Miller v. Universal Pictures Co.
| Decision Date | 14 June 1960 |
| Citation | 11 A.D.2d 47,201 N.Y.S.2d 632 |
| Parties | , 126 U.S.P.Q. 303 Helen D. MILLER, individually and as Executrix of the Estate of Alton G. Miller, Plaintiff-Respondent, J. Climenko v. UNIVERSAL PICTURES COMPANY, Inc., and Decca Records, Inc., Defendants-Appellants. H. Cohen. |
| Court | New York Supreme Court — Appellate Division |
Henry Cohen, New York City, of counsel (Robert J. Feldman and Edgar M. Rubin, New York City, with him on the brief; Cohen & Sandomire, New York City, attorneys for Decca Records, Inc., and Adolph Schimel, New York City, attorney), for Universal Pictures Co., Inc.
Jesse Climenko, New York City, of counsel (Herbert L. Scharf, New York City, with him on the brief; David Mackay, New York City, attorney), for Helen D. Miller, etc.
Before BREITEL, J. P., and FRANK, VALENTE, McNALLY and STEVENS, JJ.
Defendants Universal Pictures and Decca Records appeal from an interlocutory judgment directing a reference. The referee is to take an accounting as to plaintiff's damages and defendants' profits resulting from the release by Decca Records of phonograph records made from the sound track of a motion picture entitled 'The Glenn Miller Story' which was produced by Universal Pictures. Glenn Miller in his lifetime had been a very successful and original band leader with a large following. Plaintiff is Glenn Miller's widow and the executrix of his estate. As such, she receives substantial royalties on recordings made by Radio Corporation of America of original Glenn Miller renditions.
In 1952 she entered into an agreement under which she granted Universal Pictures the right to portray her and her family in the photoplay. In addition, she purported to grant, among other things, the right to 'simulate the style, manner and manner of playing' of Glenn Miller and his orchestra. She also agreed to cooperate in making available all information and material, whether written, musical or otherwise, that she might have relating to Glenn Miller and his life and activities. In return, she was to receive a percentage of the gross proceeds of the photoplay. The gross proceeds, as defined by the agreement, included such items as the net amounts received by Universal Pictures from the licensing for television or radio of any musical material upon which the photoplay is based. No reference is made in the agreement to possible revenue from recordings made from the sound track. Nor is there a provision authorizing Universal Pictures to make recordings, directly or indirectly, from the sound track.
In making the sound track for the photoplay, Universal Pictures did not use the original RCA recordings of the Glenn Miller orchestra. Instead, through its own orchestra, it meticulously imitated the original Glenn Miller renditions.
After the photoplay was produced, and purportedly as part of its promotion campaign, Universal Pictures granted Decca Records the right to make recordings from the sound track. Universal Pictures is owned and controlled by Decca Records. Decca Records paid nothing to Universal Pictures for this right and has received substantial profits from the recordings.
After a trial, it was concluded that Decca Records had wrongfully profited from misappropriating plaintiff's property. It was also found that Universal Pictures had breached an implied obligation of the agreement it had made with plaintiff not to make recordings from the sound track.
Plaintiff never had, and certainly does not now have, any property interests in the Glenn Miller 'sound'. Indeed, in the absence of palming off or confusion, even while Glenn Miller was alive, others might have meticulously duplicated or imitated his renditions (cf. Supreme Records v. Decca Records, D.C.S.D.Cal., 90 F.Supp. 904, 906-907; Chaplin v. Amador, 93 Cal.App. 358, 362, 269 P. 544; Kaplan, Performer's Right and Copyright: The Capitol Records Case, 69 Harv.L.R. 409, footnote 6 at 427). The authorities relied on by plaintiffs are distinguishable because in those cases the offending parties did not provide their own performances (e. g.: Metropolitan Opera Ass'n v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483, affirmed 279 App.Div. 632, 107 N.Y.S.2d 795; Gieseking v. Urania Records, Inc., 17 Misc.2d 1034, 155 N.Y.S.2d 171; Capitol Records v. Mercury Records Corporation, 2 Cir., 221 F.2d 657,...
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