Cite as 657 F.Supp. 454 (E.D.Mich. 1987)
Co., 155 Mich.App. 307, 311–12, 399 N.W.2d 502 (1986); Wilson v. Home Owners Insurance Co., 148 Mich.App. 485, 490, 384 N.W.2d 807, leave to appeal denied, 425 Mich. 876 (1986). The contract language should be given its ordinary and plain meaning, instead of a technical or strained construction. Wilson, 155 Mich.App. at 490, 384 N.W.2d 807. Moreover, a “contract should be interpreted to avoid an absurd or unreasonable result.” Miller v. Van Kampen, 154 Mich.App. 165, 168, 397 N.W.2d 253 (1986).
13. The language of the contract suggests that Weisberg was required to obtain copyright protection for the film. The contract stated that Weisberg, through M & A, conveyed “exclusive” video rights to VCX. The following definition shows that the term “exclusive” implied that Weisberg would obtain copyright protection:
Exclusive. Appertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out; debarring from interference or participation; vested in one person alone.
Black’s Law Dictionary 506 (5th ed. 1979).
14. The subject matter of the contract suggests that the parties intended that Weisberg obtain copyright protection for the film. As noted above, only Weisberg could have added a copyright notice to the movie version of the film. Until that notice was added, VCX was paying a $10.00 cassette royalty for a worthless “exclusive right” to duplicate the film on video cassette—something VCX or anyone else could have done freely without Weisberg’s permission. All VCX received from the contract was a fresh print of the film and some assorted advertising material.
15. The circumstances surrounding the making of the contract similarly support the conclusion that Weisberg was required to obtain copyright protection for the film. Weisberg testified that the parties, at the time the contract was formed, never considered whether the film included a copyright notice. Arno, however, testified that as soon as he became aware of the absence of a copyright notice in the film, he immediately demanded that such notice be added. Thus, Arno apparently believed that the contract gave him the right to demand copyright protection so that he could enjoy the exclusive right to sell video cassette copies of the film.
16. Weisberg claims that the contract could be breached only if a third party claimed ownership of the film or the video rights. According to Weisberg, the term “exclusive” means that M & A would not grant such rights to any third partis. The difficulty with that argument is that Weisberg, by failing to insert copyright notice on the film, permitted and in effect granted third partis the right to sell video cassette copies of the film.
17. In short, Weisberg’s agreement to provide VCX with the exclusive right to tell video cassette copies of the film “Debbie Does Dallas” included the obligation to add copyright notice. Weisberg’s failure to add such notice breached the warranty of title contained in that agreement. In so holding, this Court declines to impose an unreasonable condition on VCX, by requiring it to pay a $10.00 royalty for each video cassette sale, while any third party could freely sell such copies.
18. VCX seeks restitution for the money it paid to Weisberg. “The essential elements of such a claim are (1) receipt of a benefit by the defendant from the plaintiff and (2) which benefit it is inequitable that the defendant retain.” In re McCallum Estate, 153 Mich.App. 328, 335, 395 N.W.2d 258 (1986) (citation omitted). The benefit must be conferred under circumstances such that restitution is necessary to protect the interests of the plaintiff. Id. It would be inequitable for Weisberg to retain royalty payments from VCX. VCX is entitled to restitution in the amount of $225,440.00, which represents the amount it paid to Weisberg in excess of the fair market value of what Weisberg furnished VCX.
19. Weisberg rises the defenses of laches, waiver, and estoppel. Each will be addressed in seriatim. “For one to successfully assert the defense of laches, it
