As promised, I am enclosing two copies of respondents' petition for rehearing. This was submitted following the decision in Mills Music. I am forwarding it to complete the collection of briefs in the case. No reply to this petition was submitted. (We have not forwarded respondents' opposition to the petition for certiorari, or our reply brief in support of that petition; these were superceded by the briefs. However, if these documents are desired, I would be happy to furnish them). With respect to the Senator's introduction of me, the following modification of the language at page 19, lines 11-14 would be accurate: "Mr. Kay is going to be accompanied by Michael Oberman, from the firm of Kramer, Levin, Nessen, Kamin & Frankel in New York, which successfully presented the Mills Music case." As I mentioned to you, a supplementary statement or two; within the next two weeks. it is likely that we will file if we do so, you will have it Sincerely, Лиш Michael S. Oberman MSO: pk MARIE SNYDER and TED SNYDER, JR., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES RESPONDENTS' PETITION FOR REHEARING HAROLD R. TYLER, JR. PATTERSON, BELKNAP, WEBB & TYLER 30 Rockefeller Plaza New York, New York 10112 Attorneys for Respondents FREDERICK T. DAVIS ROBERT P. LOBUE FREDERICK F. GREENMAN, JR. LINDEN AND DEUTSCH Of Counsel TABLE OF CONTENTS Ringer, "Renewal of Copyright," 86th Cong., 2d Sess., Copyright Law Revision, Studies prepared for the Sub- comm. on Patents, Trademarks and Copyrights of the PAGE No. 83-1153 In The SUPREME COURT OF THE UNITED STATES October Term, 1984 MILLS MUSIC, INC. Petitioner, -against MARIE SNYDER and TED SNYDER, JR., Respondents. On Writ of Certiorari to the United States RESPONDENTS' PETITION FOR REHEARING Respondents request that this Court grant rehearing and reconsider its decision rendered on January 8, 1985, or in the alternative remand the case to the District Court, because this -Court's decision rests on an erroneous factual premise. This case was decided on cross-motions for summary judgment, on the assumption that there were no material factual issues. However, industry-wide construction of and practice concerning the licenses issued by the The Harry Fox Agency ("Fox") are contrary to this Court's construction of those licenses. Respondents contended that the "terms of the grant" which are preserved by the Derivative Works Exception (17 U.S.C. §304(c)(6)(A)) are the licenses from Fox to the recording companies, and that on termination the Snyders stepped into Mills' shoes with respect to those licenses. The Court's principal reason for rejecting that contention was its finding that if the Fox "licenses are examined separately from that earlier grant 2 [from Snyder to Mills], they merely require that royalty payments be made to Mills or to Fox as the collection agent for Mills" (slip opin. p. 13). Based on that finding, the Court concluded: "If, as the Court of Appeals held, the Exception limits the relevant terms of the grant to those appearing in the individual [Fox] licenses, two rather glaring incongruities would result. *** Second, and of greater importance, there would be neither a contractual nor a statutory basis for paying any part of the derivative works royalties to the Snyders. (Slip. opin. p. 13). "The licenses issued to the record companies are the source of their contractual obligation to pay royalties; viewed apart from the 1940 grant, those licenses confer no rights on the Snyders. *** The Snyders' status as owner of the copyright gives them no right to collect royalties by virtue of the Exception from users of previous authorized derivative works.* * * The statutory transfer of ownership of the copyright cannot fairly be regarded as a statutory assignment of contractual rights. (Slip. opin. p. 14). "The contractual obligation to pay royalties survives the termination and identifies the parties to whom the payment must be made. If the Exception is narrowly read to exclude Mills from its coverage, thus protecting only the class of “utilizers” as the Snyders wish, the crucial link between the record companies and the Snyders will be missing, and the record companies will have no contractual obligation to pay royalties to the Snyders." (Slip. opin. pp. 15-16; see also dissent p. 3). The Court's finding appears to be based on the standard provision in Fox licenses which reads, with minor variations: "1. You shall pay royalties and account to us as Agent |