Roth v. Pritikin

• Decision Date: 20 June 1983
• Docket Number: No. 1322,D,1322
• Parties: , 1983 Copr.L.Dec. P 25,543 June ROTH, Plaintiff-Appellant, v. Nathan PRITIKIN and Patrick M. McGrady, Jr., Defendants-Appellees. ocket 83-7013.
• Court: U.S. Court of Appeals — Second Circuit

Page 934

710 F.2d 934

219 U.S.P.Q. 204, 1983 Copr.L.Dec. P 25,543

June ROTH, Plaintiff-Appellant, v. Nathan PRITIKIN and Patrick M. McGrady, Jr., Defendants-Appellees.

No. 1322, Docket 83-7013.

United States Court of Appeals Second Circuit.

Argued June 2, 1983.

Decided June 20, 1983.

Charles Haydon, New York City (Dublirer, Haydon, Straci & Victor, New York City of counsel), for plaintiff-appellant.

Lawrence I. Weinstein, New York City (Milgrim, Thomajan, Jacobs & Lee, George L. Graff, New York City, of counsel), for defendant-appellee, Nathan Pritikin.

Roy J. Karlin, New York City (Shapiro, Shiff, Beilly, Rosenberg & Fox, Lewis Rosenberg, Stanley N. Albert, New York City, of counsel), for defendant-appellee, Patrick M. McGrady, Jr.

John A. Crawford, III, New York City, for amicus curiae, Graphic Artists Guild, Inc.

Before KAUFMAN, PRATT, and GIBSON, ^* Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

Contracting parties often discover they might have gained a more advantageous arrangement than their original bargain if they had the power of clairvoyance. Not infrequently, with the benefit of hindsight, one may come to believe the terms agreed upon at a time past, unfairly deprived him of the compensation which, because of later events, seems more appropriate.

In the dispute before us, June Roth created certain recipes which were incorporated into what proved to be a best-selling book. She now invokes the Copyright Act of 1978 to challenge a district judge's determination that she entered into a valid contract, accepting $3,000 as full compensation for her labors. The facts are important to the resolution of this issue, and accordingly, we set them forth in some detail.

I

In 1976, Patrick McGrady, a prominent medical writer and free-lance journalist, visited Nathan Pritikin's "Longevity Center" in Santa Barbara, California. The Center offered treatment, based upon Pritikin's diet and exercise plan, for persons suffering from a variety of physical afflictions. After spending almost one month at the clinic, McGrady was impressed with the program's apparent success, and in November 1976 wrote an article for Woman's Day magazine discussing Pritikin's nostrums.

McGrady's story sparked a great deal of interest in the publishing community. Accordingly, he received several inquiries urging him to write a book on the subject. In December 1976 McGrady and Pritikin entered into an agreement, pursuant to which McGrady was primarily responsible for writing the book. Pritikin would lend his name and expertise to the endeavor. Publication and distribution rights were sold to Grosset & Dunlap.

The authors realized their tome would benefit from the inclusion of recipes which would assist readers in adhering to the strict dietary requirements of the Pritikin regimen. Following several unsuccessful encounters with other authors in the Spring of 1977, McGrady approached June Roth, a free-lance writer, specializing in food and health matters. She had previously contributed to a number of cookbooks, and had written several articles on food-related topics. Roth agreed in principle to create the recipes, and McGrady provided her with a list of dietary specifications embodied in the Pritikin program. ¹

McGrady and Roth met on August 30, 1977 to discuss the details of Roth's participation in the endeavor. McGrady asked Roth what compensation she would require, suggesting a price of "several hundred dollars." Roth rejected this offer, and they compromised on a payment of either $1,500 in addition to a portion of the royalties from serialization rights, or, alternatively, a flat fee of $3,000. Roth disputes McGrady's account of the August 30 accord, asserting they agreed to a $3,000 advance on her share of the book's royalties.

On September 16, 1977 McGrady mailed Roth a letter acknowledging his version of the agreement. He stated Pritikin preferred a $3,000 flat fee, and asked her to respond "if this does not accord with your understanding." Several days later McGrady telephoned Roth and orally reconfirmed their arrangement. Roth disputes either of these communications was made.

In October 1977 Roth delivered her recipes. She received $3,100 for her labors. An initial check for $1,000 was dated November 11, 1977 and included a notation--"one-third payment for recipes." Two other checks for $1,100 and $1,000 were mailed in March 1978 and March 1979, respectively.

The book, The Pritikin Program for Diet & Exercise, was finally published in the Spring of 1979. It became an immediate success and remained on best-seller lists for a full 52 weeks. By the date of trial, Pritikin and McGrady had realized royalties in excess of $1,000,000, and, as one might expect, Roth's pride at the book's favorable reception was tempered by the realization that her financial reward was marginal. She complained to McGrady, and made several requests for additional compensation. Ultimately she refused McGrady's offer of payment of $2,000 beyond the sum she had already earned.

Roth finally filed suit in the Southern District of New York, asserting she had never entered into a valid contract concerning payment for her recipes, and alternatively, if any such agreement had been made, it was rendered invalid because of the subsequent enactment of the Copyright Act of 1978. The defendants answered, claiming she accepted $3,000 as full compensation.

A three-day bench trial was conducted in December 1982. After considering the testimony of the witnesses, including Roth, Pritikin, McGrady, Julian Bach (the literary agent) and others, and viewing the documentary materials submitted by the parties, Judge Griesa delivered an oral opinion. The district judge concluded Roth entered into a binding contract in August 1977, consenting to accept $3,000 in return for creating recipes. Accordingly, the district court determined Roth was a "writer for hire" with no interest in the copyright pursuant to the law extant at the time the agreement was executed. Finally, the judge rejected Roth's claim that the 1978 Act applied retroactively and therefore invalidated the accord concerning Roth's participation in the book.

Roth appeals from the judgment entered on Judge Griesa's order, renewing her original assertions that there was no initially valid agreement, and in any event, that the subsequently enacted Copyright Act altered the rights and obligations of the parties and voided the compact. We find these claims of error to be without merit, and accordingly, we affirm the judgment.

II

Roth's initial challenge may be disposed of briefly. Notwithstanding appellant's attempt to denigrate the district judge's findings of fact, his conclusion that she entered into a lawful contract was fully supported by the evidence adduced at trial, and there is no basis for rejecting it as clearly erroneous. See Fed.R.Civ.P. 52(a); United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150 (1949); Stafford v. International Harvester Co., 668 F.2d 142 (2d Cir.1981).

McGrady's testimony concerning the oral agreement was corroborated by letters mailed to Pritikin discussing the terms of Roth's employment. In addition, the notation on the margin of Roth's first check indicated it was a one-third payment for her services, and appellant did not challenge the validity of this memorandum or attempt to clarify the perceived ambiguity in the terms of her arrangement with McGrady. Moreover, when pressed on cross-examination, Roth admitted there was no explicit statement by McGrady that the $3,000 represented an advance on royalties, but she merely "construed" their conversation as indicating this was the bargain reached. ²

In sum, the evidence adduced at trial was inconsistent, and the judge was free to draw conclusions based upon his perception of the witnesses' credibility and demeanor. Newman v. Local 1101, Communication Workers of America, A.F.L.-C.I.O., 597 F.2d 833, 836 (2d Cir.1979). Roth has not met her burden of demonstrating the district court's findings were clearly erroneous, and accordingly, we must decline her invitation to reverse them.

III

We now reach the core legal issue presented in this dispute. The parties agree that if the oral contract between Roth and McGrady is governed by the law in effect in 1977, it was proper, and divested appellant of any rights she might otherwise have possessed to a share of the publication's royalties. ³ The parties disagree, however, on the significance of the Copyright Act of 1978. Appellant asserts all copyrights are governed by the new Act, and accordingly, her rights as the author of a substantial portion of the book must be determined with reference to this statute. The appellees assert the 1978 Act has no impact upon agreements entered into prior to its effective date. Because we believe the Act's language, its legislative history, and generally applicable rules of statutory interpretation all mandate prospective application of the rules governing work for hire agreements, we reject appellant's contentions.

Pursuant to the new statute, the creator of a "work for hire" has no ownership interest in a copyright. 17 U.S.C. Sec. 201(b). That term is defined in the Act as

(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

17 U.S.C. Sec. 101. Except for the requirement that the agreement be memorialized in a writing, this definition would clearly apply to Roth. As we have indicated, however, Roth's understanding with Pritikin and McGrady was not transcribed, and accordingly, she asserts her contribution should not be viewed as a work for hire.

Resolution of this issue, of course, depends on the Act's application to the present dispute. Roth contracted to furnish the...