Gaga Dismissed From Copyright Case Because Indemnification And Contribution Not Available

Gaines v. Fusari, No. 2:11-cv-04433-WJM-MF (D.N.J. filed 05/08/13) [Doc. 85].

The Court granted third-party defendant Lady Gaga's motion to dismiss the third-party complaint.  Gaga and defendant co-own the copyright to a number of songs.  Plaintiff brought the action seeking a declaration that he is a co-author and co-producer of the songs.  After Plaintiff sued defendant, defendant brought third-party claims for indemnification and contribution against Gaga.  The Court found:

Fusari’s indemnification and contribution claims against Germanotta must be grounded in federal law. But neither federal statutory law nor federal common law provide causes of action for indemnification or contribution in Copyright Act cases. See, e.g., Pure Country Weavers, Inc. v. Bristar, Inc., 410 F. Supp. 2d 439, 448 (W.D.N.C. 2006) (no cause of action for indemnification in Copyright case); Arista Records, Inc. v. Flea World, Inc., 356 F. Supp. 2d 411, 416 (D.N.J. 2005) (no cause of action for contribution in Copyright case). Accordingly, the Court will DISMISS Counts I and II WITH PREJUDICE.

Publisher Denied Attorney's Fees

De Walt v. Jobete Musc Co., No. B240650 (Cal. App. Ct., 2d Dist. filed May 7, 2013).

The California appellate court held that a publisher (related to MoTown) could not recover attorney's fees  in a royalties related suit in which the publisher prevailed because the company didn't move for the fees in the initial trial over copyright-misappropriation claims.

This case arises from an underlying action filed in 2003 by respondents,1 who are the heirs of the late musician and composer Autry De Walt, professionally known as Junior Walker (De Walt), against appellant Jobete Music Co., Inc. (Jobete). In the underlying action, respondents disputed the ownership of renewal copyrights of certain songs and sought a declaration as to which of several contracts between De Walt and Jobete were applicable. A jury found the most recent contract governed, and judgment was entered in favor of Jobete and affirmed on appeal. Although Jobete filed a memorandum of costs in the underlying action, it did not seek its attorney fees. Instead, over the next several years, Jobete unilaterally offset from the royalties payable to respondents amounts it claimed were incurred as attorney fees in the underlying action. In 2009, respondents sued Jobete for breach of contract and conversion. Following a bench trial based on stipulated evidence, the trial court entered judgment in favor of respondents, finding that Jobete was barred from seeking its attorney fees by not pursuing them in the underlying action. We agree that Jobete is no longer entitled to seek its attorney fees. We affirm the judgment in favor of respondents except as to their conversion claim.

Dismissal of Duke Ellington Royalty Suit Affirmed

Ellington v. EMI Music, No. 651558/10, NYLJ 1202598616249 (1st Dep't May 2, 2013)

The First Department affirmed dismissal of Duke Ellington heirs' breach of contract action against a group of music publishers.  The dispute was based on a 1961 songwriter agreement, and called for an interpretation of paragraph 3(a) of the agreement which, where relevant, required payment to Ellington of "a sum equal to fifty (50 percent) percent of the net revenue actually received by the Second Party from…foreign publication" of Ellington's compositions.  This is known in the music publishing industry as a "net receipts" arrangement by which a composer, such as Ellington, would collect royalties based on income received by a publisher after the deduction of fees charged by foreign subpublishers.

Fees that previously had been charged by independent foreign subpublishers under the instant net receipts agreement were now being charged by subpublishers owned by Defendant.  Plaintiff asserted that Defendant had enabled itself to skim his claimed share of royalties from the Duke Ellington compositions by paying commissions to its affiliated foreign subpublishers before remitting the bargained-for royalty payments to Duke Ellington's heirs.  In dismissing the complaint, the motion court declined to read into the royalty payment terms any distinction between affiliated and unaffiliated foreign subpublishers inasmuch as the contracting parties themselves chose not to make such a distinction.  The First Department affirmed.

The Court found no ambiguity in the agreement which, by its terms, required EMI to pay Ellington's heirs 50 percent of the net revenue actually received from foreign publication of Ellington's compositions. "'Foreign publication' has one unmistakable meaning regardless of whether it is performed by independent or affiliated subpublishers. Given the plain meaning of the agreement's language, plaintiff's argument that foreign subpublishers were generally unaffiliated in 1961, when the agreement was executed, is immaterial."

Bieber and Usher Sued For Copyright Infringement; "Somebody To Love"

Copeland v. Bieber et al., No. 2:13-cv-00246 (E.D. Va. filed May 2, 2013).

Justin Beiber and Usher were sued by authors of the song "Somebody to Love" for alleged copyright infringement.  The notable aspect of the Complaint is the level of detail the Plaintiffs include in alleging the extent of copying and comparing the two works (at paragraph 47).

Songwriter's Widow Sanctioned; Default Judgments In Favor Of Assignee Not Vacated

Bridgeport Music, et al. v. Smith, et al., No. 12-1523 (6th Cir. May 1, 2013).

This action is based on default judgments entered in 2004 that plaintiff obtained against defendants for copyright infringement of the 1974 song "You’re Getting a Little Too Smart" ("Smart").  Plaintiff was the assignee of the songwriter's rights in the song.  In 2011, the songwriter's widow moved to vacate the default judgments, arguing that she, not Plaintiffs, was the legal owner of the copyright by operation of law at the time the lawsuit was filed.  The district court denied the motion, as well as her motion for reconsideration, and the widow appealed.  The Sixth Circuit affirmed, and granted Plaintiffs motion for damages and costs.

After stating the relevant facts, the Court began its analysis by determining who was entitled to what copyright interests in “Smart” under the renewal provisions of the Copyright Act:  "(1) Based on their assigned interest in the initial copyright, Plaintiffs had the right to sue for infringing acts occurring up through December 31, 2002, see 17 U.S.C. § 501(b) ..., and they had three years after that date to bring a cause of action. ... (2) Because Tilmon died prior to the renewal term, Tilmon’s contingency interest in the renewal copyright passed to Tilmon-Jones and Tilmon’s children, on January 1, 2003."

Next, the Court considered whether the widow, as a non-party to the litigation in which the judgments were entered, had standing.  The Court determined she did not have standing to bring a Fed. R. Civ. P. 60(b) motion.  Rule 60(b) provides in pertinent part that a “court may relieve a party or its legal representative” from a final judgment.  Nor was the widow in privity, or were here interests "strongly affected."

The Court also found that the widow's motion to vacate the judgments was untimely under Fed. R. Civ. P. 60(c)(1), which requires such motion be made within a reasonable period of time.  She did not file the motions until 6 years after constructive notice of the judgments (due to recordation of the judgments with the Copyright Office), and 7 years after they were entered.  The motions also were barred by a release the widow signed in another action.

Lastly, the Sixth Circuit sanctioned the widow and her counsel, pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912.  "The conduct of Tilmon-Jones and her counsel was objectively and patently meritless and a waste of judicial resources. Tilmon-Jones maintains that her appeal is not frivolous because the question of whether a nonparty has standing under Fed. R. Civ. P. 60(b) was not obviously without merit. This may be true, but it does not obviate the fact that her appeal was utterly without merit because it was untimely and barred by a release. We find that this appeal is frivolous and that sanctions are appropriate."

KC Royalties Claim Booted From Federal Court

Smith v Casey, No. 1:12-cv-23795 (S.D. Fla. Apr. 25, 2013) [Doc. 84].


The Court declined to exercise supplemental jurisdiction over Plaintiff’s remaining state-law claim for breach of contract relating to royalties, and "declines Plaintiff’s ill-formulated request for declaratory relief."

Plaintiff's copyright claim was previously dismissed, leaving only a state-law breach of contract claim and a request for declaratory relief.  The Court found that because "Plaintiff’s timely claims for breach-of-contract will not become time-barred as a result of this Court’s dismissal without prejudice", it would not exercise supplemental jurisdiction over the state law claim.  Moreover, there was no diversity, and very little discovery had taken place.  The Court also rejected the declaratory judgment claim, stating it was dangerously close to a request for issuance of an advisory opinion.

Congress To Review Copyright Law

The Chairman of the House Judiciary Committee, Bob Goodlatte (R-Va.), announced that the committee "will conduct a comprehensive review of U.S. copyright law over the coming months."  Continuing, the Chairman stated: "The goal of these hearings will be to determine whether the laws are still working in the digital age."  Press release here.