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Ennio Morricone Music v. Bixio Music Group

United States Court of Appeals, Second Circuit

August 21, 2019

Ennio Morricone Music Inc., Plaintiff-Appellant,
v.
Bixio Music Group Ltd., Defendant-Appellee.[1]

          Argued: February 22, 2019

         This case concerns the copyright ownership of six scores composed by Ennio Morricone for Italian films. Mr. Morricone was commissioned by an affiliate of the defendant, Bixio Music Group Ltd., to compose the scores in the late 1970s and early 1980s. In exchange for an upfront payment and limited royalties, Mr. Morricone assigned his rights in the scores to Bixio. In this declaratory judgment action, the plaintiff, Ennio Morricone Music Inc. (as assignee of Morricone's copyrights), seeks to terminate that assignment of the copyrights pursuant to the U.S. Copyright Act, 17 U.S.C. § 203, which provides that an assignment may be terminated after 35 years. The United States District Court for the Southern District of New York (Forrest, J.) granted summary judgment to Bixio, concluding that Morricone Music had no right to terminate the assignment because the scores were the Italian equivalent of "works made for hire," and therefore excepted from the right of termination. See 17 U.S.C. § 203(a) (termination shall be available for "any work other than a work made for hire"). Because we conclude that the scores were not "works made for hire" under either Italian law or U.S. law, we reverse.

          Jane Carol Ginsburg, Columbia University School of Law, New York, NY (with Timothy O'Donnell, New York, NY, on the brief), for Plaintiff-Appellant Ennio Morricone Music, Inc.

          Barry I. Slotnick (with C. Linna Chen on the brief), Loeb & Loeb LLP, New York, NY, for Defendant-Appellee Bixio Music Group, Ltd.

          Before: Kearse, Jacobs, Hall, Circuit Judges.

          DENNIS JACOBS, CIRCUIT JUDGE.

         Italian composer Ennio Morricone was commissioned by Edizioni Musicali Bixio, an affiliate of the defendant Bixio Music Group Ltd. (together, "Bixio"), to compose the scores for six Italian films in the late 1970s and early 1980s.[2] In exchange for an upfront payment and limited royalties, Mr. Morricone assigned his rights in the scores to Bixio. In this declaratory judgment action, Mr. Morricone's assignee, Ennio Morricone Music Inc. ("Morricone Music"), asserts a right to terminate the assignment of the copyrights to Bixio under 17 U.S.C. § 203, which provides that an assignment may be terminated after 35 years, such that Morricone would regain all rights in the scores except for Bixio's right to use them in the existing films. The United States District Court for the Southern District of New York (Forrest, J.) granted summary judgment to Bixio, concluding that the scores were excepted from the termination right because they were the Italian equivalent of "works made for hire." See 17 U.S.C. § 203(a) (termination shall be available for "any work other than a work made for hire"). Because we conclude that the scores are not "works made for hire" under Italian law, we reverse.

         BACKGROUND

         In the late 1970s and early 1980s, Bixio, an Italian music publisher, entered into written agreements--identical in all material respects--with the composer Ennio Morricone to compose scores for six films. Each agreement required Mr. Morricone to "[compose] the original musical score of said film; [m]usically arrang[e] said music; [and] [c]onduct[] the orchestra that will play the film's musical score." App'x 83. Mr. Morricone was required to complete the works by a certain date, and to make the recordings in Rome. App'x 86. As consideration for his work, Morricone received: a one-time upfront payment of three million Italian lire; limited ongoing royalties from the use of the score with the film and separate from the film; a credit in the film; and three hundred copies on phonographic discs.

         Mr. Morricone agreed to the following transfer of rights to Bixio:

You do hereby grant and transfer to us, exclusively, for the maximum total duration permitted by the laws in force in each country in the world, and at the conditions established here below, all the rights of economic use, in any country in the world, with regard to the works.
By effect of the transfers implemented above, we shall have the exclusive right to use the works to produce the recordings thereof, which shall be transferred into the film's musical soundtrack; and/or to have the works disseminated along with the film; and/or to have parts thereof disseminated along with parts of the film when presenting the film to the public; and/or to have the works published, to have them reproduced in print, through phonography, and/or with any other reproduction procedure; to execute and perform them, and to disseminate them using any remote broadcasting medium (such as telephony, radio broadcasting, television and other similar media); to place them into the stream of commerce and lease them out; to translate and/or adapt any literary texts into any foreign language and/or to make versions thereof in different dialects; to process, modify, and adapt the musical parts . . . .

App'x 85 (emphases added). As to duration of that transfer, the contracts further provide that "[t]he film's soundtracks and its tapes, music, orchestrations, records, etc. are and shall forever continue to be the absolute and exclusive property of [Bixio] who shall be free to use them as [it] pleases at any time and in all Countries of the world." App'x 97.

         Bixio registered a claim with the American Society of Composers, Authors, and Publishers to collect all royalties from the public performance of the scores in the United States. In 2012, Morricone Music served Bixio with a notice terminating the assignment of its U.S. copyrights in the scores under 17 U.S.C. § 203, which allows copyright owners to terminate a contractual assignment after 35 years. Bixio contested the termination on the ...


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