
    In the Matter of the Arbitration between Mogul Williams & Saylor, Inc., Petitioner, and Screen Actors Guild, Inc., Respondent.
    Supreme Court, Special Term, New York County,
    November 15, 1961.
    
      McGoldrick, Dannett, Horowitz S Golub (Emanuel Dannett and Herbert D. Schwartzman of counsel), for petitioner. Gray & Grossman (Emil Levin of counsel), for respondent.
   Fbancis X. Conlon, J.

This is a motion to stay a proposed arbitration. The question of whether the arbitration clause, relied upon by respondent, requires arbitration of the controversy between the parties presents a preliminary issue of law for the decision of the court.

The amended notice of arbitration is restricted to a claim that petitioner violated the agreement with respondent by refusing to pay one Gosfield for the use of his likeness in the making of a film to be used as a television commercial, and for the use and reuse of the film. It is clear, however, from a reading of the agreement that it does not require payment to one whose likeness is used in a commercial without his actual rendering of services therein by an actual appearance on his part in the film. In the instant case, Gosfield did not render any services whatever in the film used as a commercial. He did not appear therein. .What happened was that petitioner engaged a cartoonist who prepared drawings of cartoon figures, including a drawing depicting Gosfield. A controversy as to Gosfield’s right to compensation for the use of his likeness in a film cartoon is not within the scope of the controversies which the parties agreed to arbitrate.

Furthermore, the provisions of the contract are so clear that petitioner was not obligated to pay Gosfield with whom it had no contract or contact, for the use of his likeness, without his appearance in the commercial or Ms rendition of any services, that there is no rational basis for a contrary contention and, therefore, no bona fide arbitrable dispute (Matter of Sarle [Sperry Gyroscope Co.], 4 A D 2d 638, affd. 4 N Y 2d 917; Matter of International Assn. of Machinists [Cutler-Hammer], 271 App. Div. 917, affd. 297 N. Y. 519.)

Gosfield’s right, if any, under the Civil Bights Law are not within the scope of the contract or the arbitration clause, nor is any claim Gosfield may choose to assert for violation of an alleged property right in his portrayal in the commercial. The definition of the word “ player ” in the agreement as one whose face appears silent ” also requires a11 foreground performance ” on his part. Admittedly, Gosfield rendered no performance whatever in the commercial. Motion for a stay granted.  