Marder v. Lopez ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAUREEN MARDER, 
Plaintiff-Appellant,
No. 04-55615
v.
JENNIFER LOPEZ; SONY MUSIC  D.C. No.
CV-03-08226-TJH
ENTERTAINMENT, INC.; PARAMOUNT
OPINION
PICTURES CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Chief District Judge, Presiding
Argued and Submitted
December 9, 2005—Pasadena, California
Filed June 12, 2006
Before: Harry Pregerson, John T. Noonan, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Pregerson
6525
MARDER v. LOPEZ 6529
COUNSEL
Robert Helfing, Sedgwick, Detert, Moran & Arnold, Los
Angeles, California, for the plaintiff-appellant.
David E. Fink, (argued) White, O’Connor, Curry & Avan-
zado, Los Angeles, California; Dale M. Cendali, (argued) and
Paula E. Ambrosini (briefed) O’Melveny & Myers, New
York, New York, for the defendants-appellees.
OPINION
PREGERSON, Circuit Judge:
Plaintiff Maureen Marder appeals the dismissal of her
claims against Defendants Jennifer Lopez, Paramount Pic-
tures Corporation (“Paramount”), and Sony Music Entertain-
ment, Inc. (“Sony”) (collectively, “Defendants”). We have
jurisdiction under 28 U.S.C. § 1291 and affirm the district
court’s dismissal under Federal Rule of Civil Procedure
12(b)(6).
6530 MARDER v. LOPEZ
I. Factual and Procedural Background
The movie Flashdance, released in 1983, tells the story of
a woman construction worker from Pittsburgh, Pennsylvania
who performs at night as an exotic dancer.1 She performs an
innovative form of dancing that includes a “chair dance,” dur-
ing which she douses herself with water. Her goal is to obtain
formal dance training at a university.
Flashdance brought in over $150 million in domestic box
office receipts for Paramount. The film has remained popular
since its release and it continues to be shown on television
and distributed through video sales and rentals.
According to Marder, the Flashdance story was modeled
after her life story and career as a nightclub dancer. She
claims that she contributed to the creation of Flashdance by
providing Paramount with details of her life story with the
understanding that Paramount would use this information to
create an original screenplay. Marder also claims that she con-
ferred with writer Joe Eszterhas in creating the screenplay.
On December 6, 1982, Marder signed a “General Release”
(“Release”)2 purporting to discharge Paramount, its subsidia-
ries, and its executives from claims arising out of the creation
of the film. The Release also granted Paramount the right to
use Marder’s life story to create Flashdance. As consider-
ation, Marder received $2300.
In February 2003, Sony released a music video for the
Lopez song, “I’m Glad” (“the Video”). The Video featured
1
The following facts are primarily taken from Marder’s complaint. We
consider these facts to be true when reviewing a Rule 12(b)(6) motion to
dismiss. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir.
1988).
2
We have reproduced the Release in its entirety as an appendix to this
opinion.
MARDER v. LOPEZ 6531
Lopez’s performance as a dancer and singer. According to
Marder, the Video contains re-creations of many well-known
scenes from Flashdance. The complaint alleges that Para-
mount received money “or other consideration from the
licensing or other exploitation of the copyrights in the motion
picture, Flashdance.”3
Marder filed a complaint with the district court on Novem-
ber 12, 2003. She asserted a claim against Paramount for a
declaration of her rights as a co-author of Flashdance and a
co-owner of the copyright. She also claimed she was entitled
to share in the revenues Paramount allegedly received from
Sony for the licensing and exploitation of Flashdance in the
Video. Finally, she asserted claims against Sony and Lopez
based on the Lanham Act, the Copyright Act, and the state
law right of publicity and unfair competition.
Defendants filed motions to dismiss Marder’s complaint
under Federal Rule of Civil Procedure 12(b)(6). The district
court granted Defendants’ motions to dismiss without opin-
ion. Marder appealed.
II. Standard of Review
A dismissal for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6) is reviewed de novo. See
Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th
Cir. 2004). We must determine whether, “assuming all facts
and inferences in favor of the nonmoving party, it appears
beyond doubt that [Marder] can prove no set of facts to sup-
3
Apparently, Sony and Lopez initially released the Video without first
obtaining permission from Paramount. Paramount gave its permission
only after it sent Sony a presumably threatening “legal notice.” See Josh
Greenberg, J.Lo’s Flashdancing Fiasco, E! Online, May 7, 2003, avail-
able at http://www.eonline.com/News/Items/0,1,11740,00.html. To our
knowledge, no lawsuit was ever filed by Paramount against Sony or Lopez
for using elements of Flashdance in the Video.
6532 MARDER v. LOPEZ
port [her] claims.” Libas Ltd. v. Carillo, 329 F.3d 1128, 1130
(9th Cir. 2003).
Generally, the scope of review on a motion to dismiss for
failure to state a claim is limited to the contents of the com-
plaint. See Warren v. Fox Family Worldwide, Inc., 328 F.3d
1136, 1141 n.5 (9th Cir. 2003). A court may consider evi-
dence on which the complaint “necessarily relies” if: (1) the
complaint refers to the document; (2) the document is central
to the plaintiff’s claim; and (3) no party questions the authen-
ticity of the copy attached to the 12(b)(6) motion. See Branch
v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on
other grounds by Galbraith v. County of Santa Clara, 307
F.3d 1119 (9th Cir. 2002); see also Warren, 328 F.3d at 1141
n.5, Chambers v. Time Warner, Inc., 282 F.3d 147, 153 n.3
(2d Cir. 2002). The court may treat such a document as “part
of the complaint, and thus may assume that its contents are
true for purposes of a motion to dismiss under Rule 12(b)(6).”
United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
In this case, we may consider the Release Marder signed on
December 6, 1982. Paragraph 15 of her complaint states: “Ms.
Marder provided only a release of claims against Paramount
and various individuals for conduct occurring prior to Decem-
ber 6, 1982.” The Release is central to her claim and all par-
ties agree that it is appropriate for consideration.
It is not proper, however, for us to consider the letter sub-
mitted by Sony purporting to confirm an agreement between
Sony and Paramount permitting Sony’s use of elements of
Flashdance in the Video.4 That letter was created after
4
The letter, dated January 8, 2004, states in relevant part:
This is to confirm the prior oral agreement between Paramount
. . . and Sony . . . which provided that Paramount granted Sony
permission to use elements from Paramount’s film FLASH-
DANCE in the music video entitled “I’M GLAD” featuring Jen-
nifer Lopez.
MARDER v. LOPEZ 6533
Marder’s complaint was filed, and therefore could not possi-
bly have been a document upon which her complaint “neces-
sarily relie[d].” Paragraphs 20 and 53 of Marder’s complaint,
however, reference the existence of a “licensing” agreement
between Paramount and Sony. Therefore, to the extent the
existence of an agreement, oral or written, is alleged in
Marder’s complaint, we will consider such an agreement. We
will not, however, consider the contents of the letter itself.
III. The General Release Precludes Marder From
Asserting a Copyright Interest in Flashdance
[1] Both Paramount and Marder agree that California law
applies to the interpretation of the Release, as provided by the
Release terms. According to the California Supreme Court, a
release is the “abandonment, relinquishment or giving up of
a right or claim to the person against whom it might have
been demanded or enforced . . . and its effect is to extinguish
the cause of action.” Pellett v. Sonotone Corp., 160 P.2d 783,
787 (Cal. 1945); see also Cal. Civ. Code § 1541. “In general,
a written release extinguishes any obligation covered by the
release’s terms, provided it has not been obtained by fraud,
deception, misrepresentation, duress, or undue influence.”
Skrbina v. Fleming Cos., 53 Cal. Rptr. 2d 481, 489 (Ct. App.
1996).
[2] The interpretation of a release is governed by the same
principles applicable to any other contractual agreement. See
Benedek v. PLC Santa Monica, LLC, 129 Cal. Rptr. 2d 197,
201 (Ct. App. 2002). The court must interpret the Release so
As part of that agreement, Paramount committed not to sue Sony
regarding such use in return for the lump sum payment previ-
ously agreed to orally. It is the parties’ intent that this confirming
letter will be superseded by a long form agreement. Until such
agreement is finalized, the parties will continue to rely on the oral
agreement confirmed by this letter.
6534 MARDER v. LOPEZ
as to give effect to the parties’ mutual intent as it existed
when they contracted. See Cal. Civ. Code § 1636; Bank of the
W. v. Superior Court, 833 P.2d 545, 552 (Cal. 1992). The par-
ties’ intent should be inferred from the language of the
Release, so long as that language is not ambiguous or uncer-
tain. See Cal. Civ. Code §§ 1638, 1639.
The Release, executed on December 6, 1982, provides that
Marder “releases and discharges Paramount Pictures Corpora-
tion . . . of and from each and every claim, demand, debt, lia-
bility, cost and expense of any kind or character which have
arisen or are based in whole or in part on any matters occur-
ring at any time prior to the date of this Release.” The Release
also states that “[w]ithout limiting the generality of the fore-
going Release,” Marder also releases Paramount from claims
“arising out of or in any way connected with, either directly
or indirectly, any and all arrangements . . . in connection with
the preparation of screenplay material and the production, fil-
ming and exploitation of . . . Flashdance.”
[3] The Release’s language is exceptionally broad and we
hold that it is fatal to each of Marder’s claims against Para-
mount. Such a release of “each and every claim” covers all
claims within the scope of the language, absent extrinsic evi-
dence to the contrary. Jefferson v. Cal. Dep’t. of Youth Auth.,
48 P.3d 423, 426-27 (Cal. 2002). As described in greater
detail below, Marder has offered no such extrinsic evidence.
Accordingly, “the law imputes to [Marder] an intention corre-
sponding to the reasonable meaning of [her] words and acts.”
Id. (quoting Edwards v. Comstock Ins. Co., 252 Cal. Rptr. 807,
810 (1988)). Here, Marder released a broad array of claims
relating to any assistance she provided during the creation of
a Hollywood movie. Thus, the only reasonable interpretation
of the Release is that it encompasses the various copyright
claims she asserts in the instant suit.
[4] Furthermore, though in hindsight the agreement appears
to be unfair to Marder — she only received $2300 in
MARDER v. LOPEZ 6535
exchange for a release of all claims relating to a movie that
grossed over $150 million — there is simply no evidence that
her consent was obtained by fraud, deception, misrepresenta-
tion, duress, or undue influence. Indeed, when she signed the
Release, Marder was represented by counsel. She has not
asserted that her counsel in 1983 was incompetent or deficient
in any way. Accordingly, we hold that enforcing the Release
by dismissing the claims against Paramount would not “defeat
the reasonable expectations of the parties to the contract.”
Paralift, Inc. v. Superior Court, 29 Cal. Rptr. 2d 177, 181 (Ct.
App. 1993).
Despite the breadth of the Release, Marder maintains that
it does not preclude her causes of action against Paramount
because she retained co-ownership and co-authorship rights
even after she and Paramount executed the Release. First, she
claims that the section of the Release relating to “any matters”
occurring prior to the date of the Release only applies to “ac-
tionable conduct” occurring before the Release. Second, she
claims that the Release’s reference to “arrangements . . . in
connection with the preparation of Flashdance” does not
include her contributions to the writing of the film’s screen-
play. Third, she contends that Paramount’s interpretation of
the agreement is impermissibly redundant because that inter-
pretation reads the Release to simultaneously grant Paramount
the right to use Marder’s life story while releasing Paramount
from any related claims. Finally, Marder claims that Para-
mount’s actions after the Release’s execution support her
belief that she retained rights after the date of the Release.
A. “Any Matters”
Marder recognizes that the Release absolves Paramount
from claims based “in whole or in part upon any matters
occurring at any time prior to the date of the release.” In its
motion to dismiss, Paramount stated that this clause encom-
passes the current copyright claims brought by Marder in con-
nection with Flashdance. Marder contends, however, that the
6536 MARDER v. LOPEZ
word “matters” is ambiguous, and that it could reasonably be
interpreted more narrowly than Paramount construes it.
Marder makes two arguments in support of her claim.
First, she says that the Release does not expressly refer to
her status as a co-owner of the copyright or to her alleged
writing contributions. She notes, additionally, that the Release
does not explicitly mention copyright claims at all. Therefore,
she claims that the Release does not preclude her from assert-
ing a co-ownership or copyright interest in the work.
[5] This argument contravenes the plain language of the
Release, which states that Marder released Paramount from
“each and every claim . . . of any kind or character.” As stated
above, Marder knew that she was releasing her rights related
to the creation of a movie at the time she signed the Release.
Thus, it is reasonable to infer that when Marder signed the
agreement, she knew or should have known that copyright
claims “would fall within the scope of that broad language.”
Jefferson, 48 P.3d at 427.
Second, Marder claims that the word “matters” is suscepti-
ble to a narrower interpretation as “actionable conduct.”
According to Marder, the “actionable conduct” here was the
alleged infringement by Sony and Lopez in 2003, which
occurred long after the date of execution of the Release.
Therefore, Marder alleges that her claims are not precluded
because the Release only applies to “matters” occurring “prior
to the date of [the] Release.”
[6] Admittedly, the word “matter” has a specialized legal
definition: “A subject under consideration, [especially]
involving a dispute or litigation; case.” Black’s Law Dictio-
nary 992 (7th ed. 1999). But courts should interpret the words
of a contract in their “ordinary and popular sense, rather than
according to their strict legal meaning,” unless the parties
attach a special or technical meaning. Cal. Civ. Code § 1644
(emphasis added). As Paramount points out, the common def-
MARDER v. LOPEZ 6537
inition of the word “matters” also includes the “events or cir-
cumstances of a particular situation.” Webster’s Ninth New
Collegiate Dictionary 733 (9th ed. 1991).
[7] We read the Release to suggest that the parties did not
intend “matters” to be interpreted in a strictly legal sense. The
Release actually encourages a broad reading of “matters,”
because it encompasses claims that “are based in whole or in
part upon any matters occurring” prior to the date of the
Release. Marder’s present copyright claims are rooted in the
contributions she made to the screenplay before the execution
of the Release. Thus, her claims are based at least “in part”
on “matters” that occurred prior to the date of the Release.5
B. “Any and All Arrangements”
Next, Marder claims that the release of any claims relating
to “any and all arrangements” does not apply to claims relat-
ing to her alleged writing contributions. The language at issue
immediately follows the release of claims related to “any mat-
ters” discussed above, and states, in relevant part:
Without limiting the generality of the foregoing
Release, Marder hereby releases and discharges
[Paramount] from each and every claim . . . hereto-
fore or hereafter arising out of or in any way con-
5
Marder states that, hypothetically, a broad interpretation of “matters”
would preclude her from bringing suit if Paramount defamed her dance
routine. Paramount counters that the intent of the Release is to protect Par-
amount against claims with some nexus to Marder’s contributions to
Flashdance. California contract law states: “However broad may be the
terms of a contract, it extends only to those things concerning which it
appears that the parties intended to contract.” Cal. Civ. Code § 1648.
Marder’s claims to co-ownership, based in her contributions to the cre-
ation of the film, fall within the language of the Release. Her hypothetical
is unpersuasive because a defamation claim would be based on events
entirely unrelated to the creation of the movie. Such a claim would lack
a sufficient nexus to the “matters” contemplated by the Release.
6538 MARDER v. LOPEZ
nected with, either directly or indirectly, any and all
arrangements (including but not limited to research,
interviews, costumes, photographic sessions, assis-
tance, services and technical advice of any kind) in
connection with the preparation of screenplay mate-
rial and the production, filming and exploitation of
the motion picture tentatively entitled “Flashdance”
....
(emphasis added). Marder states that this portion of the
Release only applies to a specific set of “ancillary services”
that she provided during the movie’s creation, including
arranging interviews and photo shoots with other dancers.
According to Marder, those services did not include any of
her writing contributions to the screenplays. Therefore, she
alleges that the release of claims relating to “arrangements”
cannot include any claims in the instant suit, which are based
solely on her writing contributions.
[8] Marder’s reading of the release relating to “arrange-
ments” is strained. Here, “arrangements” is followed by an
explanatory parenthetical that lists examples of services
Marder might have performed, “including but not limited to
research, interviews, costumes, photographic sessions, assis-
tance, services and technical advice of any kind.” Marder
released Paramount from claims relating to services including
but not limited to those listed in the parenthetical. Thus, we
believe that any “writing contributions” she made in connec-
tion with the screenplay were included in the category of “ar-
rangements.” More importantly, the language of the Release
states that Paramount is released from “any and all arrange-
ments . . . in connection with the preparation of screenplay
material.” (emphasis added). A plain construction of “prepa-
ration of screenplay material” necessarily includes any of
Marder’s alleged writing contributions to the screenplay. We
therefore hold that the release of claims relating to “any and
MARDER v. LOPEZ 6539
all arrangements” necessarily includes Marder’s writing contri-
butions.6
C. Whether Release of Claims and Grant of Rights is
Redundant
Paramount construes the language of the Release to pre-
clude all of Marder’s claims against Paramount while simulta-
neously granting Paramount the right to use Marder’s life
story in Flashdance. Marder contends that this construction of
the Release is untenable because if the agreement truly
released Paramount from all claims by Marder, it would be
redundant for Paramount to secure a specific grant of rights
to use her life story. In support of her claim, she quotes the
general proposition that a contract “must be interpreted as a
whole, with each clause aiding the interpretation in the
attempt to give purpose to every part, and the interpretation
should, where possible, give effect to every part so that no
clause is redundant.” Super 7 Motel Assocs. v. Wang, 20 Cal.
Rptr. 2d 193, 197 (Ct. App. 1993). Thus, according to
Marder, we should not construe the Release to permit such a
redundancy.
[9] Marder’s contention on this point also lacks merit. It is
not impermissibly redundant to secure a waiver of claims and
a grant of rights in the same document. As Paramount points
out, it is generally recommended that a party seeking to
acquire life story rights for use in a motion picture include
both clauses in such an agreement. See Jay S. Kenoff, 1-5
Entm’t Indus. Contracts Form 5-1 ¶¶ 1-2 (Donald C. Farber
6
Even if her writing contributions were not covered by “arrangements,”
the instant claim would be precluded by the release relating to “any mat-
ters,” discussed above. At oral argument, Marder conceded that her writ-
ing contributions occurred before she signed the Release, stating: “Her
ownership is based on her having created the screenplay, which did occur
prior to the execution of the Release.” Thus, her alleged writing contribu-
tions were certainly “matters occurring at any time prior to the date of
[the] Release.”
6540 MARDER v. LOPEZ
ed., Matthew Bender & Co., Inc. 2004). Furthermore, a
release from claims and a grant of rights together are not
redundant. A release extinguishes claims against the released
party. See Skrbina, 53 Cal. Rptr. 2d at 489. By contrast, a
grant is an agreement that creates a right. See Black’s Law
Dictionary 707 (7th ed. 1999). Parties may include both pro-
visions in a contract without undermining the effect of either
the grant or the release.
[10] Here, Paramount secured a release from claims relat-
ing to Marder’s involvement with the creation of Flashdance.
By the same document, Marder granted Paramount the right
to use her life story in connection with Flashdance. These two
clauses do not negate each other and each may be considered
without concern for impermissible redundancy.
D. Post-Execution Conduct
Marder claims that after the Release was executed, Para-
mount approached her seeking her permission to make a
sequel to Flashdance. Marder asserts that Paramount’s
request for sequel rights reveals Paramount’s belief that
Marder retained ownership rights after the execution of the
Release.
The Ninth Circuit has recognized California contract law’s
“permissive approach to extrinsic evidence in contract inter-
pretation.” Barris Indus., Inc. v. Worldvision Enters., Inc.,
875 F.2d 1446, 1450 (9th Cir. 1989). The test for “admissibil-
ity of extrinsic evidence to explain the meaning of a written
instrument is not whether it appears to the court to be plain
and unambiguous on its face, but whether the offered evi-
dence is relevant to prove a meaning to which the language
of the contract is reasonably susceptible.” Id. (quoting Pac.
Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co.,
442 P.2d 641, 664 (Cal. 1968)). However, “if the extrinsic
evidence advances an interpretation to which the contract is
MARDER v. LOPEZ 6541
not reasonably susceptible, the extrinsic evidence is not
admissible.” Id.
[11] Our interpretation of the Release is not affected by
Marder’s allegations that Paramount approached Marder
regarding a sequel to Flashdance. The Release only relates to
Flashdance, and various “matters” and “arrangements” con-
cerning that movie. It may be true that Marder retained some
undefined rights after the Release, but that does not change
the fact that the Release waived “all” and “any” of her claims
relating to Flashdance. That Paramount considered creating a
sequel that was never made does not change the effect of the
Release with respect to claims based on the movie that was
made, Flashdance.
[12] In conclusion, the Release bars all of Marder’s instant
claims against Paramount. Her proposed interpretation of the
Release is inconsistent with its terms, because the Release’s
language broadly encompasses “each and every claim” relat-
ing to Marder’s contributions to the movie Flashdance. Spe-
cifically, the Release prevents her from asserting a copyright
interest in Flashdance. The district court therefore properly
dismissed Marder’s suit against Paramount.
IV. Marder Is Barred from Bringing an Infringement
Claim Against Sony and Lopez
[13] We also affirm the district court’s dismissal of claims
against Sony and Lopez. “Plaintiffs must satisfy two require-
ments to present a prima facie case of direct infringement: (1)
they must show ownership of the allegedly infringed material
and (2) they must demonstrate that the alleged infringers vio-
late at least one exclusive right granted to copyright holders
under 17 U.S.C. § 106.” A&M Records, Inc. v. Napster, Inc.,
239 F.3d 1004, 1013 (9th Cir. 2001). As we held above, under
the terms of the Release, Marder cannot sue Paramount to
assert a co-ownership in Flashdance. It is therefore impossi-
ble for her to establish a prima facie case of copyright
6542 MARDER v. LOPEZ
infringement against Sony and Lopez. We find that the district
court properly dismissed Marder’s suit against Sony and
Lopez.
V. Conclusion
The General Release Marder signed in 1982 constituted a
waiver of all claims against Paramount arising out of her con-
tributions to the film Flashdance. Her current claims against
Paramount are barred by the Release. Marder’s suit against
Sony and Lopez was properly dismissed because she cannot
bring an infringement action if she cannot assert a valid copy-
right interest in Flashdance and she has no existing evidence
of copyright ownership. Because our ruling is dispositive, we
need not address the other defenses raised by Defendants.
Accordingly, we affirm the district court’s grant of Defen-
dants’ motions to dismiss under Rule 12(b)(6).
AFFIRMED.
MARDER v. LOPEZ 6543
APPENDIX
GENERAL RELEASE
For and in consideration of the sum of Two Thousand
Three Hundred Dollars (U.S. $2,300.00) paid to the under-
signed, Maureen Marder (“Marder”), receipt of which is
hereby acknowledged, Marder hereby releases and discharges
Paramount Pictures Corporation, its parent, subsidiary and
affiliated companies and their respective past, present and
future officers, agents, employees, attorneys, predecessors-in-
interest, successors, assigns and licensees and each of them
(including without limitation Jerry Bruckheimer, Joe Esz-
terhas, Tom Hedley, Adrian Lyne, or any companies supply-
ing their respective services, PolyGram Pictures, Ltd. and
PolyGram Pictures, Inc.), all of said companies and persons
hereinafter for convenience “Releasees”, of and from each
and every claim, demand, debt, liability, cost and expense of
any kind or character which have arisen or are based in whole
or in part upon any matters occurring at any time prior to the
date of this Release.
Without limiting the generality of the foregoing Release,
Marder hereby releases and discharges said Releasees and
each of them and all other persons, firms or corporations from
each and every claim, debt, demand, liability, cost or expense
heretofore or hereafter arising out of or in any way connected
with, either directly or indirectly, any and all arrangements
(including but not limited to research, interviews, costumes,
photographic sessions, assistance, services and technical
advice of any kind) in connection with the preparation of
screenplay material and the production, filming and exploita-
tion of the motion picture tentatively entitled “FLASH-
DANCE”, and any version thereof in any media; and in that
connection, Marder does hereby specifically grant said
Releasees the non-exclusive right to use the aforementioned
arrangements, the story of Marder’s life and her experiences
as a dancer, and such uses may be factual and/or fictional with
6544 MARDER v. LOPEZ
the right to make such changes therein and thereto as
Releasees in their sole discretion may determine in connection
with said motion picture “FLASHDANCE” and the properties
upon which it is based and any versions thereof in any media,
which motion picture and properties and any versions thereof
may be published, exhibited, advertised and exploited by
Releasees in all media perpetually throughout the universe,
provided Marder’s name, i.e., actual surname or her stage
name “July August” shall not be used in connection with the
said motion picture.
Marder hereby directs that payment of the aforesaid sum of
$2,300.00 be made to Enid G. Hildebrand, as her attorney,
who is hereby authorized to receive and receipt therefor and
the Releasees hereunder shall not be responsible for payment
by said attorney to Marder.
Marder hereby waives and relinquishes all rights which she
may have under Section 1542 of the California Civil Code
which reads as follows:
“A general release does not extend to claims which
the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him, must have materially affected his set-
tlement with the debtor.”
It is understood by Marder that the facts in respect of which
the foregoing release is given may turn out to be other than
or different from the facts in that connection known to her or
believed by her to be true, and Marder expressly assumes the
risk of the facts turning out to be so different and agrees that
the foregoing release shall be in all respects effective and not
subject to termination or rescission by reason of any such dif-
ference in facts.
Marder specifically agrees that she will not at any time
divulge to any third party in any way the fact of this General
MARDER v. LOPEZ 6545
Release or any details thereof, or the facts relating to her
involvement with Tom Hedley. So far as Marder is aware,
Gina Healey’s involvement with the aforementioned motion
picture was minimal.
All references to Marder hereinabove shall be deemed to
constitute a reference to her employees, agents, personal rep-
resentatives, heirs, successors and assigns, and this Release
shall be binding upon each and every one of them.
This General Release shall be governed by the laws of the
State of California to the same extent as agreements executed
and wholly performed in the said State of California.
IN WITNESS WHEREOF, the undersigned has executed
this Release this 6th day of December, 1982.
/s/ Maureen Marder
I acknowledge receipt of the $2,300.00 payment to Enid G.
Hildebrand as attorney for Maureen Marder.
/s/ Enid G. Hildebrand