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Drunkards at CAFC ruled

From: Alexander Terekhov
Subject: Drunkards at CAFC ruled
Date: Thu, 14 Aug 2008 17:57:17 +0200

"Having determined that the terms of the Artistic License are
enforceable copyright conditions, we remand..."

To repeat: "the terms of the Artistic License are enforceable copyright

Man oh man.

"A condition is an event, not certain to occur, which must occur, unless
non-occurrence is excused, BEFORE performance under a contract becomes
Restatement (Second) of Contracts  § 224 (1981).

I also like this pearl:

"Thus, if the terms of the Artistic License allegedly violated are both
covenants and conditions, they may serve to limit the scope of the
license and are governed by copyright law. If they are merely covenants,
by contrast, they are governed by contract law. See Graham, 144 F.3d at
236-37 (whether breach of license is actionable as copyright
infringement or breach of contract turns on whether provision breached
is condition of the license, or mere covenant); Sun Microsystems, 188
F.3d at 1121 (following Graham; independent covenant does not limit
scope of copyright license)."

Now, here's Graham:

"Third, James argues that the license was voided when Graham breached
its conditions by nonpayment of royalties and removal of James's
copyright notice. This argument turns--and fails--on the distinction in
contract between a condition and a covenant. Generally, "[i]f the
[licensee's] improper conduct constitutes a breach of a covenant
undertaken by the [licensee] ... and if such covenant constitutes an
enforcible contractual obligation, then the [licensor] will have a cause
of action for breach of contract," not copyright infringement. 3 Nimmer
on Copyright, supra, § 10.15[A], at 10-120. However, "[i]f the nature of
a licensee's violation consists of a failure to satisfy a condition to
the license ..., it follows that the rights dependant upon satisfaction
of such condition have not been effectively licensed, and therefore, any
use by the licensee is without authority from the licensor and may
therefore, constitute an infringement of copyright." Id. at 10-121
(citations omitted); see also Fantastic Fakes, Inc. v. Pickwick Int'l,
Inc., 661 F.2d 479, 483-84 (5th Cir.1981). A condition has been defined
as "any fact or event which qualifies a duty to perform." Costello
Publ'g Co. v. Rotelle, 670 F.2d 1035, 1045 n. 15 (D.C.Cir.1981) (citing
Corbin, Conditions in the Law of Contract, 28 Yale L.J. 739 (1919)).

We think that the payment of royalties and the inclusion of a notice
crediting James's authorship are to be considered covenants, not
conditions. The construction of the licensing agreement is governed by
New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 F.2d 150,
153 (2d Cir.1968). Generally speaking, New York respects a presumption
that terms of a contract are covenants rather than conditions. See Grand
Union Co. v. Cord Meyer Dev. Co., 761 F.2d 141, 147 (2d Cir.1985) ("In
the absence of more compelling evidence that the parties intended to
create a condition, the negotiation provision must be construed as a
promise or covenant."); Warth v. Greif, 121 A.D. 434, 106 N.Y.S. 163,
165 (2d Dep't 1907) ("The law favors covenants, rather than conditions
precedent."), aff'd, 193 N.Y. 661, 87 N.E. 1129 (1908). "

How much drunk one must be to find ANY conditions PRECEDENT in the
Artistic License? Artistic Licenses contains NO conditions PRECEDENT
whatsoever (and no scope limitations as well).


"Copyright license -> Copyright law
 Contract -> Contract law

             -- mini-RMS <>

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