139 Misc.2d 230, Ippolito v. Ono-Lennon

Citation:139 Misc.2d 230, 526 N.Y.S.2d 877
Party Name:Ippolito v. Ono-Lennon
Case Date:February 03, 1988

Page 230

139 Misc.2d 230

526 N.Y.S.2d 877

Adam IPPOLITO, Plaintiff,


Yoko ONO-LENNON, Defendant.

Supreme Court of New York, IAS Part 11.

February 3, 1988.

[526 N.Y.S.2d 878] Lipsig, Sullivan & Liapakis, P.C., New York City, for plaintiff.

Skadden, Arps, Slate, Meagher & Flom, New York City, for defendant.

Raggio, Jaffe & Kayser, New York City, for third-party Extraordinary Event, Inc. d/b/a One to One, intervenor.

HAROLD BAER, Jr., Justice:

Defendant, Yoko Ono-Lennon, moves, pursuant to CPLR 321 (a)(7), to dismiss plaintiff, Adam Ippolito's complaint. The complaint alleges four causes of action: invasion of privacy (Sections 50 and 51 of the New York Civil Rights Law), fraudulent misrepresentation, conversion and unfair competition (consisting of misappropriation of property rights and "palming off"). Subsequent to the initial return date of the motion, a motion was made by Extraordinary Event, Inc. d/b/a One-to-One (hereinafter referred to as the "producers" [526 N.Y.S.2d 879] or "Extraordinary Event"), pursuant to CPLR 1013, for leave to intervene.

Turning first to the motion brought by defendant seeking dismissal of all causes of action in the complaint pursuant to CPLR 3211(a)(7), the Court of Appeals has stated that "a complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every possible favorable inference, a cause of action exists." Rovello v. Orofino Realty Co., Inc., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 315, 357 N.E.2d 970, 971 (1976).

Although defendant seeks to convert this motion to one for summary judgment, pursuant to CPLR 3211(c), the rule, at least in this Department, is that notice of an intention to treat the motion as such must come directly from the Court, see, Four Seasons Hotels Limited v. Vinnik, 127 A.D.2d 310, 515 N.Y.S.2d 1 (1st Dept.1987), no such notice was given by the Court. Therefore, the motion will not be treated as one for summary judgment. 1

The action arises out of two charity rock concerts given at Madison Square Garden on August 30, 1972 to raise money for the Willowbrook Home for retarded children as part of a fund-raising effort known as "One-to-One". The concerts received extensive publicity as they featured performances by defendant and her late husband, John Lennon. The Lennons, in conjunction with Geraldo Rivera (Chairman of the Board of Extraordinary Event) and ABC, organized the concerts and the performances which helped raise over $1.5 million for the Willowbrook Home. The concert was later televised in December, 1972 on ABC Television from a film of the concert made by Joko Film, Inc. (owned by the Lennons).

Plaintiff is a professional musician and pianist who was a member of the Elephant's Memory Band, which performed as the band backing up the Lennon vocals at the concerts. According to plaintiff, he agreed to donate his services upon the representation that the concerts and the telecast would not be exploited commercially, i.e. were for charitable purposes only. Plaintiff claims that despite this "donation" he was compelled to accept union scale wages as dictated by the Musicians Union's rules.

According to plaintiff, although defendant sat at an electric piano throughout the concerts, the power had been turned off and all the playing except for a limited performance by John Lennon was done by plaintiff, while the defendant feigned playing throughout. The plaintiff claims he went along with this pretense because of the charitable nature of the event. In 1985, thirteen years later, however, defendant is said to have delivered the film and soundtrack of the benefit performances to Capitol Records and Sony Corporation for commercial reproduction as a record album and videotape. Furthermore, plaintiff claims that the film and soundtrack were also given to Showtime/The Movie Channel, Inc. for airing in March, 1986 on "Showtime" (a cable television station). A press release and the jackets of the album and videotape each make reference to plaintiff by name as one of the performers, however, plaintiff claims that no written authorization for use of his name had been given. According to plaintiff, at no time had he sold or assigned his property rights in his performance at the concerts to defendant, and, therefore, defendant has violated Sections 50 and 51 of the New York Civil Rights Law by exploiting his name and has converted and misappropriated his property rights in the film and soundtrack. Furthermore, he claims he was fraudulently induced to perform, having been told that the performance was for charity only and claims that he never would have gone along with the "palming off" of plaintiff's piano playing for defendant's own had he known that defendant intended to commercially exploit the performances at a later date.

[526 N.Y.S.2d 880] The defendant claims that plaintiff was covered by a "work-for-hire" contract specifically waiving any property interest of plaintiff's in the performance. Plaintiff denies having signed the two-page, pre-printed form agreement, dated August 30, 1972 and entitled "Exhibit 'D'--Actors Television Motion Picture Minimum Free Lance Weekly Contract." The clause in question is contained in paragraph 3 and reads as follows:

Producer [An Extraordinary Event, Inc.] shall have the unlimited right throughout the world to telecast the film or exhibit the Film theatrically, in accordance with the terms and conditions of the Screen Actors Guild 1967 Television Agreement (herein referred to as the "Television Agreement"). 2

The express intent of the SAG 1967 Television Agreement is to set out the minimum wage scale and working conditions for all persons employed in "television motion pictures." See para. 1 of the SAG 1967 Television Agreement. "Television motion pictures" are defined as:

... entertainment motion pictures produced primarily for exhibition over free television whether made on or by film, tape or otherwise, and whether produced by means of motion picture cameras, electronic cameras or devices, or any combination of the foregoing, or any other means, methods or devices now used or which may herein after be adopted...

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