Page:Bourne v. Walt Disney (2d Cir. 1995).pdf/9

 objective “is to give effect to the intent of the [contracting] parties as revealed by the language they chose to use.” Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992). If the language of the contract is “unambiguous and conveys a definite meaning,” then the interpretation of the contract is a question of law for the court. Sayers v. Rochester Tel. Corp. Supplemental Management Pension Plan, 7 F.3d 1091, 1094 (2d Cir.1993); see Seiden, 959 F.2d at 428 (contract language “is not ambiguous when it has a definite and precise meaning … concerning which there is no reasonable basis for a difference in opinion” (internal quotations omitted)). Alternatively, “[w]here the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another,” then the interpretation of the contract becomes a question of fact for the jury and extrinsic evidence of the parties’ intent properly is admissible. Seiden, 959 F.2d at 428; see Walk-In Medical Ctrs., Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987) (stating that language is ambiguous if it is “capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business” (internal quotations omitted)).

In order to analyze Bourne’s contention that Disney has no right to produce videocassettes utilizing the Compositions, we first must look to the specific language of the grants. If the production of home videocassettes clearly falls outside the scope of the grants, then Disney’s use of the Compositions was unauthorized as a matter of law, and, therefore, the district court erred in submitting this question to the jury.

The 1939 Pinocchio Agreement provided Disney with “the non-exclusive right to mechanically and/or electrically record the said musical compositions … in synchronism with any and all of the motion pictures which may be made by [Disney]. [sic]” (emphasis added). Similarly, the 1933 Shorts Agreement, which we believe also controlled Disney’s rights with respect to the compositions from Snow White, granted to Disney “the right to record such music mechanically in any and all other motion pictures to be produced by [Disney]. [sic]” (emphasis added). As is apparent from the emphasized portions of the quoted language, the issue is whether, as Bourne contends, the term “motion picture” unambiguously excludes home videocassettes.

In support of this contention, Bourne makes several arguments. First, Bourne notes that, during the 1930s, the term “motion picture” was used to refer to the exhibition of projected images from celluloid film in a theater. In that sense, it was a reference to a specific type of medium for distributing images, rather than to the actual content of the work itself. This understanding of the term “motion picture” was supported by the testimony of Bourne’s expert witness, Renville McMann, Jr., an expert in television and videocassette technology.

Bourne also relies on the fact that the 1933 Shorts Agreement specifically gave Disney the right to use the Compositions on television, while the 1939 Pinocchio Agreement did not expressly grant Disney television rights. From this, Bourne asks us to infer that the parties intended only a narrow transfer of rights in the 1939 Pinocchio Agreement. Bourne also asks us to infer that the parties perceived a difference between a motion picture and the broadcast of the same on television.

In addition, Bourne emphasizes that video cassette recorders (“VCRs”) and videocassettes were unknown commercially at the time the agreement was signed. Bourne argues that both the First and Ninth Circuits, as well as the New York state courts, have held “that rights to future technologies such as videocassette recording are not conveyed where the technology was unknown at the time the parties entered into the bargain and no broad license of rights exists.” In making this argument, Bourne relies on a line of cases which essentially have held that the grant of television rights does not include home videocassette rights. See Rey v. Lafferty, 990 F.2d 1379, 1390 (1st Cir.) (license to produce episodes “for television viewing” held not to include home videocassette rights), ''cert. denied'', – U.S. —, 114 S.Ct.