(1960) Tags: Universal
Rooney v. Columbia Pictures Industries, Inc.
Plaintiff Mickey Rooney brings this action on behalf of himself and a purported class consisting of all performers in motion picture films produced by defendants or their predecessors and affiliates, the principal photography of which films was completed prior to February 1, 1960 (“pre-1960 Films”).
Rooney claims that, beginning at least as early as July 1, 1977, defendants conspired among themselves and with unnamed others to refuse to deal with Rooney regarding his “publicity rights” in pre-1960 films, with the purpose and effect of commercially exploiting such rights in the commercial television, pay television and audio-visual device markets, as well as in connection with the sale of merchandise, all without compensating Rooney for such exploitation.
The common premise underlying these claims is the contention of Rooney that defendants, while having secured the rights to exhibit pre-1960 films containing Rooney performances in movie theatres, did not acquire the rights to exhibit such films in the alternative markets.
Rooney appeared in two pre-1960 films produced by Universal. The first was “Francis Goes to the Haunted House,” pursuant to a February 7, 1956 contract (“Universal 1”). Universal 1 provided at paragraph 7:
“We [Universal] shall have the right to photograph and/or otherwise reproduce any and all of your [Rooney] acts, poses, plays and appearances hereunder, to record your voice and all instrumental, musical and other sound effects produced by you, and to reproduce and/or transmit such photographs and recordings, either separately or together, as we may desire in connection with said photoplay. We shall own all rights of every kind and character whatsoever in and to all such photographs and recordings, and all other results and proceeds of your services hereunder perpetually, including, but not limited to, the right to use all or any part thereof in or in connection with said photoplay and the advertising and exploitation thereof and/or otherwise as we may desire in connection with said photoplay.
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“We shall also have the perpetual right to use your name, voice and likeness on the positive prints of and in connection with the advertising and exploitation of said photoplay and all of the photographs, recordings and other results and proceeds of your services hereunder.”
Section 2 of Universal 1 further provided that
“[t]he word `photoplays,’ as used herein, includes, but it not limited to, motion pictures produced, exhibited with and/or accompanied by sound and/or voice recording, reproducing and/or transmitting devices, radio devices, television devices and all other improvements and devices which are now or may hereafter be used in connection with the production, exhibition and/or transmission of any present or future kind of motion picture productions.”
The second film in which Rooney appeared for Universal was “The Private Lives of Adam and Eve,” pursuant to a June 3, 1959 contract between Universal and Fryman (“Universal 2”). Paragraph 13 of Universal 2 provided:
“In addition to the artist’s services hereunder, you [Universal] shall be entitled to and shall own all of the results and proceeds thereof (including all rights throughout the world of production, manufacture, recordation and reproduction by any art or method, copyright, trademark and patent) whether such results and proceeds consist of literary, dramatic, musical, motion picture, mechanical or any other form of works, scenes, ideas, compositions, creations or products. Specifically, and without in any way limiting the generality of the foregoing, we [Fryman] expressly give and grant to you all rights of every kind and character in and to any and all acts, poses, plays and appearances of any and all kinds which the artist may write, suggest, direct or produce during the term hereof. You shall further have the right to photograph and/or otherwise reproduce any and all of the artist’s acts, poses, plays and appearances hereunder, to record the artist’s voice and all instrumental, musical and other sound effects produced by the artist, and to reproduce and/or transmit such photographs and recordings, either separately or together, as you may desire. You shall own all rights of every kind and character whatsoever in and to all such photographs and recordings, and all other results and proceeds of the artist’s services hereunder, perpetually including, but not limited to, the right to use all or any part thereof in or in connection with said photoplay and the advertising and exploitation thereof.
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“We hereby assign and transfer to you all rights of every kind and character in and to all of the foregoing without reservation, condition or limitation.”
Rooney consented in writing to the terms of Universal 2.