Bertolino v. Italian Line, 72 Civ. 2981.

• Decision Date: 06 May 1976
• Docket Number: No. 72 Civ. 2981.,72 Civ. 2981.
• Citation: 414 F. Supp. 279
• Parties: Mario BERTOLINO, Plaintiff, v. ITALIAN LINE, Defendant.
• Court: U.S. District Court — Southern District of New York

414 F. Supp. 279

Mario BERTOLINO, Plaintiff, v. ITALIAN LINE, Defendant.

No. 72 Civ. 2981.

United States District Court, S. D. New York.

May 6, 1976.

Milton Kean, New York City, for plaintiff; Floyd S. Weil, Paul H. Kean, New York City, of counsel.

Kirlin, Campbell & Keating, New York City, for defendant; Joseph F. Ryan, Jr., Bruce C. Beringer, New York City, of counsel.

IRVING BEN COOPER, District Judge.

Defendant Italian Line moves to dismiss plaintiff's complaint pursuant to Fed.R. Civ.P. 41. Plaintiff Bertolino commenced this diversity, non-jury action in July 1972 after proper removal from the Supreme Court, State of New York. Plaintiff seeks damages for statutory and common law copyright infringement, also for conversion by defendant. In his complaint plaintiff claims damages of $815,000.

The trial started March 1 and ended March 3, 1976. At the close of plaintiff's direct case, we directed both sides to submit memoranda of law, appropriate exhibits and extracts from the depositions of witnesses in order to focus exclusively on the issue of whether plaintiff had satisfied the burden of presenting a prima facie case. (Tr. 269-71)¹

I

Bertolino is an international opera singer who has performed at La Scala in Milan, the Royal Opera in Rome and at Covent Garden, London. He has also appeared on several well-known television shows and at resorts in Las Vegas and Miami Beach. (Tr. 4-10)

II

Beginning in 1969, under the supervision and direction of Sara and Myron Wiegand, Bertolino embarked on a project primarily to produce phonograph records. His agreement to participate in this venture was memorialized in a contract dated June 28, 1969. (Deft.Exh. A) In substance, it provided that plaintiff would produce not less than sixty compositions, perform two personal concerts at New York's Carnegie Hall and in Pittsburgh, and receive approximately 2.7% of the retail selling price of all phonograph records made and sold from the master recordings produced under the contract. Further, Mr. Wiegand agreed to underwrite the production of the records to the extent of $170,000. In return, the Wiegands were given the right to supervise production of the recordings, direct where the net profits from personal appearances would be distributed, and receive weekly from Bertolino an accounting of his finances. Most important of all the contractual provisions was clause 2:

"2. You hereby agree that we, MYRON WIEGAND and SARA WIEGAND, shall be the exclusive owners of all right, title, interest in and to said master recordings, free of any claim whatsoever by you."

Pursuant to this contract, Bertolino eventually produced 72 songs on seven long-playing and one short-playing records. Plaintiff testified he made 25 or 30 copies of each of these "master discs." Each record had a gold-printed label pasted on it which contained the following admonition: "All rights of the manufacturer and of owner of the recorded work reserved. Unauthorized public performance, broadcast and copying of this record prohibited. Made in Italy." (Tr. 11-22)

The particular "mix" or confluence of the singer's voice and orchestral accompaniment on the records emphasized the orchestral track and thus tended to drown out plaintiff's voice. (Tr. 23-28)

On May 6, 1971 Bertolino set sail aboard defendant's vessel LEONARDO DA VINCI ("LEONARDO") under an agreement which in substance provided that plaintiff would perform one concert aboard the LEONARDO in consideration for free passage and reduced laundry and bar rates. (Tr. 27-30) Shortly before his concert performance, Bertolino testified, he was approached by one Antonio Grassi, who then was in charge of presenting taped music and motion pictures aboard the LEONARDO. After being praised by Mr. Grassi, the singer testified he presented him with a complimentary set of his recordings — copies of the eight master discs. (Pltf.Exhs. 1-8; Tr. 30-31)

Bertolino then allegedly said to Mr. Grassi

"`Look, I want to tell you one thing. For you this should be a collector's item, only for you because this sic are not to be played for the public so you will play for you and your wife and that's it.'

So he Mr. Grassi thanked me, he almost kissed me, he almost hugged me.'" (Tr. 31)

Plaintiff also distributed copies of the eight master discs to several other passengers and to the crew. (Grassi deposition, pp. 23-25)²

Upon arrival in Italy, Bertolino called at the Italian Line office where he met Mr. Grassi and Messrs. Caruba, Bruno and De Barbieri, executives of the Italian Line. Plaintiff asked whether there was a possibility that his records could be taped so that they could be played over public address systems on Italian Line vessels:

"Bertolino said that he would be pleased if tapes including the sound recordings of his songs would be played on Italian Line ships. I (Bruno) said that the Italian Line had no objection to his sound recordings being inserted into the tapes but that it was not up to me to decide. . .

Nothing, absolutely nothing, was said by anyone present with regard to payment of money or other compensation to Mario Bertolino for the playing of tapes featuring him on Italian Line ship or ships." (Bruno Answers to Depo. on Written Questions, numbers 10(b) and (c))

Mr. Grassi outlined his recollection of the meeting:

"I, before my three superiors and Mr. Bertolino said to my superiors whether we could tape the records on tape, always in the presence of Mr. Bertolino. Then my superiors in view of the fact that I had said that he sang so well and that they were beautiful songs, because I am telling the truth, my superiors said that we would indeed tape those records, and Mr. Bertolino said yes." (Bertolino deposition, p. 37)

At the meeting, plaintiff negotiated a return trip aboard defendant's vessel RAFFAELO, which left Italy for New York in early June, 1971. Plaintiff's return trip was covered by an employment agreement similar to that which he entered into aboard the LEONARDO.

III

The instant litigation was precipitated by an event which occurred one night in June, 1971, while at a cocktail party aboard the RAFFAELO. Plaintiff heard one of his songs emanating from the ship's public address system. Realizing that this song was one of the 72 contained on the eight records given Grassi, Bertolino became infuriated. At trial plaintiff estimated that 30 of his 72 songs were played during the balance of the journey to New York. (Tr. 37-44; 127-40; 154-58; 203-08)

Upon his return to New York in July 1971 plaintiff spoke to a Mr. Arena, purser aboard the RAFFAELO, at the Italian Line office in New York. Plaintiff complained about the unauthorized playing of his songs aboard the RAFFAELO. Mr. Arena instructed plaintiff to contact the general manager of Italian Line in the United States. Bertolino testified he unsuccessfully attempted to contact the manager on six occasions. (Tr. 55-59; 247-50; 262-64)

In September 1971 Bertolino and his cousin Franco Balistreri heatedly confronted Mr. Grassi at a New York pier. Plaintiff told the latter that his unauthorized playing of plaintiff's songs had jeopardized the singer's career since the particular mix on the records overwhelmed his voice. Mr. Grassi allegedly ran away. (Tr. 46-54)

IV

On cross-examination of Bertolino during trial numerous significant disparities of astonishing proportions arose regarding plaintiff's version of principal events. For one, in his pre-trial deposition plaintiff testified that he had no written contracts with Sara Wiegand. On cross-examination it was brought out that plaintiff had a written contract dated June 28, 1969 with both Sara and Myron Wiegand. (Tr. 74-78; Deft. Exh. A)

For another, plaintiff contended on direct that he was producer and owner of the eight master discs.³ During cross-examination it was elicited from Bertolino that Sara and Myron Wiegand in fact are the exclusive owners of all right, title and interest in the master recordings free of any claims whatsoever by plaintiff. (Tr. 81-83; Deft. Exh. A)

Further, Bertolino testified at his deposition in 1973 that the only people who had given money to him for the production of sound recordings that are the subject matter of this action were Sara Wiegand, Mr. Balistreri, Mr. Mulach, Filippo Bertolino, Mr. Volpe and no one else. In fact, as Bertolino's trial cross-examination revealed, Myron Wiegand had given plaintiff $219,000 for production of those recordings. (Tr. 90-98)

Still further, as to payment of income taxes by him, Bertolino testified that his wife paid income tax on the $5,250 that was paid to her in 1969 from the checking account in the name of plaintiff and Sara Wiegand. Plaintiff filed joint tax returns with his wife for the years 1969 and 1970 (Deft.Exh. C); neither he nor his wife declared the $5,250 as income. (Tr. 112-25)

Furthermore, plaintiff testified on direct that he made 25 to 30 pressings of the master discs in Italy. During his cross examination he revealed that the pressings of the records were in fact made by Raleigh Record Company in New York City and that in July 1970 plaintiff himself directly ordered from Raleigh 700 copies of the pressings and in January 1972 an additional 400 pressings. (Tr. 236-39)

Another inconsistency surrounded the circumstances foreclosing plaintiff from selling his records when he arrived in Italy in May, 1971. At his deposition in 1973 Bertolino stated he did not attempt to sell the records in Italy because of his mother's heart condition. At trial plaintiff testified that he had to delay the sale of records because his father had a heart attack. (Pltf's deposition, p. 227; Tr. 33)

A further discrepancy encircled plaintiff's allegations of owning copyrights on seven of the 72 songs contained on the records given to Mr. Grassi. Plaintiff introduced in evidence a list of the 72 song titles that appear on the eight records given to Grassi. (Pltf.Exh. 17) The song titles on plaintiff's certificates of...