Case 1:18-cv-11747-ER Document 47 Filed 02/20/20 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`JAMES MTUME,
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`Plaintiff,
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`– against –
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`SONY MUSIC ENTERTAINMENT,
`Defendant.
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`Ramos, D.J.:
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`OPINION AND ORDER
`18 Civ. 11747 (ER)
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`James Mtume, a musician, songwriter, activist, and radio personality, brings this action
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`against Sony Music Entertainment (“Sony”) seeking declaratory relief. Doc. 31. Before the
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`Court is Sony’s motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule
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`of Civil Procedure 12(b)(1). Doc. 41. For the reasons stated below, the motion is GRANTED.
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`I.
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`BACKGROUND
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`A. Statutory Background
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`Under the Copyright Act, there are two avenues by which authors, including songwriters,
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`or their successors, can terminate copyright grants. Section 304 of the Act describes a process
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`for terminating grants that were executed prior to 1978 for works that were copyrighted and
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`created as of January 1, 1978. 17 U.S.C. § 304. Section 203 sets forth a termination process for
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`grants that were executed in or after 1978, irrespective of when the work was copyrighted.1 Id. §
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`203.
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`Certain works, however, fit into neither category. These are works that were transferred
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`and/or assigned by an agreement dated before January 1, 1978, but were not created until after
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`1 Works made for hire are outside the scope of both termination provisions. 17 U.S.C. §§ 203(a), 304(c), 304(d).
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`Case 1:18-cv-11747-ER Document 47 Filed 02/20/20 Page 2 of 12
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`this date. They are referred to as “gap works.” Similarly, the term “gap grants” refers to pre-
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`1978 agreements that concern works that were not created until 1978 or later. Because § 203 ap-
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`plies only to works with grants that were executed in or after 1978, gap works did not initially fit
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`under § 203’s framework. This changed in December 2010, when the Copyright Office opined
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`that § 203 would be the relevant provision for gap grants and allowed termination notices for gap
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`grants to be recorded under this provision. U.S. Copyright Office, Analysis of Gap Grants under
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`the Termination Provisions of Title 17, p. i (2010), http://www.copyright.gov/reports/gap-grant-
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`analysis.pdf; 37 C.F.R. § 201.10(f)(1)(ii)(C). In doing so, the Copyright Office noted that the re-
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`cordation of termination notices was “without prejudice to how a court might ultimately rule on
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`whether any particular document qualifies as a notice of termination within the scope of section
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`203, consistent with longstanding practices for all notices of termination recorded by the Office.”
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`Gap in Termination Provisions, 76 Fed. Reg. 32,316 32,320 (June 6, 2011).2
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`Parties may terminate grants under § 203 five years from “the end of thirty-five years
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`from the date of execution of the grant,” but if the grant “covers the right of publication of the
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`work,” that five-year period begins “at the end of thirty-five years from the date of publication of
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`the work . . . or at the end of forty years from the date of execution of the grant, whichever term
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`ends earlier.” 17 U.S.C. § 203(a)(3). In relevant part, the statute provides that
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`�e [termination] notice shall state the effective date of the termination, which shall
`fall within the [specified five-year period], and the notice shall be served not less
`than two or more than ten years before that date. A copy of the notice shall be
`recorded in the Copyright Office before the effective date of termination, as a
`condition to its taking effect.
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`2 Courts have yet to address whether § 203 applies to “gap works.” Doc. 31 ¶ 3. Though this issue is raised in the
`case, the Court need not address it at this juncture.
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`2
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`Case 1:18-cv-11747-ER Document 47 Filed 02/20/20 Page 3 of 12
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`Id. § 203(a)(4)(A). During this two- to ten-year period and after the termination notice has been
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`served, the grantor may only enter into a valid agreement to make a further grant with the
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`original grantee, or with that grantee’s successor in title. Id. § 203(b)(4).
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`According to the legislative history, this period was included in the statute to provide the
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`original grantee additional bargaining power. �ough this period was referred to as being “in the
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`nature of a ‘right of first refusal,’” H.R. Rep. No. 94-1476, at 127 (1976), subsequent cases have
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`clarified that the term “right of first refusal” was used imprecisely. See Bourne Co. v. MPL
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`Commc’ns, Inc., 675 F. Supp. 859, 865 (S.D.N.Y. 1987) (“�e statute provides merely that an
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`agreement between the terminating party and the terminated grantee prior to the effective date of
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`termination is the only one that is valid and enforceable against the [terminating party]. �e
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`statute does not provide that any agreement negotiated by the terminating party must first be
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`offered on the same terms to the terminated grantee, which is what a right of first refusal, as it is
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`commonly understood, would require.”). “�e provision does give the terminated grantee,”—in
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`the instant case, Sony—“a preferred competitive position[,] but if the author can afford to wait
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`for competitive offers until after the effective date of termination, he can overcome any
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`advantage the grantee or successor may seek to gain from the preferential position.” Id. at 865–
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`66 (internal quotation marks and citations omitted); see also Baldwin v. EMI Feist Catalog, Inc.,
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`805 F.3d 18, 26 (2d Cir. 2015) (“�is existing-grantee exception was included in the 1976 Act to
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`give the grantee some advantage over others in obtaining the terminated rights.” (internal
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`quotation marks and citations omitted)).
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`B. Factual Background
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`Mtume is “an award-winning musician, songwriter, activist, and radio personality.” Doc.
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`31 ¶ 7. His instant dispute with Sony involves an eight-song album titled Juicy Fruit. Juicy
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`Fruit is a “gap work” because it was released in the United States in 1983 pursuant to an
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`3
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`Case 1:18-cv-11747-ER Document 47 Filed 02/20/20 Page 4 of 12
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`agreement made between Mtume and Zembu Productions, Inc. (“Zembu”) in 1977 (the “1977
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`Agreement”). Id. ¶¶ 12–16. According to the 1977 Agreement, Mtume “agreed to render, on an
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`exclusive basis, his services as a recording artist, and to deliver to [Zembu] long playing (LP)
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`record albums consisting of master recordings embodying Mtume’s musical performances.” Id.
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`¶ 13. As part of the agreement, Mtume also granted Zembu all rights of copyright to these
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`master recordings. Id. ¶ 14. Zembu assigned the1977 Agreement to CBS Records, Inc. (“CBS”)
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`on August 27, 1979. Id. ¶ 15. On June 6, 1983, CBS obtained a copyright registration for all of
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`the recordings on the album. Id. ¶¶ 17–18. Sony subsequently acquired CBS in 1987 and
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`became the successor in interest with respect to copyright interests in all of the sound recordings
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`created under the 1977 Agreement, including Juicy Fruit. Id. ¶ 19.
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`In July 2015, Mtume sent a termination notice (the “2015 Notice”) to Sony regarding two
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`albums—Kiss the world goodbye and In search of the rainbow seekers—and one song—“Juicy
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`Fruit, pt. 2 (reprise); Juicy Fruit,”3—all three of which were created under the 1977 Agreement.
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`Id. ¶ 20. Sony subsequently informed Mtume via three separate letters that it believed the 2015
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`Notice was ineffective for several reasons, including that the sound recordings were works for
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`hire4 and therefore not subject to termination under the Copyright Act, and that the sound
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`recordings created pursuant to the 1977 Agreement were not subject to termination under § 203
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`of the Copyright Act, presumably because Sony believes § 203 does not apply to “gap works.”
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`3 �e song “Juicy Fruit, pt. 2 (reprise); Juice Fruit” is a remix single which was released prior to the Juicy Fruit
`album and which is also on the album.
`4 A work made for hire is defined as “a work prepared by an employee within the scope of his or her employment;
`or a work specially ordered or commissioned for use as a contribution to a collective work.” 17 U.S.C. § 101.
`Section 203 is inapplicable to these works. Id. § 203(a).
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`4
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`Id. ¶¶ 21–22. �e 2015 Notice is the subject of a related lawsuit between Mtume and Sony
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`currently pending before this Court.5 Id. ¶ 23.
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`On October 1, 2018, Mtume sent Sony another termination notice, this time in reference
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`to the sound recordings on the Juicy Fruit album (the “2018 Notice”). Id. ¶ 24. �e Copyright
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`Office recorded the Termination Notice on December 19, 2018. Id. According to the notice, the
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`effective date of termination is October 9, 2020. Id., Ex. A. Sony has yet to respond to the 2018
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`Notice.
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`C. Procedural History
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`Mtume initiated this action on December 14, 2018 for declaratory relief pursuant to the
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`Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq., and the Copyright Act, 17 U.S.C. § 203.
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`Doc. 1. He subsequently amended the Complaint on June 4, 2019 to indicate that the 2018
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`Notice had been recorded by the Copyright Office. Doc. 31. Specifically, Mtume requests a
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`declaration that the sound recordings on the Juicy Fruit album are terminable pursuant to § 203
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`of the Copyright Act and that the 2018 Notice is valid and complies with the provisions of 17
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`U.S.C. § 203.
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`Sony filed the instant motion to dismiss on August 9, 2019. Doc. 41. It argues that
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`Mtume’s request for declaratory judgment is unripe because Sony has yet to respond to the 2018
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`Notice and therefore has taken no position on its validity. In response, Mtume argues that Sony’s
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`position toward the 2015 Notice is sufficient to create a concrete dispute between the parties.
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`�e Court agrees with Sony.
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`5 In that case, the Court recently denied Sony’s motion to dismiss Mtume’s claims under Federal Rule of Civil
`Procedure 12(b)(6). Mtume v. Sony Music Entm’t, 18 Civ. 6037 (ER), 2019 WL 4805925 (S.D.N.Y. Sept. 30, 2019).
`�e Court presumes familiarity with the underlying facts in that case.
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`5
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`II.
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for lack of
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`subject matter jurisdiction when the district court lacks the statutory or constitutional power to
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`adjudicate the case. Fed. R. Civ. P. 12(b)(1). The party asserting subject matter jurisdiction car-
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`ries the burden of establishing, by a preponderance of the evidence, that jurisdiction exists. Mor-
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`rison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova v.
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`United States, 201 F.3d 110, 113 (2d Cir. 2000)). “On a Rule 12(b)(1) motion challenging the
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`district court’s subject matter jurisdiction, the court may resolve the disputed jurisdictional fact
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`issues by referring to evidence outside of the pleadings . . . .” Zappia Middle East Constr. Co.
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`Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). When evaluating a motion to
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`dismiss for lack of subject matter jurisdiction, the court accepts all material factual allegations in
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`the complaint as true but does not draw inferences from the complaint favorable to the plaintiff.
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`J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Fin. Servs.
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`Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)).
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`III. DISCUSSION
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`Sony argues that dismissal is warranted because Mtume’s claim for declaratory relief
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`regarding the 2018 Notice is not ripe. �e Declaratory Judgment Act states that “[i]n a case of
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`actual controversy within its jurisdiction . . . any court of the United States . . . may declare the
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`rights and other legal relations of any interested party seeking such declaration, whether or not
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`further relief is or could be sought.” 28 U.S.C. § 2201(a). �e “case of actual controversy”
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`indicated by the statute refers to the types of “cases” and “controversies” justiciable under Article
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`III. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126–27 (2007) (citing Aetna Life Ins. Co.
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`v. Haworth, 300 U.S. 227, 240 (1937)). “A declaratory judgment action is ripe for judicial
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`review only if ‘there is a substantial controversy, between parties having adverse legal interests,
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`6
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`of sufficient immediacy and reality to warrant the issuance of a declaratory judgement.’” Toto,
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`Inc. v. Sony Music Entm’t, 60 F. Supp. 3d 407, 418 (S.D.N.Y. 2014) (quoting Duane Reade, Inc.
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`v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 388 (2d. Cir. 2005)). �e Second Circuit has
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`held that “[w]here the contingent event upon which the controversy rests is unlikely to occur, the
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`controversy lacks ‘sufficient immediacy and reality’ to warrant declaratory relief.” In re
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`Prudential Lines Inc., 158 F.3d 65, 70 (2d Cir. 1988). “�e difference between an abstract
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`question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of
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`degree . . . .” Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941).
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`Ripeness is a twofold inquiry, including both constitutional and prudential questions. See
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`Simmonds v. I.N.S., 326 F.3d 351, 356–58 (2d Cir. 2003). “�e first of these ripeness
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`requirements . . . goes, in a fundamental way, to the existence of jurisdiction.” Id. at 357.
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`Constitutional ripeness “prevents courts from declaring the meaning of the law in a vacuum and
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`from constructing generalized legal rules unless the resolution of an actual dispute requires it.”
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`Id. However, the second “is a more flexible doctrine of judicial prudence, and constitutes an
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`important exception to the usual rule that where jurisdiction exists a federal court must exercise
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`it.” Id. “[W]hen a court declares that a case is not prudentially ripe, it means that the case will
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`be better decided later and that the parties will not have constitutional rights undermined by the
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`delay.” Id.
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`Sony’s argument sounds primarily in concerns over prudential ripeness. However, “[it] is
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`the obligation of a court, on its own motion, to inquire as to subject matter jurisdiction and
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`satisfy itself that such jurisdiction exists.” Da Silva v. Kinsho Int’l Corp., 229 F.3d 358, 361–62
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`(2d Cir. 2000) (citation omitted). �e Court will therefore consider whether Mtume’s action for
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`declaratory judgment is both constitutionally and prudentially ripe.
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`7
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`A. Constitutional Ripeness
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`“Often, the best way to think of constitutional ripeness is as a specific application of the
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`actual injury aspect of Article III standing.” Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d
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`682, 688 (2d Cir. 2013). The first requirement of constitutional standing is that “the plaintiff
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`must have suffered an injury in fact—an invasion of a legally protected interest which is (a) con-
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`crete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan v.
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`Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations and citations omitted). “[T]o say
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`a plaintiff’s claim is constitutionally unripe is to say the plaintiff’s claimed injury, if any, is not
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`‘actual or imminent,’ but instead ‘conjectural or hypothetical.’” Nat’l Org. for Marriage, 714
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`F.3d at 688 (quoting Lujan, 504 U.S. at 560). “A claim is not ripe for adjudication if it rests
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`upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”
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`Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotations and citations omitted).
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`It is undisputed that Sony has taken no action in response to the October 2018 Notice.
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`�e central question, then, is whether Sony’s statements regarding the 2015 Notice indicate a
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`position towards the October 2018 Notice that is concrete, rather than conjectural, so as to create
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`a dispute between the parties. In its responses to the 2015 Notice, Sony maintains that it
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`“believes that the Work[s] [are] . . . work[s] made for hire and [are] thus not subject to
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`termination under any circumstances,” and that “to the extent the recordings at issue were
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`created pursuant to a grant contained in a 1977 agreement, we do not believe that such
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`recordings could potentially be subject to Section 203 of the Copyright Act.” Doc. 31, Exs. B–
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`D. On its face, the second statement is not cabined to Sony’s position towards the works
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`referenced in the 2015 Notice, but rather is phrased as Sony’s general position towards gap
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`works at large. It appears clear, then, that there is a live dispute between the parties as to whether
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`Case 1:18-cv-11747-ER Document 47 Filed 02/20/20 Page 9 of 12
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`recordings created pursuant to the 1977 Agreement—like the Juicy Fruit album at issue here—
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`are terminable under § 203.6
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`Furthermore, Mtume alleges that, “[b]y refusing to recognize [his] termination rights,
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`including the ability to recapture gap grants under Section 203, Sony has created a cloud over
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`Mtume’s future copyright ownership in the sound recordings [included in the album] and made it
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`difficult, if not impossible, for Mtume to exploit these valuable copyright assets.” Doc. 31 ¶ 27.
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`Sony maintains that this injury is speculative at best because the Copyright Act prevents Mtume
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`from entering into enforceable contracts until the effective date of termination. However,
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`nothing in the Act prevents Mtume from entering into negotiations concerning its copyright.
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`Bourne, 675 F. Supp. at 865 (“�e statute neither compels the terminating party to negotiate with
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`the terminated grantee, nor forbids him from negotiating with anyone else. All it requires is that
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`prior to the effective date of termination, the terminated grantee is the only person with whom
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`the author or his successor can make an enforceable and effective agreement to transfer those
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`rights.”). Notwithstanding Mtume’s ability to begin negotiating, courts in other circuits have
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`found similar circumstances sufficient for ripeness purposes because of the uncertainty these
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`notices create regarding a grantor’s future ability to consummate these negotiations. See Ray
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`Charles Found. v. Robinson, 795 F.3d 1109, 1117 (9th Cir. 2015) (finding allegations “that the
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`notices of termination immediately clouded [the Foundation’s] ability to assess its future income
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`stream and to rely on the royalties” sufficient for ripeness purposes). �is Court agrees.
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`6 Notably, Sony has not extinguished this dispute with regards to the Juicy Fruit album by entering into a covenant
`not to sue or otherwise. See, e.g., Velvet Underground v. Andy Warhol Found. for the Visual Arts, Inc., 890 F. Supp.
`2d 398, 404 (S.D.N.Y. 2012) (“Accordingly, in intellectual property cases, when a declaratory judgment plaintiff
`seeks a declaration that an asserted right is invalid or otherwise unenforceable and the declaratory defendant
`provides the plaintiff with a covenant not to sue for infringement of that right, that covenant can extinguish any
`current or future case or controversy between the parties, and divest the district court of subject matter jurisdiction.”
`(internal quotation marks and citation omitted)).
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`�e Court therefore finds that the case is ripe for purposes of Article III. However, the
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`Court must also consider prudential concerns before deciding whether to exercise its jurisdiction.
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`B. Prudential Ripeness
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` “Prudential ripeness is . . . a tool that courts may use to enhance the accuracy of their
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`decisions and to avoid becoming embroiled in adjudications that may later turn out to be
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`unnecessary or may require premature examination of, especially, constitutional issues that time
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`may make easier or less controversial.” Simmonds, 326 F.3d at 359 (citing Alexander M. Bickel,
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`The Supreme Court 1960 Term Foreward: The Passive Virtues, 75 Harv. L. Rev. 40, 58–64
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`(1961)). To determine whether a claim is prudentially ripe, courts in this Circuit consider “(1)
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`‘the fitness of the issues for judicial decision’ and (2) ‘the hardship to the parties of withholding
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`court consideration.’” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 104 (2d Cir. 2014)
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`(quoting Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir. 2005)). “�e
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`fitness analysis is concerned with whether the issues sought to be adjudicated are contingent on
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`unknowable future events.” Id. (citing N.Y. Civil Liberties Union v. Grandeau, 528 F.3d 122, 132
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`(2d Cir. 2008)). As to the second prong, “‘[t]he mere possibility of future injury, unless it is the
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`cause of some present detriment, does not constitute hardship.’” Grandeau, 528 F.3d at 134
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`(quoting Simmonds, 326 F.3d at 359)).
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`Sony’s position towards works created pursuant to the 1977 Agreement is “not so
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`uncertain as to create a purely hypothetical case unfit for review under Article III,” but the level
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`of uncertainty in this case “does reduce the adjudicative fitness of the issues.” Simmonds, 326
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`F.3d at 360. In other words, the issue may be better resolved at a later time, when Sony has had
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`Case 1:18-cv-11747-ER Document 47 Filed 02/20/20 Page 11 of 12
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`an opportunity to articulate its position towards the works in the Juicy Fruit album at issue here.7
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`Indeed, Sony may never take a position at all. Business, legal, or other reasons may counsel that
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`the instant conflict between Mtume and Sony be resolved without court intervention.
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`Alternatively, Sony may challenge the validity of the 2018 Notice for completely unrelated
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`reasons, in which case a decision by this Court now would have done little to resolve the conflict
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`and would be purely advisory in nature.
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`In support of its position that the Court should not delay hearing his claim, Mtume relies
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`heavily on Century of Progress Productions v. Vivendi S.A., 16 Civ. 7733 (DMG), 2018 WL
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`4191340, at *15 (C.D. Cal. Aug. 28, 2018). However, Vivendi is distinguishable. In that case,
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`Plaintiffs served separate termination notices concerning the movie This is Spinal Tap on
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`Studiocanal and on UMG, both of which were subsidiaries of Vivendi. 2018 WL 4191340, at *3.
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`Plaintiffs sought to recapture rights in the motion picture and musical compositions from
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`Studiocanal, and in the sound recordings from UMG. Id. Only Studiocanal opposed the
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`termination notice. Id. at *14. After finding that UMG had “not taken a position to moot the
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`dispute,” the Court concluded that “it would be inefficient” to consider Plaintiffs’ rights vis-à-vis
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`Studiocanal and UMG in two separate suits. Id. at *15–16. No such judicial economy concerns
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`are present here. Indeed, quite the opposite, as almost identical questions are raised by Mtume’s
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`first lawsuit, which indisputably concerns a live dispute between the parties.
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`Finally, neither party would be significantly harmed by the adjudication of this matter at a
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`later time, if and when Sony responds to the 2018 Notice. Mtume currently has to right to
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`initiate and continue negotiations over the Juicy Fruit album, but he is prohibited from entering
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`7 Mtume requests jurisdictional discovery on the question of whether Sony has yet to take a position on the validity
`of the 2018 Notice. Doc. 44 at 10 n.8. However, the undisputed fact that Sony has not yet communicated any such
`position to Mtume is itself dispositive on the issue. Accordingly, this request is denied.
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`Case 1:18-cv-11747-ER Document 47 Filed 02/20/20 Page 12 of 12
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`into any binding agreements regarding the work as per the Copyright Act. 17 U.S.C. §
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`203(b)(4); Bourne, 675 F. Supp. at 865. This is true irrespective of whether the Court decides the
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`instant case prior to termination. Thus, Mtume does not face “the choice between abandoning his
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`rights or risking prosecution,” the “dilemma that it was the very purpose of the Declaratory
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`Judgment Act to ameliorate.” MedImmune, 549 U.S. at 129 (quoting Abbott Labs. v. Gardner,
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`387 US 136, 152 (1967)). There is therefore no reason for this Court to prematurely answer
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`questions that may never be raised with respect to this particular work. Because further factual
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`development may inform the Court’s decision at relatively little present harm to either party—in
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`other words, because Mtume’s claims may be better heard at a later time—the Court declines to
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`exercise jurisdiction. See Simmonds, 326 F.3d at 359.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, Sony’s motion to dismiss is GRANTED without prejudice.
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`The Clerk of Court is respectfully directed to terminate the motion, Doc. 41 , and to close the
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`case.
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`It is SO ORDERED.
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`Dated:
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`February 19, 2020
`New York, New York
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`I
`‘
`%N
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`Edgardo Ramos, U.S.D.J.
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`12
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