South-Western Pub. Co. v. Simons
| Decision Date | 16 October 1981 |
| Docket Number | 79-3034,Nos. 79-3035,SOUTH-WESTERN,s. 79-3035 |
| Citation | 651 F.2d 653 |
| Parties | , 1981 Copr.L.Dec. P 25,282 PUBLISHING COMPANY, a corporation, Plaintiff-Appellee, v. Harry SIMONS, Defendant-Appellant. Harry SIMONS, Plaintiff-Appellant, v.PUBLISHING CO., a corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mitchell N. Reinis, Reinis & Fink, Beverly Hills, Cal., for Harry simons.
Neil M. Soltman, Los Angeles, Cal., argued, for South-Western Pub.; Ralph W. Dau, O'Melveny & Myers, Los Angeles, Cal., on brief.
Appeal from the United States District Court for the Central District of California.
Before GOODWIN and FERGUSON, Circuit Judges, and MURPHY, * District Judge.
Harry Simons, an author, appeals from a judgment dismissing his copyright infringement action, and holding him in breach of a contract with his publisher, South-Western Publishing Co. We affirm.
In 1941, Simons, then a young U.C.L.A. professor, agreed with South-Western Publishing to prepare an accounting textbook. He wrote the book in collaboration with two others and published it late that year. In 1949, after Simons' co-authors had assigned to him their rights in the book, Simons agreed with South-Western to revise the 1941 textbook and divide it into two books: Advanced Accounting and Intermediate Accounting. Both texts were published in 1949. Periodically thereafter, Simons and South-Western entered into contracts to revise the texts. The contracts in dispute here were made in 1966 and 1970. South-Western contends that paragraph A(7) of the two contracts requires Simons to revise the fourth and fifth editions of the two books into the fifth and sixth editions; and that if Simons fails to revise, South-Western is free to hire other authors to do the job, and pay Simons any royalties it sees fit.
Simons contends that he owns the renewal copyrights to the 1949 basic texts, and that South-Western's continued publication of the revised editions without his consent infringes his copyright. It is Simons' position that paragraph A(7) does not require him to revise the texts, and even if it does, the contracts do not permit South-Western to continue publishing "his" works without paying him adequate compensation.
The district court found: (1) that the renewal copyrights and all other copyrights belonged to South-Western; (2) that Simons breached his contract with South-Western by failing to revise; and (3) that South-Western properly paid Simons enough royalties for the fifth and sixth editions and properly discontinued all royalty payments to him for the publication of subsequent texts.
The district court made detailed findings of fact. The findings taken as a whole are "explicit enough to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground on which the trial court reached its decision." Alpha Distrib. Co. of Cal. Inc. v. Jack Daniel Distillery, 454 F.2d 442, 453 (9th Cir. 1972), cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974).
Because it is not our function as an appellate court to retry the issues of fact, we review the factual determinations made by the district court according to Fed.R.Civ.P. 52. Here we review contractual interpretation, an exercise which involved contractual
meaning and intent, questions of fact for the trial court. Gillespie v. Travellers Ins. Co., 486 F.2d 281, 283 (9th Cir. 1973). Therefore, unless the findings are clearly erroneous, they satisfy Rule 52.
Simons contends that South-Western is infringing his renewal copyrights to the 1949 basic texts. To prevail on this claim, Simons must establish that he alone is entitled to the renewal copyrights. South-Western contends that Simons assigned to it the renewals at the time of their first contractual arrangement. The issue is therefore a matter of contractual intent. 1 Did Simons assign the renewals to South-Western in return for royalties?
The district court necessarily found that Simons assigned his renewal rights. While the court made no express factual finding of an assignment, the evidence supports the court's conclusion which is reflected in the judgment. 2 South-Western, without objection from Simons, obtained copyrights. Although the first contract did not specify whether South-Western was to own the renewal copyrights, every contract between Simons and South-Western after 1949 expressly transferred to South-Western both the original and renewal copyrights to each revision. The district court's finding that the renewals belonged to South-Western satisfies Rule 52. It follows that South-Western did not infringe Simons' copyrights.
The principal contractual paragraph at issue here is A(7), which reads the same for both contracts in dispute:
South-Western argues that this language requires Simons to revise the texts for which the contract was made when South-Western requests revisions. Simons disputes this.
The trial court found that paragraph A(7) of the contracts vests in South-Western, and not in the revisor, the decision as to whether a revision was needed. This finding satisfies Rule 52. Simons raises a number of frivolous points to rebut the trial court's interpretation of the contract. But the plain language of A(7), as well as the evidence surrounding the intent of the parties on the meaning of A(7) fully supports the district court's finding that South-Western bargained for the right to decide when a revision is needed.
Paragraph A(7) empowered South-Western to revise the texts itself if Simons was In defense, Simons makes several arguments. They can be characterized as nonfrivolous only by extravagant deferral to artistic temperament. First, Simons alleges that his performance was excused and discharged by South-Western's breach of contract in hiring other authors to revise Simons' texts. This argument stands the contract on its head. South-Western hired the other authors only after Simons had breached the contract by refusing to revise the texts. In these circumstances, it was South-Western's duty that was discharged, not Simons' duty.
"unwilling, unable, fail(ed) or refuse(d) to revise the texts." The district court found that Simons had refused to perform. Its finding satisfies Rule 52. Simons does not even pretend that he performed either the 1966 or 1970 contracts.
Second, Simons contends that South-Western's request to revise was "premature." Paragraph A(7) of the contracts dictates that a revision must be prepared by Simons "whenever, in the judgment of the Publisher this is considered necessary." The trial court found, and we agree, that this language vested in "South-Western, not in the revisor, the decision as to whether a revision was needed." The trial court also found that South-Western exercised its judgment reasonably. South-Western's requests that Simons revise "were made ... (when they were) because, if South-Western were to meet its objective and adhere to the industry's revision schedule, commencement of efforts was needed ... (at the time South-Western made the request)." This finding is also consistent with Rule 52. South-Western's request that the texts be revised at no greater than five year...
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