ABKCO Music, Inc. v. Westminster Music, Ltd.

838 F. Supp. 153 (S.D.N.Y. 1993)



The narrow "rule" of La Shelle is appropriate only in cases in which the parties "could not know of the invention's existence, and in which, in addition, the possibility of such not-yet-developed uses "could not possibly have formed part of the bargain between the parties."


Plaintiff music publisher, having sued defendant competitor for copyright infringement, sought jury instruction declaring presumption that parties did not intend to authorize licensing of copyrighted material on technology not known at the time of licensing agreement. Plaintiff had acquired copyright to certain songs subject to licensing agreement entered into between plaintiff's and defendant's predecessors-in-interest. The agreement conveyed all rights to the songs outside United States and Canada. Defendant then sought to issue licenses for songs on videocassettes and other media not in existence when licensing agreement was entered into.


Did the lower court err in denying the injunction request for licenses for songs on media not yet in existence when a licensing agreement was entered into?




Courts must first identify any indicia revealing contracting parties' intentions (assuming intent was not directly expressed). Further, narrow construction of agreement proper only when parties could not have anticipated new medium's development; and that was jury question - thereby requiring rejection of proposed instruction.

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