Likelihood of … whatever
Okay, folks — this one is for the lawyers, pretty much. It’s a Contract Interpretation Quiz (I’ve added the emphasis):
Interpret this contract, reproduced below in full:
In consideration of the sum of One Dollar ($1.00) and other good, valuable, and adequate consideration, the receipt and sufficiency of which is acknowledged, the undersigned does hereby sell, assign, transfer, and set over to Bridgeport Music, Inc., its respective successors and assigns, fifty percent (50%) of his interest now owned or subsequently procured in the universe-wide copyright in and to the following musical composition(s) set forth in Exhibit A attached hereto, and all of the universe-wide right, title, and interest of the undersigned, vested or contingent, therein and thereto, including all claims for infringement of the copyrights whether now or hereafter existing, for the maximum terms of copyright, including any extensions and/or renewals thereto, throughout the universe.
The assignor sues for copyright infringement. Does the assignor have standing, or did it assign all claims for copyright infringement to the assignee?
According to the Eastern District of Texas, the assignor didn’t have standing. According to the Fifth Circuit, it did.
I woulda gotten this one, I think. Gotten it wrong, that is.
As Pam Chestek explains, the Circuit says the highlighted phrase — “including all,” etc. — was to be read in the context of the fifty-fifty rights split, as opposed to placing what it regards as undue emphasis of the plain language which would give the words “all claims” their seemingly obvious meaning.
Well, okay. But that doesn’t sound right to me. It is entirely within the realm of possibility that one party would retain entirely for itself, or another party would be assigned entirely, the right to all copyright infringement claims (not to suggest that they might be worth more than the copyright itself, mind you!), and frankly the way I read this clause, that is exactly what “all claims” means.
Honestly, however, it is ambiguous, isn’t it? What on earth did they mean, after all? Why didn’t the court acknowledge this ambiguity and step outside of the four corners of the document and jettison the Parol Evidence Rule so we could look at outside proofs and learn what the heck the parties really intended here? The decision makes no mention of this possibility, plowing past “ambiguity” on pages three to four.
They call me LIKELIHOOD OF CONFUSION®, yet I can hardly imagine much more ambiguity — and, I suppose we have to say, much less impressive draftsmanship, to put it politely? — than what we’re talking about right here.