Cite as 657 F.Supp. 463 (D.N.H. 1987)
able efforts resulted in the film being irretrievably injected into the public domain “several months” later. Gemveto Jewelry Co. v. Jeff Cooper Inc., 568 F.Supp. 319, 329–31 (S.D.N.Y.1983). See generally Nimmer, supra, § 7.13[B][2]. Thus, it was not until the middle of 1981 that VCX reasonably could conclude that the copyright was lost. VCX filed its counterclaim in early 1983, approximately a year and a half later.
28. VCX’s delay did not constitute a lack of diligence. Additionally, Weisberg has not shown that he suffered prejudice because of VCX’s delay. As a result, VCX’s right to restitution is not barred under the doctrine of laches.
29. Waiver consists of a voluntary, intentional relinquishment of a known right. Bissell v. L.W. Edison Co., 9 Mich.App. 276, 156 N.W.2d 623 (1967). A party to a contract may waive a claim for its breach by declarations, acts, and conduct inconsistent with a purpose of exacting strict performance. Grand Rapids Asphalt Paving Co. v. City of Wyoming, 29 Mich.App. 474, 185 N.W.2d 591 (1971). VCX did not waive Weisberg’s breach of warranty of title. Instead, VCX continually requested Weisberg’s performance until it concluded that the copyright was lost. Moreover, VCX’s continued sale of video cassettes after ceasing royalty payments was not an intentional relinquishment of a known right. VCX freely distributed its video cassettes without the payment of royalties because Weisberg’s actions had thrust the film irretrievably into the public domain.
30. Weisberg finally contends that VCX is estopped from alleging that he breached warranties under the contract because VCX continued to accept benefits of the contract, and cites Aiken v. Gonser, 342 Mich. 29, 69 N.W.2d 180 (1955), to support that proposition. Estoppel does not apply to the present case because VCX never received benefits under the contract. VCX, by continuing to sell video cassette copies, merely exercised the right it shared with members of the public.
ORDER
For the reasons set forth above, IT IS HEREBY ORDERED
1. That both parties be given fourteen (14) days from the date of this Opinion to amend their pleadings to name Arthur Weisberg as plaintiff and/or counter-defendant.
2. The claims of M & A Associates, Inc., and Arthur Weisberg against VCX, Inc., are dismissed.
3. Upon VCX, Inc.’s amendment of its counterclaim to name Arthur Weisberg as counter-defendant, judgment will be entered for VCX, Inc., in the amount of $225,440.00.
So ordered.
Gina Marie CATALFO; Alfred T. Catalfo; Carole Joanne Catalfo; Alfred Catalfo, Jr.
v.
Jack JENSEN; Brad Edmondson; Ithaca Times.
Civ. No. 85-588-D.
United States District Court, D. New Hampshire.
April 8, 1987.
