February 10, 2000
Order, Supreme Court, New York County (Beverly Cohen, J.), entered January 13, 1999, which, in an action by recording artists to recover royalties under a recording contract and additional sums based on defendant's issuance of "synchronization" licenses, upon the parties' respective motions for summary judgment, dismissed the causes of action for breach of contract, accounting and unjust enrichment seeking to recover royalties, dismissed the cause of action for an accounting of the synchronization licenses, sustained the causes of action for breach of contract and unjust enrichment based on the synchronization licenses, and ruled that plaintiffs could introduce evidence of industry custom and usage at trial, unanimously affirmed, without costs.
Peter Lane, for plaintiffs-respondents-appellants.
Andrew H. Bart, for defendant-appellant-respondent.
SULLIVAN, J.P., MAZZARELLI, ELLERIN, LERNER, FRIEDMAN, JJ.
Since the subject contract, entered into in 1963, is silent as to defendant's right to issue synchronization licenses, i.e., licenses to use master recordings in timed relation with the visual portion of motion pictures, television programs and commercials, the provision giving defendant "the exclusive right to make records and other reproductions of the performances embodied in such recordings by any method now or hereafter known, and to sell, lease, license and deal in the same" cannot, as a matter of law, be construed as entitling defendant to engage in synchronization licensing without plaintiffs' participation (see,Thomas v. Gusto Records, 939 F.2d 395, 398, cert denied 502 U.S. 984). Rights not specifically granted by an artist in an agreement are reserved to the artist and the owner of such property, absent the clearest language, is not free to do with it whatever the owner wishes (see, id.; Warner Bros. Pictures v. Columbia Broadcasting Sys., 216 F.2d 945, 949, cert denied 348 U.S. 971). In short, with respect to synchronization licensing, the subject contract is ambiguous. Accordingly, evidence of custom and practice pertaining to synchronization licenses is admissible (see, Thomas v. Gusto Records, supra; Greenfield v. Philles Record, 243 A.D.2d 353). Plaintiffs' causes of action seeking to recover royalties were properly dismissed upon a record establishing that no royalties are due, and plaintiffs will not be heard to argue that defendant might breach the contract in the future. The causes of action for accountings were also properly dismissed on the ground that plaintiffs' relationship to defendant is not fiduciary in nature (see, Poley v. Sony Music Entertainment, 222 A.D.2d 308, affg 163 Misc.2d 127, 131). We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
Motion seeking to enlarge the record granted.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.