Uitspraak
MIX CONNECTION MULTIMEDIA INC.,
gevestigd te Chicago, Verenigde Staten,
eiseres,
advocaat mr. B.H.M. Schipper te Amsterdam,
[verweerster] B.V.,
gevestigd te [vestigingsplaats] ,
verweerster,
advocaat mr. M. Leopold te Amsterdam.
1.De procedure
- het vonnis in incident van 28 juni 2018,
- het verweerschrift,
- de nadere schriftelijke reactie van MCM,
- de nadere schriftelijke reactie van [verweerster] ,
- de aanvullende producties van MCM,
- de aanvullende producties van [verweerster] ,
- het proces-verbaal van mondelinge behandeling op 11 november 2019, met opmerkingen van mr. Leopold en mr. Schipper.
2.De beoordeling
waar gaat het over?
- a work prepared by an employee within the scope of his or her employment; or
- a work specially ordered or commisioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (…).
(b) Works Made for Hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyrigt.
en
Effects Assocs.test. As the express language of the contract provides, "The Artist ... agrees to sell to Franklin and Franklin agrees to purchase from the Artist, all the right, title and interest, and all worldwide copyright rights, in and to certain works of art to be executed by the Artist as an independent contractor in accordance with this Agreement ... Exclusive worldwide rights to reproduce the Works of Art in any form ... are also included in the purchase price." Master Agreement at 1. This language could not be more clear in demonstrating the parties' intent: (…)
Pamfiloffline of cases, which hold that valid transfer instruments must identify the subject matter of the agreement. 794 F.Supp. at 936. As such, Scharle argues that because the Master Agreement does not specifically mention the trophy, it is an invalid transfer instrument under Section 204(a). This argument, however, is unconvincing.
Pamfiloffapproach and require that the transfer instrument identify the trophy, it would still reject Scharle's argument because the Master Agreement does just that: it applies to works of art created by the artist as an independent contractor in accordance with its terms. That it identifies the trophy design as part of a larger group of works as opposed to specifically mentioning the project by name is irrelevant. In fact, such contracts are commonplace in the art and entertainment industries.
E.g., Mellencamp v. Riva Music Ltd.,698 F. Supp. 1154, 1155 (S.D.N.Y. 1988) (referencing a written publishing agreement in which singer transferred worldwide copyrights in and to all works to be composed during the term of the agreement).
20.000,00