FILED: APPELLATE DIVISION - 1ST DEPT 01/05/2022 04:52 PM 2021-02843

NYSCEF DOC. NO. 8 To be Argued by: RECEIVED NYSCEF: 01/05/2022

ORIN SNYDER
(Time Requested: 15 Minutes)

New York Supreme Court

Appellate Division—First Department

Appellate
CLAUDIA C. LEVY as Executrix Under the Last Will and Testament Case No.:
of JACQUES M. LEVY, also known as Jacques Levy, Deceased
and JACKELOPE PUBLISHING COMPANY, INC., 2021-02843

Plaintiffs-Appellants,

– against –

ROBERT ZIMMERMAN, also known as Bob Dylan, and doing

business as Ram’s Horn Music, Special Rider Music and/or Bob Dylan Music
Co., UNIVERSAL MUSIC GROUP, INC. and doing business as Universal Music
Group, UNIVERSAL MUSIC PUBLISHING, INC and doing business as
Universal Music Publishing Group and JOHN DOES 1-10,

Defendants-Respondents.

BRIEF FOR DEFENDANTS-RESPONDENTS

GIBSON, DUNN & CRUTCHER LLP

Attorneys for Defendants-Respondents
200 Park Avenue
New York, New York 10166
On the Brief: (212) 351-4000
ORIN SNYDER osnyder@gibsondunn.com
THOMAS H. DUPREE JR. tdupree@gibsondunn.com
BRIAN C. ASCHER bascher@gibsondunn.com
ALEXANDRA PERLOFF-GILES aperloff-giles@gibsondunn.com

New York County Clerk’s Index No. 650502/21

 TABLE OF CONTENTS

Page
----

TABLES OF AUTHORITIES ................................................................................ iii

PRELIMINARY STATEMENT .............................................................................. 1

QUESTIONS PRESENTED ..................................................................................... 5

STATEMENT OF THE CASE AND FACTS ......................................................... 6

I. The 1975 Agreement ............................................................................ 6

II. The Universal Sale ............................................................................... 9

III. Trial Court Proceedings .....................................................................10

STANDARD OF REVIEW ....................................................................................11

ARGUMENT ..........................................................................................................12
I. THE TRIAL COURT CORRECTLY DISMISSED THE
BREACH OF CONTRACT CLAIM AGAINST DYLAN. ..............12

A. The 1975 Agreement’s Plain Language Forecloses

Plaintiffs’ Claims. ....................................................................13
B. Plaintiffs’ Attacks on the Trial Court’s Ruling Are
Meritless ...................................................................................19

1. The Court Was Not Required to Adopt the Kohn

Affidavit. ................................................................................... 19

2. The Trial Court Did Not Overlook the Word

“Rights” in Section 7.............................................................. 23
3. The Trial Court Did Not Conflate “Income” with
“Royalties.”............................................................................... 26

4. The Trial Court Correctly Read The Phrases “Any

and All Income” and “All Other Rights Therein”
In Context.................................................................................. 27

i
 TABLE OF CONTENTS
(continued)

Page
- --

5. The Handwritten Interlineation Is Irrelevant to this

Dispute. ...................................................................................... 28

6. Plaintiffs’ Jackelope Argument Is Frivolous And

Contradicted by Their Own Complaint. ............................ 29

7. Plaintiffs’ “Employee for Hire” Argument Is

Irrelevant and Wrong. ............................................................ 31

II. THE TRIAL COURT CORRECTLY DISMISSED THE

BREACH-OF-CONTRACT CLAIM AGAINST THE
UNIVERSAL DEFENDANTS. .........................................................34

III. THE TRIAL COURT CORRECTLY DISMISSED THE

TORTIOUS INTERFERENCE CLAIM AGAINST THE
UNIVERSAL DEFENDANTS. .........................................................37
CONCLUSION .......................................................................................................40

ii
 TABLE OF AUTHORITIES

Page(s)
Cases

150 Broadway N.Y. Assocs., L.P. v. Bodner,

14 A.D.3d 1 (1st Dep’t 2004) .................................................................11, 12, 20
Am. Express Bank Ltd. v. Uniroyal, Inc.,
164 A.D.2d 275 (1st Dep’t 1990) ....................................................................... 32

Artwear, Inc. v. Hughes,

202 A.D.2d 76 (1st Dep’t 1994) ......................................................................... 35

Ashwood Cap., Inc. v. OTG Mgmt., Inc.,

99 A.D.3d 1 (1st Dept. 2012) ............................................................................. 13
Bankfirst v. Carpenter Lake Development, Inc.,
2008 WL 2783289 (W.D. Mich. July 15, 2008)................................................. 28

Beardslee v. Inflection Energy, LLC,

25 N.Y.3d 150 (2015) ......................................................................................... 22

Beattie v. Brown & Wood,

243 A.D.2d 395 (1st Dep’t 1997) ....................................................................... 12

BIB Constr. Co. v. City of Poughkeepsie,

204 A.D.2d 947 (3d Dep’t 1994) ........................................................................ 39
Brad H. v. City of New York,
17 N.Y.3d 180 (2011) ......................................................................................... 13

Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc.,

2007 WL 1040809 (S.D.N.Y. 2007)................................................................... 29

Bridgeport Music, Inc. v. Universal Music Grp., Inc.,

440 F. Supp. 2d 342 (S.D.N.Y. 2006) ................................................................ 21

Burrowes v. Combs,
25 A.D.3d 370 (1st Dep’t 2006) ......................................................................... 39
Cantor Fitzgerald Assocs., L.P. v. Tradition N. Am., Inc.,
299 A.D.2d 204 (1st Dep’t 2002) ....................................................................... 38

iii
 TABLE OF AUTHORITIES
(continued)
Page
- --

In re Cellco P’ship,
663 F. Supp. 2d 363 (S.D.N.Y. 2009) ............................................................ 8, 25

Chase v. Warner Bros. Entm’t, Inc.,

247 F. Supp. 3d 421 (S.D.N.Y. 2017) ................................................................ 21

Cnty. of Jefferson v. Onondaga Dev., LLC,

151 A.D.3d 1793 (4th Dep’t 2017)..................................................................... 30

Cohen v. City of New York,

183 A.D.2d 436 (1st Dep’t 1992) ....................................................................... 39
Colon v. Rent-A-Center, Inc.,
276 A.D.2d 58 (1st Dep’t 2000) ......................................................................... 19

Daniel Goldreyer, Ltd. v. Van de Wetering,

217 A.D.2d 434 (1st Dep’t 1995) ....................................................................... 40
Due Pesci Inc. v. Threads for Thought, LLC,
2012 WL 987605 (N.Y. Cty. Sup. Ct. Feb. 6, 2012) .......................................... 40

Dufel v. Green,
84 N.Y.2d 795 (1995) ......................................................................................... 21

Ellington v. EMI Music, Inc.,

24 N.Y.3d 239 (2014) ......................................................................................... 21
Evans v. Famous Music Corp.,
1 N.Y.3d 452 (2004) ........................................................................................... 13
Foster v. Churchill,
87 N.Y.2d 744 (1996) ......................................................................................... 37

Fourth Ocean Putnam Corp. v. Interstate Wrecking Co.,

66 N.Y.2d 38 (1985) ........................................................................................... 35

Fox Film Corp. v. Springer,

273 N.Y. 434 (1937) ........................................................................................... 22

iv
 TABLE OF AUTHORITIES
(continued)
Page
- --

Gallo v. Moen Inc.,

813 F.3d 265 (6th Cir. 2016) .............................................................................. 16

Gary Friedrich Enters., LLC v. Marvel Characters, Inc,

716 F.3d 302 (2d Cir. 2013) ............................................................................... 33

Gephardt v. Morgan Guar. Tr. Co. of N.Y.,

191 A.D.2d 229 (1st Dep’t 1993) ....................................................................... 12

Greenfield v. Philles Records, Inc.,

98 N.Y.2d 562 (2002) ...............................................................................9, 25, 26
HTRF Ventures, LLC v. Permasteelisa N. Am. Corp.,
141 N.Y.S.3d 17 (1st Dep’t 2021) ...................................................................... 31

Jasper v. Sony Music Entm’t,

378 F. Supp. 2d 334 (S.D.N.Y. 2005) ................................................................ 21
Kass v. Kass,
91 N.Y.2d 554 (1998) ......................................................................................... 27

Kimco of N.Y., Inc. v. Devon,

163 A.D.2d 573 (2d Dep’t 1990) ........................................................................ 31

Kwan v. Schlein,
634 F.3d 224 (2d Cir. 2011) ............................................................................... 33
Leeds v. Harry,
2015 WL 609878 (N.Y. Cty. Sup. Ct. Feb. 5, 2015) .......................................... 28
Lerner v. Lerner,
120 A.D.2d 243 (2d Dep’t 1986) ........................................................................ 23

Matter of Lipper Holdings v. Trident Holdings,

1 A.D.3d 170 (1st Dep’t 2003) ........................................................................... 18

Malmsteen v. Universal Music Grp.,

940 F. Supp. 2d 123 (S.D.N.Y. 2013) ..........................................................23, 24

v
 TABLE OF AUTHORITIES
(continued)
Page
- --

Manley v. AmBase Corp.,

337 F.3d 237 (2d Cir. 2003) ............................................................................... 32

Marvel Characters, Inc. v. Simon,

310 F.3d 280 (2d Cir. 2002) ............................................................................... 33

Marvel Entm’t Grp. v. ARP Films, Inc.,

684 F. Supp. 818 (S.D.N.Y. 1988) ..................................................................... 22

Mendel v. Henry Phipps Plaza W., Inc.,

6 N.Y.3d 783 (2006) ........................................................................................... 35
Mitkowski v. Marceda,
133 A.D.3d 574 (2d Dep’t 2015) ........................................................................ 12

Moezinia v. Damaghi,
152 A.D.2d 453 (1st Dep’t 1989) ....................................................................... 11
NBT Bancorp Inc. v. Fleet/Norstar Fin. Grp., Inc.,
87 N.Y.2d 614 (1996) ......................................................................................... 37

Omni Food Sales v. Boan,

2007 WL 2435163 (S.D.N.Y. Aug. 24, 2007).................................................... 39

Penguin Group (USA) Inc. v. Steinbeck,

537 F.3d 193 (2d Cir. 2008) ............................................................................... 34
Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,
602 F.3d 57 (2d Cir. 2010) ................................................................................. 21
Poley v. Sony Music Entm’t, Inc.,
222 A.D.2d 308 (1st Dep’t 1995) ....................................................................... 21

Quadrant Structured Prods. Co. v. Vertin,

23 N.Y.3d 549 (2014) ......................................................................................... 16

Rowe v. Great Atl. & Pac. Tea Co.,

46 N.Y.2d 62 (1978) ........................................................................................... 16

vi
 TABLE OF AUTHORITIES
(continued)
Page
- --

Schmidt & Schmidt, Inc. v. Town of Charlton,

68 A.D.3d 1314 (3d Dep’t 2009) ........................................................................ 40

Silvester v. Time-Warner, Inc.,

14 A.D.3d 430 (1st Dep’t 2005) ......................................................................... 21

TCA Television Corp. v. McCollum,

151 F. Supp. 3d 419 (S.D.N.Y. 2015) ................................................................ 21

Turk v. Angel,
293 A.D.2d 284 (1st Dep’t 2002) ....................................................................... 39
W.W.W. Assocs., Inc. v. Giancontieri,
77 N.Y.2d 157 (1990) ......................................................................................... 20

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ............................................................................................ 16
Zyware, Inc. v. Middlegate, Inc.,
1997 WL 685336 (S.D.N.Y. Nov. 4, 1997)........................................................ 33

Statutes
17 U.S.C. § 201(d) ................................................................................................... 15

17 U.S.C. § 507(b) ................................................................................................... 33

Rules
CPLR 3211(a)(1)......................................................................................1, 10, 11, 12

CPLR 3211(a)(7)......................................................................................1, 10, 11, 39

Other Authorities
Black’s Law Dictionary, Exclusive Licensee (4th ed. 1968) .................................. 24

Black’s Law Dictionary, License (4th ed. 1968) ..................................................... 24

Merriam-Webster, License (n.d.) ............................................................................. 25

vii
 Defendants-Respondents Bob Dylan (d/b/a Ram’s Horn Music, Special

Rider Music, and/or Bob Dylan Music Co.) (“Dylan”), Universal Music Group,

Inc., and Universal Music Publishing, Inc. (together, “Universal”) respectfully

submit this brief in opposition to Plaintiffs-Appellants’ appeal of the Decision and

Order on Motion of the Honorable Barry R. Ostrager, Justice of the Supreme Court

of the State of New York, dated July 30, 2021, granting Defendants’ motion to

dismiss the complaint pursuant to CPLR 3211(a)(1) and 3211(a)(7).

PRELIMINARY STATEMENT

This lawsuit is Plaintiffs’ opportunistic attempt to rewrite a 45-year-old

employment contract to obtain a windfall payment that the contract does not allow.

Justice Ostrager correctly held that the contract “is clear and unambiguous on its

face when read as a whole,” R7, and dismissed the complaint. This Court should

affirm.

Bob Dylan is a Nobel laureate and world-renowned musician and

songwriter. This case involves ten of his songs. Over the course of his 60-year

career, Dylan has written more than 600 songs, including such classics as “Blowin’

in the Wind,” “Like a Rolling Stone,” “All Along the Watchtower,” and “The

Times They Are A-Changin’.” The vast majority of the songs were written by

Dylan alone; a handful were written in collaboration with other songwriters.

1
Among those are ten songs Dylan co-wrote with now-deceased songwriter Jacques

Levy (“Levy”), seven of which are on Dylan’s 1976 album “Desire.”

In late 2020, in a widely reported transaction, Dylan sold his entire catalog

of songs to Universal, relinquishing forever all rights and interests in the songs for

a lump-sum payment (the “Universal Sale”). After learning of the Universal Sale,

Plaintiff Claudia Levy, the executrix of Levy’s estate, saw an opportunity to

extract money from Dylan. Plaintiffs filed this breach-of-contract action seeking a

substantial cut of the purchase price Universal paid to Dylan. As Justice Ostrager

correctly held, Plaintiffs were not entitled to any proceeds from the sale transaction

under the clear and unambiguous terms of the parties’ contract.

The contract at issue (the “1975 Agreement”) is a standard work-for-hire

agreement between Dylan and Levy. It grants Dylan full ownership of the

copyrights in the ten songs on which the two collaborated, making the songs

Dylan’s “sole property,” and giving him the exclusive right to sell the copyrights.

R131, R134. The 1975 Agreement designates Levy as the “Employee” and

specifies his compensation as a portion of the royalty payments Dylan received

from licensing the songs for things like TV commercials or motion pictures. R132.

Nothing in the 1975 Agreement remotely suggests that the parties agreed to bestow

on Levy the windfall Plaintiffs demand here. As the trial court correctly held, “the

plain meaning of the 1975 Agreement is that the Dylan Defendants owned all

2
copyrights to the Compositions, as well as the absolute right to sell the

Compositions and all associated rights, subject only to plaintiffs’ right to receive

the compensation specified in the 1975 Agreement, which does not include any

portion of the proceeds from Dylan’s sale of his own rights to the Universal

Defendants.” R7.

The compensation provision in Section 7 of the 1975 Agreement is clear and

indisputable. As the trial court found, R9, it entitles Levy to a share of the revenue

from use of the songs—and nothing more. Section 7 identifies the main ways in

which the songs can be licensed and expressly provides that Levy gets 35% of the

“income” paid by “licensees.” It does not say anything about giving Levy a cut of

the proceeds from the sale of Dylan’s copyrights in the songs. The trial court

correctly held that the “plain language” of the 1975 Agreement “unambiguously

limits plaintiffs’ compensation rights to 35% of monies received by Dylan for

licensing rights.” R9.

Even in the section of the 1975 Agreement addressing a potential sale of the

copyrights, Section 9, the parties did not grant Levy a right to any of the sale

proceeds. Rather, they confirmed that Dylan had the “right to assign, transfer, sell

or otherwise dispose of the Compositions and all copyrights,” and that Levy’s

compensation was limited to ongoing royalty payments under Section 7. R134.

The licensing of songs to different licensees for specified uses is categorically

3
different than a sale of ownership in those songs in exchange for a one-time

payment. Recognizing this, the trial court observed that “[a] right as significant as

the purported right to a percentage of the proceeds from Dylan’s sale of his

copyrights and royalty rights is a material term that the parties would have

expressly stated in the [1975] Agreement had they intended to include it.” R13.

In selling his catalog, Dylan gave up his right to future royalty income from

the songs. Plaintiffs, in contrast, gave up nothing in the Universal Sale. To the

contrary, in purchasing the song catalog, Universal agreed to assume the

obligation, as the “Publisher” under the 1975 Agreement, to pay royalties to

Plaintiffs, and as the trial court said, “Plaintiffs do not dispute that the Universal

Defendants have continued to pay plaintiffs their proportionate share of royalties

pursuant to the 1975 Agreement since the Catalog Sale.” R5. Thus, for Plaintiffs,

the revenue stream from royalties will continue; the only effect of the Universal

Sale is that the royalty checks to which Plaintiffs are entitled under Section 7 will

now come from Universal rather than from Dylan.

Nevertheless, Plaintiffs seek an impermissible double-dip. They want both

the continuing royalty payments from Universal and a piece of what Universal

paid to buy out Dylan. It would be commercially unreasonable, grossly unfair, and

downright absurd to pay Plaintiffs their continued stream of royalty payments in

addition to a share of the sale money when the only rights relinquished in the sale

4
were Dylan’s, not Plaintiffs’. As the trial court concluded, giving the Agreement

“the meaning urged by plaintiffs would grant them a windfall consisting of a

portion of the proceeds of Dylan’s sale of his own copyrights without any change

whatsoever in plaintiffs’ continued right to royalties under the Agreement.” R12.

Plaintiffs’ claims against Universal are also meritless. The trial court

correctly held that Plaintiffs lack standing to sue Universal for allegedly breaching

the agreement between Dylan and Universal (the “Universal Contract”) because

Plaintiffs are neither signatories nor third-party beneficiaries to that contract, and

there was no breach in any event. R16–18. Likewise, the trial court properly

dismissed the tortious interference claim against Universal because the complaint

does not adequately allege a breach of the 1975 Agreement, let alone one caused

by Universal. R18–20.

This Court should hold Plaintiffs to the plain terms of the contract Levy

signed 45 years ago and affirm the trial court’s decision to dismiss this entire

lawsuit with prejudice.

QUESTIONS PRESENTED

1. Whether the breach of contract claim against Dylan should be

dismissed, where the 1975 Agreement limits Plaintiffs to a share of licensing

revenues and does not entitle them to a share of proceeds from the sale of the

copyrights. The trial court dismissed the claim.

5
 2. Whether the breach of contract claim against the Universal

Defendants should be dismissed, where Plaintiffs were neither signatories nor

third-party beneficiaries to the Universal Contract, did not allege any breach of that

contract, and have not suffered any damages. The trial court dismissed the claim.

3. Whether the tortious interference with contract claim against the

Universal Defendants should be dismissed, where no breach of the 1975

Agreement occurred and, even if there had been a breach, Plaintiffs did not allege

facts establishing that the Universal Defendants were the but-for cause of such

purported breach. The trial court dismissed the claim.

STATEMENT OF THE CASE AND FACTS

I. The 1975 Agreement

Bob Dylan is widely regarded as one of the greatest songwriters of all time.

His lyric writing earned him the Nobel Prize for Literature in 2016. Over the

course of his legendary 60-year career, Dylan has sold tens of millions of albums

and written more than 600 songs, including such classics as “Blowin’ in the

Wind,” “Like a Rolling Stone,” “All Along the Watchtower,” and “The Times

They Are A-Changin’.” Although Dylan generally writes his songs himself, in

rare instances he has collaborated with other songwriters. R120. Among those

collaborators was Jacques Levy, a psychologist, theater director, and lyricist, with

6
whom Dylan wrote ten songs, seven of which were included on Dylan’s 1976

album, “Desire.” See R119–20.

Dylan and Levy formalized their collaboration in a July 1975 work-for-hire

Agreement between Ram’s Horn Music (a d/b/a name for Bob Dylan, but not a

formal corporate entity) as “Publisher” and Levy as “Employee.” R131–36. The

1975 Agreement, which “the parties extensively negotiated with the assistance of

counsel,” R7, provided that Dylan was the sole owner of the copyright in the ten

songs covered by the 1975 Agreement (the “Compositions”). Levy was an

“employee-for-hire,” whose compensation was limited to a share of the revenue

from licensing the songs.

Section 1 of the 1975 Agreement defines the relationship between the parties

as an employment relationship:

Publisher [Dylan’s company Ram’s Horn Music] hereby employs Employee

[Levy] as its employee-for-hire and Employee accepts such employment to
write the lyrics of certain original musical compositions, which lyrics shall
be co-written by and with Bob Dylan (hereinafter referred to as the
“Compositions”).

R131. The six-page 1975 Agreement goes on to state 84 times that the relationship

between Dylan and Levy was one of Employer and Employee. See R131–36.

Consistent with this relationship, Section 2 grants Dylan complete and

exclusive ownership of the Compositions and all associated rights:

It is understood and agreed that the Compositions shall automatically be and

become sole property of Publisher [Dylan], everywhere and forever, with all

7
 copyrights therein . . . . Employee [Levy] hereby sells, assigns, transfers and
sets over unto Publisher all Employee’s right, title and interest in and to the
Compositions . . . , and all Employee’s rights of whatsoever nature . . . . All
Employee’s rights in the Compositions shall vest in Publisher immediately
upon their creation. . . . . Publisher shall be deemed the author thereof with
respect to the material written by Employee hereunder, with Employee
acting as Publisher’s employee-for-hire hereunder.
R131.

Section 9 addresses a possible sale by Dylan of his copyrights. It provides

that Dylan “shall have the right to . . . sell . . . the Compositions and all

copyrights,” subject only to “the payment of compensation to Employee as herein

provided.” R134.

Section 7 specifies Levy’s compensation in his capacity as the “Employee.”

Section 7(a) grants Levy a share of royalty income—specifically, 35% of “any and

all income earned by the Compositions and actually received by Publisher from

mechanical rights, electrical transcriptions, reproducing rights, motion picture

synchronization and television rights, and all other rights therein . . . in the United

States and Canada.” R132.

These enumerated rights correspond to the major royalty streams for a music

composition copyright—that is, to the different ways a song can be distributed and

monetized. Mechanical rights are the rights to reproduce songs to be played via

audio cassettes, CDs, and digital formats, outside of a motion picture or other

audiovisual work. See, e.g., In re Cellco P’ship, 663 F. Supp. 2d 363, 369

8
(S.D.N.Y. 2009). Electrical transcriptions refer to special phonograph recordings

made exclusively for radio broadcasting. Reproducing rights (as used here) refer

to the right to reproduce songs for use in, for example, consumer products.

Synchronization rights are the rights to use a musical composition in

synchronization with visuals in audiovisual works, such as commercials, movies or

television shows. See, e.g., Greenfield v. Philles Records, Inc., 98 N.Y.2d 562,

567 (2002). In addition to these primary royalty streams, there are additional ways

copyright owners can exploit their copyright in a musical composition. For

example, the handwritten interlineation in Section 7(a) mentions the right to option

the use of a composition as the basis for a “screenplay, teleplay or dramatic work.”

R132.

From 1975 until the Universal Sale in 2020, Dylan faithfully paid Plaintiffs

35% of royalty income under Section 7(a) of the Agreement. All told, Dylan paid

Plaintiffs more than $1,000,000 over this period. R4.

II. The Universal Sale

On November 20, 2020, Dylan and Universal entered into the Universal

Contract for the sale of Dylan’s entire catalog of more than 600 songs. R123. In

exchange for a lump-sum payment, Dylan gave up “all of [his] rights with respect

to every song in [his] song catalog,” including all future licensing income he would

have received as the owner. Id. As a result, Dylan no longer owns the copyrights

9
in the ten songs covered by the 1975 Agreement or has any right to receive

royalties from their exploitation.

At the same time Dylan extinguished his own rights in the songs, he made

sure that Plaintiffs’ right to compensation from future uses of the songs was

preserved. Section 16 of the 1975 Agreement provides that, in the event of a sale,

the new owner assumes the role of “Publisher” and takes on Dylan’s obligations

under the 1975 Agreement. See R136. There is no dispute that Universal has paid

Plaintiffs all royalties owed since it acquired Dylan’s catalog. See R5.

III. Trial Court Proceedings

Levy’s widow Claudia Levy, as executrix under Jacques Levy’s will, and

Jackelope Publishing Company, Inc., a New York music publishing company

created and owned by Levy, filed this lawsuit on January 20, 2021. The complaint

asserts three causes of action: breach of contract against Dylan, breach of contract

against Universal, and tortious interference with contract against Universal.

Defendants moved to dismiss under CPLR 3211(a)(1) and 3211(a)(7). On

July 30, 2021, following oral argument, Justice Ostrager dismissed all claims with

prejudice. As the court explained, the 1975 Agreement provides that Dylan

“owned all copyrights to the Compositions, as well as the absolute right to sell the

Compositions and all associated rights, subject only to plaintiffs’ right to receive

the compensation specified in the 1975 Agreement, which does not include any

10
portion of the proceeds from Dylan’s sale of his own rights to the Universal

Defendants.” R7. The court concluded that the 1975 Agreement was “clear and

unambiguous on its face when read as a whole,” and its “plain language . . .

preclud[es] plaintiffs’ claim to any portion of the proceeds of Dylan’s sale of his

complete copyrights and royalty rights.” R7, R11.

The trial court also held that Plaintiffs’ claims against the Universal

Defendants failed for many reasons. It concluded that Plaintiffs’ breach of contract

claim failed because Plaintiffs lacked standing as third-party beneficiaries to

enforce the Universal Contract, and because they failed to identify a breach. R16–

18. And the court concluded that Plaintiffs’ tortious interference with contract

claim failed because there was no breach of the 1975 Agreement, and, even if there

had been a breach, Plaintiffs failed to allege sufficient facts establishing causation

and damages. R18–20.

STANDARD OF REVIEW

This Court reviews de novo an appeal from the grant of a motion to dismiss.

See Moezinia v. Damaghi, 152 A.D.2d 453, 457 (1st Dep’t 1989). Dismissal is

required under CPLR 3211(a)(7) where “the pleading fails to state a cause of

action.” Dismissal is also required under CPLR 3211(a)(1) “where ‘the

documentary evidence submitted conclusively establishes a defense to the asserted

claims as a matter of law.’” 150 Broadway N.Y. Assocs., L.P. v. Bodner, 14

11
A.D.3d 1, 5 (1st Dep’t 2004) (citation omitted); Gephardt v. Morgan Guar. Tr. Co.

of N.Y., 191 A.D.2d 229, 229 (1st Dep’t 1993) (affirming dismissal because the

“documents submitted resolve[d] all of the factual issues as a matter of law” in

defendant’s favor). When documentary evidence such as a contract forecloses

allegations of breach, the claim must be dismissed “even if the allegations,

standing alone, could withstand a motion to dismiss.” Mitkowski v. Marceda, 133

A.D.3d 574, 575 (2d Dep’t 2015) (affirming dismissal under CPLR 3211(a)(1));

see also 150 Broadway, 14 A.D.3d at 8 (contract established defendants were

entitled to dismissal); Beattie v. Brown & Wood, 243 A.D.2d 395, 395 (1st Dep’t

1997) (same).

ARGUMENT

The trial court correctly dismissed all three of Plaintiffs’ claims and its

judgment should be affirmed.

I. THE TRIAL COURT CORRECTLY DISMISSED THE BREACH OF

CONTRACT CLAIM AGAINST DYLAN.

The provisions of the 1975 Agreement, when read as an integrated whole,

make clear that Levy is not entitled to a share of the proceeds from the sale of

Dylan’s copyrights. Section 7 of the 1975 Agreement specifies Levy’s

compensation as the “Employee.” Levy gets a percentage of royalties from

licenses granted to third parties to use the songs. R132–34. As the owner, Dylan

can always sell the songs. Section 9 makes this clear by giving Dylan, as the

12
“Publisher” and owner, the right to sell the copyrights—conditioned only on the

new owner assuming the Section 7 obligation to continue paying Levy his

specified compensation. R134. Nothing in the 1975 Agreement entitles Levy to a

share of sale proceeds. As the trial court concluded, “the plain language in [the

1975 Agreement] . . . unambiguously limits plaintiffs’ compensation rights to 35%

of monies received by Dylan for licensing rights granted to third-parties for the

performance and use of the Compositions but not for any portion of the proceeds

from Dylan’s sale of his complete copyrights . . . that were explicitly vested in him

alone pursuant to the express terms of the 1975 Agreement.” R9.

A. The 1975 Agreement’s Plain Language Forecloses Plaintiffs’

Claims.
It is “well settled that [the court’s] role in interpreting a contract is to

ascertain the intention of the parties at the time they entered into the contract. If

that intent is discernible from the plain meaning of the language of the contract,

there is no need to look further.” Evans v. Famous Music Corp., 1 N.Y.3d 452,

458 (2004); see also Brad H. v. City of New York, 17 N.Y.3d 180, 185 (2011) (“A

written agreement that is clear, complete and subject to only one reasonable

interpretation must be enforced according to the plain meaning of the language

chosen by the contracting parties.”). Courts “apply this rule with even greater

force in commercial contracts” like this one, that were “negotiated at arm’s length

by sophisticated, counseled businesspeople.” Ashwood Cap., Inc. v. OTG Mgmt.,

13
Inc., 99 A.D.3d 1, 7 (1st Dept. 2012). Here, the plain language of the 1975

Agreement precludes Plaintiffs’ effort to reap an unjustified windfall from the sale

of Dylan’s copyrights.

Levy’s compensation as the Employee is established by Section 7, which

provides, in relevant part:

In consideration of Employee’s services hereunder . . . Publisher

shall pay, or shall request third parties as hereinafter specified, to pay
Employee the following compensation with respect to the
Compositions:
(a) Thirty-five (35%) percent of any and all income earned by
the Compositions and actually received by Publisher from mechanical
rights, electrical transcriptions, reproducing rights, motion picture
synchronization and television rights, and all other rights therein,
(expressly excluding any income or royalties earned in respect of
printed editions of the Compositions) in the United States and Canada.

R132. There is nothing in this language that entitles Levy to a share of proceeds

from the sale of Dylan’s copyrights. To the contrary, Section 7 limits Levy to a

share of royalties—that is, the income from licensing the copyrights. This is

confirmed by the last two sentences of Section 7(a):

Publisher shall have the right, but not the obligation, to cause and direct its
licensees to pay the aforesaid income directly to Employee or his designee.
Direct payment to Employee or his designee by Publisher’s licensees shall
relieve Publisher of any obligation to pay Employee such income.
R133 (emphasis added). In providing that the “aforesaid income”—that is, the

“income” that triggers the Publisher’s compensation obligation in Section 7(a)—is

14
income paid by “licensees,” the parties plainly understood Section 7(a) to refer to

licensing revenues alone.

The contract does not say that Levy gets a share of sale proceeds. This was

not an inadvertent oversight. One of the key rights of a copyright owner is the

right to sell the copyright, see 17 U.S.C. § 201(d), and the 1975 Agreement devotes

an entire Section, Section 9, to Dylan’s right to sell the songs. See R134

(“Publisher shall have the right to assign, transfer, sell or otherwise dispose of the

Compositions and all copyrights and renewals or extensions thereof and other

rights granted Publisher hereunder, either expressly or by operation of law subject,

however, to the payment of compensation to Employee as herein provided.”).

Dylan’s unfettered right to sell the copyrights is fully consistent with Section 2,

which states that the Compositions are the “sole property of Publisher,” and that,

for the avoidance of doubt, any rights “of whatsoever nature” Levy may have had

in the Compositions were “s[old], assign[ed], transfer[red] and set[] over unto

Publisher” upon execution of the 1975 Agreement. R131. Had the parties

intended for Levy to share in the proceeds of a sale, they would have so provided

in the 1975 Agreement. They did not. Defendants’ interpretation is consistent

with the typical relationship between a business owner and its employee: The

owner can sell the assets of his business and keep the sale proceeds.

15
 Section 6 provides that Levy is not “entitled to receive any compensation or

remuneration other than as in this agreement specifically provided.” R132. And

neither Section 7, nor Section 9, nor any other Section in the 1975 Agreement so

much as hints—much less “specifically provide[s]”—that Levy is entitled to any

portion of sale proceeds. “Courts should be extremely reluctant to interpret an

agreement as impliedly stating something which the parties have neglected to

specifically include.” Rowe v. Great Atl. & Pac. Tea Co., 46 N.Y.2d 62, 72

(1978); see also Quadrant Structured Prods. Co. v. Vertin, 23 N.Y.3d 549, 560

(2014) (“[I]f parties to a contract omit terms—particularly, terms that are readily

found in other, similar contracts—the inescapable conclusion is that the parties

intended the omission.”).

That principle applies with particular force here, where Section 7(a)

expressly confers limited rights—spelling out the details of payments from

licensing mechanical rights, for example—but makes no mention of a right to sale

proceeds, which is a far more important and valuable right than all the other rights

listed. Contracts, like statutes, are presumed not to “hide elephants in

mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001); cf.

Gallo v. Moen Inc., 813 F.3d 265, 269 (6th Cir. 2016) (applying this principle to

contract interpretation). Given that the parties expressly identified the specific

licensing arrangements for which Levy would be paid compensation, there is no

16
valid basis to interpret the 1975 Agreement as impliedly giving Levy the greatest

treasure of them all—a share in the proceeds from the sale of the copyrights. See

R13 (“A right as significant as the purported right to a percentage of the proceeds

from Dylan’s sale of his copyrights and royalty rights is a material term that the

parties would have expressly stated in the [1975] Agreement had they intended to

include it.”).

Section 16 confirms the compensation provision in Section 7 is confined to a

portion of royalty payments that the Publisher receives from a third-party licensee.

Section 7 entitles Levy to a share of certain types of “income . . . received” by the

Publisher. Section 16 defines Publisher to mean not just Dylan, but Dylan’s

“designees, successors [and] assigns”—i.e., Universal. R136. Money paid to

Dylan for the sale of his catalog is not “income . . . received” by the Publisher

because the defined term “Publisher” includes both Dylan and Universal. Even if

Dylan received income from the sale, Universal paid that amount—and

consequently the “Publisher” did not receive income from the transaction. In

short, Section 7 excludes proceeds from a sale of the copyrights because the new

owner is the Publisher and does not receive income from buying the copyrights.

The parties’ decision to define “Publisher” as including the new owner of

the copyrights makes perfect sense. By binding the new owner to the terms of the

1975 Agreement, Section 16 ensured that Levy would continue receiving his share

17
of licensing royalties notwithstanding a change in ownership of the copyrights. If

Universal were not understood to be the Publisher in Section 7, Levy’s entitlement

to a continuing stream of royalty payments would evaporate. And Section 16 has

worked just as the parties intended. Universal, now standing in Dylan’s shoes as

the Publisher under the 1975 Agreement, has assumed the obligation to make

royalty payments to Plaintiffs—and has been making the payments. See R5

(“Plaintiffs do not dispute that the Universal Defendants have continued to pay

plaintiffs their proportionate share of royalties pursuant to the 1975 Agreement

since the Catalog Sale.”).

Finally, Plaintiffs’ interpretation would lead to results that are “absurd,

commercially unreasonable, [and] contrary to the reasonable expectations of the

parties.” Matter of Lipper Holdings v. Trident Holdings, 1 A.D.3d 170, 171 (1st

Dep’t 2003) (citations omitted). In Lipper, this Court rejected an interpretation of

a partnership agreement that would have “bestow[ed] a windfall on certain limited

partners.” Id. That reasoning applies with full force here. Plaintiffs’ interpretation

of the 1975 Agreement would “bestow a windfall” by allowing them to profit from

the sale to Universal without giving up (as Dylan did) any copyright interest

(indeed, Plaintiffs did not possess any copyright interests) or other rights. It would

also provide Plaintiffs with a “double-dip”—both the future royalty streams from

Universal and a share of the lump sum payment Universal made to Dylan to buy

18
out the copyrights and his right to future royalties. This is precisely the kind of

absurd and commercially unreasonable result that courts must avoid.

B. Plaintiffs’ Attacks on the Trial Court’s Ruling Are Meritless

Plaintiffs unleash a torrent of confusing, self-contradictory, and

unpersuasive attacks on the trial court’s plain-language construction of the 1975

Agreement. Plaintiffs urge this Court to use extrinsic evidence to override the

1975 Agreement’s clear and unambiguous language, they reject fundamental

canons of contract interpretation, and they advance a tortured reading that the text

of the 1975 Agreement does not support and that makes no commercial sense.

1. The Court Was Not Required to Adopt the Kohn Affidavit.

Plaintiffs filed a supplemental legal brief in the form of an affidavit from an

ostensible “expert,” Bob Kohn, that purported to interpret the 1975 Agreement and

offered Kohn’s reflections on “custom and practice” in the music industry. The

trial court did not err in declining to adopt Kohn’s opinion. Appellants’ Br. 19–25.

Kohn’s affidavit brazenly violates the rule that “expert witnesses should not

be called to offer opinion as to the legal obligations of parties under a contract.”

Colon v. Rent-A-Center, Inc., 276 A.D.2d 58, 61 (1st Dep’t 2000). This is

particularly so where, as here, the “expert opinion” is comically one-sided and

rejects the plain meaning of the parties’ contract. As Justice Ostrager put it, “Kohn

improperly usurps the Court’s function to interpret the [1975] Agreement by

19
cherry-picking words and phrases and assigning them meanings that ignore the

surrounding words and are inconsistent with the 1975 Agreement when read as a

whole.” R12. Justice Ostrager was not required to stand down and abdicate his

judicial authority by giving Kohn the power to determine the parties’ legal

obligations.

The trial court rejected the affidavit for another reason: Kohn’s musings

about music industry custom and practice are irrelevant extrinsic evidence that

cannot “alter the meaning of the terms of the [1975] Agreement.” R11. Because

the 1975 Agreement is clear and unambiguous, extrinsic evidence is inadmissible

and cannot be used to manufacture an ambiguity. See W.W.W. Assocs., Inc. v.

Giancontieri, 77 N.Y.2d 157, 163 (1990) (extrinsic evidence “not admissible to

create an ambiguity in a written agreement which is complete and clear and

unambiguous upon its face”); 150 Broadway N.Y. Assocs., L.P. v. Bodner, 14

A.D.3d 1, 5–6 (1st Dep’t 2004) (affirming dismissal of breach-of-contract action

where contract language unambiguously contradicted plaintiff’s allegations,

“regardless of any extrinsic evidence or self-serving allegations offered by the

proponent of the claim”). Defendants’ citation to a treatise written by Kohn in one

of their briefs obviously does not amount to an admission that Kohn’s affidavit is

somehow relevant or that the 1975 Agreement is ambiguous, especially when

Defendants have argued from the start that this is a plain-language case. See R58

20
(Justice Ostrager: Defendants are “prepared to have [their] motion [to dismiss]

succeed or fail based on the terms of the agreement . . . .”).

Plaintiffs say that because the 1975 Agreement concerns “technical or

specialized subject matter, such as copyrights” and contains “music industry

contract terms,” Justice Ostrager—a “layman,” in Plaintiffs’ patronizing view,

Appellants’ Br. 2, 3, 6—had to defer to the “expert” opinion of Kohn. Appellants’

Br. 20. Nonsense. There is nothing special about the music industry that prevents

judges from performing their usual job of interpreting contracts in deciding

motions to dismiss. See, e.g., Ellington v. EMI Music, Inc., 24 N.Y.3d 239, 248

(2014); Silvester v. Time-Warner, Inc., 14 A.D.3d 430 (1st Dep’t 2005); Poley v.

Sony Music Entm’t, Inc., 222 A.D.2d 308, 309 (1st Dep’t 1995); Bridgeport Music,

Inc. v. Universal Music Grp., Inc., 440 F. Supp. 2d 342, 344–46 (S.D.N.Y. 2006).

The same is true with copyright questions. See, e.g., Peter F. Gaito Architecture,

LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010); Chase v. Warner Bros.

Entm’t, Inc., 247 F. Supp. 3d 421, 424–27 (S.D.N.Y. 2017); TCA Television Corp.

v. McCollum, 151 F. Supp. 3d 419, 437 (S.D.N.Y. 2015); Jasper v. Sony Music

Entm’t, 378 F. Supp. 2d 334, 346 (S.D.N.Y. 2005).

Plaintiffs’ cases are readily distinguishable. For example, Dufel v. Green, 84

N.Y.2d 795, 798 (1995) (cited in Appellants’ Br. 19 n.19), was a personal injury

case that did not involve a contract, and the cited passage refers to the admissibility

21
of expert testimony at trial. Other cases note that when a contract term can

reasonably be interpreted in at least two ways, or an agreement is “not clear on the

scope of the rights granted to plaintiffs,” industry practice and custom can inform

the understanding of the parties’ intent. See Appellants’ Br. 23–25 (citing

Beardslee v. Inflection Energy, LLC, 25 N.Y.3d 150, 157 (2015) and Marvel

Entm’t Grp. v. ARP Films, Inc., 684 F. Supp. 818, 822 (S.D.N.Y. 1988)). But here,

as the trial court recognized, the contract is not ambiguous.

Nor does this case turn on the meaning of “specialized industry

terminology.” Appellants’ Br. 24. Plaintiffs’ cases involved circumstances where

the court determined that it was “illiterate” and “unschooled” in “the special or

technical meaning of words used in the profession or art of the parties.” Fox Film

Corp. v. Springer, 273 N.Y. 434, 437 (1937); see also, e.g., Beardslee, 25 N.Y.3d

at 157 (noting that “oil and gas leases” are “made in the context of a highly

technical industry” and “stand on an entirely different basis from any other

leasehold agreements”). Here, in contrast, the terms Plaintiffs allege the trial court

misconstrued are non-technical terms such as “rights” and “income.” Appellants’

Br. 27–35. Justice Ostrager was neither “illiterate” nor “unschooled” in the

meaning of the words at issue, and, as shown above, courts routinely interpret

agreements involving the music industry and copyright without resort to extrinsic

evidence. See supra page 21(collecting cases).

22
 As even Plaintiffs’ authorities recognize, “[i]t is a well-settled tenet of . . .

general contract law that ambiguity should not be found where none in fact exists.”

Lerner v. Lerner, 120 A.D.2d 243, 247 (2d Dep’t 1986) (cited in Appellants’ Br.

24–25). In the words of Justice Ostrager, “the Court has no need to resort to

custom and practice because the 1975 Agreement, as plainly written, does not

entitle plaintiffs to any portion of the proceeds of Dylan’s sale of his copyrights

and royalty rights.” R15.

2. The Trial Court Did Not Overlook the Word “Rights” in

Section 7.
Plaintiffs contend that the phrase “all other rights therein” in Section 7 must

encompass the sale of the copyrights themselves. Appellants’ Br. 27–30. This is

wishful thinking: The word “rights” simply cannot bear the meaning Plaintiffs

ascribe to it.

The trial court applied the ejusdem generis canon, which provides that a

general phrase that follows a list of specific terms “must be interpreted to refer to

items of the same ilk as those specifically listed.” Malmsteen v. Universal Music

Grp., 940 F. Supp. 2d 123, 133 (S.D.N.Y. 2013). The court reasonably and

correctly concluded that “the phrase ‘all other rights therein’ at the conclusion of

the list logically refers back to the list and implies no intent to expand it beyond

royalty rights to include a right to sales proceeds.” R12. Whether one calls

“mechanical rights, electrical transcriptions, reproducing rights, [and] motion

23
picture synchronization and television rights” rights or licenses, they all involve

permission to use the compositions in a particular way in exchange for royalty

payments to the copyright owner. They are not “of the same ilk” as a sale of the

copyright itself. Malmsteen, 940 F. Supp. 2d at 133.

The surrounding language makes this even clearer. Section 7 goes on to

provide that the “income” discussed in Section 7 is money paid by “licensees.”

See R133 (“Publisher shall have the right, but not the obligation, to cause and

direct its licensees to pay the aforesaid income directly to Employee or his

designee. Direct payment . . . by Publisher’s licensees shall relieve Publisher of

any obligation to pay . . . .”). Contrary to Plaintiffs’ contention, those sentences

are not limited to “mechanical rights income from the manufacture and sale of

phonograph records in the United States and Canada.” Appellants’ Br. 28. There

is no basis for concluding that the parties wanted Dylan to be able to authorize

direct payment to Levy for some types of royalty revenue (mechanical rights) but

not other types (such as synchronization rights).

Plaintiffs’ argument is further undermined by dictionary definitions of

“license” making clear that “rights” are routinely conveyed through licenses. See

Black’s Law Dictionary, License (4th ed. 1968) (“To ‘license’ means to confer

right or power which does not exist without it.”); cf. Black’s Law Dictionary,

Exclusive Licensee (4th ed. 1968) (“One granted exclusive right and license to use,

24
manufacture, and sell patented article.”); Merriam-Webster, License (n.d.) (“a

grant by the holder of a copyright or patent to another of any of the rights

embodied in the copyright or patent short of an assignment of all rights”). These

definitions reinforce the common-sense reading of Section 7 as allowing

compensation based on royalty payments for the granting, via licenses, of certain

rights in the Compositions.

The trial court cited In re Cellco Partnership, 663 F. Supp. 2d 363

(S.D.N.Y. 2009), and Greenfield v. Philles Records, Inc., 98 N.Y.2d 562 (2002), to

support its holding. R9. Plaintiffs’ discussion of these authorities, Appellants’ Br.

28–30, does not help their case. The question in Cellco was whether Verizon,

which sells ringtones, required a public performance license for musical

compositions. After identifying the various rights in the “bundle[] of rights” held

by the owner of a musical composition copyright, and noting that these rights may

be licensed separately (as the 1975 Agreement also recognizes), the court held

Verizon’s transmission of a ringtone does not require a license. Cellco, 663 F.

Supp. 2d at 368, 371. Greenfield held that the contract at issue “unambiguously

g[ave] defendants unconditional ownership rights to the master recordings,” and

that “the contract’s silence on synchronization and domestic licensing” did not

“create an ambiguity which opens the door to the admissibility of extrinsic

evidence.” 98 N.Y.2d at 569–70; see id. at 573 (“[S]ilence does not equate to

25
contractual ambiguity.”). It reaffirmed the fact that “long-settled common-law

contract rules still govern the interpretation of agreements” in the music business,

notwithstanding “the technological innovations that continue to revolutionize the

recording industry.” Id. at 569. And it ruled that copyright ownership is

presumptively unfettered such that the artist who transferred “full ownership

rights” was not entitled to “shar[e] in the profits.” Id. at 573. So too here. Dylan,

as the copyright owner, had “unconditional ownership rights,” and the contract’s

silence regarding any entitlement of Plaintiffs to a share of the proceeds from a

sale of Dylan’s copyrights does not “create an ambiguity” or permit the

introduction of extrinsic evidence.

3. The Trial Court Did Not Conflate “Income” with

“Royalties.”

Plaintiffs contend the trial court erroneously rejected “extrinsic evidence

from Kohn” that there are “differences” between “income” and “royalties.”

Appellants’ Br. 30–32. This argument is misplaced for many reasons.

For starters, the trial court correctly declined to consider extrinsic evidence

because the 1975 Agreement’s language is clear and unambiguous. See supra

Section I.B.1. Nor did the trial court conflate the two, and its opinion did not turn

on this distinction in any event. Rather, the trial court correctly interpreted Section

7 as allowing for compensation based on “income” generated by certain types of

royalty payments arising from licenses and other ways of exploiting the

26
compositions. That is a natural reading of the contract and the one that makes

commercial sense. The trial court did not err in declining to consider Kohn’s

extrinsic evidence concerning the meaning of these well-known terms.

4. The Trial Court Correctly Read The Phrases “Any and All
Income” and “All Other Rights Therein” In Context.

Plaintiffs violate the fundamental rule of contract interpretation when they

rip the phrases “any and all income” and “all other rights therein” from their

surrounding context, and urge this Court to consider them in isolation. Appellants’

Br. 32–35. The Court of Appeals has long instructed that “[p]articular words”

cannot be “isolated from the context,” but must be read “in the light of the

obligation as a whole.” Kass v. Kass, 91 N.Y.2d 554, 566 (1998).

The phrase “any and all income” is qualified in key respects. It is limited to

income that is “actually received by Publisher,” R132, meaning that it excludes

money paid to Dylan by Universal, the new “Publisher” under the 1975

Agreement, because no income was “received by Publisher” in that inter-Publisher

transfer. See supra page 17. In addition, it is limited to income actually received

by the Publisher from the licensing of specified rights, e.g., mechanical rights,

electrical transcriptions, reproducing rights, and synchronization rights. The

phrase “all other rights therein” is similarly limited. As the trial court explained,

“the phrase ‘all other rights therein’ at the conclusion of the list logically refers

back to the list and implies no intent to expand it beyond royalty rights to include a

27
right to sale proceeds.” R12. The parties did not need to “draft [an] express

exclusion” of sale proceeds into Section 7, Appellants’ Br. 38, because the

reasonable reader would not understand sale proceeds to be included in, or akin to,

the forms of licensing revenue enumerated in that Section.

Plaintiffs fault the trial court for not citing Bankfirst v. Carpenter Lake

Development, Inc., 2008 WL 2783289 (W.D. Mich. July 15, 2008), but the court

can hardly be blamed for not discussing an irrelevant out-of-state case. The

contract at issue there, unlike the 1975 Agreement here, placed no “limitation” on

the phrase “all income.” Id. at *2–*3. Plaintiffs also cite Leeds v. Harry, 2015

WL 609878 (N.Y. Cty. Sup. Ct. Feb. 5, 2015), but that case is irrelevant too. As

the trial court recognized, the contractual provisions at issue there “are not at all

similar to those in the 1975 Agreement.” R14–15. They swept far more broadly

by including “virtually every type of payment or income.” Leeds, 2015 WL

609878, at *2. Leeds therefore “provides no guidance beyond the rules of contract

interpretation,” R15, and does not compel a different outcome here.

5. The Handwritten Interlineation Is Irrelevant to this

Dispute.

Plaintiffs fundamentally misunderstand and distort the handwritten

interlineation in Section 7(a). It gives Levy a share of the proceeds if “rights to a

Composition are acquired by a third party for use for the basis for a screenplay,

teleplay, or dramatic work.” R132. Contrary to Plaintiffs’ suggestion, see

28
Appellants’ Br. 35–37, the interlineation does not refer to the sale of the copyright

itself. Rather, just like the other enumerated rights in Section 7(a), the

interlineation refers to a form of revenue from exploitation of one’s copyright. As

the trial court explained, “[t]he third party is obviously not purchasing all rights to

the Composition but is purchasing a limited right to use the song for the specified

purpose.” R13; see also Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., 2007

WL 1040809, at *6 (S.D.N.Y. 2007) (referring to the “purchase price” paid for

acquiring the rights to make a motion picture based on the copyrighted work, not

for the copyrighted work itself).

If anything, the interlineation supports Defendants. If the parties saw fit to

include among the enumerated revenue streams not only major rights like

mechanicals and electric transcriptions, but also minor rights like the right to make

a movie or show based on the song, it is all the more implausible that they would

have impliedly granted to Levy a share of the most valuable right of them all—a

stake in the sale of the copyrights themselves.

6. Plaintiffs’ Jackelope Argument Is Frivolous And

Contradicted by Their Own Complaint.

Plaintiffs spin a convoluted theory that “all songs written by Levy were

automatically assigned to Jackelope at the time of their creation,” and that Levy

therefore “did not have the legal capacity to assign any portion of the copyrights in

the Compositions to the Dylan Defendants.” Appellants’ Br. 39–45. As the trial

29
court found, Plaintiffs’ reasoning is “[w]holly unreasonable and unpersuasive,”

contradicted by the 1975 Agreement’s plain language, and at odds with their own

complaint. R13–14.

The 1975 Agreement provides in Section 10(c) that “Employee warrants,

represents and agrees that . . . Employee has not heretofore sold, assigned, pledged,

. . . or otherwise disposed of or encumbered any of the Compositions.” R134.

And it provides in Section 10(d) that “Employee has full right, power and authority

to enter into this agreement and to grant to and vest in Publisher all of Employee’s

rights in and to the Compositions and the copyrights.” Id. If Levy had in fact

assigned away all of his interests before entering into the 1975 Agreement, then

Dylan has no obligation to perform because the fundamental representations upon

which his contractual obligation was conditioned would have been false. See id.

(“The performance of this agreement by Publisher is expressly conditioned upon

the truth of each and every one of the Employee’s representations and covenants

herein contained.”). It would also mean that Levy is not entitled to enforce the

1975 Agreement. See Cnty. of Jefferson v. Onondaga Dev., LLC, 151 A.D.3d

1793, 1795–96 (4th Dep’t 2017) (“One of the essential elements of a cause of

action for breach of contract is the performance of its obligations by the party

asserting the cause of action for breach.”). So Levy’s breach-of-contract claim

would still be subject to dismissal.

30
 Moreover, Plaintiffs’ complaint alleges that “Employee” as used in the

Agreement “includes JL [Jacques Levy] individually and Plaintiff Jackelope, JL’s

publishing company.” R121 at n.4 (emphasis added). Plaintiffs cannot now argue

that “Employee” actually excludes Jackelope. Appellants’ Br. 39; see Kimco of

N.Y., Inc. v. Devon, 163 A.D.2d 573, 574–75 (2d Dep’t 1990) (the “doctrine of

estoppel against inconsistent positions . . . is invoked to estop parties from

adopting such contrary positions because the judicial system cannot tolerate this

playing fast and loose with the courts”) (internal quotations and citations omitted).

New York law is crystal clear that a contract must be read “as a harmonious

and integrated whole,” and in a way that avoids giving provisions conflicting

meanings. HTRF Ventures, LLC v. Permasteelisa N. Am. Corp., 141 N.Y.S.3d 17,

21 (1st Dep’t 2021). Here, Plaintiffs admit that their reading creates an internal

conflict. See Appellants’ Br. 42 (“On its face, ¶10(c) is expressly contradicted by

¶7(d).”). Defendants’ reading creates no such conflict.

7. Plaintiffs’ “Employee for Hire” Argument Is Irrelevant and

Wrong.

Plaintiffs argue that the trial court erred when it concluded, based on the 84

times the 1975 Agreement describes Levy as an “Employee,” that Levy was an

employee. Appellants’ Br. 46–48. In Plaintiffs’ view, the court should not have

“credit[ed] the ‘employee-for-hire’ language,” and should instead have deemed

him a joint author of the songs. Id. at 47.

31
 There is no need for this Court to attempt to trace Plaintiffs’ tortured path to

joint authorship, because whether Levy was an employee-for-hire (he was) or a

joint owner (he was not) is irrelevant to the breach of contract claim. Section 2 of

the 1975 Agreement states that the Compositions are the “sole property of

Publisher,” and that any rights “of whatsoever nature” Levy may have had in the

Compositions were “s[old], assign[ed], transfer[red] and set[] over unto Publisher”

upon execution of the 1975 Agreement. R131. Thus, even if this Court were to

disregard every reference to “work-for-hire Employee” in the 1975 Agreement,

Section 2’s copyright-assignment provision would govern and the outcome would

be the same.

Moreover, Plaintiffs are wrong on the law. There is no basis for simply

deleting from the 1975 Agreement the designation of Levy as the “Employee” or

an “Employee-for-Hire.” Courts must avoid “interpretations that render contract

provisions meaningless or superfluous,” Manley v. AmBase Corp., 337 F.3d 237,

250 (2d Cir. 2003), and “enforce the plain meaning of [the parties’] agreement.”

Am. Express Bank Ltd. v. Uniroyal, Inc., 164 A.D.2d 275, 277 (1st Dep’t 1990).

Plaintiffs are not asking this Court to strike a stray word or two; rather, they are

asking this Court to delete a term that appears 84 times throughout the 1975

Agreement. If restating the same point dozens of times in a contract does not

suffice to manifest the parties’ mutual intent, it is hard to imagine what would.

32
New York courts routinely enforce work-for-hire arrangements, see, e.g., Zyware,

Inc. v. Middlegate, Inc., 1997 WL 685336, at *5 (S.D.N.Y. Nov. 4, 1997), and it is

far too late in the day for Plaintiffs to suddenly declare themselves co-owners

nearly 47 years after the songs were written, see 17 U.S.C. § 507(b) (copyright

actions must be brought “within three years after the claim accrued”); Kwan v.

Schlein, 634 F.3d 224, 230 (2d Cir. 2011) (three-year statute of limitations applies

to claims based on alleged copyright ownership).

None of Plaintiffs’ three cases helps them. In Successful Strategies

International, Inc. v. Stephen J. Maloney Management Applications, Inc., plaintiffs

had previously described the defendant as “an independent contractor” and “a 1099

contractor,” creating a genuine question of fact over whether the defendant was a

work-for-hire employee. 2009 WL 10708820, at *4 (E.D.N.Y. Aug. 4, 2009).

Here, there is no such dispute. And in the Marvel cases, the contractual work-for-

hire designation was imposed years after the work was created. See Marvel

Characters, Inc. v. Simon, 310 F.3d 280, 283 (2d Cir. 2002) (approximately 30-

year gap between creation of work and date of agreement); Gary Friedrich Enters.,

LLC v. Marvel Characters, Inc, 716 F.3d 302, 308–09 (2d Cir. 2013)

(approximately 6-year gap). Here, the 1975 Agreement was signed virtually

contemporaneously with the creation of the Compositions. See Appellants’ Br. 13

(compositions written in May 1975); R119 (Agreement executed in July 1975).

33
The 1975 Agreement is not a “backward-looking attempt[] to recharacterize” the

nature of the parties’ relationship. Penguin Group (USA) Inc. v. Steinbeck, 537

F.3d 193, 203 (2d Cir. 2008).

Finally, it bears noting that for nearly half a century Plaintiffs happily raked

in more than a million dollars in royalty payments as an “Employee” under the

1975 Agreement, never once asserting ownership rights during Levy’s lifetime.

That Plaintiffs had an epiphany upon hearing news of the Universal Sale—and

now claim to have discovered that Levy was not an “Employee” but a co-owner all

along—underscores the opportunistic nature of this lawsuit.

II. THE TRIAL COURT CORRECTLY DISMISSED THE BREACH-OF-

CONTRACT CLAIM AGAINST THE UNIVERSAL DEFENDANTS.
Plaintiffs’ claim that Universal breached the Universal Contract fails for two

independent reasons. Plaintiffs lack standing to assert the claim because they are

neither parties to, nor third-party beneficiaries of, the Universal Contract. And

Plaintiffs have not plausibly alleged any breach of the Universal Contract; indeed,

they admit that it “cannot be determined” on the existing record whether there was

any breach.

Plaintiffs are not parties to the Universal Contract, but contend that they are

third-party beneficiaries of it. R127–28. To maintain a claim as third-party

beneficiaries, Plaintiffs must establish: “(1) the existence of a valid and binding

contract between other parties, (2) that the contract was intended for [Plaintiffs’]

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benefit and (3) that the benefit to [Plaintiffs] is sufficiently immediate, rather than

incidental, to indicate the assumption by the contracting parties of a duty to

compensate [Plaintiffs] if the benefit is lost.” Mendel v. Henry Phipps Plaza W.,

Inc., 6 N.Y.3d 783, 786 (2006). “In order for a contract to confer enforceable

third-party beneficiary rights, it must appear ‘that no one other than the third party

can recover if the promisor breaches the contract’ or the contract language should

otherwise clearly evidence ‘an intent to permit enforcement by the third party.’”

Artwear, Inc. v. Hughes, 202 A.D.2d 76, 82 (1st Dep’t 1994) (quoting Fourth

Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 45 (1985)).

It is not the case “that no one other than [Plaintiffs] can recover” for breach

of the Universal Contract. Artwear, 202 A.D.2d at 82. As the trial court

recognized, Dylan “undeniably could sue the Universal Defendants for any

nonpayment of monies due or other breach of that Agreement.” R17. Nor have

Plaintiffs pleaded any facts establishing that the Universal Contract “was intended

for [their] benefit.” Mendel, 6 N.Y.3d at 786. Universal has assumed Dylan’s

obligations under the 1975 Agreement, and the Universal Contract does not modify

Plaintiffs’ rights. Indeed, as the trial court pointed out, “plaintiffs are not truly

seeking to enforce the Universal [Contract],” but rather their claimed rights under

the 1975 Agreement. R18.

35
 Plaintiffs complain that Defendants “prevented” them from examining the

Universal Contract. Appellants’ Br. 51. But as the trial court explained, the

“dispute about the production of the Universal Contract is irrelevant to the third-

party beneficiary analysis” because Plaintiffs are not seeking to enforce the

Universal Contract. R18 n.6. In any event, Defendants offered to produce the

Universal Contract subject to a confidentiality agreement, and Plaintiffs spurned

the offer. See R309 (Court Notice: “[P]laintiff had the opportunity to obtain a copy

of the Universal Contract during the briefing process and affirmatively chose not to

review it on an attorneys eyes only basis.”); R33 (Justice Ostrager: “It’s my

understanding that [Defendants] agreed to provide it to the plaintiff provided the

plaintiff didn’t further disclose the agreement to third-parties, and the plaintiff

declined that offer and that’s why the plaintiff doesn’t have a copy of the

agreement. . . . Universal is ready, willing and able to provide it to the plaintiff on

an attorney’s eyes only basis, and that offer has been rejected.”); see also R4 n.2.

If Plaintiffs now regret their missed opportunity, that is a problem of their own

making. As Justice Ostrager pointedly told Plaintiffs at oral argument, “It’s not my

job to tell you how to prosecute your case.” R91.

Plaintiffs’ breach of contract claim against Universal fails for the additional

reason that they have not alleged that the Universal Defendants stopped paying

Plaintiffs the royalties due under the 1975 Agreement, or identified any other

36
breach of obligations the Universal Defendants might have to Plaintiffs. Indeed,

they concede they have not identified any breach of the Universal Contract when

they admit that it “cannot be determined” on the existing record whether there was

actually a breach. Appellants’ Br. 52. Even on appeal, Plaintiffs are unable to

identify an alleged breach. See id. at 48–53. Dismissal was warranted for this

reason too.

III. THE TRIAL COURT CORRECTLY DISMISSED THE TORTIOUS

INTERFERENCE CLAIM AGAINST THE UNIVERSAL
DEFENDANTS.

Plaintiffs’ tortious interference claim against Universal is deficient in many

respects and was properly dismissed. R18–20. “A claim of tortious interference

requires proof of (1) the existence of a valid contract between plaintiff and a third

party; (2) the defendant’s knowledge of that contract; (3) the defendant’s

intentional procuring of the breach[;] and (4) damages.” Foster v. Churchill, 87

N.Y.2d 744, 749–50 (1996). Plaintiffs have not satisfied the third and fourth

elements.

As the trial court recognized, “[t]he most obvious deficiency in plaintiffs’

tortious interference claim is that there was no breach of the contract (i.e., the 1975

Agreement).” R19; see NBT Bancorp Inc. v. Fleet/Norstar Fin. Grp., Inc., 87

N.Y.2d 614, 621 (1996) (“[B]reach of contract has repeatedly been listed among

the elements of a claim for tortious interference with contractual relations.”).

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Because the 1975 Agreement was not breached, the tortious interference claim

fails at the threshold.

The claim also fails because Plaintiffs have “fail[ed] to plead any facts that

would establish that the Universal Defendants caused the alleged breach of

contract by [Dylan], resulting in damages, and that no breach would have occurred

‘but for’ Universal’s conduct.” R19 (citing Cantor Fitzgerald Assocs., L.P. v.

Tradition N. Am., Inc., 299 A.D.2d 204 (1st Dep’t 2002)). Plaintiffs allege that the

Universal Defendants conducted due diligence in connection with the catalog sale

and knew the terms of the 1975 Agreement. Appellants’ Br. 55 (citing R124 at

¶¶ 31, 58). But even if this could support the first two elements of a tortious

interference claim (the existence of a contract and the defendant’s awareness of it),

it says nothing about the third and fourth elements (the defendant’s intentional

procuring of a breach and resulting damage). Nor have Plaintiffs even attempted

to explain why Universal would have had any incentive whatsoever to cause Dylan

to breach his alleged payment obligation to Plaintiffs. This is for good reason—

Universal had nothing to gain from such a breach. All Plaintiffs have are

conclusory legal allegations; they have not alleged any facts that, if proven, would

establish that Universal induced Dylan to breach the 1975 Agreement, and that

Dylan would not have breached the 1975 Agreement but for Universal’s wrongful

actions.

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 Plaintiffs note that Cantor Fitzgerald was decided on summary judgment,

Appellants’ Br. 54, but the trial court simply cited that case for the point that “but

for” causation is an “essential element” of a tortious interference claim. R19.

Cantor Fitzgerald does not hold that parties, like Plaintiffs, who fail to plead

sufficient facts establishing causation are entitled to discovery. Discovery is not a

“fishing expedition,” Cohen v. City of New York, 183 A.D.2d 436, 437 (1st Dep’t

1992), and “to avoid dismissal of a tortious interference with contract claim a

plaintiff must support his claim with more than mere speculation.” Burrowes v.

Combs, 25 A.D.3d 370, 373 (1st Dep’t 2006). Where “it [i]s plain that . . .

plaintiffs would not be able to demonstrate that defendants’ conduct was a

proximate cause of their alleged loss,” dismissal under CPLR 3211(a)(7) is

warranted. Turk v. Angel, 293 A.D.2d 284 (1st Dep’t 2002). That is the case here.

Plaintiffs’ authorities are easily distinguishable because the complaints in

those cases contained specific allegations that the defendants knowingly took

certain actions that caused a breach—e.g., making “secret payments . . . in

furtherance of [a] conspiracy,” Omni Food Sales v. Boan, 2007 WL 2435163, at *2

(S.D.N.Y. Aug. 24, 2007); “falsely blaming [plaintiff] for problems and delays on

the project that were actually caused by defendants’ own deficient performance,”

BIB Constr. Co. v. City of Poughkeepsie, 204 A.D.2d 947, 948 (3d Dep’t 1994);

“contact[ing] third-party buyers” and telling them “to place orders through

39
[Defendant] rather than through Plaintiff,” Due Pesci Inc. v. Threads for Thought,

LLC, 2012 WL 987605, at *6 (N.Y. Cty. Sup. Ct. Feb. 6, 2012); “creating a

national scandal in the Netherlands and an international furor in the art community

against the . . . plaintiffs, with the intent” of inducing a breach, Daniel Goldreyer,

Ltd. v. Van de Wetering, 217 A.D.2d 434, 438 (1st Dep’t 1995); and “falsely

blam[ing] plaintiff for problems and delays,” Schmidt & Schmidt, Inc. v. Town of

Charlton, 68 A.D.3d 1314, 1316 (3d Dep’t 2009). Plaintiffs have made no such

allegations here.

CONCLUSION

Plaintiffs are trying to rewrite the contract terms that have governed the

parties’ relationship for nearly five decades. Plaintiffs reaped a million dollars in

royalty payments under the 1975 Agreement—a stream of income for them that

will continue unabated long into the future following the sale to Universal.

Plaintiffs cannot change course and now deny the plain language of that

Agreement. This Court should affirm the judgment below.

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Dated: New York, New York
January 5, 2022

Respectfully submitted,

GIBSON, DUNN & CRUTCHER LLP

By:
Orin Snyder

GIBSON, DUNN & CRUTCHER LLP

Orin Snyder
Brian C. Ascher
Alexandra Perloff-Giles
200 Park Avenue
New York, NY 10166-0193
Tel.: (212) 351-4000
OSnyder@gibsondunn.com
BAscher@gibsondunn.com
APerloff-Giles@gibsondunn.com
Thomas H. Dupree, Jr.
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Tel.: (202) 955-8500
TDupree@gibsondunn.com

Attorneys for Defendants-Respondents

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 PRINTING SPECIFICATIONS STATEMENT

I hereby certify pursuant to 22 NYCRR 1250.8(j) that the foregoing brief was

prepared on a computer using Microsoft Word.

Type. A proportionally spaced typeface was used, as follows:

Name of typeface: Times New Roman

Point size: 14 Point
Line spacing: Double

Word Count. The total number of words in this brief, inclusive of point headings and

footnotes and exclusive of pages containing the table of contents, table of citations,

proof of service and this Statement is 9,477.

Dated: January 5, 2022

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