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The Ramones and Wal-Mart

By Senior Copyright Counsel, Google Inc.

One might not readily think of pairing the Ramones and Wal-Mart, but they were in Richard Reinhardt (p/k/a Richie Ramone and Richie Beau), Plaintiff, v. Wal-Mart stores, Inc., Apple, Inc., Realnetworks, Inc., Estate of John Cummings (a/k/a John Ramone and Johnny Ramone), Taco Tunes, Inc ., Ramones Productions, Inc., Herzog & Strauss, and IRA Herzog, Defendants, reported at 2008 WL 1781232, No. 07 Civ. 8233 (S.D.N.Y. April 18, 2008(Scheindlin, J.). (Here is a link to a picture of my Chuck Taylor hi-tops Ramones kicks).

Drummer Richard Reinhardt was a member of the Ramones from 1983 to 1987. During that time he was the sole author of Smash You, Somebody Put Something in My Drink, Human Kind, I'm Not Jesus, I Know Better Now, and (You) Can't Say Anything Nice (the ?Compositions?). In 1984, Reinhardt entered into a recording agreement with Ramones Productions to ?exploit? the intellectual property, merchandise, and other products associated with the Ramones. The Agreement granted Ramones Productions the limited right to ?create physical sound recordings embodying the Compositions,? with royalty payments to be made to Reinhardt.

Reinhardt alleged that the Defendants have infringed his copyright by exceeding the scope of their license. The Defendants were accused of offering Reinhardt?s works for sale via downloads and in other digital media. The case was resolved by contract interpretation: did the Recording Agreement authorize such uses? As noted by the Court:

In pertinent part, section 5(a) of the Recording Agreement authorizes Ramones Productions ?to manufacture, advertise, sell, distribute, lease, license or otherwise use or dispose of the Masters and phonograph records embodying the Masters, in any or all fields of use, by any method now or hereafter known.?

The Recording Agreement also provides that ? ?Records,? ?phonograph records,? ?recordings,? and ?derivatives' means all forms of reproduction including pre-recorded tapes and discs and electronic video recordings, now or hereafter known, manufactured or sold primarily for home use, school use, juke box use or use on means of transportation....? ?Master? however, is specifically defined as ?the equivalent of a 7 inch, 45 rpm, single-sided recording embodying the recorded performances by the Ramones.?

This language is clear and unambiguous and conveys a definite meaning. The contractual language defining ?phonograph records,? when read together with the provisions of section 5(a), clearly authorizes the digital uses employed by Defendants. The phrase ?now or hereafter known,? when referring to forms of reproduction, reveals that future technologies are covered by the agreement. This language creates an expansive rather than a restrictive conveyance of rights. It is not reasonable to construe the phrase ?all forms? ?now or hereafter known? to exclude Defendants' alleged digital download form, which now constitutes a form of reproduction. This unambiguous language forecloses other interpretations and the need to consider extrinsic evidence.

In 1984, CDs were around, but not digital downloads, and the Court could have taken a restrictive interpretation of the contract as referring to methods of manufacture later developed and held that digital downloads were not a form of manufacture, but it didn?t. Hey ho, let?s go.

Full post as published by The Patry Copyright Blog on May 02, 2008 (boomark / email).