1989 Frank Abridged

1989 Frank Abridged - FRANK MUSIC CORP. v....

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FRANK MUSIC CORP. v. METRO-GOLDWYN-MAYER, INC. 886 F.2d 1545 (9 th Cir. 1989) BETTY B. FLETCHER, Circuit Judge In Frank Music Corp. v. Metro-Goldwyn-Mayer Inc. , 772 F.2d 505 (9th Cir. 1985) ( Frank Mu- sic I ), we affirmed the district court's holding that defendants infringed plaintiffs' copyright in the dramatico-musical play Kismet , but remanded for reconsideration of the amount of profits attribut- able to the infringement and for consideration of whether defendants Donn Arden and Metro- Goldwyn-Mayer, Inc. (MGM, Inc.) should be liable in addition to MGM Grand Hotel, Inc. . On re- mand, the district court awarded plaintiffs $343,724 against MGM Grand, dismissed the action against MGM, Inc. and Arden, and awarded plaintiffs $15,000 in attorney's fees. Plaintiffs appeal and defendants cross-appeal. We affirm in part, reverse in part, and remand. I. FACTS. The facts are fully set out in Frank Music I . We reiterate only selectively. Plaintiffs are the copyright owners and authors of Kismet , a dramatico-musical work. MGM, Inc. under license pro- duced a musical motion picture version of Kismet . Beginning April 26, 1974, MGM Grand pre- sented a musical revue entitled Hallelujah Hollywood in the [*1548] hotel's Ziegfeld Theatre. Hal- lelujah Hollywood was largely created by an employee of MGM Grand, Donn Arden, 1 who also staged, produced and directed the show. The show comprised ten acts, four billed as "tributes" to MGM motion pictures. Act IV was entitled "Kismet", and was a tribute to the MGM movie of that name. It was based almost entirely on music from Kismet , and used characters and settings from that musical. Act IV "Kismet" was performed approximately 1700 times, until July 16, 1976, when, under pressure resulting from this litigation, MGM Grand substituted a new Act IV. Plaintiffs filed suit, alleging copyright infringement, unfair competition, and breach of contract. In Frank Music I , we affirmed the district court's conclusion that the use of Kismet in Hallelujah Hollywood was beyond the scope of MGM Grand's ASCAP license and infringed plaintiffs' copy- right. In this appeal, the parties focus on the adequacy of damages and attorney's fees. II. DISCUSSION A. Apportionment of Profits 1. Direct Profits In Frank Music I , we upheld the district court's conclusion that the plaintiffs failed to prove ac- tual damages arising from the infringement, but vacated the district court's award of $22,000 in ap- portioned profits as "grossly inadequate," and remanded to the district court for reconsideration. On remand, the district court calculated MGM Grand's net profit from Hallelujah Hollywood at $6,131,606, by deducting from its gross revenues the direct costs MGM Grand proved it had in- curred. Neither party challenges this calculation. In apportioning the profits between Act IV and the other acts in the show, the district court
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This note was uploaded on 01/13/2012 for the course LAW 33800A taught by Professor Williamfisher during the Fall '10 term at Harvard.

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1989 Frank Abridged - FRANK MUSIC CORP. v....

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