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Vol. 7, Iss. 3
April 11, 2018

Trust Me: You Gotta See The Name Of This Insured In A Coverage Case

Federal Court Clears Mary Poppins Of Wrongdoing

Win A Copy Of The 4th Edition Of Insurance Key Issues

In mid-March the Northern District of California decided Polar-Mohr Maschinenvertriebsgesellschaft GMBH Co. KG v. Zurich, No. 17-1804 (N.D. Calif. March 15, 2018). Yes, that’s really the name of the insured. Hers’s a picture of the decision.

That’s gotta be the longest name of an insured in the history of insurance.

My advice to lawyers representing Polar-Mohr Maschinenvertriebsgesellschaft GMBH Co. KG -- do not refer to the company in a brief as: hereinafter “Maschinenvertriebsgesellschaft.”

I’ll send a complimentary copy of the 4th edition of Insurance Key Issues to the first person who can send me a coverage case – no, make that any case in the history of America -- involving a party with a longer name.

Clearly this is the Supercalifragilisticexpialidocious of insurance coverage. And as you’ll see in the nearby article – “Viking Bump For Policyholders: California Court Interprets New York Allocation Law As ‘All Sums’” -- some policyholders will likely be saying Maschinenvertriebsgesellschaft loud enough to always sound precocious.

This got me to thinking – Has the word supercalifragilisticexpialidocious ever been cited in a judicial decision? Yes, it has. Six times based on a Lexis search. One of the cases involves the rapper Ja Rule, who I was not familiar with until recently after hearing his wonderful performance of “Helpless” on the 2016 Hamilton Mix Tape.

But the supercalifragilisticexpialidocious decision that took my breath away is Life Music, Inc. v. Wonderland Music Co., 241 F. Supp. 653 (S.D.N.Y. 1965). It turns out that the producers of Mary Poppins were sued for copyright infringement. The charge? Their alleged use of Supercalifragilisticexpialidocious infringed the copyright of the song Supercalafajalistickespeealadojus. The court, wisely, stated: “All variants of this tongue twister will hereinafter be referred to collectively as ‘the word.’” I am not making this up.

Despite how similar “the words” appear, the court told the plaintiff to go fly a kite, holding that it was not entitled to an injunction against Mary and Bert.

First, the judge concluded that, after listening to “phonograph records of both works,” in his opinion, “as an average observer, there is no discernible similarity between the music of both songs.” The judge stated: “An affidavit by a musical expert, submitted by defendants, supports this conclusion. The expert analyzed and compared the melody lines of both songs and concluded that there is not a single instance of any two parallel notes appearing in succession, or of a single measure, phrase or theme showing the slightest melodic similarity.”

As for the remarkable similarity in the words themselves, this was not a basis for an injunction: “[D]efendants have submitted several affidavits of presumably disinterested persons who swear that variants of ‘the word’ were known to and used by them many years prior to 1949, when plaintiffs claim to have written their song. On the basis of the record before me, and for the purpose of this preliminary motion only, I find that ‘the word’ was known to and used by members of the public for many years prior to 1951, the date when plaintiffs allegedly published their song. The significance of this is not that defendants are immunized from infringement liability if they, in fact, copied from plaintiffs; a copier can hardly escape liability merely by asserting his right to appropriate the underlying ideas or public domain aspects of the copyrighted work. Rather, the fact that ‘the word’ was known to the public, coupled with affidavits by the defendant composers that they knew of ‘the word’ before plaintiffs composed their song, effectively negates, for purposes of this motion, the inference of copying which plaintiffs would have me draw merely from the highly questionable allegations of access plus the fact that ‘the word’ appears in both songs.”

As the writers of Supercalafajalistickespeealadojus no doubt saw it, Mary Poppins wasn’t so practically perfect in every way.



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