Veggie Tales’ creator, Big Idea, negotiated with a distributor over a period of years to grant it an exclusive license. No document styled as a final agreement was signed. For a time the parties performed as if there were an agreement. After Big Idea fired the distributor, the distibutor sued for breach. In order to satisfy Section 204(a) of the Copyright Act, which requires a writing for transfer of ownership in copyright, including the grant of an exclusive license, the distributor identified two preliminary documents (a proposal and a list of open items), and an internal memo in which an officer of Big Idea stated that there was a deal in place.
Held by Fifth Circuit: the first two documents stated on their face that they were not final documents. The internal memo (which had never been communicated to the distributor) was held not to be the sort of post-transfer memorialization that can satisfy 204(a). Finally, partial performance will not remove the statutory requirement of a writing. Action for breach dismissed.
Text of decision here.