• What Rights are Conveyed? We Have to Wait and See

    by  • August 30, 2016 • copyright • 0 Comments

    I asked in a prior post whether plaintiff Joseph Cooper had the right to publish his videotapes of performances of famous comedian Steve Harvey, taped at Harvey’s Texas club in 1993, based on this invoice:

    Cooper v Harvey Video Invoice

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    Unfortunately we don’t know yet, because it’s most certainly a question of fact, not one for summary judgment. But the court noted the following points:

    To Harvey’s claim that an invoice is not a contract: This one only merited a footnote, “As preliminary matter, Harvey alleges that the Video Contract Cooper refers to is just an invoice for taping performances at the Comedy House, not ‘a valid contract to convey performance, derivative, and distribution rights.’ As Cooper correctly notes in his own summary judgment motion, an invoice, depending on the context, may constitute a contract. See One Beacon Ins. Co. v. Crowley Marine Servs., 648 F.3d 258, 264, 271-72 (5th Cir. 2011).”

    To Harvey’s claim that there is no valid contract because he never signed it: “Looking at the Video Contract, the Court sees writing in the upper right hand corner, styled as a signature, appearing to read ‘Steve Harvey.’ Whether that signature belongs to Harvey is an issue of fact for a jury to decide.”

    To Harvey’s claim that the invoice allowed internal use of the content only:1

    As a preliminary matter—and contrary to Cooper’s assertion—the Court finds that the contract is ambiguous. Generally, if a contract can be given a certain or definite legal meaning or interpretation, then it is not ambiguous. Nor is a contract ambiguous merely because the parties disagree on its meaning. Rather, ambiguity exists only if the contract’s ‘meaning is uncertain, or if the language is susceptible to two or more reasonable interpretations.
    Here, that is precisely the case. The handwritten portion of the purported contract, appearing after the words “Services Included,” reads:

    Produce videotapes of promotional material from the facility including interior shots, audience, stage performances, and graphics with official logos. Tape will also include names, dates and music sound tracks. Tapes will be looped for continuous play before, during and after show performances.

    But the circled, written portion in the lower left hand corner reads:

    The studio reserves the right to use the original tape and/or reproductions for display, publication or other purposes. Original videotapes remain the exclusive property of the studio.

    These two provisions raise the question of whether the parties intended for the videos Cooper made to be used as promotional materials for the Comedy House, for Cooper to be able release and sell the tapes himself, or, perhaps both. All three are reasonable interpretations, but Court cannot say which, if any, the parties intended. This makes the contract ambiguous.

    In light of the ambiguity the court then considered parol evidence which, not surprisingly, did not resolve the question of fact as to the meaning. So we’ll have to wait and see what exactly Cooper is licensed to do with the tapes, if anything.

    Cooper v. Harvey. No. 3:14-CV-4152-B (N.D. Tex. Aug. 21, 2016).

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    1. The court referred to “ownership rights to the tapes,” but we’ll assume the court meant the copyright of the performance on the tapes, since the rest of the discussion is about ownership of copyright, not the tangible articles. 

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