Download Flashback Express 5
Liv Randzin
Positives: lets you use your webcam to record yourself while recording the activities that are happening on your desktop. After you have stopped recording, it creates an FBR (flashback) file which can be edited with its packaged video editor. Drawbacks: requires you to register (for a free account) after 30 days of use
The Amended Complaint sets forth five claims for relief based on the foregoing facts. Those claims are as follows: (1) breach of contract, either express, implied or quasi-contract (Count I); (2) passing off under Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a) (Count II); (3) false advertising under Section 43(a) of the Lanham Act (Count III); (4) violation of Sections 50 and 51 of the New York Civil Rights Law (Count IV); and (5) unfair competition under New York common law. (Count V).
Plaintiffs suggest three alternative contract theories arising from the core claim that defendant breached an agreement to pay them not only for particular "Flashback" programs, but also for the "Flashback" format: express contract, implied-in-fact contract and quasi-contract. Here, the contract which the parties agreed would be deemed attached to the Amended Complaint defeats all three of these contract theories. (As noted above, to the extent the allegations in the Amended Complaint contradict the agreement itself, the latter governs. Nishimatsu Construction Co. v. Houston National Bank, supra n. 1.)
First, the contract does not purport to protect the "Flashback" format, but only the programs themselves. Under the contract, plaintiffs were to be paid for a series of 52 particular programs, not for their format. The language in Paragraph 1 of the agreement relating to the format merely describes the nature of the programs to be produced under the agreement; it does not purport to create separate rights with respect to the format of the programs. Nor does Paragraph 5, relating to the termination of the agreement, suggest that the parties contracted for the "Flashback" format in addition to the programs themselves. Paragraph 5 states that after termination of the agreement, "all right, title and interest in and to The Programs shall revert back to [plaintiffs]" (emphasis added), reflecting the parties' intent to license defendant's use of the programs but not the "Flashback" format. Accordingly, I reject plaintiffs' express contract theory.
Nor can the facts alleged here be said to give rise to an implied-in-fact contract. Such contracts arise in the absence of an express agreement and are based on the conduct of the parties, from which a fact finder may fairly infer the existence and terms of a contract. Robbins v. Frank Cooper Associates, 241 N.Y.S.2d 259, 261, 19 A.D.2d 242, 244 (1st Dep't 1963), rev'd on other grounds, 14 N.Y.2d 913, 200 N.E.2d 860, 252 N.Y.S.2d 318 (1964). But the prerequisite for such a contract is that there be no express agreement dealing with the same subject matter. Where, as here, there is an express agreement covering the subject matter of the alleged implied-in-fact agreement, the implied-in-fact agreement is precluded as a matter of law. Miller v. Schloss, 218 N.Y. 400, 406-09, 113 N.E. 337 (1916); Hohenberg Co. v. Iwai New York, Inc., 6 A.D.2d 575, 180 N.Y.S.2d 410 (1st Dep't 1958). The logic at work here is obvious: If the parties have an express contract that deals with a subject, it makes little sense to conclude that they in fact agreed to additional terms but simply decided to leave them out of the express contract. Indeed, the merger clause in the agreement in this case bears out that logic. It recites: "This constitutes the entire Agreement of the parties, all prior understandings being merged herein." If the "entire Agreement" does not protect the "Flashback" format, there can be no *72 claim that a parallel unwritten agreement does.
Finally, the plaintiffs' quasi-contract claim requires proof that a novel and concrete idea was appropriated, that the defendant was enriched as a result, and that the appropriation and enrichment occurred under the circumstances that make it unjust to deny recovery. Werlin v. Reader's Digest Association, Inc., 528 F. Supp. 451, 465-66 (S.D.N.Y.1981). Although the parties have directed most of their attention to a dispute about the novelty vel non of "Flashback" as a nostalgia-cum-rock-and-roll program, that is a cultural thicket that Rule 12(b) mercifully compels me to avoid. The quasi-contract claim, like the implied-in-fact contract claim, is barred by the existence of the parties' express agreement dealing with the same subject matter. Chadirjian v. Kanian, 123 A.D.2d 596, 598, 506 N.Y.S.2d 880, 882 (2d Dep't 1986); Nixon Gear and Machine Co. v. Nixon Gear, Inc., 86 A.D.2d 746, 447 N.Y.S.2d 779, 781 (4th Dep't 1982).
Defendant argues further that the remaining two statements cited by plaintiffs that "Backtrack" was comparable or superior in quality to "Flashback," and that Andy Denemark (of Westwood One) was the creative force behind "Flashback" constitute mere puffing and therefore are not actionable under the Lanham Act. Taken alone, the former statement would be puffing in that it appears to be an expression of opinion and not a representation of fact. See American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411, 1443-44 (E.D.N.C.1986); Wolf v. Louis Marx & Co., 203 U.S.P.Q. (BNA) 856, 859 (S.D.N.Y.1978). However, when read in conjunction with the other alleged misrepresentations, I cannot hold as a matter of law that the statement is not actionable. The question here is whether the statement, taken together with others assumed for the purposes of this motion to be false, would be read not as a comparison of two products with different origins, but rather as a statement that "Backtrack" was a new and improved edition of "Flashback," issued from the same source.
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