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Failure to Display Logo on Compilations Costs Sony $5 Million

Popovich v. Sony Music Entertainment, Inc., 508 F.3d 348 (C.A. 6, Nov. 21, 2007)

In 1977, Stephen Popovich and his company Cleveland Entertainment Co., Inc. (“Cleveland”), entered into an agreement (“1977 Agreement”) with CBS Records (“CBS”), predecessor of Sony Music Entertainment, Inc. (“Sony”), to release record albums of Cleveland-signed artists and to display Cleveland’s logo “Cleveland International Records” (“CIR”) on the records.

In August 1977, Popovich signed a contract with recording artist Michael Lee Aday, a/k/a “Meat Loaf.” CBS released Meat Loaf’s first album, “Bat Out of Hell” selling more than 30 million copies worldwide. CBS released three subsequent Meat Loaf albums, all covered by the 1977 Agreement.

In 1995, Cleveland sued Sony for unpaid royalties due under the 1977 Agreement. Sony and Cleveland entered into a Settlement Agreement (“1998 Agreement”), whereby the parties agreed that Sony would continue to display the CIR logo on Meat Loaf’s “Bat Out of Hell” and other albums.

In 2002, Popovich filed an action against Sony alleging reverse passing off (15 U.S.C. §1125(a)(1)(A); 17 U.S.C. §202), asserting that Sony failed to place the CIR logo on Meat Loaf compilation albums and on Meat Loaf albums purchased via Internet downloading. Sony filed a motion for summary judgment arguing that the 1998 Agreement merely ratified the 1977 Agreement and did not grant Popovich any logo placement rights on album compilations or Meat Loaf Internet downloads.

Applying New York law to both agreements, the District Court granted summary judgment in Sony’s favor on Popovich’s reverse passing off claim, and held that the 1998 Agreement unambiguously imposed no logo obligations on Sony for Internet downloads. The Court, however, determined that the 1998 Agreement was ambiguous on the issue of Sony’s logo obligations regarding compilations and sent the issue to the jury for trial.

The jury found that the 1998 Settlement Agreement obligated Sony to place the CIR logo on compilations, and awarded Popovich over $5 million in damages. The District Court entered judgment on the verdict.

Both parties appealed. Sony argued that its logo obligations did not cover compilations and that Popovich was not entitled to damages. Popovich argued that the 1998 Agreement required that the CIR logo appear on Internet downloads.

The Sixth Circuit affirmed. The 1977 Agreement obligated Sony to display the CIR logo on “phonograph records,” defined as “all forms of reproductions now or hereafter known.” The 1998 Agreement required Sony to place the CIR logo “on albums, CDs, cassettes, and all other forms and configurations of master recordings embodied on the albums,” and to “continue to place” the CIR logo on albums. The word “continue” constituted a jury question as to whether the parties merely reaffirmed the 1977 Agreement in the 1998 Agreement.

Also, the 1998 Agreement unambiguously did not include Internet downloads; the language “all forms and configurations … manufactured by Sony” could not be more reasonably interpreted to include Internet downloads than to exclude them. The Court affirmed the damages verdict for Popovich.

Judge Ralph B. Guy dissented, opining that the 1998 Agreement ratified the 1977 Agreement in all respects and therefore precluded Popovich from obtaining damages for Sony’s partial failure to perform its logo obligations.




 

 

Judge(s): Boyce F. Martin, Jr., Circuit Judge
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Contracts , Copyright , Trademark
 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Craig P. Kvale Collins & Scanlon LLP
David Webster Webster & Webster

 
Defendant Lawyer(s) Defendant Law Firm(s)
Anna K. Raske Benesch Friedlander Coplan & Aronoff LLP
Paul Gardephe Patterson Belknap Webb & Tyler LLP
Stephen Williger Thompson Hine LLP

 

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was ambiguous regarding whether the remedy limitation of the 1977 agreement improperly denied his motion for pre-judgment interest, improperly limited discovery to sony's 749 (2001) (internal quotation marks and citation omitted). weconsiderthreefactorsbeforedeciding (reversing grant of statutory prejudgment interest because of possibility, raised by trial court's jury in 1979, 1981, and 1984, cbs and cleveland entertainment renewed the 1977 agreement concluded that despite having minimal experience inevaluating a contract or logo right, "dimattia's paragraph 7.05" limited the clause to only obligations created by paragraph 7.05. consequently, the and 1998 agreements. this ruling begs the question why the district court determined that one paragraph 7.05 of the 1977 agreement applied to all of sony's logo obligations under both the 1977 accordingly, new york courts have allowed expert testimony on the hypothetical market value of 420 n.e.2d 953 (n.y. 1981)). the supreme court defined the hypothetical market standard in the language of the two agreements only led the district court to more questions than answers. the regard to sony's obligation to place the cleveland logo on compilations and internet downloads the question before us is whether the district court abused its discretion when it ruled that it is important to remember that the new-use doctrine has only been applied in the licensing presented at trial, and thus should not be disturbed. v. carmichael, 526 u.s. 137, 152-53 (1999). ralph b. guy, jr., circuit judge, dissenting. i respectfully dissent. i would vacate the containing meat loaf songs and the 1977 agreement was ambiguous as to sony's logo obligation 2. the term "manufactured by sony" in the 1998 settlement agreement does out of hell" but no record label was willing to distribute the album. popovich submitted "bat out based on present value, rather than the value at the time of breach and the jury instructions were clause of paragraph 7.05 -- the remedies limitation -- does not apply to any new logo obligations settlement agreement merely reconfirmed sony's preexistinglegalobligationregardingthecirlogo. on the tape configuration of "bat out of hell") on albums, cds, cassettes, and all instructed to place popovich in as good a position as he would have been had sony performed. to both state and federal statutes, rescission, breach of contract, and fraud. the district court granted an inconsistency. the district court to determine the limited issue of whether the geographic limitation applied to new the remedy limitation applied only to cbs's obligations under paragraph 7.05 of the 1977 agreement, applied to sony's breach of its logo obligation under the 1998 settlement subsequent emergence of the cd format." relying on sony's statement and there being no expenses, and royalties related to recordings generated by any cleveland entertainment artists that will continue to place the cleveland logo . . . on albums, cds, cassettes, and all other forms and internet downloads, finding that the 1998 agreement unambiguously did not include internet verdict." trademark research corp. v. maxwell online, inc., 995 f.2d 326, 342 (2d cir. 1993) the rights to use the cleveland international records tradename, logo, and recording label. releases. the fact that damages were or were not available was not the district court's primary d. does the geographic limitations clause of the 1977 agreement unambiguously was denied, reiterated those same arguments in a rule 50(a) motion at the close of evidence that was when any songs from the sony meat loaf albums were purchased for internet streaming or obligation to compilations, downloads and cds. the jury ultimately determined that the 1977 under the 1977 agreement, using the district court's reasoning on summary judgment, it is at least that the 1998 agreement merely ratified the 1977 agreement, and unambiguously did not grant on a contradictory argument to prevail in another phase." new hampshire v. maine, 532 u.s. 742, reasonably interpreted as distinguishing the limited remedy available for breaches of logo-related such as for compilations, cds, or internet downloads, the remedy limitation contained in paragraph was ambiguous as to compilations. to corporate customers, which bear the corporation's name and logo and typically contain music a question of law for the court. w.w.w. assocs. v. giancontieri, 566 n.e.2d 639, 642 (n.y. 1990). compilations or any other arrangement of the master recordings. the court realized these terms market, it is much easier to determine the market value compared to an asset with no market. id. sony music will continue to place the cleveland logo (in the design currently used popovicharguesthatthecovenantofgoodfaithandfairdealingpreventssonyfromenforcing distribution of meat loaf albums in eight countries, and improperly held that sony's logo district court allowed popovich to pursue money damages for sony's failure to comply with logo to meat loaf albums -- new york courts have adopted the hypothetical market standard in order the cleveland logo was not in use. when popovich returned to cleveland in 1994, he formed the preliminary injunction hearing, sony's own expert testified that he could not say "it's 100 unambiguously applies to cds and the 1998 agreement did not expand any of the logo obligations on the albums." the district court found that the terms "forms" and "configurations" could include b. procedural background to sell and both having reasonable knowledge of relevant facts." 411 u.s. 546, 551 (1973). ambiguous as to whether paragraph 7.05's geographic limitation applies to any new logo obligations extrinsic evidence to determine the parties' contractual obligations. greenfield v. philles records, of cds without the logo, the high estimate would have resulted in damages over $30 million using 1993). the intent of the parties is usually a question of fact reserved for the jury. rudman v. cowles hartford acc. & indem. co. v. wesolowski, 305 n.e.2d 907, 909 (n.y. 1973) (internal citations deviation from the meaning reasonably conveyed by the words of the contract should bear the doctrine in boosey & hawkes music publishers, ltd. v. walt disney co., 145 f.3d 481, 486-87 (2d preserves the jury's verdict concerning sony's obligation in the eight countries delineated in the 2003). "if there is ambiguity in the terminology used, however, and determination of the intent of accord you a standard production credit in any full page trade advertisement relating place the logo on cds and compilations, and the 1998 agreement's logo obligation was not limited discretion. green v. nevers, 196 f.3d 627, 632 (6th cir. 1999) ("rulings concerning the scope of popovich was fully compensated, was not in error. the district court entered judgment against sony on may 31, 2005. apply to the 1998 settlement agreement's logo obligation? popovich counters by arguing that the 1977 agreement limits the logo obligation to the the settlement agreement did create new obligations, the district court decided that the limitation of albums and singles, and, to the extent that (i) space shall reasonably permit, and (ii) performance. truglia v. kfc corp., 692 f. supp. 271, 276-77 (s.d.n.y. 1988). popovich argues the district court also determined that it was required to conduct "an independent reading of the 1977 do not dispute that these albums are covered by the 1977 agreement. per the terms of both agreements, new york law governs. in a contract interpretation case, limitation of the 1977 agreement. according to sony, "[t]he obvious intent of the broad ratification 1977 agreement does not resolve the more difficult issue of whether paragraph 5 of the settlement - new york courts enforce limitation of liability clauses despite one party's argument that it should popovich's company, cleveland entertainment company, entered into a production agreement verdict, the district court's denial of pre-judgment interest, and the exclusion of internet downloads c. was the district court correct in allowing a "cost of completion" damages theory? dates on which logos were omitted, popovich completely combined the information in a way that nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 10 timely manner. remaining breach of contract claims, popovich alleged that sony failed to comply with the 1998 records, inc., 780 n.e. 2d 166, 171-72 (n.y. 2002). the new york court held that the reasonable favors neither licensors nor licensees. it follows simply from the words of the contract." id. at 487. the district court refused to issue the restraining order primarily because it concluded that popovich popovich contends that the limitation of remedies clause should apply only to inadvertent 1 loaf song. master recordings. justification for denying the restraining order. furthermore, even if sony took the position that location of such logo. much into its footnote. while the district court expressed its frustration with sony for changing its sony, the 1977 and 1998 agreements must be read as one agreement, and that when done, it is clear geography limitation clause of paragraph 7.05 of the 1977 agreement. reviewing the district tape albums, and on jackets of disc albums in the united states, canada, the united in evaluating the sufficiency of the evidence, we will not set aside a verdict "if there is any the district court did not disagree with sony's reasoning, it simply found that while the 1998 nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 7 martin, j., delivered the opinion of the court, in which clay, j., joined. guy, j. (pp. arena and has not been applied to the factual situation in the present case. regardless, taking into (citing men's world outlet, inc. v. estate of steinberg, 101 a.d.2d 854, 855, (n.y. app. div. 1984) been able to find, a case holding that internet downloads may be "manufactured." as the district popovich's claims as all of sony's logo obligations would necessarily fall under paragraph 7.05 of granting cbs first refusal rights for any artists popovich signed to cleveland entertainment. in that a limitation on liability is an allocation of risk to which both parties agree, and courts should let remedies applied to obligations arising out of both the 1977 agreement and the settlement agreement, attacks popovich's expert, ronald dimattia. sony argues that dimattia was unqualified to testify before: martin, guy, and clay, circuit judges. the district court ruled during discovery that the geographic limitations clause contained in sony renewed its previous motion for judgment as a matter of law, or in the alternative, a not be enforced because the breach was intentional. see metro. life ins. co. v. noble lowndes jackets shall contain your distinctive trademark or logo, as such trademark or logo opposition on this point from popovich, the district court ruled that the 1977 agreement logo and therefore "this paragraph" includes the obligations created in paragraph 7.05 as modified by been had defendant complied with his contractual obligations. both decisions held that to award important as it left to the jury to decide whether the 1998 agreement expanded sony's logo div. 2004). it cannot be said that the jury's determination deviated materially from the evidence - 39 (2d cir. 1989). "however, new york law also provides that where there is a possibility that the requires a liberal interpretation of `manufacture.' such an interpretation is simply too great a stretch cbs shall afford such credit to the majority of cbs' associated labels, the labels of agreement did not create any new logo obligations, then the remedy limitation would apply to on cds. given the discussion above with regard to the remedy limitation, this ruling was very paragraph 5's modifications could reasonably be viewed as having become a part of paragraph 7.05, based on the foregoing analysis, we affirm the jury's verdict and the district court's popovich in exchange for a full and complete release of past claims from popovich and cleveland "incorporate" to express its relationship with the 1977 agreement and does not mention paragraph agreement, the parties expressly ratify and confirm in all respects the january 1977 agreement and court's early discovery decision in light of its later determination on summary judgment does reveal briefing, sony stated "[t]he plain language of the 1977 agreement strictly enumerated the product internet downloads or streams of meat loaf albums. sony recognized that it failed to place the logo original agreement, and remand for further proceedings. - stephen popovich, also known as cleveland "all forms and configurations . . . manufactured by sony" is not more reasonably read to include _________________ records v. island def jam music group, 412 f.3d 82, 89 (2d cir 2005), cert. denied, 126 s. ct. 2968 as the district court accurately noted, "[t]he compilation dispute centers around whether the the 1998 agreements language is much broader, yet incorporates the word "continue." analyzing 7.05 specifically. nevertheless, the terms "ratify" and "confirm," together with the broad language applies to all logo obligations under the 1998 agreement. more perplexing is what popovich is deciding whether the limitation of remedies clause applied to any new obligations created by the inc., 780 n.e.2d 166, 170 (n.y. 2002). the "reasonable expectation and purpose of the ordinary settlement agreement. the limitation of remedies clause is not mentioned in the settlement known" language encompasses any advancements in physical media, such as cds, that have been was ambiguous whether the remedy limitation applied to sony's logo obligations under the new _________________ paragraph 5 of the settlement agreement. moreover, paragraph 7.05 was the only paragraph in the agreement. sony argues that the 1998 agreement's broad ratification of the 1977 agreement logo obligation, sony's previous stance that cds were not covered, and the expert testimony stating opinion merely reaffirms its prior obligations under the 1977 agreement. while the 1977 agreement is clear "manufactured" by sony. in the words of the district court, "while sony `manufactures' albums, precluded popovich from obtaining damages for sony's partial failure to perform its promise a. factual background a district court's decision concerning expert testimony for abuse of discretion. kumho tire co., ltd. obligation to cds released in the united states, canada, the united kingdom, france, germany, only products actually manufactured by sony music; and of the word "this" emphasizes that the remedy limitation applies only to one specific the absence of any express language modifying the remedy limitation clause unambiguously new york law). "when a defendant's breach of contract deprives a plaintiff of an asset, the courts logo obligations of the 1977 agreement. the remedy limitation, however, is constricted to sony's nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 6 2007) (internal citations and quotation marks omitted). verdict, and remand for entry of judgment in favor of sony. agreement's logo requirement. he alleged three specific breaches: (1) sony failed to place the marks and citations omitted). moreover, the contract must be read as a whole, with every part summary judgment is appropriate if the contractual terms are unambiguous and the court can make both of those decisions denied pre-judgment interest because both juries' damages awards were the language of both agreements. --"[e]xcept as otherwise provided in the agreement, the parties expressly ratify and confirm in all logo obligations created by the 1998 agreement in light of its summary judgment rulings. this under the 1998 agreement, while another clause of paragraph 7.05 -- the geographic limitation -- limitation applies to all of sony's logo obligations. to any new obligations created by the 1998 agreement to the eight countries delineated in the nevertheless, we review the district court's decisions on discovery matters for an abuse of would have been warranted. however, the estimates were based on present value estimates of respects the january 1977 agreement and each and every provision thereof" -- expressly in the 1977 agreement unambiguously applies to the 1998 agreement vis-a-vis the 1998 under other paragraphs of the 1977 agreement or to new obligations under any future (2006). according to the laws of the state of new york. the construction and interpretation of a contract is this case arises from an agreement entered into between the plaintiff popovich and court was also puzzled by the term "master recordings embodied on," finding it could be read to holding that the 1977 agreement was ambiguous with regard to whether cds were covered by district court then analyzed extrinsic evidence in order to clear up the ambivalent language of the cleveland, ohio, for plaintiff. downloading. 3. internet downloads popovich argues that this geographic limitation applies only to the logo obligations on labels _________________ in its motion for summary judgment on popovich's breach of contract claims, sony argued position. second, the party must have succeeded in persuading a court to accept that party's earlier the 1998 settlement agreement required sony to pay a substantial sum of money to plaintiff-appellee/cross-appellant, popovich's motion for pre-judgment interest, specific performance, and attorneys fees, but granted n determination was not error. the [settlement] agreement, the parties expressly ratify and confirm in all respects the january 1977 file name: 07a0461p.06 in construction, and the resolution of the ambiguity is for the trier of fact.'" geothermal energy reasoned that the jury award adequately compensated popovich. this was based on the fact that the 3. judicial estoppel intern., inc., 643 n.e.2d 504, 507 (n.y. 1994). in metropolitan life, the new york court explained each and every provision thereof." it is true that the settlement agreement does not use the term each other. i read the 1977 agreement as unchanged by the settlement agreement except where the in august 1977, popovich signed a promotional contract with recording artist michael lee that sony's belated response to his complaints about the missing logo constitutes a breach of sony's submitted evidence of its attempts to cure its breach of the logo requirement after popovich's additionally, cbs also agreed to place the logo for cleveland entertainment's trade name, thedistrictcourt,initsorderdenyingpopovich'spost-trialmotionforpre-judgmentinterest, 794 n.e.2d 667, 670 (n.y. 2003). agreement to address logo issues, so limiting damages for violations of "this paragraph" is most agreement], the parties expressly ratify and confirm in all respects the january 1977 agreement and an intangible asset, and evidence of sales data of comparable assets. schonfeld, 218 f.3d at 178 defendant-appellant/cross-appellee. . . . manufactured by sony" includes internet downloads. neither party has cited to, nor have we clause is boilerplate in the music industry to protect record companies from inadvertent mistakes. however, "an asset does not lose its value simply because no such market exists." id. market and was a reasonable basis for the assessment of damages. again, the district court did not delineated earlier in paragraph 7.05. he bases this argument on his reading of the 1982 agreement, first issue. the district court reasoned: clarifying sony's existing obligations or by creating new obligations as to the type of product to language "manufactured by sony music after september 1, 1998" precludes items not "hits out of hell," a compilation of greatest hits from meat loaf's first three albums. the parties the party benefitted by that reading should be able to rely on it; the party seeking exception or the language of the 1977 agreement covers only albums comprised exclusively of meat loaf in reaching the opposite conclusion, the district court placed undo emphasis on the phrase this was error. windfall and a penalty, according to the district court, "and would put [popovich] in a better position 7.05 of the 1977 agreement would not apply to those new obligations. alternatively, if the 1998 agreement appears to substantively change the 1977 agreement, and is not simply a carbon copy. formats upon which the cir logo would appear and did not make any provision for the - _________________ the limitation of remedy clause. a covenant of good faith and fair dealing is implied in every seeking by appealing this issue. nowhere does popovich identify what relief he is seeking, and it damages were available, its position extended only to damages regarding the internet releases, not internet downloads, and whether the 1977 agreement was ambiguous regarding estoppel. attempting to limit the application, in his case, sony. the second circuit applied the new-use 759 n.y.s.2d 494, 497 (n.y. app. div. 2003)). if, pursuant to rule 56(c) of the federal rules of civil procedure, "the pleadings, depositions, if the 1998 agreement created new logo obligations, the express terms of that agreement did not ground for reversal unless refusal to take such action appears to the court to be inconsistent with on the copies of the four meat loaf albums in violation of the 1977 and 1998 agreements, but argued created by the settlement agreement to change unfavorable terms of the 1977 agreement by doing so of the earlier agreement. for summary judgment. according to the district court, in a footnote in its summary judgment if judicial estoppel applies. first, a party's later position must be clearly inconsistent with its earlier specific performance with regard to sony's future obligations. popovich sought a temporary include a remedy limitation, nor did the parties expressly apply the remedy limitation of paragraph on september 18, 1995, cleveland entertainment sued sony for unpaid royalties due under jury's award of $5.6 million was substantially below dimattia's estimate and above voigt's that any breach was intentional. "cleveland international records," on "records comprised exclusively of an artists' performances" [cbs's] sole obligation to [popovich] by reason of such failure shall be to rectify the experts' opinions cleared up the issue. inevitably, the district court concluded the 1998 agreement whether the expert testimony offered by both parties was admissible under daubert. the district the parties depends on the credibility of extrinsic evidence or on a choice among reasonable 13-16), delivered a separate dissenting opinion. terms unambiguously applies only to the logo obligations contained in paragraph 7.05 of the 1977 to whether they should be read as a single contract, the question is a matter of law for the court." tvt (citing numerous new york cases). courts have held that where one party wants contractual language governing a work's distribution to be broadly construed to govern use in a new medium, and the other party attempts to limit the cbs' obligations under paragraph 7.05 of the 1977 agreement, and not to obligations summary judgment to sony on the reverse passing off, rescission and fraud claims. regarding the the jury, and reasonable minds could come to but one conclusion in favor of the moving party." id. recording label cleveland entertainment co., inc., (2d cir. 1998) (trademark); american soc'y of composers, authors and publishers v. showtime/the paragraph 7.05 of the 1977 agreement provides the following: where, as in this case, the asset is intangible -- popovich's right to have sony affix his logo popovich filed a post-trial motion seeking both pre-judgment and post-judgment interest at obligation to place the logo on a record, the 1977 agreement limited popovich's remedies: in 1982, popovich and his partners dissolved cleveland entertainment. popovich retained award popovich over $3 million in interest on top of the over $5 million in damages would be a it was that term that led the district court to conclude that the agreement was ambiguous as to cbs agrees that with respect to phonograph records comprised exclusively of an sony argues that because the 1998 agreement does not expressly overrule the 1977 the jury instructions, the testimony at trial, and the methodology of the damages experts, that commc'ns, inc., 30 n.y.2d 1, 13 (1972). "but if the documents in question reflect no ambiguity as cds, and cassettes, asserting that sony `manufactures' internet downloads or streaming audio argued: september 13, 2007 regardless whether paragraph 7.05 is unambiguous with regard to sony's logo obligations not favor one party over the other. "if the contract is more reasonably read to convey one meaning, labels and jackets of "disc albums" and "tape albums." the term "disc album" is not defined, and immediately following ("each and every provision"), leave no doubt in my mind that the parties release containing at least one song from any sony meat loaf album. neither party disputes that selected by the corporation. voigt offered evidence on the value of license agreements for co- intent." uribe v. merchants bank of n.y., 693 n.e.2d 740, 743 (n.y. 1998) (internal quotation an instrument signed by an officer of cbs." the settlement agreement expressly modified that complaints, and popovich has not conclusively shown that sony intentionally failed to perform in a the district court granted summary judgment in sony's favor regarding its logo obligations on geographic restriction, but allows popovich to pursue damages for any possible breach by sony extensive experienceinbusinessvaluation,includingvaluationofbusiness units andbusiness assets, the new york statutory rate of nine percent. the district court denied any pre-judgment interest. which is the case here. id. even assuming there is case law to support this legal theory, it is not clear his motion for post-judgment interest. or alternatively (2) no new obligations were created by the 1998 settlement agreement because the obligationunambiguouslyappliedtocds,andthe1998agreementsimply reinforced that obligation inferences to be drawn from extrinsic evidence, then such determination is to be made by the jury." b. equitable arguments songs." the district court ultimately held that the 1998 agreement was ambiguous as to whether b. was the district court correct in determining the 1998 settlement agreement was outside of those eight countries. court should not enforce the clause to prevent him from collecting damages because of (1) sony's substantial justice." surles ex rel. johnson v. greyhound lines, inc., 474 f.3d 288, 296 (6th cir. duty of good faith, but popovich did not allege a breach on that ground. furthermore, sony presently appear (including cds) manufactured by sony music after september 1, in the 1977 agreement. ultimately, the lawsuit was settled, and on february 17, 1998, a settlement is approved by cbs (the "mark"); provided however, that the size of such mark and the district court ruled on summary judgment that the 1998 agreement was ambiguous with the position in earlier briefing that the 1977 agreement unambiguously did not cover cds, but at 5 of the settlement agreement as modifying paragraph 7.05 of the 1977 agreement, either by the 1977 agreement. popovich appeals the district court's decision on summary judgment finding that the 1998 released three more meat loaf albums "dead ringer," "midnight at the lost and found," and agreement's ratification clause. that clause states that "[e]xcept as otherwise provided in the agreement obligated sony to place cleveland's logo on compilations containing at least one meat agreement sets forth the parties' intent clearly and unambiguously, the court may not consider clause was to maintain in place all provisions of the 1977 agreement not specifically altered or interpretation of the contract governs. id. at 172. and 1998 agreements to determine whether they are ambiguous as to remedy" and "the 1998 logo developed since 1977 to replace vinyl records and cassette tapes. sony further argues that the 1998 agreement replaced, modified, expanded, or left untouched paragraph 7.05 of the 1977 agreement. agreements. the text specifically covers failure to comply with "obligations pursuant the conclusion that paragraph 5 of the settlement agreement must be read together with the counsel 2. compilation albums pre-judgment interest in a breach of contract case such as this. popovich further posits that the cases . . . ." the relevant terms are "all other forms and configurations" and "master recordings embodied based on the above, the district court's decision that the 1998 agreement unambiguously believe the district court did not err in submitting this issue to the jury. does not include internet downloads should be affirmed. dissent the parties lie in the bed they made. id. (citing 5 corbin, contracts, 1068, at 386). professor it was not absolutely clear whether cds were covered, we do not believe the district court erred in nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 14 as an expert, and his model of damages was inapplicable to the present case. this court reviews pursuant to this paragraph 7.05 will constitute a material breach . . . ." (emphasis added). breach of its logo obligations, and is thus entitled to judgment as a matter of law. according to - a. the limitation of remedies clause -- "phonograph records comprised exclusively of an artist's performances recorded hereunder" -- nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 8 - york, for defendant. david blakeslee webster, webster & dubyak, co., cleveland, ohio, entertainment. in addition, the parties negotiated a clause regarding cleveland logo placement: account the new-use doctrine's requirement that the language of the contract must be more cir. 1998). in doing so, the court stated that the words of the contract govern, and a court should we agree with the district court that the 1998 agreement is ambiguous as to whether agreement confirms this interpretation. paragraph 5 of the 1998 agreement states that "sony music prejudgment interest is recoverable as of right under new york's prejudgment interest settlement agreement expressly amends or modifies the 1977 agreement. "this paragraph." since paragraph 5 of the settlement agreement, at most, modified paragraph 7.05, branded credit cards. the district court found that both expert's testimony provided a comparable to the 1977 agreement. from 1986 to 1994, popovich lived in nashville, and for that time period, credible evidence to support [the] verdict." farber v. massillon bd. of ed., 917 f.2d 1391, 1395 of hell" to cbs, which agreed to distribute it under its "epic" label. "bat out of hell" was released popovich raises the doctrine of "new use" in his appeal. according to popovich, new york the 1977 agreement precludes popovich from recovering damages. the district court decided that discovery to the geographic limitation contained in the 1977 agreement. on remand, we instruct of relief afforded by contract law." we believe the district court was correct in this holding given the 1977 agreement. the lawsuit did not allege any violations of the logo requirement contained relied on by the district court are outliers, and that the majority of new york courts have found cbs accepted. than [he] would have been had the contract been fully performed." discovery would be limited to the sale of meat loaf albums in the countries delineated in the stance, it did reverse its earlier ruling and found the 1977 agreement was ambiguous with regard court ultimately allowed both dimattia and sony's expert, jill voigt, to testify about the market 1998 agreement. according to sony, the plain language of the remedy limitation clause contained agreement. the district court found, however, that the limitation contained in 7.05 only applied to boyce f. martin, jr., circuit judge. a jury awarded stephen popovich over five york, new york, for defendant. david blakeslee webster, webster & dubyak, co., the relevant language in the 1998 agreement states that sony will place a logo "on albums, and did not create any new obligations. sony apparently took the opposite approach in its motion - from sony's logo obligations. we reverse the district court's decision restricting discovery related e. did the district court err in denying prejudgment interest to popovich? 1942), this court's review is de novo. the parties also reaffirmed the 1977 agreement, stating: "[e]xcept as otherwise provided in the relevant question for this court is whether the sentence "all forms and configurations downloads. just as the district court held, we also believe it is clear the limitation remedy applies to the of tape albums and jackets of disc albums, but not the labels of disc albums and singles, which are a penalty to sony. additionally, instead of developing separate damage figures relative to various agreement by name." i turn to the second argument first, because if sony is correct, there is no need to decide the regarding whether or not sony's logo obligation was extended to compilations and whether or not nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 2 allegedly obligated to do by the 1998 agreement, and (3) sony failed to display the cleveland logo only be granted if, when viewing the evidence in a light most favorable to the non-moving party, indicates that the parties did not intend to create new remedies if sony failed to correctly place the each and every provision thereof." sony reasons that this clause expressly preserved the remedy elsewhere. we find the district court's decision persuasive. had the estimates of damages at trial been all inferences in favor of the non-moving party. matsushita elec. indus. co. v. zenith radio corp., and not to any new obligations created by the 1998 settlement agreement because the phrase "this i. popovich's record company logo to four meat loaf albums. on appeal, sony argues that the popovich music group (pmg) and registered the name "cleveland international records" and the international records logo on cds comprised exclusively of meat loaf popovich contends that even if the limitation on remedies clause does apply generally, the answers to interrogatories, and admissions on file, together with the affidavits, if any, show that cross-appeal. since the court's opinion sets forth the facts in some detail, they will not be repeated to whether the logo obligation applied to cds. now sony argues that the 1977 agreement nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 3 calculated from the date of each of sony's alleged breaches, pre-judgment interest from those dates clear that the plaintiff should be made whole by putting him in the same position he would have sony's obligation to affix the logo to cds? united states v. cartwright: "[t]he fair market value is the price at which the property would change because the term "master recordings embodied on the albums" refers to individual songs on the decided and filed: november 21, 2007 nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 4 nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 5 1998 agreement expanded popovich's rights by requiring sony to place the cir logo on any sony interpretation of the language of the agreement to conclude it covers internet downloads. sony music entertainment, inc., nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 15 _________________ value the object in question may have had to the owner." id. at 178 (internal quotation marks and popovich originally sought money damages for breaches that had occurred and an order of paragraph 7.05 into subsections. we find this argument misleading, as paragraph 7.05 in the 1982 dimattia's per cd damages estimate. voigt testified that damages would not exceed $105,000. the for the sixth circuit v. to this paragraph 7.05." (1977 agreement, 7.05.) (emphasis added). the presence restraining order to force sony to place the cir logo on meat loaf songs distributed via the internet. sony argues that the district court erred when it determined that it was ambiguous whether popovich $5,057,916.00 in damages. in response to a series of special interrogatories, the jury september 1, 1998" language merely provides sony a grace period to comply with its obligations. 1. the 1998 settlement agreement obligates [sony] to place the cleveland these agreements also covered, among other things, royalty payment obligations between cbs and other forms and configurations ofmaster recordings embodiedonthealbums entitled hell" and will add such logo to all forms and configurations on which it does not damages awarded were based on estimates of current, not historical, prices, and that the jury was 1. intentional conduct [was] sufficient to qualify him as an expert on the value of the contract right in this case." this damages award was barred as a matter of law. popovich cross-appeals claiming the district court incorporates the limitation of remedies found in paragraph 7.05 of the 1977 agreement into the 1998 expressly. under the 1977 agreement, the agreement could not be changed or terminated "except by released in the united states and eight other foreign countries. in the event cbs breached its 149 n.y.s.2d 31 (n.y. app. div. 1955). as popovich states in his own brief, however, a separate the court must determine if the contract is ambiguous. id. if no ambiguity exists, the court must for these reasons, i would reverse the denial of judgment as a matter of law, vacate the jury's intended for the settlement agreement and the 1977 agreement to be interpreted in conjunction with from [popovich]. reasonably read to include the new-use being proposed -- here, internet downloads -- the language by entering into the same contract for 3 year periods each time. in addition to the logo obligation, could also mean simply other types of physical formats such as cds, cassettes, etc. the district continue to place the cleveland logo on albums." sony contends that the use of the word "continue" "whether multiple writings should be construed as one agreement depends upon the intent sony also argues on appeal that popovich's evidence on damages was insufficient and new trial. the district court denied sony's motion on january 23, 2006. the district court denied configuration of master recordings embodied on the albums . . . ." (emphasis added). iii. agreement's exclusion of compilations, it is unambiguous that the 1998 agreement does not cover no. 02-00359--solomon oliver, jr., district judge. the particular area on such label or jacket or advertisement onto which cbs places for plaintiff. on brief: paul g. gardephe, patterson, belknap, webb & tyler, new return, cbs agreed to pay cleveland entertainment approximately $150,000 per year for operating to only items "manufactured by" sony. these findings greatly increased sony's potential liability argued: paul g. gardephe, patterson, belknap, webb & tyler, new york, new this court reviews a district court's grant of summary judgment de novo. monette v. remedy limitation clause. not allowed under new york law. compilations are covered by the logo obligation. while it appears compilations are covered simply cleveland logo to pmg. applied to sony's logo obligations under the 1998 agreement and popovich is thus not entitled to such mark shall be determined solely by cbs. award. dimattia estimated damages at $3 per cd. while there was some dispute as to the number would be an interesting strategic move to request a new trial after winning a $5.6 million jury italy, spain, japan and australia. popovich also appeals the district court's denial of his motion for agreement was entered into by sony and cleveland entertainment. 1. cds was not likely to succeed on the merits of his claim that the logo obligation extended to internet popovich any logo placement rights on compilations nor did it obligate sony to place a logo on any not surprisingly, with regard to cds, sony argues on appeal that the 1977 agreement's logo i. that the 1977 agreement limited popovich's remedy and precluded him from seeking damages value of comparable intangible assets. without rehashing each finding of the district court, it is pre-judgment interest. 2. covenant of good faith and fair dealing once again, we do not believe the district court erred in its analysis. not only did sony take application of the agreement, the burden of excluding the right to the new use will rest with the party the district court's ruling, sony moved for reconsideration, arguing that the district court read too both parties have filed appeals. sony argues that the 1977 and 1998 agreements were whether it covered cds. which he says simply rehashes the 1977 agreement, but is more helpful because it breaks out cds, and the damages awarded by the jury related to cds. pursuant to sixth circuit rule 206 the crux of this appeal is whether the limitation of remedies contained in paragraph 7.05 of pre-judgment interest is a question of law, see grobe v. kramer, 33 n.y.s.2d 901, 904 (n.y. sup. not create new obligations, and even if it did, the limitation on remedies clause applies to the new nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 9 agreement did ratify and confirm the 1977 agreement, the remedy limitation clause by its own united states court of appeals a compilation album is an album comprised of master recordings from more than one artist. nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 16 a denied motion for a rule 50 judgment as a matter of law. id. "judgment as a matter of law may proceedings consistent with this opinion. court noted, had the parties included the words "distributed by," the agreement would have lent itself 478 u.s. 574, 587-88 (1986). popovich appeals the district court's finding that the 1998 agreement unambiguously statute, new york c.p.l.r. 5001(a). see hilord chem. corp. v. ricoh elec., inc., 875 f.2d 32, also denied, lost in front of a jury, and then renewed its arguments in a rejected rule 50(b) motion nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 11 logo obligations, such as placing the logo on cds and on compilation albums.1 internet downloads than to exclude internet downloads. dimattia offered evidence on the market for customcds. musiccompanies sell customcds charge as to interest, that the jury already allowed interest). court's denial of popovich's motion for pre-judgment interest. we reverse the district court's to the interpretation that internet downloads were meant to be included in the logo obligation. as estimate. under new york law, "[t]he assessment of damages is principally a factual determination popovich's remedy was limited by the 1977 agreement, and allowed those issues to go to the jury. interpreted to give effect to the contract's general purpose. westmoreland coal co. v. entech, inc., 1998 agreement, but found that neither previous drafts of the 1998 agreement nor both sides' artist's performances recorded hereunder and released during the termhereof, it will it covered compilations, and allowed the jury to decide the issue. the jury found that the 1998 "bat out of hell," "dead ringer," "midnight at the lost and found," "hits out of the 1977 agreement states that cleveland's logowould be placed on "phonograph records." not limit sony music's obligations under the 1998 settlement agreement to limitation of discovery to the eight nations outlined in the 1977 agreement and remand for further reaffirming the previous obligations of the 1977 agreement. given these obvious ambiguities, we consistent with the above law, namely, how much it would cost popovich to obtain the logo rights > x contract under new york law. dalton v. educ. testing serv., 639 n.y.s.2d 977, 979 (n.y. 1995). 1 the circumstances of this case. sony is wrong. nos. 06-3463/3464 any damages. in the alternative, sony argues that the damages theory popovich pursued at trial is the district court in this case properly allowed popovich to pursue a damages theory obligations under paragraph 7.05, and does not limit popovich's remedies for breach of any other action may be brought for failure to comply with the separate obligation to render timely nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 12 ii. paragraph 7.05 will constitute a material breach of this agreement; in such event, appeal from the united states district court agreement did not obligate sony to place logo's on cds, the 1998 agreement obligated sony to error in all such materials prepared after its written receipt of written notice thereof aday, known professionally as "meat loaf." meat loaf had recorded his first solo album "bat recommended for full-text publication percent given" that cd's were included. given the ambiguous language of the 1977 agreement's agreement and each and every provision thereof." the relevant question is whether the 1998 agreement expanded sony's logo obligation it should now be estopped from arguing that damages are unavailable. the doctrine of judicial expand the limitation, but rather reinforced its application to paragraph 7.05 only. we do not believe business[person] when making an ordinary business contract serve as the guideposts to determine that sony's logo obligations were not expanded by the 1998 agreement to cover compilations. sony cleveland logo on some copies of the four sony meat loaf albums, (2) sony failed to place the 66 (n.y. app. div. 2004), and bamira v. greenberg, 295 a.d.2d 206, 207 (n.y. app. div. 2002). of meat loaf songs embodied on the meat loaf albums. here. agreement unambiguously did not cover internet downloads. the district court held that the popovich created popovich ltd., and negotiated a new contract with cbs in 1982 with similar terms jury verdict and remand for entry of judgment in favor of sony, because the original contract there is no genuine issue as to any material fact and that the moving party is entitled to a judgment compilations. this argument is not well taken. kingdom, france, germany, italy, spain, japan and australia, and such labels and popovich argues that because sony previously argued that money damages were available, to determine the asset's value. id. (citing nestle holdings, inc. v. commissioner, 152 f.3d 83, 88 plaintiffs pre-judgment interest in these circumstances would constitute an unwarranted windfall. mistakes, not intentional conduct, based on the testimony of gary casson, who testified that the million dollars on his claim that sony music entertainment, inc., breached its duty to affix also argues that it is unambiguous that the remedy limitation contained in the 1977 agreement also would make calculating pre-judgment interest impossible. the district court's conclusion, based on popovich argues that new york c.p.l.r. 5001 is mandatory, and requires a court to award corp. v. caithness corp., 825 n.y.s.2d 485, 489 (n.y. app. div. 2006) (quoting pellot v. pellot, the court notes, however, that the remedy limitation unambiguously applies only to obligation unambiguously did not apply to cds. apparently sony's trial strategy changed after the damages to be argued at trial. according to sony, new york does not allow such damages under the parties raised this issue in motions for summary judgment and in motions for judgment remedy clause did not apply to those new obligations. sony argues that the settlement agreement did regarding plaintiff's logo. as a result, there is no need to address the issues raised in popovich's contained in the 1998 agreement. accordingly, we reverse the district court's decision restricting for the northern district of ohio at cleveland. modified, including the limitation of remedies clause." appellant's br., at 27. 1998, provided, however, that sony music shall reasonably determine the size and as "all forms of reproductions, now or hereafter known." according to sony, the "now or hereafter or impose an unfair detriment on the opposing party if not estopped. id. agreement, a strong indication that the parties intended for it to remain in effect. i read paragraph electronic data sys. corp., 90 f.3d 1173, 1176 (6th cir.1996). summary judgment is appropriate the district court decided that the settlement agreement was ambiguous as to whether it added new international records, successor-in-interest to the after trial, the jury returned a verdict holding sony in breach of contract. the jury awarded movie channel, inc., 912 f.2d 563, 569 (2d cir.1990) (music license); w.t. grant co. v. srogi, 52 paragraph of one specific agreement. 7.05 to those new obligations. as the district court held, if sony failed to meet any new obligations to award additional interest on top of such an award would amount to a windfall to popovich and which the logo obligation attached, but not replacing 7.05 in its entirety and not displacing the cleveland logo on compilation albums containing songs from the sony meat loaf albums, as burden of negotiating for language that would express the limitation or deviation. this principle look to compensate the plaintiff for the market value of the asset in contradistinction to any peculiar determinations on summary judgment and judgment as a matter of law. we also affirm the district resulting from sony's breach. the district court held that the 1998 agreement was ambiguous a. was the district court correct in determining that the 1998 settlement agreement obligations as well as the old. logo obligations under the 1998 agreement. realizing its exposure had been greatly increased by beyond its obligations under paragraph 7.05 of the 1977 agreement. if there are no new obligations, the settlement agreement specified that "[e]xcept as otherwise provided in [this settlement damages, which presumably have risen with inflation over time. see bamira, 295 a.d.2d at 207. corbin notes exceptions for contracts of adhesion and breaches that are also tortious--neither of in 1977 and has since sold over 30 million copies worldwide. between 1981 and 1984, cbs a result, we do not believe the district court erred in its holding that it is an unreasonable provision by replacing the quoted language with "except by an instrument signed by both parties." part of the duty of good faith is an obligation to perform in a timely manner. steinman v. olafson, in new york, the measure of damages in a breach of contract claim is typically the "value the new york court of appeals affirmed the second circuit's reasoning in greenfield v. philles "when a term or clause is ambiguous, `the parties may submit extrinsic evidence as an aid cleveland entertainment. that paragraph by its own express terms, and the broad ratification of the 1977 agreement did not unambiguous with regard to sony's logo obligations and popovich's available remedy for sony's defendant sony's predecessor-in-interest, cbs records, almost 30 years ago. in 1977, cbs and sony argues that not only is the 1977 agreement controlling, it is unambiguous that geographic obligations required only by the 1998 settlement agreement. sony argues that (1) the limitation on position. third, the party seeking to assert an inconsistent position would derive an unfair advantage jury award already allowed interest, no further prejudgment interest can be recovered on the 3. the 1977 [agreement] does not obligate [sony] to place cleveland on february 26, 2002, popovich filed the instant action alleging reverse passing off under the remedy limitations clause contained in the 1977 agreement applied to the logo obligation in the cir logo on meat loaf products. aspect of the 1977 agreement: "no failure on the part of [sony] to comply with its obligations ambiguous regarding sony's obligation to affix popovich's logo to compilations and turning to the 1998 agreement, we do not believe the district court erred in holding that it after the entry of judgment, we will review only the denial of the rule 50(b) motion." barnes v. city section 5001 mandatory and automatically awarded pre-judgment interest. of the parties." commander oil corp. v. advance food serv. equip., 991 f.2d 49, 52-53 (2d cir. intentional conduct, (2) sony's breach of the covenant of good faith and fair dealing, and (3) judicial citations omitted). as the second circuit noted in schonfeld, if the asset has a readily identifiable to be made by the jury, and is accorded great deference unless it deviates materially from what nos. 06-3463/3464 popovich v. sony music entertainment, inc. page 13 agreement. according to the district court, if the 1998 agreement contained new logo obligations, no failure on the part of cbs to comply with its [logo] obligations pursuant to this future music formats such as internet downloads, and the "manufactured by sony music after requirement does not contain any remedy-limiting language, nor does it reference the 1977 - solely to such records placed by cbs in the united states and on labels of disc include any individual master recording from one of the albums or to albums comprised exclusively international records logo on compilation products consisting of at least one . . . employs an erroneous legal standard. no error in the admission or exclusion of evidence is , prior to trial, the district court conducted an evidentiary hearing in order to determine for breach of the logo obligation under the 1998 agreement. excluded internet downloads from sony's logo obligation and unambiguously limited sony's logo the settlement agreement demonstrates that popovich knew how to utilize the opportunity would be considered reasonable compensation." johnson v. grant, 3 a.d.3d 720, 722 (n.y. app. the district court relies on clearly erroneous findings of fact, . . . improperly applies the law, . . . or popovich contends that the "all forms and configurations" language was intended to cover the district court did not interpret the two agreements together, as it should have done, when the 1977 agreement and 1998 settlement agreement provide that they are to be interpreted to the extent that obligations from breaches arising from other subject matters in the contract. also troubling is the use of the word "continue" in the 1998 agreement: "sony music will hands between a willing buyer and a willing seller, neither being under any compulsion to buy or paragraph 7.05's logo obligation. giving that party the benefit of all reasonable inferences, there is no genuine issue of material fact for found by a preponderance of the evidence that: agreement? meat loaf master recording; as a matter of law." fed.r.civ.p. 56(c). additionally, this court must construe the facts and draw sony argues that the district court erred as a matter of law in allowing "cost of completion" omitted). then all of sony's logo requirements fall under the limitation remedy of paragraph 7.05. however, obligations did not apply to internet downloads. for the following reasons we affirm the jury's as a matter of law. "in cases where an appellant made a rule 56 motion for summary judgment that for this court to conclude that there is ambiguity in the language." of cincinnati, 401 f.3d 729, 736 (6th cir.), cert. denied, 126 s. ct. 624 (2005). we review de novo - cds, cassettes, and all other forms and configurations of master recordings embodied on the albums (6th cir. 1990). a review of dimattia's testimony reveals evidence sufficient to support the jury's a ruling as a matter of law. see, e.g., hindes v. weisz, 303 a.d.2d 459, 460-61 (n.y. app. div. _________________ discovery are generally reviewed for abuse of discretion."). "an abuse of discretion occurs when the district court relied on kassis v. teachers' ins. and annuity assn., 13 a.d.3d 165, 165- apparent the district court thoroughly examined dimattia's credentials and experience, and albums, the use of the word "continue" raises the question of whether the parties were merely popovich appeals that ruling. because the district court's decision denying popovich's request for interpret the contract. pedersen v. stockard s.s. corp., 51 n.y.s.2d 675 (app. div. 1944). if an abuse its discretion in allowing both sides to present this expert testimony. estoppel "prevents a party from prevailing in one phase of a case on an argument and then relying paragraph 13.05 of that agreement defines "records," "phonograph records," and "recordings" created by the 1998 agreement, popovich may "sue for breach of contract and seek the full range of the promised performance." schonfeld v. hilliard, 218 f.3d 164, 175 (2d cir. 2000) (applying verdict. district court's summary judgment order found that the limitations remedy would not apply to new


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