Neva, Inc. v. Christian Duplications Intern., Inc.
| Decision Date | 11 April 1990 |
| Docket Number | No. 86-547-CIV-ORL-19.,86-547-CIV-ORL-19. |
| Citation | 743 F. Supp. 1533 |
| Parties | NEVA, INC., a Florida corporation by change of name to Alexander Scourby Bible Recordings, Inc., and the Estate of Alexander Scourby, Plaintiffs, v. CHRISTIAN DUPLICATIONS INTERNATIONAL, INC., a Florida corporation, Christian Duplications, Inc., a Florida corporation, R.B. Turney, Episcopal Radio T-V Foundation, Inc., a Georgia corporation, and International Cassette Corp., a Texas corporation, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
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Stefan v. Stein, C. Steven Yerrid, and Christopher S. Knopik, Stagg, Hardy & Yerrid, P.A., Tampa, Fla., for plaintiffs.
Herbert L. Allen, Duckworth, Allen & Dyer, Bruce B. Blackwell, King & Blackwell, P.A., and Lynn James Hinson, Dean, Mead, Egerton, Bloodworth Capouano & Bozarth, P.A., Orlando, Fla., for defendants.
This case involves claims surrounding the narrations by the late Mr. Alexander Scourby of the King James Version of the Old Testament and the King James Version of the New Testament in 1972 and 1974 respectively at the request of the director of the Defendant Episcopal Radio T-V Foundation, Inc. ("Episcopal Foundation"), Ms. Carolina Rakeshaw. The agreement between Mr. Scourby and the Episcopal Foundation was not reduced to a single formal document but was established by oral and written evidence when various of the parties' claims were presented to a jury in trial proceedings commencing on August 22, 1989. During the jury trial, the following facts were established.
Alexander Scourby, a well known actor whose voice became known as the "Voice of the Bible" and whose artistic contributions included the narration of "Victory at Sea", began reading for the blind and physically handicapped as a young actor in the 1930's. According to his agent, Fifi Oscard, Scourby did thousands of readings for the blind and particularly loved to read the Bible. Members of Scourby's family also had ties with the Episcopal Church, so when Caroline Rakestraw, Director of the Episcopal Radio TV Foundation, Inc., called Ms. Oscard on June 12, 1972 to ask if Mr. Scourby would do a narration of the Old Testament to be distributed by the Episcopal Foundation in accordance with its non-profit purposes, primarily to the blind and physically handicapped, Oscard knew that Scourby would love the undertaking. The testimony established that the Episcopal Foundation was part of the Episcopal Church, the mission of which is to spread the Gospel throughout the world through mass media. While the Episcopal Foundation is financially independent of the Episcopal Church, it is related to the Church and the Church's mission.
Scourby agreed to do the narration for a reduced fee.1 A union waiver was obtained.2 According to Ms. Oscard, who negotiated on behalf of Mr. Scourby with Ms. Rakestraw of the Episcopal Foundation, the parties intended that the use of Scourby's narration would be for the non-profit purposes of the Episcopal Foundation, and if the Episcopal Foundation made a profit from the sale of the Bible recording by Scourby, the Episcopal Foundation would use the profit to further their other non-profit work, to make more Bible recordings, and to make gifts of such Bible recordings, especially to the blind and physically handicapped. There was no intent to convey to the Episcopal Foundation the right to commercially sell the narration for profit.
In 1974, Ms. Rakestraw contacted Ms. Oscard to request that the narration of the New Testament be done by Scourby under the same terms and conditions as he had made the narration of the Old Testament.3
With reference to the narration of the Old Testament made in 1972 and the subsequent narration of the New Testament made by Scourby in 1974, the Episcopal Foundation paid the costs of production, the cost of publicity, and the fee to Scourby. The Episcopal Foundation, however, did not supervise the creation of this work by Scourby, a well known and accomplished artist. While Caroline Rakestraw physically attended the recordings of both narrations, there was no evidence that she was knowledgeable or experienced in the artistic elements of their creation or exercised any control over Scourby's works.
In 1974, Scourby completed his narration of the New Testament, and for a time the Episcopal Foundation marketed both narrations in accordance with the understanding reached by the parties. Press releases were distributed; a pamphlet with the picture of Alexander Scourby was prepared by the Episcopal Foundation; advertisements were placed in newspapers; an event was scheduled at Rich's department store in Atlanta with Mr. Scourby; Scourby attended a banquet in 1974 at which the Episcopal Foundation received an award for its work with the narrations; and in 1974, Scourby was featured on the Today show where he did a widely televised reading of portions of the Bible at Thanksgiving.
In 1977, Mr. R.B. Turney contacted Mr. Hunt, an agent of Ms. Oscard, to get information concerning the rights to the narrations which he wished to commercialize through his company (Plaintiffs' Ex. 63). Mr. Hunt, by letter, advised Turney that he would have to get permission from the Episcopal Foundation to use the tapes and that he would have to pay a fee to Mr. Scourby in order to commercialize the narrations (Plaintiffs' Ex. 59).4 Rakestraw testified that the sale of the cassette tapes of Scourby's narrations was one of her pet projects and that she wanted to continue on behalf of the Episcopal Foundation with their distribution. Therefore, no agreement with Turney or his company was made.
After Ms. Rakestraw retired in 1980, however, the Episcopal Foundation granted Turney's company, Christian Duplications International, Inc. (CDI), a license, for a fee, on January 5, 1982 (Plaintiffs' Exhibit 28). There was no limitation on the use of such narrations by Turney or his company.5 CDI began commercially selling the Scourby narrations for profit by January 22, 1982, affixing to such cassettes the words "Authorized Alexander Scourby's Latest Narration".6
Alexander Scourby died on February 22, 1985. Prior to his death, he signed an exclusive recording agreement with Plaintiff, Neva, Inc. and with Counterdefendant, MASC, Inc. (Plaintiffs' Ex. 49). MASC, Inc. was a corporation formed by Mr. Scourby and his wife, Lori March Scourby. After Scourby's death, Mr. Spiro, at the request of a representative of Oscard's agency, wrote to the new director of the Episcopal Foundation, Reverend Lewis Schueddig, concerning the original contract between the Episcopal Foundation and Spiro. (Plaintiffs' Ex. 17). In this letter, Mr. Spiro stated that an AFTRA waiver was previously granted based on the condition that Episcopal Foundation did not anticipate a profit from the sale of the narrations. Further, Mr. Spiro reiterated that Mr. Scourby made the narrations "at a fee well below his normal narration fee." (Id.). In 1985, Fifi Oscard learned that the Episcopal Foundation had transferred its rights in the Scourby narration to CDI for the purpose of selling the tapes for profit with a royalty to be paid to the Episcopal Foundation by CDI. This lawsuit followed.
While there was evidence that Oscard and possibly Scourby had been shown the Episcopal Foundation's copyright on the cassette tapes of the narrations, it appears from the evidence that neither Oscard nor Scourby were familiar with copyright law or had any reason to suspect that the copyright notice would change the agreement between the parties. There is no evidence that Alexander Scourby was aware during his lifetime that the Episcopal Foundation had transferred its rights to the narration to a for-profit corporation.
During the course of the trial, William M. Milom testified, without objection, as an expert in the areas of entertainment and copyright law. Mr. Milom testified that an artist may segregate in time and territory the rights to a creative work and grant different rights to such creative work. The common practice among artists and entertainers is to negotiate informally, without a written contract, the use of an artist's work by a non-profit entity, because of the high degree of trust that is involved. He also testified that it is customary when an artist grants non-profit rights to an artistic work to a non-profit entity, such artist will retain all of the rights to the work, and the non-profit entity receiving the rights should not engage in commercialization of the creation. A copyright received by one party should not change the contract between the artist and the non-profit entity.
On September 11, 1989, the Jury rendered its Verdict (Doc. No. 266, filed September 11, 1989) as follows.7 On the claim of Plaintiffs, Neva, Inc.8 and the Estate of Alexander Scourby for federal unfair competition (Count I), the jury found in favor of Plaintiffs and assessed damages of $1,070,581.00 against Christian Duplications International, Inc. ("CDI") and Christian Duplications, Inc. ("CD"), and assessed damages against International Cassette Corporation ("ICC") in the amount of $227,256.00.9 The Jury found in favor of Plaintiffs Neva and the Estate of Scourby on their claim of unauthorized publication of name under Florida Statute 540.08 (1989) (Count III), awarding in favor of the Plaintiffs and against CDI and CD compensatory damages of $74,558.00 and punitive damages of $50,000.00, awarding against Defendant Turney compensatory damages of $100.00 and punitive damages of $175,000.00, awarding against Defendant ICC compensatory damages of $45,451.00 and punitive damages of $50,000.00, and awarding against Defendant Episcopal Radio TV Foundation, Inc. compensatory damages of $100.00 and punitive damages of $1.00. On Plaintiff's claim for breach of contract against Episcopal Foundation (Count VI), the Jury...
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