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IN THE CIRCUIT COURT OF THEELEVENTH JUDICIAL CIRCUIT IN ANDFOR MIAMI-DADE COUNTY, FLORIDAGENERAL JURISDICTION DIVISIONCASE NO. 02-9076 CA 22WEST AVENUE FILMS, L.L.C., ))Plaintiff, ))vs. ))ARTISAN PICTURES, INC., ))Defendant. ))EXCERPT OF PROCEEDINGSThe above-entitled cause came on fornonjury trial before THE HONORABLE ROBERTO M.PINEIRO, in his courtroom at the Miami-Dade CountyCourthouse, 73 West Flagler Street, Fourth Floor,Miami, Miami-Dade County, Florida, on Friday,November 7, 2003, beginning at approximately10:30 a.m.- - -APPEARANCES:GOLDSTEIN, TANEN & TRENCH, P.A., byRICHARD M. GOLDSTEIN, ESQ., andCATHERINE C. GRIEVE, ESQ.,On behalf of the Plaintiff.HOULIHAN & PARTNERS, P.A., byGERALD J. HOULIHAN, ESQ.,On behalf of the Defendant.ALSO PRESENT: ALFRED SPELLMANBILLY CORBENDAVID CYPKINLARRY COHENEILEEN COHENTHEREUPON:The following proceedings were had:* * * * * *THE COURT: All right. I've reviewed allthe facts in the case, the law, the depositions. Theonly thing I haven't reviewed is the tape itself, orthe film itself. I think most important, in theconsideration of this case, is the short formcontract and the long form contract, because they

clearly spell out the rights and responsibilities ofthe parties. The long form -- first, let's startwith the short form contract and the question ofwhether certain things had to be done, or certainthings could be done, certain things could bewaived.As to the short form contract, it says that,Artisan agrees to consult in good faith with licensorwith regard to the development and exploitation ofthe work. Consult in good faith, fine, but the shortform and the long form give Artisan the right to dowhat it pleases regarding the film. They can dowhatever they want. I guess that's the price that afilm maker makes in order to actually have the filmseen by somebody, distributed by somebody.Minimum guarantee, $125,000, payable asfollows. $15,000 upon execution of a long formagreement. That is the only requirement for theissuance of the $15,000 check, the execution of thelong form agreement. I have heard argument andspeculation as to whether you had to deliver the$15,000 only upon delivery of the finished product,but that's not the case, because there's -- the verynext paragraph says upon delivery, upon licensor'sdelivery, and you look at the delivery, and it says,Licensor shall deliver to Artisan the video cassetteembodying the picture no later than February 9th, andbasically, following receipt thereof, submit tolicensor its written requested changes -- Thepicture, as delivered to Artisan hereunder, shallcomply with such changes. In other words, we tellyou what to do, you don't say how much, you justsimply jump. But at the same time, when they say$15,000 is going to be given to you upon theexecution of the long form, and 45,000 is going to bedependent upon the delivery, certainly, theplaintiffs were entitled to the $15,000 when theysigned and returned that long form, and that wasnever done.Also, the short form does say that theparties acknowledge that the long form shall remainsubject to good faith negotiation. Let's go to thelong form.The long form, on Paragraph 8, Page 4,exploitation decisions: Subject to Paragraphs B andC below, Artisan shall have absolute discretionconcerning the exploitation of the picture in any andall media. Artisan agrees to consult meaningfully.But that is all it is required to do, to consultmeaningfully.Again, it does say that Artisan shall paythe licensor, in Paragraph 9, $125,000, $15,000 uponexecution of this agreement, $45,000 upon thelicensor's delivery, and then talking about thesecond installment, the third installment.The initial $15,000 was never paid.On Page 13, Paragraph 23, miscellaneous, G:Nothing herein contained shall be binding upon the

parties until a copy of this agreement has beenexecuted by an officer of each party and has beendelivered to the other party.Artisan doesn't know when it executed thelong form agreement. The best they know is that theydid so shortly before the temporary restraining orderhearing, and at that point, that's the first timeanybody knows that it was delivered to theplaintiffs.So you either have a contract or you don't,but in not signing and in not delivering the $15,000,it appears to me that Artisan is saying, "Look, wewant our cake and we want to eat it, too. We want tobe able to bind you on the contract, but we don'twant to be bound. We don't want to be bound becausewe don't want to pay the $15,000. We want to bindyou, because we don't want you to be able todistribute the film."I have also relied a great deal on all thedifferent e-mails that went back and forth betweenthe parties. We have an e-mail from Patrick Gunn toAS -- Arthur Spellman, BellSouth.net. "The policy isacceptable. Removal of the music now becomes adelivery issue. We won't accept delivery unless themusic is removed." At the same time, they couldalways remove the music any time and any way theywished. The options are to remove the music andreplace with an MOS -- either A, MOS; B, score; or C,knockoffs, and it talks about all the differentoptions that were available.On July 24th, which is the height of all thedifferent e-mails -- because there's a number ofe-mails that went back and forth between the partiesand amongst Artisan itself prior to July 24th -- inthis one, it's from Patrick Gunn to Alfred Spellman,"We still believe your best cut of the film is theone you submitted to us as your final cut last month.It is important that we see a finished version ofyour final cut complete with all text."Well, I don't know if it's final or not, butthey say that it's submitted as a final cut, but westill need to see a finished version of the finalcut. I don't know how much more final it could havegotten.Reviewing again, I'm going over thedeposition now of Mr. Gunn. Page 89, "Did Artisanhave the right to edit out the music?"Answer, "I would think so.""At any time that you had wanted to, youcould simply have taken the video master from WestAvenue and then edited out the music as Artisan sawfit, correct?""If we had been delivered a picture and wehad a final cut, we could do with it what we want."Page 105 of the same deposition. "So, inother words, what you are saying is that West Avenuehad to take out the music even though you had theright to do it yourselves?"

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Raw Deal trial - verdict

West Avenue Films, LLC vs Artisan Pictures, Inc. -- trial in Miami Dade County, Florida to determine ownership of distribution rights to 2001 Sundance documentary Raw Deal: A Qu... (More)

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