NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
`File Name: 14a0790n.06
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`No. 14-5028
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`
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
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`TARYN MURPHY and CHRIS LANDON,
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`BEFORE: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, District Judge.
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`ON APPEAL FROM THE
`UNITED STATES DISTRICT
`COURT FOR THE MIDDLE
`DISTRICT OF TENNESSEE
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`Plaintiffs-Appellants,
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`v.
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`SERGEY LAZAREV,
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`Defendant-Appellee.
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`
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`JULIA SMITH GIBBONS, Circuit Judge. Sergey Lazarev is a Russian pop artist and
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`entertainer. Taryn Murphy and Chris Landon are citizens of the United States and songwriters.
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`Murphy and Landon co-authored a song, Almost Sorry, which they registered with the United
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`States Copyright Office and pitched to Lazarev’s manager in 2006. In order that Lazarev exploit
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`the song, plaintiffs Murphy and Landon entered into a sub-publisher’s agreement with a
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`Moscow-based law firm, Levant & Partners, and into two licensing agreements with a Moscow-
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`based record label, Style Records. Almost Sorry and its Russian-language version, Zachem
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`Pridumali Lyubov, did well, but Murphy and Landon were remitted fewer royalties than they had
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`expected. They brought suit in federal district court against Lazarev and Style for breach of
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`contract and copyright infringement. Murphy and Landon voluntarily dismissed Style from the
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` The Honorable David M. Lawson, United States District Judge for the Eastern District
`of Michigan, sitting by designation.
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`No. 14-5028
`Murphy, et al. v Lazarev
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`case, and the district court granted summary judgment to Lazarev on all claims. On appeal,
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`plaintiffs reassert their claims that Lazarev waived his affirmative defenses by failing to file an
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`answer to their amended complaint and that Lazarev infringed their copyright to Almost Sorry.
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`We affirm.
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`I.
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`On April 14, 2005, Lazarev entered into a producer’s agreement with Style Records.
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`The purpose of the agreement was to create an exclusive relationship between Lazarev and Style
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`for the production, sale, and performances of three music albums recorded by Lazarev, as well as
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`singles, music videos, and other objects. Pursuant to the agreement, Style obtained exclusive
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`rights to exploit Lazarev’s performances, including audio and video recordings and recordings of
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`live performances, and to collect the proceeds from such performances during the term of the
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`agreement. Style retained the rights to the intellectual property described in the agreement “for
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`the whole duration of copyright and related rights as provisioned by the current law of [the]
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`Russian Federation.” In return, Style guaranteed to pay Lazarev royalties for the exploitation of
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`his performances after recoupment of expenses.
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`In pertinent part, Style undertook the obligation “[t]o sign author’s agreements with
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`owners of rights, authors [whose works Lazarev would record and perform] and to conduct
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`payments for these under this agreement of Compositions, Music Videos and Audiovisual
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`creations.” The producer’s agreement also required Style to provide a production budget for
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`specific production periods and anticipated the expense of “author’s remuneration to the authors
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`of music and lyrics of Compositions (fixed and/or royalties).” The agreement further required
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`Style to sign a collateral agreement to retain Anna Zorina as Lazarev’s manager. The original
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`term of the producer’s agreement was to run for not more than four years from the date of
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`execution, April 14, 2005.
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`Murphy and Landon co-wrote the song Almost Sorry in 2001 in Nashville, Tennessee.
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`Murphy and Landon own the copyright to Almost Sorry, and the song is registered with the U.S.
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`copyright office as well as Broadcast Music, Inc. (BMI) and the Russian Authors Society.
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`In June and November 2006, either Murphy or Murphy’s mother pitched Almost Sorry to
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`Zorina, who expressed interest in the song on behalf of Style and Lazarev.1 According to
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`Murphy, and consistent with the original producer’s agreement between Style and Lazarev,
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`Zorina was the acting manager and representative of Lazarev. Following discussions with
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`Zorina, the plaintiffs entered into a “sub-publishing agreement” with the law firm Levant &
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`Partners. The agreement purported to grant Levant & Partners exclusive rights to exploit Almost
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`Sorry, including the rights to record, reproduce, and distribute the song in Russia and “all the
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`countries in the world” for the period between January 1, 2007 and December 31, 2010. The
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`agreement delimited Levant & Partners’ right to exploit Almost Sorry to the performance of
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`Lazarev, leaving plaintiffs the right to license the song to other artists outside of Russia and the
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`countries of the former Soviet Union. The agreement contained no payment terms; however,
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`plaintiffs received a $2000 advance ($1000 each) from Levant & Partners for the sub-publishing
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`agreement. The sub-publishing agreement between plaintiffs and Levant & Partners is dated
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`January 1, 2007. In executing the sub-publishing agreement, plaintiffs understood that the
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`1 The dates expressed in Murphy’s declaration conflict with Murphy’s deposition
`testimony that the song was pitched to Zorina in January or February, 2007. Murphy’s
`deposition also conflicts with the dates indicated in plaintiffs’ original complaint, which alleged
`that plaintiffs entered into an oral contract with Style in November 2006. The discrepancy as to
`when the song was pitched to Zorina, however, is immaterial.
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`contract authorized a recording of Almost Sorry to be made by Lazarev. Moreover, at that time,
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`plaintiffs had a vague understanding that Style would be recording Lazarev’s use of the song.
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`At some point in late 2006 or early 2007, Lazarev recorded Almost Sorry at the Brian
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`Rawlings recording studio in London, U.K., during the term of the original producer’s
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`agreement. On May 10, 2007, Lazarev’s TV Show album, which contained an English-version
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`recording of Almost Sorry, was released in Russia and Ukraine. In fact, the song was released on
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`several albums produced by Style. In 2007, Lazarev also recorded a Russian version of the song,
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`Zachem Pridumali Lyubov, which was first performed in November 2007.
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`At some point in 2008, several months after plaintiffs executed the sub-publishing
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`agreement, Sergey Bobza, a representative of Style, contacted Murphy and explained that the
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`plaintiffs had entered into a “bad contract” with Zorina and Levant & Partners. Bobza said that
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`the relationship between Style and Zorina had been on the decline, that Style terminated Zorina,
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`but prior to her termination, Zorina, acting out of spite, had induced authors to sign contracts,
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`such as the sub-publishing agreements, with Levant & Partners, who apparently had no known
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`affiliation with the music industry. Bobza suggested that plaintiffs try to annul the contract and
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`send a letter to Zorina or to Levant & Partners, but plaintiffs did not pursue those options. Bobza
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`also suggested that plaintiffs enter into “what should have been considered a legitimate
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`agreement with Style Records.” Specifically, Bobza recommended that the plaintiffs and Style
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`enter into a licensing agreement. At the time of her discussions with Bobza in 2008, Murphy
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`assumed that Lazarev had already recorded Almost Sorry.
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`In February 2008, plaintiffs entered into a license agreement with Style (hereinafter “first
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`license agreement”). The agreement was backdated to November 1, 2006, well before Style and
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`plaintiffs had direct communications. According to Murphy, the agreement was backdated
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`because “Style wanted to show that they had the rights to the song before [Zorina] since they
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`believed the [sub-publishing agreement] contract to be fraudulent or something of the like.”
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`Under the first license agreement, plaintiffs gave “their permission to record [Almost
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`Sorry], performed by Sergey Lazarev.” The agreement specified that Lazarev intended to record
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`Almost Sorry at the Brian Rawlings Production studio. The plaintiffs agreed to “ensure [Style]
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`(as well as its licensees, affiliates and other third parties that will exploit the recording of [Almost
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`Sorry]) with the possibility to receive without hindrance permissions to use [Almost Sorry] . . . .”
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`Further, plaintiffs guaranteed “that neither they nor other persons involved in the Composition
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`rights management, will forbid [Style] (as well as [Style’s] licensees that will us[e] the
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`recordings of the [Almost Sorry] performance) to use [Almost Sorry] on condition that [Style]
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`shall pay the fee for any kind of exploitation through a collecting society or a publishing
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`company. . . .” In return, Style agreed to pay plaintiffs $3000 ($1500 each) within ten calendar
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`days of its execution. The agreement contained no other terms specifying another form of
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`payment for the exploitation of Almost Sorry, stated that it took effect from the moment of its
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`signing, contained no time limitation, and did not include a choice of law provision.
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`In April 2008, Aleksey Kruzin, another representative of Style, contacted plaintiffs and
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`circulated a second licensing agreement for Almost Sorry. Plaintiffs and Style executed this
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`agreement at some point in May 2008, although the agreement was backdated to November 20,
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`2006. In pertinent part, the second licensing agreement purported to grant a license from the
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`plaintiffs to Style to exploit Almost Sorry worldwide to the extent it was performed by Lazarev
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`and the right to exploit Almost Sorry within Russia and certain other countries to the extent it
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`was performed by other artists. The second licensing agreement also permitted Style “to grant
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`sublicenses, i.e. to grant the Rights to third parties (sublicensees), including the right to grant
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`further sublicenses, solely in order to use [Almost Sorry] more effectively in the interests of the
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`Authors.” In return, Style agreed to pay plaintiffs a fixed advance of $4000 ($2000 each) and
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`periodic royalty payments as a percentage of Style’s profits from exploiting Almost Sorry. The
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`second licensing agreement specified that Russian law governs its interpretation and provided
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`that the license term would be “five (5) years commencing on signature hereof.” The agreement
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`was signed by Murphy, Landon, and Oleg Lobov, on behalf of Style. Plaintiffs accepted and
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`received the promised $4000 ($2000 each) advance under the second licensing agreement.
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`On September 7, 2009, the date the producer’s agreement expired, Lazarev and Style
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`entered into a supplemental producer’s agreement. In the supplemental agreement, Style granted
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`Lazarev the right to use recordings of his performances and to perform compositions, including
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`Almost Sorry, for which rights were granted to Style during the term of the original producer’s
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`agreement.
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`Plaintiffs received and accepted royalty payments for the exploitation of Almost Sorry.
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`Style was obligated to remit royalties to the Russian Authors Society, which then remitted those
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`payments to BMI, which would in turn remit those payments to plaintiffs. Murphy received and
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`accepted the following royalty payments: $12.34 on January 19, 2010; $436.70 on June 28,
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`2010; $1190.08 on September 23, 2011; and $217.30 on September 21, 2012. Landon also
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`received royalty payments with respect to the English and Russian versions of Almost Sorry.
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`The plaintiffs concede they have never been a party to an agreement with Lazarev. The plaintiffs
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`also admit that they have never attempted to retract, reject, renounce, or withdraw the first or
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`second licensing agreements. Lazarev alleges that he has avoided performing the song since
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`2010.
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`On May 28, 2010, Murphy and Landon filed a complaint against Lazarev and Style in the
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`United States District Court for the Middle District of Tennessee. The complaint alleged that
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`plaintiffs entered into an oral contract with Style on or about November 20, 2006, through which
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`they agreed to license Almost Sorry to Style. The complaint further alleged that Lazarev
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`recorded Almost Sorry in both English and Russian and that the song became popular in Russia.
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`Despite its popularity, plaintiffs alleged that they had been inadequately compensated under the
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`licensing agreement. Without identifying the precise relationships between themselves and
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`Lazarev or between Lazarev and Style, plaintiffs asserted causes of action against Lazarev and
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`Style for (1) breach of contract, (2) copyright infringement under 17 U.S.C. § 501 et seq., and
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`(3) violations of Articles 1301 and 1302 of the Russian Civil Code. Plaintiffs also asserted a
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`separate intentional-misrepresentation claim against Style.
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`After filing the original complaint, plaintiffs apparently attempted to effect service in
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`Russia on both Lazarev and Style. On January 10, 2011, Lazarev, acting pro se, filed a letter
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`with the court in which he acknowledged receipt of the summons and denied plaintiffs’
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`allegations. Lazarev stated that plaintiffs and Style entered into an agreement on November 1,
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`2006, under which he was authorized to record and perform Almost Sorry. Lazarev further
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`averred that, at the time plaintiffs and Style entered into a licensing agreement, he was acting
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`under a separate producer’s agreement with Style executed on April 14, 2005. Under this
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`producer’s agreement, Lazarev alleged that Style was obliged to enter into licensing agreements
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`with the authors of musical works and compositions and to carry the responsibilities incurred by
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`those agreements. Lazarev alleged that he was not personally responsible for making any royalty
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`payments, responsibilities that were contractually required of Style for the commercial
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`exploitation of the song’s recordings and public performances of the work. Lazarev’s letter was
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`docketed as an answer.
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`On March 3, 2011, the magistrate judge entered a scheduling order, which set a targeted
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`trial date of February 28, 2012. On February 14, 2012, the district court received a telephone
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`call from plaintiffs’ counsel inquiring about the target trial date. From this call, the district court
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`surmised that Style was never served. The district court then ordered plaintiffs’ counsel to
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`inform the court whether he intended to proceed against Style. On February 22, 2012, the
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`plaintiffs voluntarily dismissed Style.
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`On March 14, 2012, the plaintiffs sought leave to amend the complaint to assert
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`“continuing infringements” by Lazarev (the only remaining defendant), which the court granted
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`on April 9, 2012. On April 16, 2012, the plaintiffs filed an amended complaint, which remains
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`the operative pleading. The amended complaint alleged that the plaintiffs orally had entered into
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`a November 20, 2006 licensing agreement with Style and that plaintiffs had executed a written
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`licensing agreement in mid-2007. The amended complaint further alleged that Lazarev infringed
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`and continued to infringe the plaintiffs’ copyright in Almost Sorry by performing, selling, and
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`promoting the work through various forms of media, in violation of federal and Russian law.
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`The plaintiffs asserted the same three causes of action: (1) breach of contract, (2) copyright
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`infringement under 17 U.S.C. § 501 et seq., and (3) violation of Articles 1301 and 1302 of the
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`Russian Civil Code.
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`On May 16, 2012, counsel entered appearances on behalf of Lazarev, and on May 25,
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`2012, Lazarev timely filed a motion to dismiss, which the court treated as a motion for summary
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`judgment. On August 22, 2012, the court initially granted the motion. On September 19, 2012,
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`the plaintiffs filed a motion to alter or amend judgment, seeking reconsideration only with
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`respect to the copyright claims, thus abandoning their breach-of-contract and Russian-law
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`claims. First, the plaintiffs argued that the licensing agreement dated November 20, 2006 was
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`for a five-year term and, thus, had expired by its terms on November 20, 2011. Second, based on
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`the complete translations of the producer’s agreements between Lazarev and Style, which did not
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`specifically reference Almost Sorry, the plaintiffs argued that the producer’s agreements did not
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`convey a valid sub-license to Lazarev. On December 12, 2012, the district court granted
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`plaintiffs’ motion to alter or amend, concluding that further discovery was warranted. In
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`particular, the court noted that the relationship between the November 1, 2006 agreement (the
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`first licensing agreement which contained no time limitation) and the November 20, 2006
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`agreement (the second licensing agreement which contained a five-year time limitation) was
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`unclear. The court also observed that it was unclear when those agreements became operative.
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`On September 11, 2013, Lazarev filed a renewed motion for summary judgment. In
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`support of that motion, Lazarev filed a stipulation; declarations of Alexei Smirnow, Ilya
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`Mikhailenko, and of himself; deposition testimony given by Landon, Murphy, and himself; a
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`statement of undisputed material facts, and a memorandum of law. In response, the plaintiffs
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`filed a memorandum of law, a response to Lazarev’s statement of undisputed material facts, and
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`a declaration of Murphy. In opposition to Lazarev’s motion for summary judgment, the
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`plaintiffs argued (1) that Lazarev waived his “license” and “sub-license” defenses by failing to
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`file an answer to the amended complaint, (2) that Lazarev did not have a valid sub-license to use
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`Almost Sorry before 2008, and (3) Lazarev’s sub-license expired in 2009, making any
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`exploitation of Almost Sorry after that date unlawful.
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`The district court granted summary judgment to Lazarev. First, the court held that
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`Lazarev did not waive the defenses argued in support of his motion for summary judgment. The
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`court found that, even though Lazarev did not formally file an answer to the amended complaint,
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`the plaintiffs had been on notice of these defenses since the early stages of the case and had “a
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`full and fair opportunity to probe those defenses.”
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`Second, the district court found that, at a minimum, Style possessed a valid license to
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`Almost Sorry as of February 2008 and that the second licensing agreement remained in effect
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`from May 2008 to May 2013, when it expired. The district court reasoned that (1) the first and
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`second licensing agreements between plaintiffs and Style were valid under Russian law and that
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`the terms of the latter supplemented and amended the former; (2) because Style acquired the
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`license to Almost Sorry before the expiration date of the original producer’s agreement, Lazarev
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`possessed a valid sub-license from at least May 2008 through September 7, 2009; and
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`(3) because Style and Lazarev agreed to extend the provisions of the producer’s agreement in the
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`supplemental producer’s agreement, Lazarev possessed a valid sub-license for the same time
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`frame that Style possessed a valid license—i.e., through May 2013. The district court
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`additionally found that plaintiffs retained full rights to Almost Sorry since May 2013 but that the
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`record contained no evidence that Lazarev performed it after that time. The district court noted
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`that because of the expiration of the license and associated sub-license, Lazarev can no longer
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`legally exploit Almost Sorry without reaching an agreement with the plaintiffs.
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`Third, the district court rejected plaintiffs’ contention that Lazarev lacked a valid sub-
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`license to use Almost Sorry before February 2008. The district court found that the sub-
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`publishing agreement with Levant & Partners specifically authorized Lazarev to record and
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`perform Almost Sorry, which reflected plaintiffs’ understanding and intention at the time. The
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`district court also found that, in the first and second license agreements, the plaintiffs specifically
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`entered into agreements that they intended to govern Lazarev’s recordings of Almost Sorry
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`retroactive to November 2006.
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`The district court concluded by noting that if the plaintiffs are correct that Style failed to
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`pay them required royalties under the first or second licensing agreements, it is Style, not
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`Lazarev, who is at fault. The district court noted, however, that plaintiffs chose not to pursue
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`Levant & Partners, Zorina, or Style. Accordingly, the district court entered final judgment for
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`Lazarev. Plaintiffs timely filed a notice of appeal.
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`II.
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`On appeal, plaintiffs argue that the district court erred in holding that Lazarev did not
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`waive his affirmative defenses by failing to file an answer to their amended complaint. We
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`review a finding that a party did not waive an affirmative defense for abuse of discretion. See
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`Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). Plaintiffs point to Rule 8 and categorically
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`assert that failure to plead an affirmative defense results in a waiver of that defense. But
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`“[f]ailure to raise an affirmative defense by responsive pleading does not always result in
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`waiver.” Smith, 117 F.3d at 969 (citing Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439,
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`1445 (6th Cir. 1993)). “The purpose of Rule 8(c) of the Federal Rules of Civil Procedure is to
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`give the opposing party notice of the affirmative defense and a chance to respond.” Id. (citing
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`Coffey, 992 F.2d at 1445). “Thus, if a plaintiff receives notice of an affirmative defense by some
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`means other than pleadings, ‘the defendant’s failure to comply with Rule 8(c) does not cause the
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`plaintiff any prejudice.’” Coffey, 992 F.2d at 1445 (quoting Grant v. Preferred Research, Inc.,
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`885 F.2d 795, 797 (11th Cir. 1989)).
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`In this case, plaintiffs received notice of Lazarev’s defenses that he had a valid license
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`and sublicense to use Almost Sorry from the inception of the case. In his pro se letter, filed on
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`January 10, 2011, which the district court docketed as an answer, Lazarev asserted he had a
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`sublicense and license to use Almost Sorry pursuant to the licensing agreements between
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`plaintiffs and Style and the producer’s agreements between Style and himself. Lazarev attached
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`to his letter the first licensing agreement, the original producer’s agreement, and the
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`supplemental producer’s agreement. Lazarev filed the same letter on May 4, 2011. And, after he
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`was represented by counsel, Lazarev filed a motion to dismiss that relied on the affirmative
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`defenses of license and sublicense, which the court considered in ruling upon that motion and
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`upon plaintiffs’ motion to alter or amend the judgment. Even though Lazarev did not file an
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`answer to the amended complaint, plaintiffs were on notice of his affirmative defenses from an
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`early stage in the lawsuit, thus satisfying the purposes of Rule 8. See Smith, 117 F.3d at 969.
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`Therefore, the district court did not abuse its discretion by concluding that Lazarev did not waive
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`his affirmative defenses argued in support of his motion for summary judgment.
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`Plaintiffs also reassert their argument that Lazarev infringed their copyright to Almost
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`Sorry. The district court granted summary judgment to Lazarev on plaintiffs’ copyright-
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`infringement claim, and this court reviews that decision de novo. See Walton v. Ford Motor Co.,
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`424 F.3d 481, 485 (6th Cir. 2005). Plaintiffs offer two arguments in support of their claim:
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`First, they allege that Lazarev lacked a valid license to use their work before February 2008
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`when plaintiffs expressly entered into a license agreement with Style. Second, they renew their
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`contention that Lazarev’s sub-license expired in 2009 and “[t]herefore, any use of . . . Almost
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`Sorry and Zachem Pridumali Lyubov from 2009 to present was without a valid sublicense and
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`constituted infringement of Plaintiffs’ copyright.” Presumably, plaintiffs’ argument refers to
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`September 7, 2009, the date the original producer’s agreement between Lazarev and Style
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`expired. The district court correctly rejected these arguments, and we “may affirm for any
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`reason supported by the record.” Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 514 (6th Cir.
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`2003).
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`“[A]nyone who is authorized by the copyright owner to use the copyrighted work in a
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`way specified in the statute . . . is not an infringer of the copyright with respect to such use.”
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`Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984). “The ownership of
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`a copyright may be transferred in whole or in part by any means of conveyance or by operation
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`of law. . . .” 17 U.S.C. § 201(d)(1). A copyright owner who grants an exclusive or nonexclusive
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`license to use his copyrighted material waives his right to sue the licensee for copyright
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`infringement. See Sony, 464 U.S. at 433; Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998).
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`A written and signed conveyance is necessary to find an exclusive license to use copyright
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`material. Under 17 U.S.C. § 101, an exclusive license is a “transfer of copyright ownership” and
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`therefore “is not valid unless an instrument of conveyance, or a note or memorandum of the
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`transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly
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`authorized agent.” 17 U.S.C. § 204(a). In contrast, “[a] non-exclusive license may be granted
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`orally, or may be implied from conduct.” Johnson v. Jones, 149 F.3d 494, 500 (6th Cir. 1998)
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`(alteration in original) (quoting M. Nimmer and D. Nimmer, 3 Nimmer on Copyright § 10.03[A],
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`at 10–38 (1994)). This is true because a nonexclusive license is not a transfer of ownership
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`under 17 U.S.C. § 101 “and is not, therefore, subject to the writing requirement of § 204.” Id.
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`(citing 17 U.S.C. § 101; Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990)). The
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`key to finding an implied license is in the intent of the copyright holder. See Johnson, 149 F.3d
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`at 502 (“Without intent, there can be no implied license.”); see also John G. Danielson, Inc. v.
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`Winchester-Conant Props., Inc., 322 F.3d 26, 40−41 (1st Cir. 2003); Nelson–Salabes, Inc. v.
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`Morningside Dev., LLC, 284 F.3d 505, 514–16 (4th Cir. 2002). Like an express license, “the
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`existence of an implied license to use the copyright for a particular purpose precludes a finding
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`of infringement.” Johnson, 149 F.3d at 500 (citing Effects, 908 F.2d at 559; I.A.E., Inc. v.
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`Shaver, 74 F.3d 768 (7th Cir. 1996)).
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`Plaintiffs’ claim that Lazarev infringed their copyright after 2009 fails because Lazarev
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`had a valid, express sublicense to use Almost Sorry until May 2013. In May 2008, plaintiffs
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`executed a second licensing agreement with Style. This agreement was valid throughout its
`
`term, which ran for five years from its execution—that is, until May 2013. The second licensing
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`agreement also included a choice of law provision stating that Russian law applies.
`
`Under Russian law, the second licensing agreement, in combination with the producer’s
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`agreement, endowed Lazarev with a sublicense to use Almost Sorry.2 In the second licensing
`
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`2 Several provisions of the Civil Code of the Russian Federation are relevant. First, Article 431
`states:
`
`While interpreting the terms of the contract, the court shall take into account the
`literal meaning of the words and expressions, contained in it. The literal meaning
`of the terms of the contract in case of its being vague shall be identified by way of
`comparison with the other terms and with the meaning of the contract as a whole.
`If the rules, contained in the first part of the present Article, do not make it
`possible to identify the content of the contract, the actual common will of the
`parties shall be found out with account for the purpose of the contract. All the
`corresponding circumstances, including the negotiations and the correspondence,
`preceding the conclusion of the contract, the habitual practices in the relationships
`between the parties, the customs of the business turnover and the subsequent
`behavior of the parties shall be taken into account.
`
`Grazhdanskii Kodeks Rossiiskoi Federatsii [GK RF] [Civil Code] art. 431 (Russ.). Further,
`Article 1238, “Sublicense Contract” states:
`
`1. With the written consent by the licensor the licensee shall have the right to
`grant under a contract the right to use a result of intellectual activity or a means of
`individualization to another person (sublicense contract).
`2. Under a sublicense contract the sublicensee shall be granted the right to use a
`result of intellectual activity or means of individualization only within the limits
`
`
`
`-14-
`
`

`
`No. 14-5028
`Murphy, et al. v Lazarev
`
`agreement, which modified and amended the first licensing agreement, plaintiffs entitled Style to
`
`grant sublicenses. And under the terms of the producer’s agreement, Lazarev was required to
`
`record and perform music for which Style obtained rights during the agreement’s duration.
`
`Because plaintiffs granted Style a license to use Almost Sorry before the expiration of the
`
`original producer’s agreement between Lazarev and Style, Lazarev possessed a valid sublicense
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`to use that work through September 7, 2009, when the original producer’s agreement expired.
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`And because, in the supplemental producer’s agreement, executed on September 7, 2009, Style
`
`granted Lazarev a license to use compositions, including Almost Sorry, that were received by
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`Style during the term of the original producer’s agreement, Lazarev continued to possess a valid
`
`sublicense until the term of the second licensing agreement between plaintiffs and Style expired
`
`in May 2013. Moreover, in the second licensing agreement, plaintiffs explicitly authorized Style
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`to use Almost Sorry in the territory of all the countries of the world if Almost Sorry was
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`performed by Lazarev. We find that the second licensing agreement, in combination with the
`
`producer’s agreement, created a sublicense in Lazarev to use Almost Sorry from May 2008 to
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`May 2013. Furthermore, the district court correctly found that the record contains no evidence
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`that Lazarev used Almost Sorry after May 2013.
`
`
`of those rights and those means as provided for by the license contract for the
`licensee.
`3. The sublicense contract concluded for a time period exceeding the duration of
`the license contract shall be considered as concluded for the duration of the
`license contract.
`4. The licensee shall bear liability to the licensor for actions of the sublicensee
`unless the license contract provides otherwise.
`5. The provisions of the present Code on a license contract shall apply to the
`sublicense contract.
`
`Id., art. 1238; see also Fed. R. Civ. P. 44.1 (“In determining foreign law, the court may consider
`any relevant material or source . . . whether or not submitted by a party. . . .”).
`
`
`
`-15-
`
`

`
`No. 14-5028
`Murphy, et al. v Lazarev
`
`
`We also reject plaintiffs’ argument that Lazarev infringed their copyright before 2008,
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`that is, before they entered the first and second licensing agreements with Style. As of late 2006
`
`or early 2007, plaintiffs intended to authorize Lazarev to record and perform Almost Sorry. First,
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`in June and November 2006, Murphy or Murphy’s mother pitched Almost Sorry to Zorina,
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`Lazarev’s agent at the time. Second, in the sub-publishing agreement that plaintiffs entered into
`
`with Levant & Partners on January 1, 2007, plaintiffs plainly authorized Lazarev to record and
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`perform Almost Sorry. That agreement provided that plaintiffs transferred to Levant & Partners
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`“the exclusive rights to Almost Sorry