Bernstein v. Glavin, 45A03-9810-CV-445.
| Decision Date | 15 March 2000 |
| Docket Number | No. 45A03-9810-CV-445.,45A03-9810-CV-445. |
| Citation | 725 N.E.2d 455 |
| Parties | Lee BERNSTEIN, Appellant-Plaintiff, v. Daniel W. GLAVIN and Beckman, Kelly & Smith, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Ralph E. Dowling, Wilson Kehoe & Winningham, Indianapolis, Indiana, Attorney for Appellant.
David C. Jensen, Michael E. O'Neill, John P. Twohy, Eichhorn & Eichhorn, Hammond, Indiana, Attorneys for Appellees.
Michael P. McCready, Law Offices of Michael. P. McCready, P.C., Chicago, Illinois, Attorney for Amicus Curiae The National Writers Union (UAW LOCAL 1981).
Appellant-plaintiff Lee Bernstein ("Bernstein") appeals the trial court's denial of her motion for summary judgment on her claim of legal malpractice and its grant of the cross-motion for summary judgment made by appellees-defendants Daniel W. Glavin ("Glavin") and Beckman, Kelly & Smith ("BKS") (collectively, "appellees").
We affirm.
One issue is dispositive of our review: whether the trial court erred in granting appellees' motion for summary judgment.
The facts most favorable to Bernstein indicate that in the November/December 1981 issue of "Totline" newsletter, editor Jean Warren ("Warren") of Warren Publishing solicited submissions of original songs that could be sung to the tune of familiar children's songs. Warren informed her readers that these songs would eventually be compiled into a book, with the author of each song to receive a complimentary copy of the songbook plus acknowledgement for her work. In 1982, Bernstein wrote the lyrics to a song entitled "I Love You" that were intended to be sung to the tune of the well-known children's song "This Old Man."2 After submitting the "I Love You" lyrics to Warren Publishing, Bernstein received the following form:
Sincerely /s/ Jean Warren Editor, Totline
Bernstein signed the form on January 2, 1983, and returned it to Warren Publishing. Thereafter, she received a copy of the songbook entitled "Piggyback Songs." The following information appeared on the songbook's copyright page: "Copyright © 1983 Jean Warren All rights reserved, except for the inclusion of brief quotations in a review, no part of this book may be reproduced in any form without the written permission of the publisher." "I Love You" appeared on page eighteen of the songbook, with Bernstein receiving credit as the lyricist. On March 15, 1988, Warren registered her copyright as the "owner of exclusive right(s)" in "Piggyback Songs" with the United States Copyright Office, describing the songbook as a "[c]ompilation and selections of text."
In approximately 1988, Lyons Entertainment Group, Inc. ("Lyons"), located in Dallas, Texas, began producing a series of television programs entitled "Barney and Friends" and videocassettes entitled "Barney and the Backyard Gang," which featured a six-foot purple and green dinosaur named Barney. After one of Barney's producers heard "I Love You" performed at a children's recreational class, Lyons incorporated the song into each television program and videocassette.3 "Barney and Friends" was first broadcast on the Public Broadcasting System ("PBS") in 1992.
When Bernstein heard "I Love You" performed on a PBS episode of "Barney and Friends" in 1992, she sought the advice of Glavin, a partner in the law firm of BKS. Bernstein informed Glavin that Warren Publishing had published the lyrics in 1983 and that she had received only the songbook as compensation. When Glavin asked whether she had signed anything to transfer the rights to the lyrics to Warren Publishing, Bernstein could not specifically recall. Glavin informed her that she was entitled to all rights in the lyrics if she had written them and had not transferred any of her rights therein.
In a letter dated July 29, 1992, Glavin informed Lyons of its unauthorized use of Bernstein's lyrics and enclosed photocopies of the cover, the copyright page, and page eighteen of "Piggyback Songs." Shortly thereafter, Lyons and Glavin entered into several weeks of negotiations over rights, compensation, and credit with respect to the past and future use of Bernstein's lyrics.
In September 1992, Bernstein signed an agreement with Lyons in which she transferred to Lyons "all right, title and interest in and to ["I Love You"], together with all copyrights, renewals and extensions thereof." In consideration for the transfer, Bernstein received $5,000 for Lyons' past use of the lyrics, plus $2,500 "in connection with all uses" of the song through August 31, 1996. For future use of the lyrics, she agreed to receive $2,500 to be paid on September 1, 1996, and every two years thereafter, with future payments to be adjusted for inflation. Lyons agreed that Bernstein would be entitled to public performance royalties as author of the lyrics and would receive credit as the lyricist "in connection with all subsequent uses of the [song] or sheet music, recordings, audio-visual works and television broadcasts[.]" Bernstein further "warrant[ed] and represent[ed] that [she] ha[d] the full right, power, and authority to enter into [the] Agreement and to grant and vest in [Lyons] all rights set forth [t]herein, free and clear of any and all claims, rights and obligations whatsoever and that [she] [was] not aware of any copyright in another person which shall violate or infringe the copyright of any third party."
Shortly after Bernstein signed the agreement, Lyons began to aggressively promote its Barney videotapes and other products, and by the end of 1992, Barney had become, in appellees' words, "a merchandising bonanza." Dissatisfied with the compensation and credit arrangements Glavin had negotiated with Lyons, Bernstein sought different counsel. On February 5, 1993, Glavin received a letter from an attorney representing Warren Publishing who advised him that Bernstein had assigned the rights to the "I Love You" lyrics to Warren Publishing in 1983; enclosed with the letter was a copy of the form that Bernstein had signed on January 2, 1983. Glavin forwarded a copy of the letter and the form to Bernstein's new attorneys and Lyons.
On February 12, 1993, Bernstein's new counsel wrote to Warren Publishing and Lyons to contest the validity of Bernstein's transfers of the rights to the "I Love You" lyrics to both entities. On February 19, 1993, Lyons registered Bernstein's transfer of the copyright in "I Love You" with the United States Copyright Office. In May 1993, Warren amended her copyright registration to reflect ownership of the copyright in the lyrics of "I Love You" and other songs in "Piggyback Songs" in particular, not just in the compilation as a whole.
Lyons filed a declaratory judgment action against Bernstein in a federal district court in Texas on April 16, 1993, seeking enforcement of their September 1992 agreement. Warren Publishing filed suit against Lyons and Bernstein in a federal district court in Washington on May 27, 1993, seeking enforcement of its copyright in "I Love You." Following mediation, these lawsuits were eventually settled and dismissed.
On August 24, 1994, Bernstein filed a legal malpractice action against appellees, alleging that they had "failed to properly investigate her rights and potential liabilities under the copyright laws or evaluate the potential value of her claim for past copyright infringement or the value of a transfer of her rights in the lyrics." On July 11, 1997, both parties filed motions for summary judgment. On September 14, 1998, the trial court granted appellees' motion for summary judgment and denied Bernstein's motion in relevant part as follows:
We apply the same well-settled standard as the trial court when reviewing its grant or denial of summary judgment: whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Golitko v. Indiana Dept. of Correction, 712 N.E.2d 13, 15 (Ind.Ct.App.1999), trans. denied. "The trial court's grant of summary judgment is clothed with a presumption of validity and the appellant bears the burden of proving that the trial court erred." Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933, 936 (Ind.Ct.App.1996). We resolve any doubt as to a fact, or an inference to be drawn therefrom, in favor of the non-moving party. Id.
"Cross-motions for summary judgment do not alter our standard of review; rather, our inquiry...
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