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Welles v Turner Entertainment Company

Case No. 05-55742 (C.A. 9, May. 30, 2007)

Beatrice Welles, the daughter of screenwriter, filmmaker, and actor Orson Welles, filed suit against Turner Entertainment Co., Entertainment Acquisition Co., and other persons not parties to this appeal (collectively, “the defendants”), seeking a declaratory judgment that Beatrice Welles owns the copyright and home video rights to the motion picture Citizen Kane and seeking an accounting of the royalties she alleges she is owed from the profits of the motion picture. The district court granted summary judgment for the defendants. Because there are triable issues of fact, we vacate in part and remand.

I

The district court disposed of this case by summary judgment, so we consider the facts in the light most favorable to Beatrice Welles. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

A

Several separate contracts between Orson Welles, Mercury Productions, Inc. (a production company owned by Orson Welles), and RKO Radio Pictures, Inc. are integral to this case.

On July 22, 1939, Orson Welles, Mercury, and RKO signed two agreements. The first agreement, between Mercury and RKO (the “Production Agreement”), provided that “[RKO] hereby engages [Mercury] to produce, direct and write the screenplay for the two (2) motion pictures hereinafter described, which are herein referred to as ‘the Pictures.’ ”
 

 

Judge(s): Ronald M. Gould
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Contracts , Copyright
 
Circuit Court Judge(s)
Kevin Duffy
Jerome Farris
Ronald Gould

 
Trial Court Judge(s)
John Walter

 
Appellant Lawyer(s) Appellant Law Firm(s)
Steven Brown Law Office

 
Appellee Lawyer(s) Appellee Law Firm(s)
Daryl Crone Quinn Emanuel Urquhart Oliver & Hedges LLP
David Quinto Quinn Emanuel Urquhart Oliver & Hedges LLP

 

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opinion by judge gould tations. trict court's summary judgment on beatrice welles's claim [f]aced with what may be . . . a failure to anticipate magnificent ambersons. the summary judgment and this appeal, how- inc. beatrice welles also points out that, in 1989, the defen- menced on the third film described in the supplemental agree- be sought for in the language used. to understand the lan- first, second, and fourth claims, and for partial summary judg- quite different from the right to display citizen kane on tele- 6434 welles v. turner entertainment co. including, but not being limited to, the exclusive did not include a grant of the right to make copies of cury. in other words, beatrice welles argues that the exit complaint sought a declaration that she "alone owns all publi- contingent compensation. argue (and the district court agreed) that because beatrice 6448 welles v. turner entertainment co. 15, 1944, citizen kane had not turned a profit, the second cury] at a price satisfactory to both parties. [mer- prospectively terminated and cancelled orson welles's right vant evidence in assessing whether there was a subsequent for the central district of california argues that the district court erred in granting summary judg- video, we deny the request. 6447welles v. turner entertainment co. tion agreement and that orson welles would receive com- commercial product or service), and reproduction by would have given rko home video rights had they contem- under the terminated and cancelled contract. in this case, initially registered the copyright to the citizen kane motion section 13 concludes with what the parties call the "origi- agreement did not restore all of orson welles's rights to citi- connection with the advertising or exploitation of a apply california's choice-of-law principles to determine the on december 26, 1939, orson welles and rko amended for an accounting of the profits generated by citizen kane, 6445welles v. turner entertainment co. john f. walter, district judge, presiding honorable agreement of the parties if their attention agreed upon. on january 14, 1941, mercury and rko entered kane on home video. before we address the merits of that cast by television, although at that time television home video version of citizen kane, her complaint, which she and must be weighed by the trier of fact against all other rele- tion of copyright ownership that our case law requires for the in the positions of the parties would have attached had they providing that the parties "mutually release and discharge filed may 30, 2007 summary judgment. olympic pipe line co. v. city of seattle, judge for the southern district of new york, sitting by designation. cable law by the parties, "[a] contract is to be interpreted that the defendants granted orson welles the right to share in appeal of summary judgment. see mallad constr. corp., 298 seeking a declaratory judgment that beatrice welles owns the 1 to license the screenplay, beatrice welles urges us to infer rights' was a term of art used in motion picture con- duct of the parties indicates that orson welles had no profit between orson welles and rko (the "actor agreement"), screenplay on home video. on one hand, a reasonable argu- was not yet a viable commercial market. in 1939 the "other rights," just as the composer in cohen retained "all gould, circuit judge: motion picture and that, even if the exit tracts. at that time this term meant the exhibition of and mercury. according to beatrice welles's complaint, the defendants dants' motion for summary judgment on beatrice welles's actor agreement had been terminated. on the first occasion, opinion not time barred. ment. to end their business relationship, mercury, orson she is owed from the profits of the motion picture. the district by mercury of the same name." citizen kane was an "original profits resulted from the sale and distribution of the argued and submitted tively ended orson welles's right to contingent compensation communicated to the claimant"). beatrice welles's claim is according to the law and usage of the place where it is to be constr. corp. v. county fed. savs. & loan ass'n, 298 n.e.2d ment on her first claim--seeking a declaratory judgment that that had not been invented in 1939. perhaps most importantly, 6429 *the honorable kevin thomas duffy, senior united states district much of the contract as might remain executory at rko and orson welles jointly contracted to license the publi- crue when plain and express repudiation of co-ownership is returned the citizen kane motion picture copyright to mer- [2] however, the defendants point to no evidence that, video rights to citizen kane. the evidence the defendants cite welles, and rko entered into an agreement that terminated have the right to exploit in any manner the motion pictures [5] in this case, the first paragraph of section 13 deals with cate of recordation filed with the united states copyright office. the cer- liabilities and obligations thereunder." beatrice welles argues v under the actor agreement. the citizen kane motion picture. because beatrice welles before this litigation commenced, they plainly and expressly first picture produced under the title "citizen motion picture to use the composer's copyrighted music "for: tible to more than one interpretation. if the language is from citizen kane in the future, and, alternatively, that the 6440 welles v. turner entertainment co. redevelopment co. v. city of yonkers, 359 n.e.2d 333, 337 6441welles v. turner entertainment co. pretation, we may consider extrinsic evidence in interpreting tory relief, asserted that the exit agreement only extinguished 6442 welles v. turner entertainment co. therein, as soon as such rights come into existence, those rights in rko. but, in light of the narrow scope of appeal that this language from the exit agreement prospec- "motion picture and television" rights in the citizen kane aid our interpretation of the contract. see hartford accident pictures corp., 845 f.2d 851 (9th cir. 1998). in that case, in 437 f.3d 872, 877 n.11 (9th cir. 2006). summary judgment beatrice welles first argues that there is a genuine issue of appeal from the united states district court film produced under the production agreement, entitled it's 3 a owns the right to exploit original story screenplays in media welles knew since 1991 that the defendants were releasing a 6433welles v. turner entertainment co. the citizen kane2 plete an irrigation project rescinded the original contract to [16] beatrice welles also seeks an accounting for the com- orson welles had no profit interest in citizen kane at the she owns the copyright to citizen kane on home video. her sible the objects they had in view, and the motives which allow rko and its successors to distribute citizen kane on for a declaration of home video rights and remand for further herbert rosenthal jewelry corp. v. st. paul fire & marine cancellation of a contract abrogates only executory rights held 465-66 (3d ed. 1999). as one new york court has explained: tive prints of each of the pictures and all rights of every kind was executed" and noted the dissimilarities between display welles owns the home video rights to citizen kane turns on the defendants argue that the "hypothesized" existence of ment alone, what the parties in this case would have agreed [14] as a further argument that the exit agreement retroac- of-law provision. beatrice welles argues that we should apply screenplay encompass the right to distribute the citizen kane must first confront a choice-of-law issue raised by the parties. ment co., entertainment acquisition co., and other persons it's all true. and other works included in such picture. . . . [mer- rights, "motion picture" rights could also be argued to encom- ally were to occur. screenplay written by mercury or its employees. so, in order beatrice welles that the defendants were distributing citizen reproduction by any art or method" in the motion pictures mine whether its language is ambiguous or reasonably suscep- beatrice welles settled all of her other claims against all of the other unlikely that, in 1939, mercury or rko gave any thought to 1978). united states court of appeals which the citizen kane motion picture was derived. the orig- "cancelled and terminated" the production agreement, beatrice welles, however, argues that there is conflicting not parties to this appeal (collectively, "the defendants"), according to the law and usage of the place where it is made." appellant beatrice welles. covering the same subject matter . . . so that the two [con- rights granted to rko and the broad reservation of rights by practices, respectively. invented when the parties signed the production agreement in obtained the right to use the composer's music only in the- beatrice welles. see anderson v. liberty lobby, inc., 477 cal. civ. code 1646. when the contract does not expressly to any contingent compensation and further stated the parties' copyright and home video rights to the motion picture citizen for publication [1] a claim for copyright ownership is barred three years the exit agreement restored to orson welles the copyright to agreement rescinded the production agreement. devices, and to sell such copies to the public. she owns the copyright and home video rights to the motion that orson welles's attorneys had twice written rko asking 6437welles v. turner entertainment co. tracts] cannot stand together" rescinds the prior contract. see signed the exit agreement. the actor agreement by providing that orson welles would [3] because the production agreement contains a new citizen kane. york choice-of-law clause, the exit agreement has no choice- beatrice welles, the daughter of screenwriter, filmmaker, hand, such a broad interpretation would render the additional screenplay were quite narrow, encompassing only motion pic- broad rights in the screenplay: publication, radio, and residual evidence about whether orson welles and rko entered into running. see zuill v. shanahan, 80 f.3d 1366, 1369 (9th cir. "the mutual desire of the parties to terminate and cancel" their to the citizen kane motion picture. the time notice is given, and must be sharply distin- 1964); see also empire props. corp. v. mfrs. trust co., 43 act in a third film in addition to the two pictures already screenplay and as embodied in the motion picture produced claims. the first claim, seeking declaratory relief, alleged that company, inc., defendants still need the right to exploit the screenplay from such a case, we look for the meaning that reasonable persons vant to this appeal. rko any right to exploit through home video devices sold to collector's edition gift set." while this might have informed (n.y. 1976); hartford accident & indem. co. v. wesolowski, that a second contract between the same parties "completely cury] agrees that it will have no interest of any kind 2000); see 17 u.s.c. 507(b) ("no civil action shall be main- [18] we vacate the district court's summary judgment on d.c. no. rko owned the citizen kane motion picture copyright as conflict between "two contracts between the same parties for ture and television rights, just as the producer in cohen agreement to share the profits of citizen kane. in the citizen kane motion picture unless rko's copyright [7] thus, the question before us is whether the defendants' picture and television rights in such stor[ies] for such pic- contract as the parties understood them, see cromwell towers we cannot judge the credibility of this declaration on an from all claims, demands and causes of action of beatrice welles, cation, radio, dramatic, home video and other rights in the mercury, we cannot conclude with certainty that the parties ment co. and entertainment acquisition co. relating to citizen kane. each of the pictures and all rights of every kind and defendants with the right to reproduce and distribute citizen ment signed by orson welles. the actor agreement provided n.e.2d 25, 28 (n.y. 1942) ("the intention of the parties must pensation of $30,000 plus a percentage of the net profits of orson welles's past claims against the defendants and did not harrison w. corp. v. united states, 792 f.2d 1391, 1393 (9th ment can be made that distributing a motion picture on home [6] however, to distribute citizen kane on home video, the of law. fed. r. civ. p. 56(c). as noted above, in reviewing to exploit music in media that had not yet been invented. id. nature in and to each picture, and all parts thereof we review de novo the district court's decision to grant agreement, which noted that orson welles was not entitled productions, inc. (a production company owned by orson ture unless [mercury] produces or directs the same vision, and the production agreement does not specify who net profits of the first two pictures as a unit. no net defendants-appellees. within three years after the claim accrued."). the defendants 1996) (explaining that claims of copyright co-ownership "ac- whether the parties intended the production agreement's welles and mercury at rko's studio in california. we apply concerned the rights in motion pictures made by orson rko sweeping rights in the screenplay and only retained several separate contracts between orson welles, mercury two agreements. the first agreement, between mercury and on home video--the right to display the motion picture. sec- we dealt with a similar situation in cohen v. paramount the sale of the same property"). here, the two contracts are grant of "television rights" to the defendants superfluous that section begins: ship. aalmuhammed v. lee, 202 f.3d 1227, 1231 (9th cir. ply and explicitly cancels and terminates the first. each party to each of said agreements from all rights, duties, kane on home video. the second claim, also seeking declara- 96, 99-100 (n.y. 1973). iii 6438 welles v. turner entertainment co. a retroactive effect, meaning to restore the parties to light most favorable to the non-moving party and draw all jus- [12] as noted above, the exit agreement stated that it was beatrice welles's complaint in this case asserted four cation rights to the citizen kane screenplay to bantam books, about the matter of home video rights, they would have vested ii picture and television rights in such story for such parties subsequently entered into a new agreement to share on december 6, 2004, the district court granted the defen- ins. co., 121 n.e. 465, 466 (n.y. 1918), in this case it is certain rights in the "original stories" on which those motion tribution, exploitation, manufacture, recordation . . . and incomplete, but of construing the language to accord zen kane is correspondence between the attorneys for the seems to us unclear whether the parties would have intended i the agreements of the parties is entitled, as contin- the words `terminate,' `revoke' and `cancel,' . . . all time those letters were exchanged, it is not conclusive evi- 6436 welles v. turner entertainment co. grant of "motion picture and television rights" to rko to the agreement. hartford accident & indem. co., 305 n.e.2d defendants. welles), and rko radio pictures, inc. are integral to this case.1 the licensee." id. the district court had granted summary who would own the home video rights to citizen kane. in screenplays, the production agreement provided rko with [a]s of 1939, the term `motion picture and television no. 05-55742 2 picture on home video, and we also pointed out that the n.e.2d at 99. because there is a genuine issue of fact about accounting. so much with the function of interpreting language at 255. for the ninth circuit desire to terminate and cancel all of their existing agreements, ins. co., 296 p. 273, 275 (cal. 1931). the exit agreement own costs on appeal. television . . . , including `pay television', `subscription televi- picture is derived from its underlying screenplay, the defen- and kevin thomas duffy,* district judge. included the right to distribute the picture on home video, but an interpretation of section 13 of the production agreement. provided that orson welles would play the leading male role "the parties subsequently [i.e., after 1944] entered into a new statute of limitations on a copyright ownership claim to begin the first right the defendants need to distribute citizen kane gent compensation, to twenty per cent (20%) of the and welles, and to mutually release and discharge in interpreting the production agreement, we first deter- in the two motion pictures produced pursuant to the produc- we next turn to the merits of beatrice welles's claim that story of citizen kane" and "that mercury did not grant to come into existence." rko, not orson welles or mercury, 6444 welles v. turner entertainment co. second amended complaint only sought a declaration that she beatrice welles is the sole successor in interest to both orson welles "completely answered," and, on the second occasion, orson picture" rights in the citizen kane screenplay. on the other inal story provision deals with this issue. as noted above, the tifiable inferences in favor of that party. anderson, 477 u.s. unlike the production agreement, which contains a new because we remand this case to the district court to determine as a factual with what would have been the intention and the interpretation, the contract's interpretation is a question of law to said musical composition, except those herein granted to picture only. [rko] shall not remake any such pic- the exit agreement also gave orson welles the option to kane on home video, it is not the plain and express repudia- dants need the right to exploit the screenplay. [15] the district court properly granted summary judgment 6439welles v. turner entertainment co. pictures were based. specifically, rko acquired "the motion before: jerome farris and ronald m. gould, circuit judges, of the right to exhibit the picture "by means of television" is appropriate when there are no genuine issues of material right in the motion picture to release at the time the parties counsel & indem. co., 305 n.e.2d at 909. son, 792 f.2d at 1393 (holding that a second contract to com- (8th cir. 1899). however, that doctrine only applies when the app. 1949). thus, under california law, the exit agreement the future situation which arose, a court is faced not produced pursuant to the production agreement, including described, which are herein referred to as `the pictures.' " that, pursuant to this provision, rko "released" its "right" to tained under the provisions of this title unless it is commenced picture, however, [rko] shall acquire the motion rights of distribution, exploitation, manufacture, [rko] shall own the negative and positive prints of stated: unambiguous, we give effect to its plain meaning. nichols v. produced under the production agreement. this tells us that, cir. 1986); housekeeper publ'g co. v. swift, 97 f. 290, 294 a motion for summary judgment, we view the evidence in the plated the issue. we hold that the contract is ambiguous phelps constr. co., 79 cal. app. 3d 754, 770 (cal. ct. app. [13] as noted above, under california law, a termination or cury] shall own the publication, radio, dramatic and have the same meaning, namely, the abrogation of so (a) the exhibition of said motion picture . . . to audiences in court granted summary judgment for the defendants. because between [rko] and mercury and between [rko] every kind and nature of each party as against the aters and on television. mercury, on the other hand, retained 6435welles v. turner entertainment co. beatrice welles has requested that we take judicial notice of a certifi- kane screenplay on home video. license reserved to the composer "all rights and uses in and owns the fruits of the rko-mercury production agreement. of a motion picture on television and distribution of a motion other rights in any such story but shall not use the and, hence, the contracts "cannot stand together." see harri- 6443welles v. turner entertainment co. rko would be "based upon an original story, tentatively enti- (alterations in original, internal quotation omitted). the [8] this case is similar to cohen. home video was not agreement to share their rights and income." beatrice welles motion picture theatres and other places of public entertain- the income from citizen kane. the third and fourth claims all fixed compensation payable to mercury or plaintiff-appellant, the second agreement entered into on july 22, 1939, april 16, 2007--pasadena, california to royalties, but did not retroactively rescind rko's copyright rko (the "production agreement"), provided that "[rko] owns the home video rights to citizen kane, is time barred. appears on rko's post-1944 schedules of persons who had ever, deal only with beatrice welles's claims against turner entertain- to fifth avenue productions, inc. beatrice welles argues that distributed on home video, we turn to extrinsic evidence to as notice that they were exploiting home video rights in citi- it is now the mutual desire of the parties to terminate opinion profits of citizen kane. beatrice welles notes that, after 1944, in either of the pictures, except as in this agreement guished from the word `rescind,' . . . which conveys home video, and because the contract's interpretation may york choice of law provision, we apply new york's princi- iv sought damages for breach of contract and unfair business zen kane, the production agreement did not provide the regarding which party owns the right to exploit the citizen 1969, a composer granted a license to the producer of a beatrice welles points to language in the exit agreement at 854. turner entertainment company; cv-04-03077-jfw estate of orson welles and the defendants regarding the ment acquisition co. 1939, the right to distribute citizen kane on home video is are the successors to the rights of rko with respect to the contracts rele- all true, was not finished, and production had not com- a post-1944 agreement is irrelevant because beatrice welles's performed; or, if it does not indicate a place of performance, rescinded the parties' prior agreements and thus returned any defendants-appellees turner entertainment co. and entertain- agreement, the place of performance is the jurisdiction in ment on the third claim. on appeal, beatrice welles only pensation she alleges she is entitled to under the actor agree- rights" not granted to the producer. had mercury granted including the actor agreement. the parties do not dispute on evidence of a quid pro quo--that is, in exchange for the right as the parties intended, for their intention was encourage us to apply california law. orson welles compensation of $30,000 plus 20% of the net body of substantive law that applies to our interpretation of thought about the matter. see e. allen farnsworth, contracts credibility of extrinsic evidence, in which case the interpreta- cohen and conclude that, had rko and mercury thought bution of the picture based on such story. welles's attorney did not respond. while this is evidence that task in a contract case is usually to give effect to terms of the remanded. soon as the motion picture was created. the production was entitled to profit participation under the actor agree- and actor orson welles, filed suit against turner entertain- overlooked the exit agreement and that his inquiry was hereby engages [mercury] to produce, direct and write the extinguish orson welles's right to collect 20% of the profits judgment to the producer, concluding that the licence's grant be disclosed." (internal quotation omitted)). california law. the claim for further proceedings. each party shall bear its in case of any original story written by [mercury] or picture citizen kane--and on her second claim--seeking an there are triable issues of fact, we vacate in part and remand. dence that orson welles never had a post-1944 profit interest, license did not directly address which party owned the right guage, we may put ourselves in their place and discern if pos- right to display the motion picture. second, because a motion welles for services in connection with the first two including, but not being limited to, the exclusive rights of dis- rko's motion picture and television rights in the citizen the exit agreement. see klaxon co. v. stentor elec. mfg. co., ples of contract interpretation in deciding this issue. while our david w. quinto, daryl m. crone, quinn emanuel urquhart another agreement, after the exit agreement, to share the interest in citizen kane. specifically, the defendants point out construct the project); housekeeper, 97 f. at 294 (resolving two contracts seek the same performance on different terms on summary judgment. anderson, 477 u.s. at 255. this infer- as a general matter, the defendants, as successors to rko, sion' and `closed circuit into homes' television." id. at 853 ture[s] only," and mercury reserved ownership of "the publi- the production and actor agreements and their amendments picture. under the parties' agreements, rko had always royalty rights in citizen kane. v. story" written by mercury. thus, whether rko or beatrice duties, liabilities and obligations thereunder and entertainment acquisition from the "plain and express repudiation" of copyright owner- profits of citizen kane. in 1944, the parties signed the exit stories. rko released citizen kane on may 1, 1941. by december tion of the contract is the task of the factfinder. mallad orson welles's attorney responded by stating that he had purchase from rko for $200,000 all of the film recorded for 305 n.e.2d 907, 909 (n.y. 1973); hopkins v. conn. gen. life intended the contract to be performed. burr v. w. states life ence is supported by the fact that orson welles's name b thus adequately pled her claim for an accounting. video is simply an exploitation of the defendants' "motion the two motion pictures. to the defendants on the issue of ownership of the copyright screenplay for the two (2) motion pictures hereinafter repudiated beatrice welles's claim to ownership of the home specify a place of performance, as is the case with the exit each party to each of said agreements from all rights, nichols, 119 n.e.2d 351, 353 (n.y. 1954). if the language is minimal rights for itself, we might be able to distinguish material fact about who owns the right to distribute citizen oliver & hedges llp, los angeles, california, for remained executory at the time of the exit agreement. signed on december 15, 1944, the exit agreement first any of its employees and used as the basis of either filed in 2003 and in which she seeks a declaration that she agreement states that rko "shall own the negative and posi- production agreement, beatrice welles cites cases holding cation, radio, dramatic and other rights" in those original in the district court, beatrice welles claimed ownership of three of same in any way to compete with or injure the distri- steven ames brown, san francisco, california, for plaintiff- or unless [rko] buys the remake rights from [mer- their former position. kane and seeking an accounting of the royalties she alleges ambiguous, or susceptible to more than one reasonable inter- claim of copyright ownership is barred by the statute of limi- into another supplemental agreement, providing that the first proceedings.3 (the "exit agreement"). ment, so we consider the facts in the light most favorable to dants licensed the stage rights to the citizen kane screenplay at 909. the interpretation of a contract is a question of law a motion picture in theatres and contemplated broad- motion pictures has been paid in full. welles under [10] before addressing the merits of this argument, we which the circumstances indicate the parties expected or recordation, broadcasting, televising (other than in right orson welles and mercury had in the citizen kane had been drawn to the possible events as they actu- tificate indicates that entertainment acquisition co. quitclaimed to and rko had twice told orson welles's attorneys that the seems that "terminate" and "cancel" mean something differ- that we may decide unless the interpretation depends on the kane", and accordingly welles is entitled to no u.s. 242, 255 (1986). turn on the credibility of extrinsic evidence, we vacate the dis- the profits of citizen kane in some as-yet-unidentified agree- grant v. aerodraulics co., 204 p.2d 683, 686 (cal. dist. ct. provision states that mercury retained the rights to any nal story" provision. the provision states: and cancel each and all of the existing agreements the defendants' right to license the citizen kane screenplay is kane screenplay in home video form. [4] to display publicly or distribute citizen kane, the ent from "rescind": [9] beatrice welles offers an expert declaration stating that expressly provided. affirmed in part, vacated in part, and motion picture to them. however, under california law, it the rights rko acquired by license in the citizen kane beatrice welles's claim for profit participation and remand because we cannot discern, from the production agree- upon had they known that some day citizen kane would be 6446 welles v. turner entertainment co. on july 22, 1939, orson welles, mercury, and rko signed not in irreconcilable conflict. rather, the second contract sim- argument, we must first decide whether beatrice welles's fact and the moving party is entitled to judgment as a matter a motion picture, embody such copies in home video ment. however, the second amended complaint alleges that other party. and nature in and to each picture . . . as soon as such rights [11] as a federal court exercising diversity jurisdiction, we matter, who owns the right to exploit the citizen kane screenplay on home kane screenplay to include the right to exploit the citizen tled `citizen kane.' " motion picture orson welles and mercury would make for dictated their choice of words. a wider meaning may thereby use were not invented or known in 1969, when the license ment where motion pictures are customarily exhibited" and tion 13 gives rko "all rights of every kind and nature . . . use of the term `motion picture and television rights' section 13 of the production agreement determines who tively rescinded the copyright rko owned pursuant to the inclusion of the citizen kane screenplay in a "home video beatrice welles any interest it had in the citizen kane screenplay. owned the motion picture copyright, and it had no executory ins. co., 249 n.y.s.2d 208, 214 (n.y. app. div. 1st dep't prior agreements. beatrice welles argues that this language any art or method, and the literary, dramatic, musical ment. because this is a "justifiable inference[ ]," we make it the public, the story of citizen kane as expressed in the we reversed. id. at 855. we emphasized that "vcrs for home 313 u.s. 487, 496 (1941). absent an express choice of appli- to allow rko to display motion pictures derived from those new york law to interpret the exit agreement; the defendants outlined the prior agreements between the parties. it then beatrice welles next argues that the exit agreement, which the district court disposed of this case by summary judg- that can be decided by this court. see lacount v. henzel does not offer any extrinsic evidence in support of her favored defendants need two rights: first, the defendants need the orson welles's motion pictures: citizen kane, journey into fear, and the 6449welles v. turner entertainment co. because if "motion picture" rights encompassed home video and all material, tangible and intangible, used pass the right to display citizen kane on television. thus, it "(b) the exhibition of said motion picture . . . by means of [17] the defendants also point out that the post-1944 con-


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