Lulirama Ltd., Inc. v. Axcess Broadcast Services, Inc.

Axcess Broadcast Services, Inc. (defendant) entered into an agreement with Lulirama Ltd., Inc., for the services of Spencer Michlin (collectively, Lulirama) (plaintiffs) to write and deliver 50 jingles as a work for hire. Axcess paid Lulirama in accordance with the agreement, but Lulirama failed to deliver all 50 jingles. Axcess sued Lulirama in state court, alleging breach of contract and seeking a refund of excess monies paid due to Lulirama’s failure to deliver all 50 jingles. Lulirama then filed a separate federal-court action against Axcess, alleging Axcess had reproduced, prepared derivatives, distributed copies, and authorized others to perform the jingles without authorization and in violation of Lulirama’s copyrights. The district court granted Axcess’s summary-judgment motion after concluding Axcess owned the copyrights because the jingles were works for hire within the meaning of § 101 of the Copyright Act. The district court relied on an affidavit executed in the state-court action in which Michlin expressed,“Axcess was to sell these songs to its television and radio station clients,” concluding the statement indicated the jingles were “works specially ordered or commissioned for use . . . as a part of a motion picture or audiovisual work” because the term audiovisual included both purely visual and purely audio works as well as combined audio and visual works. Lulirama appealed, arguing the district court improperly expanded the class of works that can be works for hire within the meaning of the act.