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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 1 of 28
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __X
`
`BIG EAST ENTERTAINMENT,
`
`INC.,
`
`Plaintiff,
`
`— against —
`
`ZOMBA ENTERPRISES,
`
`INC.,
`
`Defendant.
`
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ __X
`
`A P P E A R A N C E S:
`
`04 Civ. 10008 §RWS)
`
`O P I N I 0 N
`
`CINQUE & CINQUE
`Attorneys for Plaintiff
`845 Third Avenue, Suite 1400
`New York, NY 10022
`By:
`JAMES P. CINQUE, ESQ.
`
`Q; Counsel MANATT PHELPS & PHILLIPS
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 2 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 2 of 28
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`Sweet, D.J.,
`
`The defendant Zomba Enterprises,
`
`Inc.
`
`(”Zomba" or the
`
`“Defendant") has moved pursuant
`
`to Rule 56, Fed. R. Civ. P.,
`
`for
`
`summary judgment dismissing the complaint of plaintiff Big East
`
`Entertainment, Inc.
`
`("Big East" or the "Plaintiff") alleging causes
`
`of action for copyright
`
`infringement and an accounting. Big East
`
`has cross—moved for summary judgment.
`
`For the reasons set forth
`
`below,
`
`the motion of Zomba for summary judgment is granted, and the
`
`cross—motion of Big East is denied.
`
`This fifteen year old controversy involves the rights to
`
`
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`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 3 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 3 of 28
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`The Facts
`
`The material facts are set forth in Zomba's Statement
`
`Pursuant to Local Civil Rule 56.1 and Big East's Local Civil Rule
`
`56.1 Statement and are not in dispute except as noted below.
`
`The Parties
`
`Big East
`
`is a record distribution corporation wholly
`
`owned by Jack Allen ("Allen"). According to Big East, it is the
`
`successor in interest to B—Boy Records,
`
`Inc., Rock Candy Records
`
`and Rock Candy Music, all of which were wholly owned by Allen.
`
`A
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 4 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 4 of 28
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`The Agreements In The Prior Litigation
`
`On May 20, 1986,
`
`the members of BDP signed a recording
`
`contract with Rock Candy Records
`
`("Rock Candy"),
`
`a
`
`record
`
`distribution corporation owned by Allen ("1986 Artist Agreement").
`
`Pursuant
`
`to the
`
`1986 Artist Agreement, Rock Candy
`
`obtained ownership of the copyrights in the master recordings of
`
`any songs recorded by BDP under the contract and in exchange Rock
`
`Candy was to pay BDP royalties.
`
`While under
`
`contract with Rock Candy,
`
`BDP wrote,
`
`
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 5 of 28
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`Allen is aware that Kamarra claims to be a part—owner of Rock Candy
`
`and other companies affiliated with Allen.
`
`The 1986 Artist Agreement stated in relevant part that:
`
`all musical compositions written and/or composed by [BDP]
`which are recorded by [BDP] pursuant
`to this Agreement
`shall be co—published between [BDP's] publishing company
`to be designated and [Rock Candy's] music publishing
`affiliate to be designated pursuant
`to a co—publishing
`agreement entered into simultaneously herewith.
`
`(1986 Artist Agreement,
`
`fl 8).
`
`The 1986 Artist Agreement does not contain any terms
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 6 of 28
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`
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 6 of 28
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`Parker does not recall ever entering into a co—publishing
`
`agreement with Rock Candy.
`
`Parker gave all the agreements he had in his possession
`
`in 1987 to Jay D. Kramer ("Kramer"), his counsel at that time, who
`
`does not recall ever seeing a co—publishing agreement. Kramer has
`
`testified that
`
`throughout all his years of communications with
`
`Allen on behalf of Parker, Allen never once claimed that this co-
`
`publishing agreement was ever executed, or even existed. No letter
`
`on behalf of Big East or any other company affiliated with Allen
`
`mention this purported co—publishing agreement.
`
`
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`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 7 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 7 of 28
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`album (Complt. ll 13, 25, 29, 31(b) and 32) and requested that the
`
`copyrights in the Criminal Minded compositions be returned to them,
`
`and alleged that Rock Candy was a "co—publisher of
`
`the musical
`
`compositions on plaintiffs’ recordings."
`
`(Complt.
`
`fl 29).
`
`On November 19,
`
`1987,
`
`the lawsuit was
`
`resolved in a
`
`settlement agreement
`
`(the "1987 Settlement Agreement“) between
`
`Parker and the other members of BDP on the one hand,
`
`and "Jack
`
`Allen, William Kamarra, Ray Wilson,
`
`individually and d/b/a J & B
`
`Management Company,
`
`Rock Candy Records,
`
`Rock Candy Music,
`
`Sweetheart Distribution Corp.,
`
`and
`
`Jam City
`
`One
`
`Stop,"
`
`(collectively,
`
`the "Allen Defendants").
`
`Rock Candy Music and
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 8 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 8 of 28
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`exclusive
`an
`into
`entering
`contemporaneously
`are
`recording agreement and our sister company [defendant]
`Zomba Enterprises,
`Inc.
`is entering into an exclusive
`publishing agreement with Lawrence Parker p/k/a Boogie
`Down Productions ("the Artist“) and you [Jack Allen and
`his companies] and Artist are releasing the other from
`their
`respective
`obligations
`under
`the
`exclusive
`agreement dated May 20, 1986 between you and also from
`the litigation commenced in relation thereto between the
`Artist and you (index no.: 87/25130)
`
`(Ex.
`
`5 to Allen Decl.).
`
`The 1987 Settlement Agreement provided that
`
`the Allen
`
`Defendants "shall retain the right
`
`to distribute and exploit
`
`the
`
`recordings
`
`embodying
`
`the performances
`
`of
`
`[BDP]
`
`and musical
`
`compositions written.by [BDP] performed in the recordings listed in
`
`
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`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 9 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 9 of 28
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`licenses full right,
`
`title and interest
`
`in the tradename Boogie
`
`Down Productions" and only allowed the Allen Defendants to use the
`
`name "in connection with the recordings listed in Schedule ‘A’
`
`annexed hereto."
`
`Schedule A lists nine songs from the "Criminal
`
`Minded" album and two other songs ——
`
`"The P is Free," and "Bride
`
`I-II
`
`Parker and Zomba, an affiliate of ZRC, entered into a co-
`
`publishing agreement
`
`on November 23,
`
`1987
`
`("Zomba Publishing
`
`Agreement”) which provided that Zomba possessed all Parker's
`
`ownership interests and stated that
`
`the musical
`
`compositions
`
`embodied on the "Criminal Minded" album were committed by a written
`
`agreement to a third party (Zomba Publishing Agreement 1 1(a)).
`
`
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`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 10 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 10 of 28
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`copyrights;
`
`that we couldn't submit a copyright because it was
`
`already owned by Zomba."
`
`Since approximately 1991, Allen wrote several letters to
`
`Zomba and had several conversations with Zomba representatives
`
`regarding his companies’ purported rights in the "Criminal Minded"
`
`compositions.
`
`(Allen Dep. at 96).
`
`In a letter dated July 16,
`
`1992, Allen writes that he is aware that Zomba
`
`is claiming to
`
`"control[] 100% of the publishing on all of the songs of the album
`
`"Criminal Minded,"
`
`that Rock Candy and B—Boy "still own the 2"
`
`master" of this album, and requested that Zomba inform them about
`
`any sales of the recordings.
`
`(Hayes Dec. Ex. E).
`
`
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`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 11 of 28
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`behalf of Big East claiming that pursuant
`
`to the 1987 Settlement
`
`Agreement, Big East "retained all rights" in the "Criminal Minded"
`
`album,
`
`including "copyrights"
`
`(Hayes Dec. Ex. G), and that Zomba
`
`"has been named as Publisher to the "Criminal Minded" albums."
`
`(;gL)
`
`and that Zomba pay "what
`
`is duly owed"
`
`to her client and
`
`advises that she and her clients "do not wish to go into litigation
`
`on these issues."
`
`In 2000, an attorney wrote a letter on behalf of Bun Bun
`
`Music, another corporation wholly—owned by Allen,
`
`to the American
`
`Society of Composers, Authors and Publishers ("ASCAP") requesting
`
`that ASCAP release any "royalties currently being held in suspense"
`
`
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`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 12 of 28
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`Case 1:04—cv—10008—RWS Document 29 Filed 09/28/06 Page 12 of 28
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`Copyright registration certificate PA 934-688 issued to
`
`B—Boy Records are for the "Criminal Minded" compositions, entitled:
`
`"Criminal Minded," "Poetry," "South Bronx," "9mm Goes Bang," "Word
`
`From Our Sponsor,"
`
`"Elementary,"
`
`"§ope Beat,"
`
`"Remix For
`
`P
`
`Is
`
`Free," "The Bridge Is Over," and "Super—Hoe." According to Allen,
`
`B—Boy Records was merged into Big East, another company wholly-
`
`owned by Allen as successor in interest
`
`to the other companies
`
`owned by Allen and the umbrella company in control.
`
`(Hayes Dec. Ex
`
`L, p. 68).
`
`According to Allen, he owned all of the stock in Rock
`
`Candy and B—Boy Records, which were dissolved when they merged into
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 13 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 13 of 28
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`Allen and that each corporation, Big East, Rock Candy, and B-Boy,
`
`has its own stock.
`
`(Allen Dep. 69-70).
`
`The Sumary Judgment Standard
`
`Under Fed. R. Civ. P. S6(c), summary judgment is mandated
`
`where there exists no "genuine" issue of "material" fact; a dispute
`
`over
`
`irrelevant or unnecessary facts will not preclude summary
`
`judgment.
`
`_§§ Anderson v. Libert Lobb
`
`Inc., 477 U.S. 242, 247-
`
`48
`
`(1986).
`
`"The moving party may obtain summary judgment by
`
`showing that little or no evidence may be found in support of the
`
`nonmoving party's case." Gallo v. Prudential fiesidential Serv.,
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 14 of 28
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`
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 14 of 28
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`Corp. v. Chrisha Creations Ltd., 04 Civ. 1074, 2004 WL 1406075, at
`
`*6 (S.D.N.Y. June 23, 2004)
`
`(internal quotations omitted).
`
`If the
`
`non—moving' party "fail[s]
`
`to make
`
`a sufficient
`
`showing on an
`
`essential element of [its] case with respect to which [it] has the
`
`burden of proof," then "the moving party is entitled to judgment as
`
`a matter of law." Celotex, 477 U.S. at 322-23.
`
`The Statute Of Limitations Bars The Claim Of Big East
`
`Civil actions brought pursuant
`
`to the Copyright Act are
`
`subject
`
`to a three-year statute of
`
`limitations.
`
`17 U.S.C.
`
`§
`
`507(b).
`
`Under settled Second Circuit precedent, plaintiffs are
`
`
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`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 15 of 28
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`
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 15 of 28
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`chain of title is invalid and that plaintiff is the sole owner of
`
`the Copyrights").
`
`Copyright ownership claims accrue "when a plaintiff knows
`
`or has
`
`reason to know of
`
`the injury upon which the claim is
`
`premised.” Merchant, 92 F.3d at 56; see Barksdale, 211 F.R.D. at
`
`244.
`
`Thus,
`
`this Court has ruled that "[a]n express assertion of
`
`sole authorship or ownership will start the copyright statute of
`
`limitations running." Netzer v. Continuity Graphic Assocs., Inc.,
`
`963 F. Supp. 1308, 1315 (S.D.N.Y. 1997).
`
`Allen learned that
`
`Zomba
`
`claimed ownership of
`
`the
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 16 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 16 of 28
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`East claimed that under the 1987 Settlement Agreement, Big East
`
`"retained all rights" in the "Criminal Minded" album,
`
`including
`
`copyrights.
`
`(Hayes Dec. Ex. G).
`
`Since 1991, Kramer repeatedly
`
`advised Allen that neither Allen nor his
`
`companies
`
`own
`
`the
`
`copyrights in the "Criminal Minded" compositions. Because Big East
`
`failed to file this action until December 2004, more than thirteen
`
`years after its sole shareholder and predecessors in interest knew
`
`of the injury upon which the claim is premised,
`
`the action is time-
`
`barred.
`
`ggg Minder Music Ltd., 1999 WL 820575, at *2
`
`(dismissing
`
`copyright
`
`action as
`
`time—barred when
`
`"plaintiff
`
`could have
`
`investigated the merits of defendants’ ownership claim" seven years
`
`before
`
`instituting an action); Barksdale,
`
`211 F.R.D.
`
`at
`
`245
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 17 of 28
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`
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 17 of 28
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`Although plaintiff attempts to portray its claim as one
`for an ongoing infringement, it has been established that
`the
`statute of
`limitations
`cannot
`be defeated by
`portraying an action as
`one
`for
`infringement when
`copyright ownership rights are the true matter at issue.
`See Netzer v. Continuit V. Graphic Assocs., Inc., 963 F.
`Supp. 1308, 1315 (S.D.N.Y. 1997)
`. .. Plaintiff's claim
`accrued when it knew or had reason to know of the injury
`upon_which the claim is premised. See Stone v. Williams,
`970 F.2d 1043 (2d Cir. 1992).
`
`Minder Music, 1999 WL 82075, at *2.
`
`Although Allen asserted an ownership claim on behalf of
`
`Rock Candy at various times after 1991,
`
`including in a letter to
`
`Zomba in 1995, he failed to act within the three—year statute of
`
`limitations.
`
`In Minder Music Ltd., supra,
`
`the court declared that:
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 18 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 18 of 28
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`Big East also attempts to avoid the bar of the statute of
`
`limitations by claiming that
`
`this case
`
`is controlled by the
`
`decision in Carell v. Shubert Organization, Inc., 104 F. Supp. 2d
`
`236 (S.D.N.Y. 2000). That decision (which resulted from a motion
`
`to dismiss, not a summary judgment motion) permitted the creator of
`
`copyrightable material
`
`to sue for copyright
`
`infringement even
`
`though she sat on her rights for more than a decade.
`
`In Carell,
`
`supra,
`
`the plaintiff had a valid Copyright registration in certain
`
`designs for makeup on the performers of the musical "Cats."
`
`The
`
`defendants in that case denied her claim to sole ownership of the
`
`copyrights in those designs, but, unlike Zomba here, never filed a
`
`copyright
`
`registration of
`
`their
`
`own
`
`for
`
`the makeup designs
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 19 of 28
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`
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 19 of 28
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`Cir. 1996). Courts in this district have extended this
`rule to parties seeking a declaration of sole ownership.
`See, e.g., Minder Music Ltd. v. Mellow Smoke Music Co.,
`No. 98 Civ. 4496 (Ass). 1999 WL 82075, at *2
`(S.D.N.Y.
`Oct.
`14,
`1999)
`(applying the three-year
`limitations
`period to plaintiff's assertion of sole ownership); Aday
`v. Sony Music Entertainment, Inc., No. 96 Civ. 0991, 1997
`WL 598410, at *3—5 (S.D.N.Y. Sept. 25, 1997)
`(same); Fort
`Knox Music Inc. v. Baptiste, 47 F. Supp. 2d 481, 483-84
`(S.D.N.Y. 1999),
`remanded on other grounds (applying the
`three—year
`limitations period in declaratory judgment
`action to bar defendant songwriter from asserting sole
`ownership). Copyright claims begin to accrue when the
`plaintiff "knows or should have known of the injury on
`which the claim is premised." Merchant, supra, 92 F.3d
`at 56.
`
`Carell, 104 F. Supp. 2d at 248-49.
`
`Big East has based its infringement claim entirely upon
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 20 of 28
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`
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 20 of 28
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`infringement. Eden Toys,
`
`Inc. v. Florelee Undergarment Co., Inc.,
`
`697 F.2d 27, 32 (2d Cir. 1982); see also Pannonia Farms,
`
`Inc. v.
`
`USA Cable, 03 Civ. 7841, 2004 WL 1276842, at *5
`
`(S.D.N.Y. June 8,
`
`2004)
`
`(dismissing copyright action for lack of standing because
`
`plaintiff corporation did not
`
`own
`
`the copyrights at
`
`issue).
`
`Further,
`
`the Copyright Act requires that an assignment of copyright
`
`ownership must be memorialized in writing and signed by the
`
`parties.
`
`17 U.S.C.
`
`§ 204(a).
`
`Big East was not a party to the 1986 Artist Agreement or
`
`the
`
`1987 Settlement Agreement
`
`and never
`
`received a written
`
`assignment of copyrights.
`
`The only entities with copyright
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 21 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 21 of 28
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`interest
`
`and lacked standing to sue on behalf of
`
`its sister
`
`corporation,
`
`even if sister corporation "was merely a
`
`shell
`
`corporation, wholly controlled by [New York corporation],
`
`this
`
`Court will not pierce the corporate veil"); Disston Co. v. Sandvik
`
`Aktiebolag, 589 N.Y.S.2d 442 (N.Y. App. Div.
`
`lst Dep't 1992)
`
`("A
`
`corporation cannot pierce its own corporate veil to benefit either
`
`the parent or a subsidiary").
`
`In its opposition to Zomba's summary judgment motion and
`
`in support of
`
`its cross-motion, Big East
`
`for
`
`the first
`
`time
`
`contended that B—Boy Records and Rock Candy were merged into Big
`
`East in 2002 and no longer exist as separate entities.
`
`(Def's. Br.
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 22 of 28
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`
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 22 of 28
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`Associates,
`
`Inc.,
`
`No.
`
`85 Civ. 9929, 1989 U.S. Dist. LEXIS 7104
`
`(S.D.N.Y. June 23, 1989).
`
`In addition, at his deposition on October 6, 2005, Allen
`
`testified that Rock Candy Records, Rock Candy Music and B—Boy
`
`Records,
`
`Inc. all still exist as separate companies:
`
`Q.
`
`A.
`
`Q.
`
`Those entities, Rock Candy Records, Rock Candy
`Music and B—Boy Records, continue to exist, don't
`they?
`
`Yeah. But they're controlled by Big East.
`
`I see. And when you say they're controlled by Big
`East could you tell me what you mean?
`In other
`words,
`is there control because of some ownership
`or is there some agreement?
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 23 of 28
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`
`
`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 23 of 28
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`(Allen Dep. at 68-70).
`
`In any
`
`case,
`
`the
`
`copyright
`
`registration for
`
`the
`
`compositions at
`
`issue is in the name of B—Boy Records.
`
`No
`
`assignment of copyright from B—Boy Records (or any other entity) to
`
`Big East has been adduced.
`
`Given the requirements of law cited above, contradicted
`
`only by Allen's assertions which are contradictory and unsupported
`
`by documentary evidence, Big East has failed to present uncontested
`
`material facts to establish its standing.
`
`Its cross—motion for a
`
`declaration of copyright violation is therefore denied.
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 24 of 28
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`
`
`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 24 of 28
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`The provision allows
`
`the Allen Defendants
`
`to keep
`
`royalties that
`
`they otherwise would owe the members of BDP as a
`
`result of the Allen Defendants distributing recordings contained on
`
`the "Criminal Minded" album.
`
`"[A]n agreement concerning royalties
`
`does not constitute a ‘transfer of copyright ownership’ within the
`
`meaning of
`
`[the Copyright Act]."
`
`Para's—June,
`
`921 F. Supp. at
`
`1160.
`
`"Assignments of interest in royalties have no relationship
`
`to the existence, scope, duration or identification of a copyright,
`
`nor
`
`to 'rights under a copyright.“'
`
`Broadcast Music,
`
`Inc. v.
`
`Hirsch, 104 F.3d 1163, 1166 (9th Cir. 1997)
`
`(agreement assigning
`
`royalties was not transfer of copyright)
`
`(quoting 17 U.S.C.
`
`§ 106
`
`(listing rights under a copyright)).
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 25 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 25 of 28
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`Minded" album.
`
`The only language in the 1987 Settlement Agreement
`
`that grants "full right, title, and interest" in any intellectual
`
`property rights is in Paragraph Five, which grants to the members
`
`of BDP the right to use the trade name BDP.
`
`Big East also has claimed that the Allen Defendants did
`
`have a 50% interest in the "Criminal Minded" compositions because:
`
`1)
`
`the 1986 Artist Agreement
`
`itself grants Rock Candy that
`
`interest,
`
`and 2)
`
`BDP
`
`and. Rock. Candy" executed a co—publishing
`
`agreement which was lost in a fire at Allen's office.
`
`(Complt.
`
`fl
`
`4). However,
`
`the 1986 Artist Agreement does not grant Rock Candy
`
`copyright ownership in BDP's compositions. The agreement provides,
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 26 of 28
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`
`
`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 26 of 28
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`Big East has contended that the 1987 Settlement Agreement
`
`and the 1987 Zomba Co—Publishing Agreement must be read together as
`
`though they were one transaction, and it seeks to rely on exclusion
`
`of third—party rights described in Schedule 2, claiming that such
`
`rights must refer to Rock Candy.
`
`(Big East Memo in Opp., pp. 10-
`
`14).
`
`However,
`
`the parties are not the same,
`
`the subject matter
`
`is different as are the dates of execution.
`
`In This Is Me, Inc. v.
`
`Taylor, 157 F.3d 139 (2d Cir. 1998), relied on by Big East, all of
`
`the contracts at issue were related solely to the appearance of the
`
`actress Cicely Tyson in a Broadway play and were therefore involved
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 27 of 28
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`
`
`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 27 of 28
`
`V. Twin Disc., Inc., 527 F.2d 767 (2d Cir. 1975); Williams V. Mobil
`
`Oil Corp., 445 N.Y.S.2d 1'72
`
`(N.Y. App. Div. 2d Dep’t 1981).
`
`No explanation is given by Parker or Zomba
`
`to the
`
`inclusion of the "Criminal Minded" compositions on Schedule 2 of
`
`the Co—Publishing Agreement.
`
`Paragraph
`
`1(a)
`
`defined
`
`the
`
`compositions listed on Schedule 1, which has not been provided,
`
`"which have not been heretofore committed by written agreement to
`
`any third party music publisher, it being understood that all such
`
`musical
`
`compositions which have been heretofore committed by
`
`written agreement to any third party are set forth in Schedule 2."
`
`(Allen Dec., Ex 6).
`
`It is noted that Paragraph 9(e)
`
`represented
`
`
`
`Case 1:04-cv-10008-RWS Document 29 Filed 09/28/06 Page 28 of 28
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`Case 1:O4—cv—10008—RWS Document 29 Filed 09/28/06 Page 28 of 28
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`Conclusion
`
`For the reasons set forth above,
`
`the motion of Zomba to
`
`dismiss the complaint of Big East is granted and the cross—motion
`
`of Big East is denied.
`
`It is so ordered.
`
`New York, NY
`
`September
`
`-7’?
`
`, 2006
`
`BERT W. s EET
`
`U.S.D.J.