262 A.D. 221 | N.Y. App. Div. | 1941
The defendant is engaged in the business of buying literary and artistic productions and selling them for use as features to various publications throughout the world. Elzie Crisler Segar, the cartoonist, was noted as the creator of “ Popeye the Sailor ” and other characters in the field of comic art. He commenced drawing cartoons for International Features Service, Inc., the defendant’s predecessor, in 1919. His first contract with the defendant was made in 1921.,
Segar’s success as a cartoonist is reflected in the contracts which followed from time to time, under which different arrangements
On April 7, 1932, Segar and the defendant entered into a contract covering the period from April 11, 1932, to July 14, 1938, which provided for the payment of weekly compensation of $500 for a portion of the" period and $700 weekly for the last five years. Simultaneously the parties entered into an agreement -under which the defendant conveyed and assigned to Segar “ the toy, novelty, song and book rights to the characters appearing in the comic ‘Thimble Theatre;’” and the defendant also agreed to act as Segar’s representative in the sale of these rights “ only so long as you desire us to do so ” and to remit all sums received from sales. The defendant further agreed to pay Segar fifty per cent of all sums received from the sale of the moving picture, talking picture or theatrical rights. Thereafter by letter, dated December 28, 1932, Segar agreed to allow the defendant twenty-five per cent of the toy and novelty revenue to maintain a special department for the purpose of exploiting these rights.
On May 23, 1938, a new contract was entered into, consisting of a printed portion and a letter. By the printed form Segar was required to supply a specified number of drawings each week for a five-year period beginning July 14, 1938, and terminating July 13, 1943, for a compensation of $1,000 per week. Like the earlier contracts, it contained the following provision: “ All literary, artistic or other materials and all drawings and articles furnished and produced by the said party of the second part resulting from any services rendered by him under this agreement, including all property rights in and to the characters that are the subjects of any drawings or articles of said party of the second part created under or exploited during the term of this agreement shall belong to and be the exclusive property of the party of the first part, who may duly protect the same by copyright or otherwise, and who shall have all the exclusive rights therein accorded to the author of a copyright work, as well as all of the property rights in and to such characters that may be accorded to the author or owner thereof under any law.” Simultaneously with the execution of the printed
This agreement to account for the royalties was to begin on the date of the execution of the contract • — • May 23, 1938 —■ and to continue to July 13, 1943, “ or so long as you perform your services under said contract.” On October 13, 1938, Segar died. At that time there were outstanding license contracts which had been made both before and after May 23, 1938. Other license contracts were made by the defendant after Segar’s death. The latter included renewals of contracts which were outstanding on October 13, 1938, and made both before and subsequent to May 23, 1938.
The defendant contended that Segar’s death had terminated its obligations under the letter of May 23, 1938, and refused to account to his estate for royalties earned subsequent to the date of death, including royalties earned on licenses granted during Segar’s lifetime. Thereupon this action for an accounting was commenced.
At the trial the plaintiff contended (1) that the death of Segar did not discharge the defendant from its obligation to account for royalties received previous to July 13, 1943, and (2) that even if the contract were considered to have terminated on October 13, 1938, the defendant was obligated to account for royalties derived from any contracts made prior to that date. The Special Term rejected the first contention, holding that the term of the contract ended with the death of Segar; and although it sustained in part the plaintiff’s second contention, it limited the accounting to license agreements which were made between the date of the contract and the date of death. It held, in effect, that since Segar could no longer perform the printed contract which provided for the delivery of comic strips, his estate was not entitled to the benefit of license agreements entered into after his death. '
Segar’s death, of course, terminated the obligation for the delivery of drawings by him, and likewise terminated the defendant’s obliga
The defendant relies upon the phrase contained in the letter of May 23, 1938, that it will pay the percentages of royalties “ so long as you [Segar] perform your services under said contract.” It is asserted that since, by reason of bis death, Segar can no longer perform services under the printed contract the defendant is excused from further payment of royalties on any of the productions which he had previously delivered. We are unable to give to this provision the interpretation for which the defendant contends. We think it was only intended to reheve the defendant from the duty to account for royalties under the letter of May 23, 1938, if Segar’s non-performance constituted a breach of contract. In the absence of clear language it should not be extended to include a failure to perform which the law classifies as excusable on account of death or other cause. Such an interpretation would lead to most inequitable consequences by depriving the plaintiff
The interlocutory judgment so far as appealed from should be modified by directing the defendant to account for the percentages set forth in the letter of May 23, 1938, of all moneys derived from any licensing agreements entered into prior to July 13, 1943, and as so modified affirmed, with costs to the appellant.
Martin, P. J., Dore, Cohn and Callahan, JJ., concur.
Interlocutory judgment, so far as appealed from, unanimously modified by directing the defendant to account for the percentages set forth in the letter of May 23, 1938, of all moneys derived from any licensing agreements entered into prior to July 13, 1943, and as so modified affirmed, with costs to the appellant.