Boosey & Hawkes Music Publishers, Ltd. v. The Walt Disney Company

145 F.3d 481 (2nd 1998)

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Nature of the Case

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Facts

P is the assignee of Igor Stravinsky's copyrights for 'The Rite of Spring.' In 1938, D sought Stravinsky's authorization to use The Rite of Spring throughout the world in a motion picture. Because under United States law the work was in the public domain, Disney needed no authorization to record or distribute it in this country, but permission was required for distribution in countries where Stravinsky enjoyed copyright protection. In January 1939 the parties executed an agreement giving D rights to use the work in a motion picture in consideration of a fee to Stravinsky of $ 6000. Per the contract, Stravinsky granted the nonexclusive, irrevocable right, license, privilege, and authority to record in any manner, medium, or form, and to license the performance of, the musical composition hereinbelow set out . . .to be used in one motion picture throughout the length thereof or through such portion or portions thereof as D shall desire. The said music may be used in whole or in part and may be adapted, changed, added to or subtracted from, all as shall appear desirable to D in its uncontrolled discretion. . . . The title 'Rites of Spring' or 'Le Sacre de Printemps', or any other title, may be used as the title of said motion picture and the name of [Stravinsky] may be announced in or in connection with the said motion picture. D's license to the work 'was limited to the use of the musical composition in synchronism or timed-relation with the motion picture.' The right to record the musical composition as covered by this agreement is conditioned upon the performance of the musical work in theatres having valid licenses from the American Society of Composers, Authors and Publishers, or any other performing rights society having jurisdiction in the territory in which the said musical composition is performed. D released Fantasia, starring Mickey Mouse, in 1940. The film contains no dialogue. The soundtrack uses compositions of Bach, Beethoven, Dukas, Schubert, Tchaikovsky, and Stravinsky, all performed by the Philadelphia Orchestra under the direction of Leopold Stokowski. The Rite of Spring was shortened from its original 34 minutes to about 22.5. D exhibited The Rite of Spring in Fantasia under the 1939 license. The film has been re-released for theatrical distribution at least seven times since 1940, and although Fantasia has never appeared on television in its entirety, excerpts including portions of The Rite of Spring have been televised occasionally over the years. Neither Stravinsky nor P has ever previously objected to any of the distributions. D released Fantasia in video format. The Fantasia video release has generated more than $360 million in gross revenue for Disney. P sued D seeking a declaration that the 1939 Agreement did not include a grant of rights to D to use the Stravinsky work in video format. The district court found that the broad language of the license gave D 'the right to record [the work] on videotape and laser disc,' but held that the ASCAP Condition 'prevents Disney from distributing video tapes or laser discs directly to consumers.' The court held that D violated the agreement. The court granted P no relief, leaving it to sue in the various countries under whose copyright laws it claims infringement. Both parties appealed.