American Soc. of Composers, Authors and Publishers v. Superior Court of Los Angeles County

• Decision Date: 17 September 1962
• Citation: 207 Cal.App.2d 676,24 Cal.Rptr. 772
• Parties: AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, Bernard HERRMANN, Real Party in Interest. Civ. 26458.
• Court: California Court of Appeals Court of Appeals

Page 772

24 Cal.Rptr. 772

207 Cal.App.2d 676

AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Bernard HERRMANN, Real Party in Interest.

Civ. 26458.

District Court of Appeal, Second District, Division 1, California.

Sept. 17, 1962.

O'Melveny & Myers, Bennett W. Priest and Henry C. Thumann, Los Angeles, for petitioner.

No appearance for respondent.

David G. Licht, Beverly Hills, for real party in interest.

PER CURIAM.

An alternative writ of prohibition was granted by this court on the application of petitioner herein and it was ordered that respondent show cause why it should not be absolutely restrained from any further proceedings in that certain action now pending before respondent entitled 'Bernard Herrmann, Plaintiff, vs. American Society of Composers, Authors and Publishers, Defendant' bearing Number 770507.

Petitioner is an unincorporated membership association, hereinafter called 'ASCAP,' organized to serve as a clearing house for users who render public performances for profit of copyrighted musical works, and for its members,--the composers, authors, and publishers of such musical compositions. On behalf of its members, it grants nonexclusive licenses to radio and television networks and stations, restaurants, night clubs and other such users of music permitting them to render nondramatic performances of its members' musical works. The license fees collected are distributed, after deduction of operating expenses, to the members; one-half of such royalty distribution goes to the publisher members and one-half thereof to the composer and author (writer) members of petitioner.

Bernard Herrmann, the real party in interest herein, applied in writing for membership in ASCAP on or about November 1, 1943, as a writer of certain specified musical compositions. By said application Herrmann agreed that he would, if elected, abide and be bound by the Articles of Association thereof then in effect or as they might be thereafter amended. He executed a membership agreement in writing dated January 28, 1944, wherein he agreed that the royalties distributed by petitioner shall be divided into two equal sums, one such sum to be divided among the writer members 'in accordance with the system of distribution and classification as determined by the Classification Committee * * *, in accordance with the Articles of Association as they may be amended from time to time, except that the classification of the Owner within his class may be changed.' In said agreement Herrmann further agreed that his classification in ASCAP as determined from time to time by the Classification Committee of his group or a review board established under the Articles of Association 'shall be final, conclusive and binding upon him.' The agreement further provides: 'The Society shall have the right to transfer the right of review of any classification from the Board of Directors to any other agency or instrumentality that in its discretion and good judgment it deems best adapted to assuring to the Society's membership a just, fair, equitable and accurate classification.' Also: 'The Society shall have the right to adopt from time to time such systems, means, methods and formulae for the establishment of a member's status in respect of classification as will assure a fair, just and equitable distribution of royalties among the membership.'

Herrmann remained a member from January 28, 1944, until December 31, 1959, upon which date he withdrew from membership having given proper written notice thereof to petitioner. His resignation was expressly subject to any rights or obligations existing between petitioner and its licensees under then existing licenses, and to his right to continue to receive a proportionate share of distribution from royalties accruing under such licenses. Shortly prior to his withdrawal from membership, Herrmann complained in writing that he was not receiving the share of the royalties distributed by petitioner to which he claimed he was entitled. Certain adjustments were made. On August 24, 1960, his counsel made a formal demend, 'pursuant to Article XIV, Section 6B of the Articles of the Association of ASCAP * * * for a hearing to protect the payments made to him by the Society for the years 1955 through 1959 inclusive.' A hearing was given by the administrative tribunal on November 15, 1960, at which Herrmann was not present but was represented by counsel. His counsel's statement to the tribunal as to his position with respect to Mr. Herrmann's rights as a member of ASCAP was 'that ASCAP has wrongfully discriminated against those members who writes scores and background music, both in the allocation of moneys due as well as the interpretation of the Rule of ASCAP.' In February 1961, the board rendered its written decision, fully setting forth its reasons for its determination which was adverse to these specific as well as other general contentions advanced on behalf of Herrmann. A copy of the decision was served on Herrmann. He filed no appeal from the decision.

On May 8, 1961, Herrmann (hereinafter referred to as 'plaintiff') filed his complaint in the superior court in which it is alleged, upon information and belief, in paragraph VI thereof, 'that he has not received full and adequate compensation under the terms of his membership agreement with the SOCIETY; that he has not received a true and accurate accounting from the defendant of all the uses of his work and that the defendant, by virtue of its method of evaluation and crediting, has wrongfully discriminated against plaintiff, and plaintiff's musical compositions.' Also: 'Plaintiff is further informed and believes and therefore alleges that notwithstanding the existing system of evaluation and crediting under the membership agreement between plaintiff and defendant, the defendant has not accurately and truthfully accounted to plaintiff for all the uses of his works which were reported to the defendant by the users thereof.' (Paragraph VII.)

Plaintiff then alleged that 'pursuant to the membership agreement between plaintiff and defendant, plaintiff has prosecuted all remedies available to him thereunder; that defendant has failed, neglected and refused, and does now fail, neglect and refuse to account to plaintiff for the uses, credits and money owed and due therefrom, which result from the public representation of the plaintiff's musical compositions.'

In its answer, ASCAP denied, among other things, that plaintiff had prosecuted all remedies available to him, and alleged therein as an affirmative defense that plaintiff has failed to exhaust the remedies provided by Article XIV, Section 6B of the Society's 1960 Articles of Association, a copy of which was incorporated in the answer.

In October 1961, ASCAP filed a motion for a summary judgment of dismissal of the action upon the ground that it had no merit and that there was no triable issue of fact. Filed in support thereof was the affidavit of Stanley Adams, president of ASCAP. (It is to be noted that in ASCAP's answer to the complaint, in Mr. Adam's affidavit, as well as in Herrmann's formal protest of August 24, 1960, reference is made to Article XIV, Section 6B of the society's articles which became effective April 1, 1960.) This motion for a summary judgment was opposed by a declaration of Herrmann in which it is asserted that he is seeking an accounting only for that period of time during which he was a member of the society; that subsequent to his withdrawal from membership on December 31, 1959, he 'did not have any contractual or any other obligations or relations with the Society; that I am not now and have not been since December 31, 1959 a signatory to the Articles of Association of the Society and I therefore verily believe that I am not bound by the Rules and Regulations contained therein; that I acknowledge I caused my attorney David G. Licht to file a protest with the Society and that said protest was heard by the Society's Board of Review; * * * that the Articles of Association attached to the Society's answer and marked EXHIBIT A are not the same Articles which bound me. An examination of said EXHIBIT 'A' will show that said Articles became effective as of April 1, 1960, which is approximately four months subsequent to the date that I resigned from the Society, and I further declare that I am only bound by the Rules and Regulations contained in the Society's Articles dated June 1, 1954. Nowhere in the Articles dated June 1, 1954 are there provisions for protest of the nature which is the gravamen of my complaint herein. Article XIV, Sections 4, 6 and 6B of the 1954 Articles merely provide for protest procedure against another member of the Society and/or from the classification of a member by the Society.

'The Society, in its answer, continually refers to its 'Adminstrative Remedies' as provided in its Articles effective April 1, 1960.' Following oral argument, the motion was denied on October 23, 1961.

In March of 1962, a set of interrogatories was filed by Herrmann. ASCAP filed objections thereto and, at the same time, renewed its motion for a summary judgment of dismissal upon the grounds that the court did not have jurisdiction of the action, that the action has no merit, and that there is no triable issue of fact. The notice of motion states that it will be based upon the affidavit of Stanley Adams previously filed on October 9, 1961, additional affidavits of Mr. Adams dated October 20, 1961, and April 27, 1962, the affidavit of Bennett W. Priest, an attorney for ASCAP, the memorandum of points and authorities filed therewith, 'and the files and records of this action.'

In the April 27 Adams' affidavit it is stated that on the morning set for the hearing of the first motion for summary judgment, counsel for ASCAP was served with Herrmann's declaration in opposition to the motion; that ASCAP had no...