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MCLE Article and Self-Assessment Test

Doing Lunch

Copyright law makes it clear that an oral agreement for the transfer of exclusive licensing rights will not be enforced by the courts. 

By Edward A. Klein 

Edward A. Klein is a partner in the Santa Monica law firm of O'Neill, Lysaght & Sun LLP specializing in business litigation and white-collar criminal defense. He has represented clients in a variety of entertainment and copyright matters 

Oral agreements are so common in the motion picture industry that one jurist observed, "Moviemakers do lunch, not contracts."1 The enforceability of oral contracts generally depends on the parties' intent. When the parties orally agree upon all the terms of a deal and intend it to be binding, the fact that a "formal written agreement to the same effect is to be prepared and signed does not alter the binding validity of the oral agreement."2 If the parties do not intend an oral agreement to be binding until it is written and signed, they are not bound until that occurs. However, if the transaction is subject to Section 204(a) of the Copyright Act of 1976, the parties' intent is irrelevant and, as Samuel Goldwyn remarked, the "oral contract isn't worth the paper it's written on."3 

Consider the following scenario: an independent producer travels to a film festival to screen his forthcoming motion picture. On the eve of the screening, a distributor agrees to pay the producer a relatively modest sum for the domestic distribution rights. The producer and distributor work out the details of the deal over a lavish dinner. They congratulate each other while dessert is served and toast their mutual good fortune into the wee hours of the morning. The next day's screening is a tremendous success. Several distributors now clamor for the right to distribute the picture in the United States and offer the producer far more than the first distributor agreed to pay. The producer has seller's remorse, but there is nothing he can do-a deal is a deal, right? Wrong. In fact, since the oral agreement is subject to Section 204(a) of the Copyright Act, it is invalid. 

Section 204(a) provides that "a transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." The Copyright Act defines a "transfer of copyright ownership" to include an "assignment, mortgage, exclusive license or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright…but not including a nonexclusive license."4 Thus, if rights are transferred pursuant to an exclusive license, the transfer must be in writing. 

Since motion picture distribution contracts involve an exclusive license of a copyrighted work, those agreements are governed by Section 204(a). This is true even though a license may be limited in scope (for example, to domestic theatrical rights) and exclude other rights that can be licensed separately. The fact that the copyright owner is not transferring all copyright interests is immaterial since the Copyright Act specifically contemplates that those rights may be divided.5 In one case, for example, a toy manufacturer claimed that it had an exclusive license to market children's toiletry products using the name and likeness of the Mighty Morphin Power Rangers and sued the licensor for breach of contract.6 When the defendant asserted that there was no written license agreement as required by the Copyright Act, the manufacturer countered that no writing was necessary since there was no intent to transfer the entire bundle of copyright interests. The court properly rejected this argument since a writing is required even if the rights conveyed are narrow, so long as the licensed rights are exclusive.7 

Section 204(a) has several related objectives. First, the statute ensures that the copyright holder will not give away its copyright inadvertently.8 Section 204(a) similarly protects the copyright holder from parties mistakenly or fraudulently claiming oral transfers.9 It forces a party that wants to use the copyrighted work to bargain carefully and to determine precisely what rights are being transferred and at what price.10 Finally, it enhances predictability and certainty of copyright ownership, which is said to have been the paramount goal of Congress when it revised the Copyright Act in 1976.11 In theory, according to a Ninth Circuit decision, "[r]ather than look to the courts every time [parties] disagree as to whether a particular use of the work violates their mutual understanding, [they] need only look to the writing that sets out their respective rights."12 In practice, however, there has been considerable litigation over Section 204(a). 

One court has suggested that the statute's writing requirement is not unduly burdensome and necessitates neither protracted negotiations nor substantial expense: 

The rule is really quite simple: If the copyright holder agrees to transfer ownership to another party, that party must get the copyright holder to sign a piece of paper saying so. It doesn't have to be the Magna Charta; a one-line pro forma statement will do.13 Case law suggests that this is easier said than done. 

The Copyright Act itself does not specify what constitutes the requisite "instrument of conveyance, or a note or memorandum of the transfer." While the statute does not require that the writing explicitly mention "copyright" or "exclusive rights," the better practice is that it should. One recent case involved the defendants' alleged reproduction and sale of the plaintiffs' copyrighted musical compositions.14 The plaintiff, a record producer, claimed that he had acquired copyright ownership in the compositions from the defendants by virtue of a recording agreement between the parties. The court rejected this argument on the ground that the recording agreement made "no mention of any transfer of ownership rights" and simply granted the plaintiff certain recording rights.15 Thus, while the statute does not prescribe any specific language, at a minimum the writing must clearly evidence an intent to transfer a copyright.16 Moreover, the writing must be transmitted from the copyright owner to the licensee, although the statute does not expressly say so. An internal deal memo not communicated to the other party will therefore not satisfy the statute.17 

Section 204(a) does not mandate any particular type of documentation, and almost any writing could suffice. It is clear, for example, that correspondence can satisfy the statute.18 Moreover, the writing may consist of several documents. Thus, the statute can be satisfied by a series of letters between the copyright owner and licensee.19 Likewise, business records such as invoices can be sufficient if they otherwise satisfy the statute.20 

A case pitting author Anne Rice against movie producers Frank Konigsberg and Larry Santinsky involved a particularly unusual writing.21 The parties in the case entered into an oral agreement regarding what ultimately became Rice's novel The Mummy. Rice agreed to draft the story and granted the producers exclusive television and movie rights for two years, with an option to extend. The parties drafted, but never executed, a written agreement. Rice nonetheless delivered the story, and the producers paid her $50,000. The producers never exploited their rights but did attempt to exercise their option to extend. Rice refused the extension and claimed there was no valid agreement. The producers sued Rice over the rights, but the district court dismissed the suit based on the lack of a writing. 

Thereafter, Rice mistakenly tried to vindicate her position by writing a letter to the producers in which she stated that the "contracts, though never signed, were honored to the letter." Armed with Rice's letter, the producers went back to court, claiming that the letter was the requisite note or memorandum of the transfer. But the court found that the letter was not "substantially contemporaneous with the oral agreement," not the product of the parties' negotiations, and "came far too late to provide any reference point for the parties' license disputes."22 It thus concluded that the letter was "not the type of writing contemplated by [S]ection 204 as sufficient to effect a transfer of the copyright to The Mummy."23 

Parties have repeatedly litigated the issue of whether checks can satisfy Section 204(a). In one case, the copyright owner endorsed a check that contained a notation that it was written for the copyrighted "mold designs and molds."24 The court held that the check complied with the requirements of the statute in that it constituted a note or memorandum of the transfer, was in writing, and was signed by the owner of the rights conveyed.25 Other courts have been more skeptical. While they seem to acknowledge that checks could theoretically satisfy the statute, they conclude that the particular checks before them do not evidence the requisite intent to transfer a copyright.26 

One such case involved artwork created by Patrick Nagle that appeared in Playboy magazine for more than 10 years.27 Playboy Enterprises, Inc. sought a declaration that it was the sole owner of all copyrights in the artwork, and Nagle's heirs counterclaimed for infringement. Playboy claimed that Nagle transferred the copyright to certain works to Playboy and that the transfer was set forth in the legend that appeared in the endorsements on the back of the checks issued by Playboy as payment to Nagle. Those endorsements stated that the "payee acknowledges payment in full for the assignment to Playboy Enterprises, Inc. of all right, title and interest in and to" the work in question. 

The district court found that the legend was ambiguous because it did not mention copyright and might reflect a transfer of rights in particular items and not necessarily the copyright to those items.28 While the court of appeal disagreed with that analysis, it found the endorsement ambiguous and the checks insufficient to transfer copyright, because the language might reflect a one-time transfer of reproduction rights and not a transfer of the copyright.29 It is clear that courts will look for other indicia of intent to transfer when a party seeks to rely on a check to satisfy the statute. 

The timing of the writing is another hotly litigated issue.30 Until recently there was some dispute as to whether the writing had to be executed contemporaneously with the transfer. One Ninth Circuit case expressed doubts that a later writing could "validate a purported transfer that substantially predates the writing."31 Most courts, however, hold that a note or memorandum can retroactively validate an earlier oral transfer, even if the writing is subsequent to the initiation of litigation concerning the alleged copyright transfer or infringement.32 In fact, the Ninth Circuit recently upheld a transfer that occurred years before the subject memorandum.33 The court dismissed as dicta language in the earlier Ninth Circuit case that might be interpreted as requiring a contemporaneous writing.34 

The question remains whether a subsequent writing can always ratify a prior oral transfer or whether a later writing is only sufficient in particular circumstances. Most courts have stated, without qualification or limitation, that Section 204(a) can be satisfied by an oral assignment later confirmed by a written memorandum.35 In practice, however, the rule has been applied in cases in which the licensor does not dispute the transfer but an alleged infringer asserts the lack of a writing as a defense to the claimed infringement. 

The leading case on this issue involved rights to the Paddington Bear character.36 The owner of the copyright granted a toy company the exclusive North American rights to produce and sell Paddington products. When the toy company found the defendant selling a nightshirt featuring Paddington Bear, it sued for infringement. The defendant demonstrated that, at the time of the alleged infringement, the toy company's written license agreement did not extend to adult clothing. The company conceded this point but argued that it was then operating under an "informal understanding" with the copyright owner expanding the scope of the license-an understanding that was later set forth in a written amendment to the license agreement. The court agreed: 

The "note or memorandum of the transfer" need not be made at the time when the license is initiated; the requirement is satisfied by the copyright owner's later execution of a writing which confirms the agreement.…In this case, in which the copyright holder appears to have no dispute with its licensee on this matter, it would be anomalous to permit a third-party infringer to invoke this provision against the licensee.37 

Several cases reach the same conclusion under similar circumstances.38 

While the statute's writing requirement has garnered considerable attention, there has been virtually no litigation regarding the fact that the writing must be "signed by the owner of the rights conveyed or such owner's duly authorized agent." This is potentially an important issue in the motion picture industry, in which attorneys and sales agents often shop pictures on behalf of independent producers who own the copyright. Such agents may or may not have sufficient authority to bind the producer. For example, one case held that an attorney could not transfer a copyright license absent express authorization from his client.39 In general, if an agent executes an exclusive distribution agreement on behalf of the copyright owner, the owner will be bound if the agent is found to be "duly authorized."40 

While Section 204(a)'s requirements are hardly onerous, numerous parties have found themselves in court without the requisite writing. Their efforts to avoid the statute have been largely unsuccessful. One litigant argued, in vain, that moviemakers should be exempt from Section 204(a) because it is "customary in the motion picture industry not to have written licenses."41 Another litigant attempted to circumvent the statute's writing requirement by arguing that the defendants should be equitably estopped from raising Section 204(a) as a defense since they had encouraged the plaintiffs to consider themselves owners of the copyright.42 The court rejected this argument on the grounds that there was no indication that Congress intended equitable defenses to apply to copyright transfers, and such defenses are incompatible with the statute's purposes.43 

Other parties have tried to sidestep the writing requirement by arguing that they were partners with the copyright owner and thus no "transfer" was required, but the courts have not been persuaded: "Given the ease with which joint ventures may be alleged and proved under the law of many states, acceptance of this argument would fatally undermine the Copyright Act's written instrument requirement."44 Taking another tack, singer John Mellencamp argued that while a copyright transfer itself would have to be in writing, a mere agreement to transfer copyright could be oral.45 The court rejected this "cramped interpretation" of the statute.46 One would-be motion picture licensee who failed to procure a writing took this argument a step further by alleging that a producer breached an oral "exclusive dealing agreement" by failing to negotiate in good faith until a written agreement was signed.47 While the case was resolved before this theory could be tested, it is unlikely that this attempted end run around the statute would have survived judicial scrutiny. 

Other litigants lacking a writing have attempted to take advantage of Section 204(a)'s exceptions for copyrights transferred by operation of law and nonexclusive copyright licenses. Transfers that occur by operation of law are exempt from Section 204(a)'s writing requirement. However, transfers by operation of law have been limited thus far to involuntary transfers such as those that occur through corporate dissolutions or mergers, bankruptcies, or mortgage foreclosures.48 In contrast, for parties that have an alleged oral agreement to transfer a copyright but the owner has failed to execute the requisite document, the courts have been unwilling to engage in the fiction that this was somehow a transfer by operation of law.49 

Parties have been more successful in arguing that a writing is not required because they have a nonexclusive license to the copyright. Section 204(a) is inapplicable to nonexclusive licenses, which may be granted orally or implied from conduct.50 In the absence of the requisite writing, several jilted licensees have claimed a nonexclusive license, particularly when confronted by the owner's suit for infringement. In these instances, the would-be licensee argues that it has a nonexclusive license, even though nonexclusivity was never contemplated and it believed it had obtained the exclusive right to the copyrighted work. 

Several courts have been sympathetic to this position, perhaps motivated by the perceived harsh consequences of Section 204(a). One court stated plainly what it was doing: 

Here federal copyright law renders the parties' oral agreement unenforceable insofar as it provided for the transfer of an exclusive copyright. In these circumstances, a court has no choice but to look at alternatives beyond the parties' intended arrangement.51 

Often one of those alternatives is recognizing a nonexclusive license, even though this was not what the parties had negotiated. While this fiction may lead to the most palatable result in certain situations, it has little basis in fact. Moreover, finding a nonexclusive license of a valuable work-and the resulting opportunity for concurrent exploitation by the owner or other licensees-could wreak havoc in the marketplace. 

Several rejected licensees, frustrated by their inability to enforce an oral exclusive license, have sued copyright owners for fraud. In such cases, the licensee alleges that, at the time the owner orally promised an exclusive license, the owner harbored the secret intent not to grant those rights. Such allegations may generally state a claim for common law promissory fraud. However, several courts have held that a contract claim cannot be converted into a fraud claim by the mere addition of an allegation that the promisor intended not to perform when the promise was made.52 

Even when the claim is available, the licensee may have trouble establishing that it justifiably relied on the promise. If a plaintiff's reliance is unreasonable in light of its intelligence and information, the fraud claim will fail. In fact, one court dismissed just such a fraud claim brought by a motion picture distributor against a producer under circumstances in which there was no written distribution agreement. The court held that "[i]n view of [the distributor's] own level of sophistication regarding movie distribution rights and its reliance on its legal counsel, any alleged reliance on representations made by [the producer] was manifestly unreasonable as a matter of law."53 Nonetheless, a fraud claim may be one way for a rejected licensee to vindicate its rights. 

Failure to document an exclusive copyright license can result in years of unpredictable litigation and a cloud over the work. Fortunately, getting a copyright owner to sign a piece of paper saying he or she is licensing the work should be quicker and cheaper than the proverbial Hollywood lunch. Bon appétit! 

1 Effects Associates, Inc. v. Cohen, 908 F. 2d 555, 556 (9th Cir. 1990) (Kozinski, J.), cert. denied, Danforth v. Cohen, 498 U.S. 1103 (1991). Judge Alex Kozinski has displayed more than a passing interest in motion pictures. He worked more than 200 movie titles into the text of his opinion in United States v. Syufy Enterprises, 903 F. 2d 659 (9th Cir. 1990), an antitrust case involving movie theaters in Las Vegas, Nevada. See The Syufy Rosetta Stone, 1992 B.Y.U. L. Rev. 457. 

2 Columbia Pictures Corp. v. DeToth, 87 Cal. App. 2d 620, 629 (1948). See also Skirball v. RKO Radio Pictures, Inc., 134 Cal. App. 2d 843, 862 (1955). 

3 See Bretz v. Portland General Electric Co., 882 F. 2d 411 (9th Cir. 1989). 

4 17 U.S.C. §101 (emphasis added). The rule that an exclusive license of a copyrighted work must be in writing is true only with respect to copyrights governed by the Copyright Act of 1976. A writing was also required under the Copyright Act of 1909. Magnuson v. Video Yesteryear, 85 F. 3d 1424, 1428 (9th Cir. 1996); Roddenberry v. Roddenberry, 44 Cal. App. 4th 634, 662 (1996). However, the writing requirement under the 1909 act applied only to assignments, grants, and mortgages and did not extend to exclusive licenses. Fantasy, Inc. v. Fogerty, 664 F. Supp. 1345 (N.D. Cal. 1987), aff'd, 984 F. 2d 1524 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994); Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F. 2d 27, 36 (2d Cir. 1982). 

5 17 U.S.C. §§106, 201(d)(2); PMC, Inc. v. Saban Entertainment, Inc., 45 Cal. App. 4th 579, 593 (1996). 

6 PMC, Inc., 45 Cal. App. 4th 579. 

7 Id. at 593. Accord Library Publications, Inc. v. Medical Economics, 548 F. Supp. 1231, 1233-34 (E.D. Pa. 1982), aff'd, 714 F. 2d 123 (3d Cir. 1983) ("[T]here appears to be no limit on how narrow the scope of exclusive rights can be yet still constitute a 'transfer of ownership.'"). 

8 Effects Associates, Inc., 908 F. 2d at 557. 

9 Eden Toys, Inc., 697 F. 2d at 36. 

10 Effects Associates, Inc., 908 F. 2d at 557. 

11 Id. 

12 Id. 

13 Id. 

14 Pamfiloff v. Giant Records, Inc., 794 F. Supp. 933 (N.D. Cal. 1992). 

15 Id. at 935. 

16 Konigsberg International Inc. v. Rice, 16 F. 3d 355, 357 (9th Cir. 1994); PMC, Inc., 45 Cal. App. 4th at 591. See also Tasini v. New York Times Co., 972 F. Supp. 804, 810 (S.D. N.Y. 1997) ("[T]he terms of any writing purporting to transfer copyright interests, even a one-line pro forma statement, must be clear."). 

17 PMC, Inc., 45 Cal. App. 4th at 592. 

18 Kenbrooke Fabrics, Inc. v. Soho Fashions, Inc., 690 F. Supp. 298 (S.D. N.Y. 1988). 

19 PMC, Inc., 45 Cal. App. 4th at 592. 

20 Kenbrooke Fabrics, Inc., 690 F. Supp. at 301. 

21 Konigsberg International Inc., 16 F. 3d 355. 

22 Id. at 357. The "substantially contemporaneous" language has been the subject of some discussion in the courts. See text, infra. 

23 Id. 

24 Dean v. Burrows, 732 F. Supp. 816 (E.D. Tenn. 1989). 

25 Id. at 823. 

26 See Tasini, 972 F. Supp. at 811 ("The check legends themselves, moreover, are ambiguous and cannot be taken to reflect an express transfer.…"); Papa's-June Music, Inc. v. McLean, 921 F. Supp. 1154, 1159-60 (S.D. N.Y. 1996) (notations on royalty checks did not mention copyright and were otherwise insufficient to transfer copyright ownership); Museum Boutique Intercontinental, Ltd. v. Picasso, 880 F. Supp 153, 162 n.11 (S.D. N.Y. 1996) ("[T]he checks submitted by MBI, which do not contain any explanatory notations besides 'Picasso royalties,' are not convincing proof, to say the least, of the alleged oral agreement."). 

27 Playboy Enterprises, Inc. v. Dumas, 831 F. Supp. 295 (S.D. N.Y. 1993), modified, 840 F. Supp. 256 (S.D. N.Y. 1994), aff'd in part and rev'd in part, 53 F. 3d 549 (2d Cir.), cert. denied, 116 S. Ct. 567 (1995). 

28 Id., 831 F. Supp. at 308-09. 

29 Playboy Enterprises, Inc., 53 F. 3d at 564. 

30 Some cases suggest that the term "instrument of conveyance" in §204(a) is simply a synonym for contract. See Konigsberg International Inc., 16 F. 3d at 357; PMC, Inc., 45 Cal. App. 4th at 592. In any event, the statute can be satisfied by a "note or memorandum of the transfer," as a alternative to an instrument of conveyance. The "note or memorandum" provision has been interpreted as sanctioning a transfer when an after-the-fact writing confirms an earlier oral transfer. Courts created such a rule under the Copyright Act of 1909 and the "note or memorandum of the transfer" language apparently codifies this rule. Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F. 3d 1529, 1533 (11th Cir. 1994); Great Southern Homes, Inc. v. Johnson & Thompson Realtors, 797 F. Supp. 609, 612 (M.D. Tenn. 1992); Nimmer, 3 Nimmer on Copyright §10.03[A], at 10-38 (1997). 

31 Konigsberg International Inc., 16 F. 3d at 357 n.3. 

32 See, e.g., Imperial Residential Design v. Palms Development, 70 F. 3d 96, 99 (11th Cir. 1995); Eden Toys, Inc., 697 F. 2d at 36. 

33 Magnuson, 85 F. 3d 1424. 

34 Id. at 1429 n.1. Although Magnuson was decided under the Copyright Act of 1909 because the copyright was secured prior to the adoption of the 1976 act, the court expressly relied on case law decided under the 1976 act. 

35 See, e.g., Arthur Rutenberg Homes, Inc., 29 F. 3d at 1533; Eden Toys, Inc., 697 F. 2d at 36; but see Magnuson, 85 F. 3d at 1428 (noting that this is the law "under some circumstances"). 

36 Eden Toys, Inc., 697 F. 2d 27. 

37 Id. at 36. 

38 See, e.g., Imperial Residential Design, 70 F. 3d at 99; Great Southern Homes, Inc., 797 F. Supp. at 611. Indeed, some cases suggest that §204(a) need not be satisfied at all when the copyright owner and licensee do not dispute the transfer but the statute is raised as a defense by a third-party infringer. Kenbrooke Fabrics, Inc., 690 F. Supp. at 301; Imperial Residential Design, 70 F. 3d 96, 99 (11th Cir. 1995). 

39 Valente-Kritzker Video v. Pinckney, 881 F. 2d 772, 775 (9th Cir. 1989), cert. denied, 493 U.S. 1062 (1990). 

40 Although §204(a) is a matter of federal law, the agency issue is one of state law. See, e.g., Valente-Kritzker Video, 881 F. 2d at 775; Playboy Enterprises, Inc., v. Dumas, 960 F. Supp. 710, 720-23 (S.D. N.Y. 1997). Under California law, actual authority need not be express. However, the "equal dignities" rule provides that if the law requires a contract to be in writing, the authorization to enter into that contract must also be in writing. Civ. Code §2309. Some parties have thus argued that the equal dignities rule requires that the authorization to transfer copyright under §204(a) must be in writing. Playboy Enterprises, Inc., 831 F. Supp. at 307 n.12. In fact, since the equal dignities rule extends only to contracts "required by law" to be in writing, and §204(a) does not require a written contract per se, the equal dignities rule should not mandate written authorization to the copyright owner's agent. 

41 Effects Associates, Inc., 908 F. 2d at 556-57. 

42 Pamfiloff, 794 F. Supp. at 936-37. Such defenses are generally available in the context of state statutes of frauds. Moreover, the relative dearth of law regarding §204(a) has prompted litigants and courts to look to those statutes for guidance. See, e.g., id. Indeed, some courts have referred to §204(a) as the Copyright Act's statute of frauds. See, e.g., Eden Toys, Inc., 697 F. 2d at 36; Mellencamp v. Riva Music Ltd., 698 F. Supp. 1154, 1161 (S.D. N.Y. 1988). Nonetheless, there are differences between the state statutes and §204(a), perhaps the most important of which is the unavailability of an equitable defense under §204(a). 

43 Id. 

44 Konigsberg International Inc., 16 F. 3d at 358. See also Time, Inc. v. Kastner, 972 F. Supp. 236, 239 (S.D. N.Y. 1997). 

45 Mellencamp, 698 F. Supp. at 1161-62. 

46 Id. 

47 Trimark Pictures, Inc. v. Gregory Productions, Inc., No. CV 96-687 LGB (D.C. Cal. 1996). 

48 See Time, Inc., 972 F. Supp. at 238; Brooks v. Bates, 781 F. Supp. 202, 205-06 (S.D. N.Y. 1991); Fantasy, Inc., 664 F. Supp. at 1356 (decided under Copyright Act of 1909). 

49 See, e.g., Brooks, 781 F. Supp. at 206. 

50 This is because 17 U.S.C. §101 excludes nonexclusive licenses from the definition of "transfer of copyright ownership." 

51 Jacob Maxwell, Inc. v. Veeck, 110 F. 3d 749, 752 (11th Cir. 1997). See also Lulirama Ltd. v. Axcess Broadcasting Services, 128 F. 3d 872 (5th Cir. 1997); but see PMC, Inc., 45 Cal. App. 4th at 593 (would-be licensee's assertion that it had a nonexclusive license agreement was without merit and "disingenuous" when the "entire premise of [its] lawsuit was based upon the claim that it had an exclusive agreement" and it had repeatedly pled such an exclusive agreement). 

52 See Papa's-June Music, Inc., 921 F. Supp. at 1160-61 (New York cases collected). 

53 Trimark Pictures, Inc. v. August Entertainment, Inc., No. B089266 (Cal. App. 1996). The court also dismissed the related breach-of-contract claims on the ground that an unsigned draft letter agreement and facsimile cover sheet from the producer's counsel to the distributor's counsel did not satisfy §204(a). 


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