ABKCO Music Inc Plaintiff Appellant Cross Appellee v Harrisongs Music Ltd Harrisongs Music Inc George Harrison Apple Records Ltd Apple Records Inc Broadcast Music Inc and Hansen Publications Inc Defendants Appellees CrossAppellants v ABKCO Industries Inc and Allen Klein Additional Parties With Respect to the Counterclaims Nos 87 7599 87 7659 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 841 F 2d 494 1988 U S App LEXIS 3283 December 2 1987 Argued March 10 1988 Decided PRIOR HISTORY 1 Appeal and cross appeal from a judgment of the United States District Court for the Southern District of New York Richard Owen J amending in part a previous judgment ordering appellant to hold certain assets in constructive trust for the benefit of appellees Appeal and cross appeal dismissed for lack of appellate jurisdiction COUNSEL Gideon Cashman Esq Donald S Zakarin Charles B McKenna Pryor Cashman Sherman Flynn of Counsel for Plaintiff Appellant Cross Appellee Joseph J Santora Esq Michael S Allen Santora McKay of Counsel for Defendants Appellees Cross Appellants JUDGES Newman Cardamone and Pierce Circuit Judges OPINIONBY PER CURIAM OPINION 495 ABKCO Music Inc ABKCO appeals from a judgment of the United States District Court for the Southern District of New York Richard Owen J which was entered on June 26 1987 the 1987 Judgment and which amended in part a previous judgment entered by Judge Owen on May 5 1982 the 1982 Judgment that ordered ABKCO to hold certain assets in constructive trust for the benefit of the defendants appellees The defendants appellees collectively known as the Harrison Interests 2 have filed a notice of cross appeal For the reasons set forth below we dismiss both the appeal and the cross appeal for lack of appellate jurisdiction I The circumstances giving rise to this appeal are more fully set forth in the prior opinions in this case Bright Tunes Music Corp v Harrisongs Music Ltd 420 F Supp 177 S D N Y 1976 and ABKCO Music Inc v Harrisongs Music Ltd 508 F Supp 798 S D N Y 1981 aff d with modification and remanded 722 F 2d 988 2d Cir 1983 We shall discuss herein only those facts that are essential to an understanding of the present appeal and cross appeal In 1971 Bright Tunes Music Corporation Bright Tunes the holder of the copyright to the Ronald Mack composition He s So Fine commenced a copyright infringement action in the Southern District against the Harrison Interests alleging that George Harrison s composition My Sweet Lord MSL infringed the copyright of He s So Fine HSF While the infringement action was pending before the district court George Harrison was involved in litigation with ABKCO and its president Allen Klein following the expiration 3 of ABKCO s contract to serve as business manager for the former singing group The Beatles this dispute which concerned the winding down of management affairs was not resolved until 1977 when the Beatles agreed to pay ABKCO a settlement of 4 2 million Meanwhile Bright Tunes infringement action proceeded apace Following a trial in 1976 on the issue of liability Judge Owen ruled that Harrison had subconsciously plagiarized the Mack composition Judge Owen reserved decision on the issue of damages Before the district judge had reached a decision on the amount of damages to be assessed against Harrison in the infringement suit ABKCO acquired all of Bright Tunes interest in HSF including the right to receive certain royalties derived from licensing the composition and all rights assertable against any infringing composition in exchange for a payment of approximately 587 000 the 1978 Acquisition As a result of this agreement ABKCO succeeded Bright Tunes as a party to the infringement suit against Harrison In response the Harrison Interests filed a counterclaim against ABKCO for alleged breaches of fiduciary duty relating to the negotiation for and purchase of 4 the Bright Tunes properties and requesting that Judge Owen impose a constructive trust over the fruits of the 1978 Acquisition Following a trial on damages and counterclaims Judge Owen entered the 1982 Judgment which ordered ABKCO to hold the fruits of the 1978 Acquisition in constructive trust for the benefit of the Harrison Interests and to transfer the fruits of the 1978 Acquisition to George Harrison or an appropriate designee upon the payment to ABKCO of the sum of 587 000 Prior to the entry of the 1982 Judgment however the Harrison Interests and ABKCO had agreed to a partial settlement the 1980 Settlement involving certain foreign copyrights Consequently on appeal of the 1982 Judgment a panel of this Court remanded the case to Judge Owen with instructions that the constructive trust should not include that portion of ABKCO s acquisition constituting a purchase of foreign rights involved in the 1980 settlements To acquire the fruits of the constructive trust the Harrison Interests would have to pay ABKCO that 496 portion of ABKCO s 587 000 acquisition cost that was not attributable to the excluded foreign rights 722 F 2d at 997 5 After remand in 1986 Judge Owen conducted a two day trial and thereafter issued an order and judgment amending the 1982 Judgment in part He ruled that the portion of the 587 000 paid by ABKCO to Bright Tunes which is attributable to the foreign rights involved in the 1980 settlement is 316 980 Second Judge Owen amended the previous judgment by ordering ABKCO to hold only the fruits of the 1978 Acquisition not affected by the 1980 Settlement in trust for the Harrison Interests Upon payment of 270 020 587 000 less 316 980 plus interest ABKCO would transfer to George Harrison or an appropriate designee all the fruits of the 1978 Acquisition not affected by the 1980 Settlement ABKCO filed a notice of appeal and the Harrison Interests cross appealed At oral argument on December 2 1987 we inquired of counsel whether the 1987 Judgment constituted a final decision for purposes of 28 U S C 1291 1982 We expressed particular concern that regardless of the outcome on appeal the matter might have to be remanded to the district court to decide which fruits of the 1978 Acquisition were not affected by the 1980 Settlement Accordingly 6 we requested that counsel inform us within two weeks whether there was any disagreement over the meaning of the phrase fruits of the 1978 Acquisition not affected by the 1980 Settlement We received letters from counsel on December 16 II As a general rule the federal courts of appeals have jurisdiction only over appeals from
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