Page:M & A Associates v. VCX.pdf/5

 21. Arno, through VCX, retained attorneys John Lappen and Peter Berger for the purpose of bringing civil actions against “dupers” of his video cassettes. “Dupers” are individuals who, without authority from an owner, make duplicate copies of video cassettes.

22. Before VCX could commence litigation against dupers, VCX was required to make sure that reasonable efforts were taken to add copyright notices to all of the motion pictures and cassettes being published. VCX also had to file a copyright registration with the copyright office.

23. It was impossible for VCX to complete an application for a copyright registration without first obtaining information from Weisberg.

24. VCX could not protect the rights in the work “Debbie Does Dallas” by merely placing a copyright notice on the video cassettes. In order for there to be proper copyright notice, notice had to be added to both the video cassettes and the movie version shown in theatres.

25. In January of 1981, Berger informed Weisberg of the need to add copyright notice to the prints of the picture that had been sent to various theatres. Berger testified that copyright notice was needed to cure the fact that prints had been widely distributed without proper notice prior to that time.

26. The addition of a copyright notice to the prints of a picture is common in the movie industry and simple to accomplish.

27. Prints of a movie are distributed by making a negative, and then striking prints from that negative.

28. Motion picture prints of the picture are kept at print depots. When a booking is made, the print depot sends the print to the theatre.

29. Cineffects Color Laboratory, Inc., made the negative for “Debbie Does Dallas.” Weisberg never asked Cineffets to insert a copyright notice on the movie.

30. Berger had several conversations with Weisberg in the months after their initial conversation in January of 1981. Berger repeatedly requested that Weisberg insert a copyright notice in the movie version of the picture. Weisberg refused to do so. To this day, the movie version of the picture does not contain a copyright notice.

31. In addition to communicating with Weisberg, Berger communicated with David Kravis, who worked for Weisberg. Berger advised Kravis that M & A needed a copyright notice inserted in the movie version of the film. Kravis also received the same advice from John Lappen. Despite receiving that advice, Kravis never inserted copyright notice in the film.

32. At the time of the conversation between Berger and Weisberg in January of 1981, Weisberg and Arno both knew the legal significance of the omission of the copyright notice, and that such omission prevented Weisberg from having the ability to transfer exclusive video cassette rights to the film. The parties understood that such rights would be lost if reasonable effort were not made to add the copyright notice to both the video cassettes and the movie version.

33. Weisberg also was told that if he continued to refuse to insert the copyright notice in the movie version of the film, M & A would be without any legal recourse against dupers.

34. In late 1981, Lappen and Berger determined that, under the Copyright Act, the copyright to the film was irretrievably lost since “reasonable efforts” had not been made.

35. Although VCX brought numerous civil actions against dupers of its video cassettes, the lack of a copyright notice in “Debbie Does Dallas” made it impossible for VCX to bring civil setons against dupers of that film.

36. VCX lost sales as a result of its inability to enforce its “exclusive” rights to sell video cassette copies of the film.

37. VCX neverthelees continues to the present time producing and selling copies of the film.

38. In exchange for the “exclusive” right to sell video cassette copies of the