Copyright transfers and exclusive licenses *really* must be in writing

I like to keep example cases on file to convince clients to do things right, a good case just came along under Sec 204 . . . Lyrick Studios, Inc. v. Big Idea Productions, Inc. (5th Cir. 8/5/2005) [ http://caselaw.lp.findlaw.com/data2/circs/5th/0310837p.pdf ]

In that case, the plaintiff had negotiated a verbal exclusive distribution agreement for a copyrighted children's tv show. Though several drafts of the writing evidencing the agreement were exchanged, none were ever signed. However, discovery produced an internal memo from the licensor that it had verbally agreed to all material terms and that the parties "had an agreement." Despite the presence of that memo, the court reversed a $9 million plus judgment for the plaintiff (based on the licensor's termination of the license and retention of a new distributor), on the grounds that no writing existed under Sec. 204. As a result, the license was not exclusive, and terminable by the licensor. 2 cases were discussed extensively, but neither had the fact scenario where the internal memo stated that an agreement had been reached.

The lesson would be that a person believing to "have a deal" under an exclusive copyright license should not rely on verbal confirmation, even if drafts had been exchanged. (I get this all the time from clients . . . ).

-- 
Mike Oliver
Bowie & Jensen, LLC
29 W. Susquehanna Ave.
Suite 600
Towson, MD 21204