• All Types of Agency Are Not Equal

    by  • November 13, 2012 • copyright

    Defendant Mark Frost wrote a book called “The Match: The Day the Game of Golf Changed Forever.” Plaintiff MVP Entertainment wanted to make a movie out of it. The parties’ attorneys corresponded about an assignment of the copyright, culminating with this exchange:

    Attorney for MVP: “Let me know if this is okay and we’ll send paperwork …”
    Attorney for Frost: “done … thanks!”

    And of course it wasn’t “done”; the deal fell through and MVP sued.

    The Copyright Act states that an assignment of a copyright “is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” 17 U.S.C. § 204. It was undisputed that Frost had not authorized his lawyer to assign the copyright in the book. Instead, MVP argued that, according to industry custom and practice, it was common for transactional attorneys to enter into agreements on behalf of their clients and therefore Frost’s lawyer had ostensible (or apparent) authority to act on behalf of Frost.

    Perhaps so, but no matter. In the Copyright Act, the signature requirement for an assignment is to force the parties to determine what rights are being transferred and the document serves as a memorandum of that agreement. A claim of ostensible authority is instead an estoppel argument, which means that allowing ostensible authority to substitute would defeat the purpose for the writing requirement in the Copyright Act. The email was therefore not an assignment of the copyright.

    MVP Enter., Inc. v. Frost
    , B235100 (Ca. Ct. App. Nov. 7, 2012).

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