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Mvp Entertainment, Inc v. Mark Frost et al

November 7, 2012

MVP ENTERTAINMENT, INC., PLAINTIFF AND APPELLANT,
v.
MARK FROST ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County. Richard A. Stone, Judge. (Los Angeles County Super. Ct. No. SC107778)

The opinion of the court was delivered by: Flier, Acting P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

Title 17 United States Code section 204(a) (section 204) of the Copyright Act provides: "A transfer of copyright ownership, other than by operation of law, 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." We affirm the entry of summary judgment against appellant MVP Entertainment, Inc. (MVP), because it failed to raise a triable issue of material fact that it had a valid transfer of copyright under section 204. No evidence showed that the purported transfer was signed by respondents Mark Frost's and Good Comma Ink's duly authorized agent, evidence of which was essential to each of appellant's causes of action.

FACTS AND PROCEDURE

Frost wrote The Match: The Day the Game of Golf Changed Forever (2007) (The Match). The copyright for The Match is assigned to Good Comma Ink, of which Frost is the sole owner. MVP and its president, Robert Frederick, sought to obtain rights to make a movie based on The Match.

In late 2008 and early 2009, the parties' attorneys - Alan Wertheimer and William Jacobson - corresponded about MVP's potential purchase of the copyright for The Match. On April 30, 2009, Jacobson, on behalf of MVP, sent Wertheimer an email proposing certain terms and stating, "Let me know if this is okay and we'll send paperwork . . . ." Wertheimer responded, "done . . . thanks! Werth."

On May 19, 2009, Jacobson sent Wertheimer an agreement. On July 23, 2009, Frederick wrote Jacobson, stating he would like to have the agreement signed by August 17 or 18. No formal agreement was signed.

In the summer of 2009, Frost met with Frederick and shortly afterwards told Frederick he did not want MVP to make The Match into a movie. That spawned this lawsuit for breach of contract, promissory estoppel, declaratory relief, and negligent misrepresentation. MVP's overarching claim was that the parties entered a contract or promised MVP they would enter into a contract to allow MVP to make a movie of The Match. According to MVP, Wertheimer's email stating "done . . . thanks! Werth" was signed by Wertheimer and created a binding contract.

Respondents moved for summary judgment. In his declaration in support of summary judgment, Wertheimer averred that he was responsible for negotiating deals for Frost regarding literary works but never signed contracts on Frost's behalf. Wertheimer stated that neither Frost nor Good Comma Ink authorized him to transfer any rights in their intellectual property, including in The Match. Wertheimer's email stating "done . . . thanks" was not intended to convey any of Frost's rights. The email "was intended to simply note that the parties were in accord on the broad economic terms of a deal." Wertheimer averred that he did not intend his typed nickname "Werth" to constitute a signature or to bind himself or Frost to anything.

In his declaration in support of summary judgment, Frost averred that Wertheimer negotiated deals but never signed contracts on his behalf. Frost further averred that he never gave Wertheimer authority to transfer any rights in his intellectual property including The Match. Frost met with Frederick in the summer of 2009 and concluded that MVP was not the right entity to make The Match into a movie and advised Frederick of the same.

In a declaration in opposition to summary judgment, Jacobson averred that he is a transactional attorney and negotiated with Wertheimer about making a movie of The Match. Jacobson believed that Wertheimer's email "done . . . thanks" created a binding contract. Wertheimer led him to "reasonably believe" that Wertheimer was respondents' "duly authorized agent" as defined in Labor Code section 1700.4, subdivision (a) (but not 17 U.S.C. § 204).*fn1 According to Jacobson, transactional attorneys routinely entered into agreements on behalf of their clients.

In his declaration in opposition to summary judgment, Frederick, averred he believed the email "done . . . thanks" created a binding contract. Frederick stated that he reasonably believed Wertheimer was Frost's duly authorized agent. Frost provided Frederick a pitch memorandum in August 2009, and Frederick understood the pitch memorandum to mean that the "deal had been closed." Frost also sent Frederick copies of the book and gave approval of a draft brochure for marketing the movie.

The trial court granted summary judgment based on section 204. The court concluded that a transfer of ownership was invalid unless signed by the owner or the owner's duly authorized agent. The court further concluded that even if express authority were not required, respondents did nothing to suggest ...


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