Commercial Division Blog
Under Principle of Ejusdem Generis, Use of “Any and All” In Contract Clause Before List of Specific Activities Does Not Expand Clause Beyond Activities Specified
On July 30, 2021, Justice Ostrager of the New York County Commercial Division issued a decision in Levy v. Zimmerman, 2021 NY Slip Op 50738(U), holding that the use of the words “any and all income” in a contract preceding a list of specified activities the income from which plaintiff was entitled to a percentage did not expand the plaintiff’s entitlement to income to activities beyond the specified ones listed, explaining:
Levy's right to "compensation" related to the Compositions is described in ¶ 7, and ¶ 7(a) defines that compensation as consisting of:
Thirty-five (35%) percent of any and all income earned by the Compositions and actually received by the Publisher from mechanical rights [to reproduce songs on CDs and digital formats], electrical transcriptions [for use of a song for public broadcast such as radio], reproducing rights [for use in consumer products such as ring tones and music boxes], motion picture synchronization and television rights, and all other rights therein, (expressly excluding any income or royalties earned in respect of printed editions of the Compositions) in the United States and Canada.
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In sum, defendants compellingly argue based on the plain language in the 1975 Agreement that the Agreement unambiguously limits plaintiffs' compensation rights to 35% of monies received by Dylan for licensing rights granted to third-parties for the performance and use of the Compositions but not for any portion of the proceeds from Dylan's sale of his complete copyrights related to the Compositions that were explicitly vested in him alone pursuant to the express terms of the 1975 Agreement.
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[T]he Court finds plaintiffs’ arguments unavailing.
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For example, Kohn’s reliance on the phrase "any and all income" earned, as set forth in the definition of compensation in ¶ 7(a), ignores the specific list of income categories that follows that phrase. The list includes typical licensing rights such as reproducing rights and televisions rights. "[U]nder the principle of ejusdem generis, when a general phrase [such as any and all] follows a list of specific terms, the general phrase must be interpreted to refer to items of the same ilk as those specifically listed." Malmsteen v. Universal Music Grp., 940 F. Supp. 2d 123, 133 (SDNY 2013). And the phrase "all other rights therein" at the conclusion of the list logically refers back to the list and implies no intent to expand it beyond royalty rights to include a right to sales proceeds.
When interpreting words in a contract, courts rely on the context of those words to determine their meaning. One important principle of contractual interpretation is ejusdem generis, which is Latin for “of the same kind.” Under this principle, general or catchall terms in a contract clause do not expand the clause beyond the specific items listed in the clause.
The attorneys are Schlam Stone & Dolan LLP frequently litigate disputes concerning the interpretation of catchall terms in contract clauses and how they affect the meaning of the clause in its entirety. Contact the Commercial Division Blog Committee at email@example.com if you or a client have questions concerning the interpretation of catchall terms in a contract clause.