOYD E. RIGLER-LAWRENCE E. DEUTSCH FOUNDATION Defendant.



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

MEMORANDUM AND ORDER

On July 8, 2004, plaintiff, Video-Cinema Films, Inc. ("plaintiff" or "Video-Cinema") filed a complaint asserting copyright infringement and unfair competition claims against defendant, Ledler Foundation, Inc. Defendant filed an answer denying the allegations and asserting a number of affirmative defenses including those of release and fair use. Both parties have moved for summary judgment with respect to the copyright infringement claims and affirmative defenses in this case.*fn1

BACKGROUND*fn2 A. Statement of Facts

  Defendant is a nonprofit private foundation*fn3 that prepares, and distributes via satellite, a program called Classic Arts Showcase ("CAS") to public television stations, cable channels and other registered users. While defendant was originally known as The Ledler Foundation, Inc., the organization changed its name in 1988 to The Lloyd E. Rigler-Lawrence E. Deutsch Foundation ("the Foundation").*fn4

  CAS is essentially a compilation of video clips taken from a broad range of classical arts performances, prepared each week by the President of the Foundation, James Rigler. According to its website, CAS is a:
[F]ree cable television program designed to bring the classic arts experience to the largest audience possible by providing video clips of the arts in hopes that we may tempt you, the viewer, to go out and feast from the buffet of arts available in your community. Think of us as "Classic MTV".*fn5
  The Foundation does not pay licensing fees for the video clips it used in CAS programming.*fn6 Instead, Mr. Rigler takes excerpts from a library of visual materials donated to the Foundation primarily by video distributors, artists and cultural institutions.*fn7 The Foundation does not charge fees of any kind to users, does not include commercial advertisements in CAS programming and does not permit its users to add advertisements to CAS programming.*fn8 Registered users of CAS may download and store material contained in CAS programming at any time via satellite.*fn9
  The plaintiff, Video-Cinema, is primarily in the business of licensing motion pictures, or portions thereof, for exhibition on television and home video.*fn10 Plaintiff holds exclusive television rights*fn11 in a motion picture called Carnegie Hall as a result of a November 1964 agreement ("1964 Agreement") between Video-Cinema and Tele-Pac, Inc. ("Tele-Pac") granting Video-Cinema:
[T]he license to distribute the said pictures set forth on Schedule A, in perpetuity, from the date hereof, for broadcasting by television or any other similar device now known or hereafter to be made known. This shall include, but not limit the said license to pay television, home television, theatrical television, etc., throughout the Territories.*fn12
The schedule attached to the 1964 Agreement lists twenty-six motion picture titles, including Carnegie Hall.*fn13 To the extent that Carnegie Hall's copyright was an issue, it was resolved by plaintiff's production of a two-sided, color copy of the "Certificate Registration of a Claim to Renewal Copyright" in a post-argument submission received by this Court on October 13, 2005. This document lists Tele-Pac, Inc. as the renewal claimant and "proprietor of copyright in a work made for hire" for the work Carnegie Hall and lists the first date of publication as August 8, 1947. The back of the certificate shows that the renewal application and filing fee were both received by the Copyright Office on February 28, 1975.

  Carnegie Hall is approximately 136 minutes in length.*fn14 The plot of the movie follows the musical aspirations of a mother for her son. The mother works as a cleaner at Carnegie Hall for many years, and ultimately her son performs there. More importantly for purposes of this case, the movie includes a series of live performances by well-known classical artists. These live performances were specifically staged for the movie.*fn15 One of these performances features the opera singer, Lily Pons, singing The Bell Song. The total length of the Pons performance in the movie is approximately five minutes and eight seconds.*fn16 Another featured performance shows Leopold Stokowski conducting the New York Philharmonic Orchestra performing Tchaikovsky's Fifth Symphony, Second Movement. The total length of the Stokowski performance is approximately five minutes and thirty seconds.*fn17

  In this case, Video-Cinema alleges two specific acts of copyright infringement. The first claim is based on the Foundation's use of an excerpt from the Stokowski performance originally featured in Carnegie Hall in CAS programming broadcast by CUNY-TV on July 26, 2002. ("Stokowski clip")*fn18 Plaintiff's second claim is based on the fact that CAS programming broadcast by CUNY-TV on June 17, 2004 contained an excerpt of the Lily Pons performance originally featured in Carnegie Hall. ("Pons clip")*fn19 Plaintiff initially provided a range of different estimates for the length of these excerpts*fn20 based entirely on the unrecorded viewings of Video-Cinema's President, Larry Stern.*fn21 Defendant has submitted actual tapes of the relevant broadcasts supplied by CUNY-TV.*fn22

  Our review of the tapes of the July 26, 2002 and June 17, 2004 CUNY-TV broadcasts confirms that: (1) a Stokowski clip was included in the July 26, 2002 CUNY-TV broadcast; (2) this clip was approximately one minute and thirty seconds in length and appears to be an excerpt from the full performance featured in the movie Carnegie Hall; and (3) CAS included a credit before and after the clip specifying that the source of the excerpted performance was a documentary called The Art of Conducting, Great Conductors of the Past. Review of the June 17, 2004 broadcast confirms that: (1) a Pons clip was included in the CAS programming broadcast by CUNY-TV; (2) the Pons performance footage is preceded by an interview with the opera singer, Marilyn Horne; (3) voiceover commentary by Marilyn Horne is also included during the first twenty-five seconds of the performance footage; (4) the performance footage lasts a total of approximately one minute and twenty-five seconds and appears to be an excerpt from the full performance featured in Carnegie Hall; and (5) CAS included a credit before and after the clip identifying the source of the excerpted performance as the documentary Carnegie Hall at 100, A Place of Dreams.

  The parties agree that the Foundation has never sought a license from Video-Cinema for any of the excerpts included in CAS programming. Parties also agree that Carnegie Hall was the original (if indirect) source of the excerpted Stokowski and Pons performances included in CAS programming aired by CUNY-TV on July 26, 2002 and June 17, 2004.*fn23

  Defendant has also conceded for purposes of these motions that it has engaged in broadcasting activities within the scope of the exclusive rights granted to Video-Cinema in the 1964 Agreement.*fn24

  Plaintiff has produced multiple agreements with third parties in which Video-Cinema has licensed broadcasting rights related to performance excerpts from Carnegie Hall.*fn25 Several of these excerpts are less than two minutes in length.*fn26

  B. Prior Litigation Between the Parties

  These parties are not new to the Court. Plaintiff asserted similar copyright infringement claims against the defendant in a prior case that was ultimately settled. Video-Cinema Films, Inc. v. The Ledler Foundation, Inc., 02 Civ. 6279 (NRB). In the first case ("Video-Cinema I"), Video-Cinema claimed that the Foundation infringed its copyright interests in the motion picture Carnegie Hall by including an excerpt from the film featuring the cellist, Gregor Piatigorsky, in CAS programming.

  As part of the settlement, plaintiff released and discharged all claims and demands "in law or equity, as connected to" the lawsuit which Video-Cinema and its successors "ever had, now have or hereafter can, shall or may, have against [the Foundation] . . . for upon or by reason or any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this Release."*fn27 Plaintiff's counsel drafted the release. See Tr. Oct. 7, 2005 Oral Arg. at 41. The parties executed the release on February 11, 2003, and this Court endorsed a stipulation of dismissal with prejudice on February 24, 2003.*fn28

  In two letters exchanged between the parties as they finalized the settlement, plaintiff's counsel twice referred to the release as a "general release."*fn29 In a fax cover sheet, plaintiff's counsel simply refers to it as a "release."*fn30

  ...


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