"The right to rescind or modify a third party beneficiary
contract, without the assent of the beneficiary, ceases once the
contract is accepted, adopted or acted upon by the third party.
The rights of the third party "vest" when he learns of
the initial contract and assents to it or materially changes his
position in justifiable reliance on it or brings suit on
it."; Restatement (Second) of Contracts § 311(3).
"New York law does not presume the rescission or
abandonment of a contract and the party asserting rescission or
abandonment has the burden of proving it".
Graham v. James, 144 F.3d 229 (2d Cir.
1998)
"Because Santa Rosa seeks rescission of his contract, if we
were to grant him the relief that he sought, we would be
required to determine his ownership rights by reference to the
Copyright Act. In such a case, there is little question that we
would be merely determining whether Santa Rosa was entitled to
compensation because of "mere copying" or
"performance, distribution or display" of his
recordings. Data Gen. Corp., 36 F.3d at 1164. As such, 17 U.S.C.
§ 301(a) preempts Santa Rosa's rescission
claim."
Santa-Rosa v. Combo Records,
05–2237 (1st Cir. Dec. 15, 2006)