Intention. Music that is distributed on compact discs and similar media generates income in the form of "mechanical" royalties. Music that is publicly performed, such as when a song is played on a radio, in a movie or commercial, or sampled in another

Question

song, produces "performance" royalties. Each of these types of royalties is divided between the songwriter and the song's publisher. Vincent Cusano is a musician and songwriter who performed under the name "Vinnie Vincent" as a guitarist with the group KISS in the early 1980s. Cusano co-wrote three songs entitled "Killer," "I Love It Loud," and "I Still Love You" that KISS recorded and released in 1982 on an album titled Creatures of the Night. Cusano left KISS in 1984. Eight years later, Cusano sold to Horipro Entertainment Group "one hundred (100%) percent undivided interest" of his rights in the songs "other than Songwriter's share of performance income." Later, Cusano filed a suit in a federal district court against Horipro, claiming in part that he never intended to sell the writer's share of the mechanical royalties. Horipro filed a motion for summary judgment. Should the court grant the motion? Explain.

Answer 1

Intention
The court granted Horipro's motion for summary judgment. The court reiterated Cusano's argument that he did not intend to sell to Horipro his writer's share of the mechanical royalties to the songs. The court pointed out, however, that "as Horipro argues, Cusano has provided no evidence at all to support this assertion. The Agreement of Sale is clear and unambiguous in its identification of the rights that Horipro acquired. When the terms of a contract are clear, the secret or subjective intent of the parties is irrelevant. If Cusano truly intended a different result, he should have made certain that his [contract reflected] his intentions, and not have abided with the effects of the allegedly erroneous interpretation for many years and only then suddenly awaken to the contract ambiguity he now asserts."