Thursday, August 4, 2011
In an unpublished memorandum, the Federal Court of Appeals for the Ninth Circuit reinstated Julie Riggs' claim for beach of an implied-in-fact contract with MySpace in Riggs v. MySpace, Inc. The laconic Ninth Circuit tells us nothing of the underlying claims. Here's the paragarph relating to the implied-in-fact contract claim:
However, the district court improperly dismissed Riggs’s implied-in-fact contract claim, arising from her ideas for a MySpace website devoted to celebrities, because Riggs alleged in her First Amended Complaint at paragraph 120 that she told the News Corporation’s executive’s assistant that she wanted to “sell” her ideas before she disclosed them. See Grosso v. Miramax Film Corp., 383 F.3d 965, 967 (9th Cir. 2004) (under California law, to establish a breach of an implied-in-fact contract for disclosure of an idea, “the plaintiff must show that the plaintiff prepared the work, disclosed the work to the offeree for sale, and did so under circumstances from which it could be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered and the reasonable value of the work”); Desny v. Wilder, 299 P.2d 257, 270 (Cal. 1956) (there may be an implied-in-fact contract “if the idea purveyor has clearly conditioned his offer to convey the idea upon an obligation to pay for it if it is used by the offeree and the offeree, knowing the condition before he knows the idea, voluntarily accepts its disclosure (necessarily on the specified basis) and finds it valuable and uses it”).
Santa Clara Law Prof Eric Goldman posted some helpful information at the time of the District Court's ruling in the case back in in 2009. His discussion can be found here. He has some critical things to say about that ruling that might be of interest to readers interested in the law of the internet. He also provides this useful background on the case:
An earlier decision in the case upheld the venue selection clause in MySpace's user agreement. The reinstated claim relates to Riggs' idea for a MySpace page devoted to celebrities. The Ninth Circuit tells us no more than that.
Wednesday, August 3, 2011
N. Pieter M. O'Leary, Bullies in the Sandbox: Federal Construction Projects, the Miller Act, and a Material Supplier's Right to Recover Attorney's Fees and Other "Sums Justly Due" under a General Contractor's Payment Bond, 38 Transp. L.J. 1 (2011)
Regina Robson, Paying for Daniel Webster: Critiquing the Contract Model of Advancement of Legal Fees in Criminal Proceedings, 7 Hastings Bus. L.J. 275 (2011)
Tuesday, August 2, 2011
Monday, August 1, 2011
The Southern District of New York issued its opinion last week in Marvel Worldwide v. Kirby. The New York Times describes the decision, which granted summary judgment to Marvel, as a major victory for the comic book company and its parent, the Walt Disney Company.
Jack Kirby, whose heirs brought the suit, played a key role in developing a number of important characters in recent movies, such as The Incredible Hulk, Spider Man, Iron Man, Thor (trailer below), and the X-Men. We learn from the Southern District's opinion that these stars of the silver screen got their start as comic book characters. Who knew?!? Kirby's heirs send notice to Marvel in 2009 that they intended to reclaim ownership of Mr. Kirby's creations under the 1909 Copyright Act, but Marvel brought suit seeking a declaration that the property at issue belonged to Marvel and not to Mr. Kirby, because Mr. Kirby had created them as part of a "work for hire" arrangement. Under federal copyright law, the work product created in such circumstances belongs to the employer.
Although Mr. Kirby's heirs argued that his work product was not the result of a "work for hire" agreement with Marvel, the District Court disagreed and ruled that the property belonged to Marvel alone. During the relevant period when Mr. Kirby created the characters at issue, Mr. Kirby never had a written contract with Marvel. Rather, he was a freelance writer paid based on the number of pages that he drew that Marvel used in its comics. Later, in 1972, Mr. Kirby entered into an agreement with a Marvel predecessor assigning all rights he might have in material that he created to Marvel. The same agreement acknowledged that Kirby had created such material in the context of a work for hire relationship.
The Kirby heirs tried to argue that the lack of a written contract during the relevant period meant that there was no contractual relationship between Kirby and Marvel at the time the characters were created. The District Court pointed out that the contract arose through conduct. The court found that the characters at issue were created at Marvel's "instance and expense" and that the Kirby heirs could not rebut the resulting presumption in favor of Marvel's "authorship" for copyright purposes of the characters.
Marc Toberoff, the Kirby family's attorney was respectfully defiant. As quoted in the New York Times, he said, “We respectfully disagree with the court’s ruling and intend to appeal this matter to the Second Circuit. Sometimes you have to lose to win.”