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Baldwin v. EMI Feist Catalog, Inc.

United States District Court, S.D. New York

December 16, 2013


Page 345

For Plaintiffs: Brian D. Caplan, Esq., Jonathan James Ross, Esq., Caplan & Ross, LLP, New York, NY; David Phillip Milian, Esq., Carey, Rodriguez, Greenberg, O'Keefe, LLP, Miami, FL.

For Defendant: Donald S. Zakarin, Esq., Frank Phillip Scibilia, Esq., Ross McClintic Bagley, Esq., Pryor Cashman, LLP, New York, NY.


Page 346


Shira A. Scheindlin, U.S.D.J.


Gloria Coots Baldwin, Patricia Bergdahl, and Christine Palmitessa (" Plaintiffs" ) bring this action against EMI Feist Catalog, Inc. (" EMI" ) seeking a declaratory judgment that their 2007, or alternatively, that their 2012 copyright termination notice is valid and enforceable, thereby terminating EMI's copyright in the iconic song " Santa Claus Is Comin' To Town" (the " Song" ). Subject matter jurisdiction is conferred by the Copyright Act.[1] Now before the Court are the parties' cross-motions for summary judgment. EMI also moves to exclude the affidavit and testimony of Plaintiffs' purported copyright law expert, Lisa A. Alter, under Daubert v. Merrell Dow Pharmaceuticals, Inc .[2] and Rule 702 of the Federal Rules of Evidence. For the reasons stated below, both of EMI's motions are granted, and Plaintiffs' motion is denied.


In 1934, John Frederick Coots and Haven Gillespie co-authored the Song.[4] In an agreement (the " 1934 Agreement" ), Gillespie and Coots conveyed worldwide copyright ownership to Leo Feist, Inc. (" Feist" ).[5] On September 27, 1934, the Song was registered in the Copyright Office under Feist's name.[6] Pursuant to the Copyright Act of 1909, the Song had an initial 28 year copyright term, plus a 28 year " renewal" term.[7] By an agreement dated December 3, 1951 (the " 1951 Agreement" ), Coots granted Feist " all renewals and extensions of all copyrights [in the Song] throughout the world." [8] At the end of the initial 28 year term in 1961, Feist renewed its copyright and continued its

Page 347


On September 24, 1981, pursuant to Section 304(c) of the 1976 Copyright Act, Coots sent Feist a notice to terminate the 1951 Agreement (" 1981 Notice" ).[10] The 1981 Notice selected October 23, 1990 as the effective date of termination.[11] On November 25, 1981, Coots' attorney, M. William Krasilovsky sent the 1981 Notice to the Copyright Office for recordation.[12] On December 15, 1981, Coots and Plaintiffs[13] entered into the 1981 Agreement with EMI.[14] The 1981 Agreement granted EMI any and all rights in the Extended Renewal Period, which -- according to the 1981 Notice -- would commence in 1990.[15] In exchange, EMI agreed to pay Plaintiffs a $100,000 bonus, as well as royalties for the Extended Renewal Period at the rate set forth in the 1951 Agreement.[16] The 1981 Agreement represented:

[Coots and Plaintiffs] had executed, served upon [EMI], and recorded in the Copyright Office a Notice of Termination [the 1981 Notice] in full compliance with the requirements of the Copyright Act of 1976 and the regulations of the Register of Copyrights pertaining thereto which shall for the purposes of this agreement and Section 304(c)(6)(D) of the Copyright Act of 1976 be deemed to have been served upon [EMI], in advance of any further grant of rights hereunder, and shall be deemed to take effect at the earliest date possible under the Copyright Act of 1976 and the regulations prescribed by the Register of Copyrights.[17]

On May 7, 1982, the Copyright Office sent Krasilovsky a letter, stating, " [p]ursuant to our telephone conversation of March 1, 1982, we are returning [the 1981 Notice] to you unrecorded." [18] Only Krasilovsky was copied on the letter.[19] The 1981 Notice was never later recorded with the Copyright Office.[20]

On April 6, 2004, Plaintiffs sent EMI a termination notice (the " 2004 Notice" ), pursuant to Section 304(d) of the 1976 Copyright Act.[21] The 2004 Notice listed September 27, 2009 as the effective date of

Page 348


On April 17, 2007, Plaintiffs sent EMI another termination notice (the " 2007 Notice" ), this time under Section 203 of the 1976 Act.[23] On March 13, 2012, Plaintiff sent EMI a second Section 203 termination notice (the " 2012 Notice" ).[24] Both notices identified the 1981 Agreement as the only Agreement to be terminated.


Summary judgment is appropriate " only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party's favor, there is 'no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.'" [25] " A genuine dispute exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." [26] " A fact is material if it might affect the outcome of the suit.[27]

" The moving party bears the burden of establishing the absence of any genuine issue of material fact." [28] To defeat a motion for summary judgment, the non-moving party " 'must do more than simply show that there is some metaphysical doubt as to the material facts,'" [29] and " 'may not rely on conclusory allegations or unsubstantiated speculation.'" [30]

In deciding a motion for summary judgment, " [t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." [31] " 'Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from ...

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