Page:Bourne v. Walt Disney (2d Cir. 1995).pdf/3

 Stuart A. Summit (George Berger, Theodore C. Max, Phillips, Nizer, Benjamin, Krim & Ballon, New York City, of counsel), for Plaintiff-Appellant-Cross-Appellee.

Sanford M. Litvack (Jacob M. Yellin, The Walt Disney Company, Burbank, CA, Clark E. Walter, Joanna R. Swomley, Dewey Ballantine, New York City, of counsel), for Defendants-Appellees-Cross-Appellants.

Stephen H. Sulmeyer, Santa Monica, CA, for Karen Adams and Gretchen Thomas Anderson as amici curiae.

Alan L. Shulman, Scott L. Baker, Silverman & Shulman, P.C., New York City, of counsel, for National Music Publishers’ Association, Inc. as amicus curiae.

Fritz E. Attaway, Motion Picture Association of America, Inc., Washington, DC, Jon A. Baumgarten, Charles S. Sims, Proskauer Rose Goetz & Mendelsohn, New York City, of counsel, for The Motion Picture Association of America, Inc. as amicus curiae.

Dixon Q. Dern, Warren D. Dern, Dern & Vein, Los Angeles, CA, of counsel, for Video Software Dealers Association as amicus curiae.

Before: VAN GRAAFEILAND and MINER, Circuit Judges, and COTE, District Judge.

MINER, Circuit Judge:

Plaintiff-appellant-cross-appellee Beebe Bourne, doing business as the Bourne Co. (“Bourne”), brought this copyright infringement action against defendants-appellees-cross-appellants Walt Disney Co. and Buena Vista Home Video (collectively, “Disney”).

Bourne’s first claim of infringement arose from Disney’s sale of videocassette recordings featuring Bourne’s copyrighted compositions from the motion pictures “Snow White and the Seven Dwarfs” and “Pinocchio” (“the Compositions”). Although the Compositions were written by Disney employees, Disney had assigned the copyrights in the Compositions to Irving Berlin, Inc. (“Berlin”), a music publisher and the predecessor-in-interest to Bourne, in the 1930s when the movies first were released.

While conceding that the instrument conveying Disney’s copyrights in the Pinocchio compositions to Bourne provided Disney with a license to use the compositions “in synchronism with any and all of the motion pictures which may be made by [Disney],” Bourne argued that these rights were insufficient to allow Disney to distribute the compositions on videocassette. With respect to the compositions from Snow White, Bourne argued that these copyrights were assigned to Bourne without the grant of a license to Disney allowing it to use the compositions. In Bourne’s view, Disney had no right to use