Metropolitan News-Enterprise


Thursday, August 19, 2010


Page 3


Appeals Court Revives Suit Over Recordings of Alvin and the Chipmunks


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal yesterday revived a dispute over who can license recordings of Alvin and the Chipmunks for use as background music in television or feature films.

Div. Seven, in an unpublished opinion, reversed a trial court’s ruling that a 1968 agreement with the group’s creator, Ross Bagdasarian Sr.—who used the name David Seville in connection with the Chipmunks properties—gave those rights to Capitol Records.

Bagdasarian, who died in 1972 at the age of 52, signed the agreement with Capitol’s predecessor in interest, Liberty Records, when he sold the company master recordings encompassing 112 musical selections in exchange for $200,000.

The deal gave Liberty ownership of the recordings plus an unlimited right to exploit them “for the purpose of manufacture and distribution…of reproductions or records.”

Bagdasarian’s son, Ross Bagdasarian Jr., a non-practicing attorney who heads Bagdasarian Productions and who obtained his father’s rights to the animated characters and their music, sued Capitol Records in 2008. He claimed that Capitol’s decades-long history of licensing rights to the music to third parties in industries other than the “phonograph record industry”—such as television, film and merchandising—was unauthorized and exceeded the agreement’s scope.

Recordings by Alvin and the Chipmunks have appeared in motion pictures such as “Rocky IV,” “Donnie Brasco” and “Almost Famous,” and in television programs including “The Sopranos” and “Providence.” Bagdasarian and his wife, Janice Karman, revived the Chipmunks in the 1980s, writing and producing television shows and songs for which they provided vocals.

Capitol argued that the 1968 agreement gave it the right to exploit the recordings in any manner and in connection with any industry it saw fit, and that use of them as background music was an authorized use even if the rights were limited to “reproduction of sound in the phonographic record field” because the field included electronic media and merchandise sold in record stores. It also contended that Bagdasarian waited too long to bring his claims.

Bagdasarian contended that his delay was based on a mistaken understanding of the rights his father sold. He said the misunderstanding was only corrected in 2007, after Twentieth Century Fox expressed interest in producing a movie using artwork for the original characters from the 1950s and 1960s and he obtained a copy of the 1968 agreement.

Los Angeles Superior Court Judge Teresa Sanchez-Gordon, after allowing both sides to present extrinsic evidence, ruled that Capitol had the right to grant master-use licenses for the recordings “for soundtracks for film, television and with products such as toys” and that Bagdasarian had “no such rights.”

But the Court of Appeal disagreed with that conclusion in an opinion by Presiding Justice Dennis M. Perluss.

“In plain language not otherwise explained by any material extrinsic evidence, the 1968 agreement conveyed to Capitol’s predecessor physical ownership of certain master recordings identified in that agreement, as well as an unlimited right to exploit those master recordings ‘for the purpose of manufacture and distribution…of reproductions or records’ as those terms are defined in the agreement,” he wrote.

“That specified purpose, as broad as it may be, does not include licensing the recordings for use as background music in television or feature films, a use that involves neither the ‘manufacture’ nor the ‘distribution’ of records or reproductions, even under the most expansive interpretation of the 1968 agreement.”

Perluss noted, however, that a 1993 request by Bagdasarian to Capitol for information regarding ownership of the Chipmunks’ “Witch Doctor” song might have given him constructive knowledge of his claims, giving rise to a possible defense under the statute of limitations or the doctrine of laches.

Justices Fred Woods and Laurie D. Zelon joined Perluss in his opinion.

Bagdasarian was represented on appeal by Rex S. Heinke and Christopher Blanchard of Akin Gump Strauss Hauer & Feld, while Capitol was represented by Peter I. Ostroff, Bradley H. Ellis and Michelle B. Goodman of Sidley Austin.

The case is Bagdasarian Productions, LLC v. Capitol Records, Inc., B217960.


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