AWARD
1. Declaratory and other Relief Granted in favor of Claimant
- a. To the date hereof Claimant has not materially breached any agreements with Respondent related to the Programs nor infringed any of Respondent's rights therein including but not limited to infringing on Respondent's copyrights or fraudulently registering Macross trademarks;
- b. The Original Agreements and Operative Agreements grant Claimant the right to make derivative works of the Programs and Robotech, including live action motion picture adaptations, and Claimant has not produced any unlicensed works;
- c. The 2003-A is valid and binding on Respondent, and Claimant has been granted therein all of Respondent's copyright rights in Macross, except for the visual depiction of the original 41 animated graphic characters from the underlying Program, pursuant thereto;
- d. The Operative Agreements grant Claimant the express right to sublicense its rights as it chooses, and Claimant has neither breached said agreements nor infringed on Respondent's rights by entering into such sublicenses;
- e. The Operative Agreements grant Claimant the express right to exploit the Programs and any derivative works in all media, including digital, and Claimant has not breached said agreement nor infringed on Respondent's rights by exploiting the Programs and related derivative works in digital media;
- f. The Operative Agreements grant Claimant the right to exploit the Programs and any derivative works through sublicensing of music and clips, and Claimant has neither breached the agreement nor infringed on Respondent's rights by exploiting the Programs and related derivative works through such sublicenses;
- g. Claimant owes no royalties for home video exploitation pursuant to the 1991-LA as same are part of the flat license fee for visual rights;
- h. Claimant had and has the right to offset against royalties otherwise owed to Respondent the sum of $541,362 incurred by Claimant in connection with the Big West litigation, until recouped;
- i. To the date of the last royalty statement or audited date, Claimant has fully accounted for all royalties owed to Respondent except for the amount of $42,543 which Claimant is to account for and/or to pay to Respondent forthwith subject to any continuing proper offsets.
- j. Respondent's audit and other claims, as are identified in the body hereof and in Respondent's request for relief, are time barred as they arise out of claims more than four years old for its breach of contract claims, and more than three years old for its copyright claims;
- k. As of this date, Respondent is not entitled to terminate the Operative Agreements or otherwise curtail Claimant's rights thereunder.
- I. Claimant owns in perpetuity the title Robotech and the produced Robotech programs with exploitation thereof subject to Respondent's rights on termination of the Operative Agreements.
2. Relief Granted in favor of Respondent
- a. Claimant's right to use the Programs for production and/or exploitation of new works expires on March 14, 2021 along with any extant sublicenses as all rights to the Programs revert back to Respondent at that time.
- b. Upon expiration of the term of the Operative Agreements, the Claimant no longer has any right to use or exploit derivative works produced during the term, which contain portions of the Programs, as rights to the Programs revert back to Respondent at that time.
- c. Claimant has no permanent, exclusive, and irrevocable copyright and trademark rights in the Programs as same shall belong to Respondent on expiration of the term in 2021;
- d. Upon expiration of the term, Respondent shall have the right and option to disaffirm/cancel any existing licenses, assignments and/or other agreements extending beyond the term as may have been entered into by Claimant with others granting any rights in and to the Programs;
- e. Claimant is to pay to Respondent the sum of $42,543 as a result of the audit subject to any remaining proper offset rights due to the Big West legal fee expenditure.
3. The award of all costs of the arbitration is to be determined in the sole discretion of the Arbitrator in accordance with paragraph 14 of the Rules as the Operative Agreements do not provide any guidance regarding same. At the close of the Hearing on May 19, 2017 the Arbitrator advised the parties in writing that: Legal fees are to be reasonable and directly related to this arbitration but need not be the same for each firm as, for example, pay scales, number of attorneys working on the matter, etc., may be different. The Arbitrator determines that it is appropriate to consider only costs directly relating this arbitration and not the prior arbitration and mediation on this matter. Thus, the Arbitrator finds that Claimant, as the predominantly prevailing party, is entitled to recover and Respondent owes Claimant such costs as adjusted by the Arbitrator in the total amount of $848,708 which consists of Claimant's legal fees, allowed by Arbitrator as being reasonable, in the amount of $711,930 and Claimant's costs of $136,778 which include its share of both IFTA filing fees of $1,100 and Arbitrator fees of $25,612.
4. This Award is in full resolution and settlement of all claims and counter claims submitted to this Arbitration. All claims and counter claims not expressly granted herein are hereby denied.
5. This Award may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall constitute together one and the same instrument.
