Case 2:12-cv-00841-RSL Document 62 Filed 11/27/12 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`HENDRICKS & LEWIS, PLLC,
`Plaintiff,
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`Case No. C12-0841RSL
`ORDER APPOINTING RECEIVER
`AND AUTHORIZING SALE OF
`COPYRIGHTS
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`v.
`GEORGE CLINTON,
`Defendant.
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`This matter comes before the Court on plaintiff’s “Motion for Appointment
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`of a Receiver” (Dkt. # 31 in the above-captioned matter) and “Corrected Motion [] for an
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`Order for Sale of Copyrights in Partial or Full Satisfaction of Judgments. (Dkt. # 73 in C11-
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`1142RSL). Having reviewed the memoranda, declarations, and exhibits submitted by the
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`parties and having heard the arguments of counsel, the Court finds as follows:
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`Plaintiff Hendricks & Lewis, a law firm, obtained two judgments against its
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`former client, defendant Clinton, in the amounts of $1,675,639.82 and $60,786.50. Despite
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`numerous efforts to enforce those judgments in this and other district, plaintiff has
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`recovered less than $340,000. Hendricks & Lewis therefore seeks appointment of a
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`receiver to take control of the copyrights in four Funkadelic master sound recordings
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`owned by defendant, to sell the copyrights, and to recover the outstanding judgment
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`amounts from the proceeds. Defendant argues that (1) the doctrine of claim preclusion bars
`plaintiff’s attempts to recover on the judgment in this district and (2) the Copyright Act
`precludes the forced transfer of copyright ownership and therefore bars the relief plaintiff
`seeks. Each argument is considered below.
`A. CLAIM PRECLUSION
`In 2010, Hendricks & Lewis registered the larger of its two judgments in the
`United States District Court for the Central District of California pursuant to 28 U.S.C.
`§ 1963. It then filed an action in that district seeking to have Clinton’s royalty streams
`from third-parties (such as Capitol Records) assigned to Hendricks & Lewis in an attempt
`collect on the judgment. The Honorable Otis D. Wright II denied Hendricks & Lewis’
`motion for assignment of royalties on September 27, 2011. That denial is now on appeal to
`the Ninth Circuit. Clinton argues that Hendricks & Lewis is barred from seeking to execute
`the judgments at issue in this case under the doctrine of claim preclusion.
`The Court has already rejected this argument in a related litigation. See
`Clinton v. Hendricks & Lewis, C11-1142RSL, Dkt. # 38 at 3-5 (W.D. Wash. Feb. 27,
`2012). Plaintiff has again failed to show that this attempt to recover on the underlying
`judgments is duplicative of the previously-filed California action. A judgment creditor may
`enforce a judgment through one or more supplemental collection proceedings filed
`anywhere the judgment debtor has property subject to levy. While each of these
`proceedings seek the same relief, i.e., the collection of money or assets to satisfy the
`outstanding judgment, it does not necessarily mean that every attempt to assert the rights of
`a judgment creditor is “duplicative” for purposes of the doctrine of claim preclusion.
`Otherwise judgment debtors who hold assets in multiple jurisdictions could force a creditor
`to chose one district in which to seek execution and forego any amounts that cannot be
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`recovered in that district. Such limitations would frustrate the enforcement of federal
`judgments. Because the California and Washington enforcement actions seek the recovery
`of different assets and there is no risk that Judge Wright’s determination that Hendricks &
`Lewis was not entitled to the assignment of royalties under California law will be disturbed
`regardless of how this Court rules on plaintiff’s request for assignment and judicial sale of
`four specific copyrights, the doctrine of claim preclusion does not apply. The Court once
`again finds that the two actions are not duplicative, despite the fact that they are based on
`the same underlying judgments.
`B. SECTION 201(e) OF THE COPYRIGHT ACT
` Clinton also argues that the relief sought by Hendricks & Lewis, namely the
`forced sale of copyrights, is prohibited by federal law. Pursuant to 17 U.S.C. § 201(e):
`When an individual author’s ownership of a copyright, or of any of the
`exclusive rights under a copyright, has not previously been transferred
`voluntarily by that individual author, no action by any governmental body or
`other official or organization purporting to seize, expropriate, transfer, or
`exercise rights of ownership with respect to the copyright, or any of the
`exclusive rights under a copyright, shall be given effect under this title,
`except as provided under title 11.
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`The leading authority on copyright calls § 201(e) “a curious provision,” and rightly so. 3
`Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 10.04 (Matthew Bender,
`Rev. Ed. 2012). The provision had its genesis in the Cold War, but its reach and
`application in today’s world has gone largely unanalyzed and is difficult to discern.
`In 1973, Congress deemed a bar on involuntary transfers necessary in order to
`keep the Soviet Union from seizing ownership of works produced by dissident authors and
`enforcing the American copyright to prevent public distribution of the works in the United
`States. 119 Cong. Rec. S5613-S5614 (daily ed. Mar. 26, 1973) (statement of Sen. John L.
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`McClellan). A stated purpose of the provision was to protect “foreign authors,” and the
`initial drafts of § 201(e) were aimed at acts “of a foreign state or nation.” Nimmer § 10.04
`n. 2; 1 Paul Goldstein, Goldstein on Copyright § 5.1.6.1 at 5:20.1-5:21 n.72 (3d ed. Supp.
`2008). The provision as enacted, however, is not limited to acts by foreign governments.
`Rather, it is a seemingly expansive bar against the use of government power to force an
`author to transfer any of the exclusive rights under a copyright.
`In In re Peregrine Entertainment, Inc., 116 B.R. 194, 206 n.16 (C.D. Cal.
`1990), the court construed § 201(e) “as dealing with actions initiated by governmental
`bodies, not with those where, as in the case of a judgment lienholder, the instruments of
`government are merely acting in furtherance of private objectives.” The court concluded
`that the “section has no application to governmental actions taken in the sphere of private
`law where the government is merely enforcing private rights and is not the ultimate
`beneficiary.” Id. The language of the statute does not support this conclusion, however.
`There is no indication that only acts initiated by the government are precluded. The statute
`bars not only the seizure, expropriation, or exercise of the rights of ownership by any
`governmental entity, but also the forced transfer of rights by those entities. If the statute
`were construed to allow the government to transfer copyrights as long as a private party
`initiates the action, the evil Congress intended to avoid could be accomplished simply by
`generating a money judgment against the author.
`Nor does the legislative history of § 201(e) suggest that Congress intended to
`allow the government to force an author to give up his copyright as payment for an
`unrelated debt. The legislative history states that “[t]he purpose of this section is to
`reaffirm the basic principle that the United States copyright of an individual author shall be
`secured to that author, and cannot be taken away by any involuntary transfer.” H.R. Rep.
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`Case 2:12-cv-00841-RSL Document 62 Filed 11/27/12 Page 5 of 13
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`No. 1476 (1976), reprinted in 1976 U.S.C.C.A.N. 5739. When originally passed, the only
`types of transfers that escaped § 201(e)’s reach were voluntary sales/relinquishments and
`transfers triggered by the author’s overt conduct and subsequent operation of law, such as
`the initiation of voluntary bankruptcy proceedings or the utilization of a copyright as
`security for a loan. In such instances, Congress deemed the author to have consented to the
`transfer so that it was not involuntary for purposes of § 201(e). Congress quickly realized,
`however, that bankruptcy proceedings under Title 11 can be imposed on the debtor and
`would not necessarily fall within the implied consent rationale. Congress therefore felt it
`necessary to amend § 201(e) in 1978 to specifically exclude from its reach transfers ordered
`by the court to pay off creditors in a bankruptcy proceeding under Title 11. Pub. L. 95-598,
`§ 313, 92 Stat. 2676 (1978). Given this legislative history, the Court finds that Congress
`chose its words with care to accomplish the goal of precluding all involuntary transfers of
`copyrights from an individual author unless specifically excluded.1 While the policy
`judgments inherent in the Peregrine Entertainment decision and championed by Goldstein
`are eminently reasonable, such judgments must be made by Congress, not the courts.
`Nevertheless, the Court finds that Mr. Clinton is not entitled to the
`protections of § 201(e) because he is either an assignee of the original author or he has
`previously transferred the copyrights voluntarily. Section 201(e) does not apply if the
`author is not an “individual” or if the copyright or an exclusive right thereunder has
`“previously been transferred voluntarily by that individual author.” Once again, there is
`almost no case law discussing or applying these limitations. They are, however, consistent
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`1 But see Goldstein § 5.1.6 at 5:21 (acknowledging that the “implied consent rationale
`does not extend to the judicial sale of a copyright at the instance of unsecured creditors,” but
`arguing that “section 201(e)’s express political objectives suggest that these transfers, too,
`should be exempted).
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`with Congress’ goal of protecting dissident authors’ rights to control and disseminate their
`works. Because the works of corporate entities did not excite Congress’ concern in the
`Cold War context, only works of “individual” authors are protected from involuntary
`transfer. Congress was also not interested in protecting works that the individual author
`had already relinquished to a third party. Thus, the special protections afforded by § 201(e)
`are waived if the author was willing to voluntarily divest himself or herself of control over
`the work.
`
`In this case, Mr. Clinton created the Funkadelic master sound recordings
`“Hardcore Jollies,” “One Nation Under a Groove,” “Uncle Jam Wants You,” and “The
`Electric Spanking of War Babies” pursuant to a contract with Warner Bros. “In the case of
`a work made for hire, the employer or other person for whom the work was prepared is
`considered the author for purposes of [the Copyright Act], and, unless the parties have
`expressly agreed otherwise in a written instrument signed by them, owns all of the rights
`comprised in the copyright.” 17 U.S.C. § 201(b). The initial agreements between Warner
`Bros. and Clinton (or his production company) specifically granted the copyrights in the
`sound recordings to Warner Bros. Thus, Warner Bros. was the original “author” of the
`work under both the Copyright Act and the parties’ contract. Clinton, who obtained
`ownership of the sound recordings in 1993 pursuant to a settlement agreement with Warner
`Bros., is merely an assignee, not the author. Even if the Court were to entertain the
`possibility that Clinton were the original author of the sound recordings at the moment they
`were created, he voluntarily transferred the copyrights to Warner Bros. Either way, Clinton
`is not entitled to the protections of § 201(e).2 Absent those protections, the copyrights at
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`2 At oral argument, defendant took the position that when Warner Bros. conveyed the
`copyrights in the master sound recordings back to Clinton in settlement of their dispute, the
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`issue are, like any other species of property, subject to judicial sale or assignment in order
`to satisfy a judgment. See Ager v. Murray, 105 U.S. 126 (1881) (pre-§ 201(e) case
`directing patent holder to assign his rights in the patent so they could be sold to pay
`judgment or, if the patent holder failed to execute the assignment, appointing a trustee to
`execute the same).
`Having determined that the relief sought by plaintiff is not barred by the
`Copyright Act, the Court finds that good and sufficient grounds exist for the appointment of
`a receiver pursuant to the Washington Act Relating to Receivership, RCW Ch. 7.60. A
`receivership is necessary to ensure justice to the parties and to preserve the Funkadelic
`master sound recordings “Hardcore Jollies,” “One Nation Under a Groove,” “Uncle Jam
`Wants You,” and “The Electric Spanking of War Babies” for the benefit of the parties and
`to make whole the judgment creditor, plaintiff Hendricks & Lewis, PLLC. It is FURTHER
`ORDERED that:
`(1) Appointment of Receiver
`Gayle E. Bush of Bush Strout & Kornfeld LLP, 5000 Two Union Square, 601
`Union Street, Seattle, WA 98101, is appointed as custodial receiver (“Receiver”) of the
`Funkadelic master sound recordings “Hardcore Jollies,” “One Nation Under a Groove,”
`“Uncle Jam Wants You,” and “The Electric Spanking of War Babies.” Receiver shall,
`within five (5) days of the date of this Order, submit to the court a receivership bond in the
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`original “for hire” agreement was “ripped up.” According to defendant, the destruction of the
`document effectively erased the original agreement from existence, retroactively changing the
`reality of the parties’ relationship such that the works were not made “for hire” and Clinton
`became the original “author” of the works. Defendant offers no support for this extraordinary
`theory. There is no contractual provision, case law, or point of logic that would bestow upon
`Clinton the title of “author” more than a decade after he contractually acknowledged Warner
`Bros.’ statutory claim of authorship.
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`amount of $10,000.00 conditioned upon the faithful performance of his duties herein and
`compliance with the orders of this Court. The costs of the bond will be reimbursed to the
`Receiver from the assets of the receivership estate unless the Court finds that the bond has
`been forfeited. The Receiver shall not be subject to the control of any of the parties to this
`matter, but shall be subject only to the Court’s direction in the fulfillment of his duties.
`(2) Powers and Duties of Receiver
`(a) The Receiver shall have all of the rights, powers, duties, and authority
`vested in him under the Washington Act Relating to Receivership, RCW Ch. 7.60,
`including but not limited to authority and control over the Funkadelic master sound
`recordings “Hardcore Jollies,” “One Nation Under a Groove,” “Uncle Jam Wants You,”
`and “The Electric Spanking of War Babies,” in order to maximize the value of the sound
`recordings for the benefit of the parties and to make whole the judgment creditor, plaintiff
`Hendricks & Lewis, PLLC. Receiver shall, to the greatest extent possible, maximize the
`income stream from the Funkadelic master sound recordings without selling or otherwise
`permanently disposing of the copyrights. Ideally, the Receiver will utilize the copyright
`and sound recordings over a one or two year period to satisfy the judgments and pay the
`expenses of the receivership before returning the copyrights and master sound recordings to
`defendant. Notwithstanding the Court’s preference for returning the recordings and
`copyrights to defendant after his debts are satisfied, the Receiver has the authority to sell or
`permanently dispose of any or all of the master sound recordings.
`(b) The Receiver shall take immediate control and possession of the
`Funkadelic master sound recordings “Hardcore Jollies,” “One Nation Under a Groove,”
`“Uncle Jam Wants You,” and “The Electric Spanking of War Babies” and shall take
`whatever additional steps, if any, are necessary to have the copyrights in the sound
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`recordings assigned to him. Defendant George Clinton (and/or his agents, employees,
`companies, or partnerships as necessary to effectuate the transfer) shall transfer each of the
`master sound recordings and/or copyrights to the control and possession of the Receiver
`and shall cooperate with the Receiver by taking all other necessary and appropriate actions
`to allow the Receiver to carry out the acts described in this Order.
`(c) The Receiver shall have authority to use, sell, lease, or otherwise dispose
`of the Funkadelic master sound recordings “Hardcore Jollies,” “One Nation Under a
`Groove,” “Uncle Jam Wants You,” and “The Electric Spanking of War Babies” pursuant to
`RCW 7.60.260. Except as may otherwise be ordered by this Court, the public notice period
`for disposition of any or all of the master sound recordings shall not be less than thirty (30)
`days. As noted above, the preferred course of action is for the Receiver to maximize the
`income stream from the Funkadelic master sound recordings without selling or otherwise
`permanently disposing of the copyrights.
`(d) The Receiver is authorized to contract with, hire, pay, direct, and
`discharge all persons reasonably deemed necessary by the Receiver, in his sole discretion,
`for the maintenance, use, and liquidation of the Funkadelic master sound recordings
`“Hardcore Jollies,” “One Nation Under a Groove,” “Uncle Jam Wants You,” and “The
`Electric Spanking of War Babies” in his efforts to maximize the value of the sound
`recordings for the benefit of the parties and to make whole the judgment creditor, plaintiff
`Hendricks & Lewis, PLLC.
`(e) Upon disposition of the Funkadelic master sound recordings “Hardcore
`Jollies,” “One Nation Under a Groove,” “Uncle Jam Wants You,” and “The Electric
`Spanking of War Babies,” return of the master sound recordings to defendant, and/or
`completion of the Receiver’s duties hereunder, the Receiver shall move the Court to be
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`discharged. The Receiver shall continue to perform the duties set forth in this Order with
`the aim of maximizing the value of the Funkadelic master sound recordings “Hardcore
`Jollies,” “One Nation Under a Groove,” “Uncle Jam Wants You,” and “The Electric
`Spanking of War Babies” for the benefit of the parties and to make whole the judgment
`creditor, plaintiff Hendricks & Lewis, PLLC, until discharged by the Court.
`(3) Fees and Expenses of Receiver
`Receiver shall be entitled to utilize the services of his law firm and to charge
`as fees the standard hourly rates for himself and the law firm’s services in carrying out his
`duties as Receiver. The Receiver and his law firm shall be reimbursed for all reasonable
`costs expended in this matter and shall provide monthly notice of the fees he and his staff
`incurred and the services provided. In addition, the Receiver shall, within one business day
`of incurring or contracting to incur any third-party expense of over $100, give notice of the
`expense to plaintiff, defendant, any other person or entity that has requested notice, and any
`person or entity that has asserted a lien against the Funkadelic master sound recordings
`“Hardcore Jollies,” “One Nation Under a Groove,” “Uncle Jam Wants You,” and “The
`Electric Spanking of War Babies.” If no written objection served on all interested parties is
`made to the fees or expenses within ten (10) calendar days following the date of notice, the
`fees and expenses shall be deemed approved as being fully and finally earned. The
`approved fees and expenses shall be paid from the assets of the receivership estate and shall
`be a first priority lien on the Funkadelic master sound recordings “Hardcore Jollies,” “One
`Nation Under a Groove,” “Uncle Jam Wants You,” and “The Electric Spanking of War
`Babies,” with priority over all other liens including statutory liens. If the interested parties
`are unable to resolve an objection to a fee or expense within thirty (30) days of the date of
`such objection, any party may file a motion with the Court to resolve the objection.
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`(4) Reporting and Court Approvals
`Within sixty (60) days of this Order,3 the Receiver shall file: (i) an inventory
`of all property acquired; (ii) a report of his activities; and (iii) the professional fees and
`expenses incurred to date. Thereafter, the Receiver shall file a quarterly report of his
`operations and financial affairs in the above-captioned matter that includes the information
`set forth in RCW 7.60.100, with the first such report due on April 5, 2013. The Receiver is
`expressly relieved from the monthly reporting requirement of the statute.
` If the Receiver determines that the sale of one or more of the Funkadelic
`master sound recordings “Hardcore Jollies,” “One Nation Under a Groove,” “Uncle Jam
`Wants You,” and “The Electric Spanking of War Babies” is the best way to maximize the
`value of the sound recordings for the benefit of the parties and to make whole the judgment
`creditor, plaintiff Hendricks & Lewis, PLLC, he shall petition the Court for approval at
`least sixty (60) days before the scheduled sale, setting forth a plan for notifying all
`interested parties (including any lienholders) and the public, a statement regarding the
`existence and amount of any outstanding liens, and the estimated proceeds of the sale. If
`the Court approves the sale, the copyrights to the Funkadelic master sound recordings
`“Hardcore Jollies,” “One Nation Under a Groove,” “Uncle Jam Wants You,” and “The
`Electric Spanking of War Babies” will, unless otherwise ordered by the Court, be sold free
`and clear of any liens, whether or not the sale will generate proceeds sufficient to fully
`satisfy the claims secured by the sound recordings, and all security interests and liens
`encumbering the sound recordings shall attach to the proceeds of the sale, net of reasonable
`expenses incurred in the disposition of the sound recordings, in the same order, priority,
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`3 If defendant files a Notice of Appeal in this action, the initial report shall be due within
`sixty days of the final disposition of the appeal.
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`and validity as the liens had with respect to the sound recordings as of the date of this Order
`(5) Distribution of Funds
`
`During the term of the Receiver’s appointment and until further order of the
`Court, the Funkadelic master sound recordings “Hardcore Jollies,” “One Nation Under a
`Groove,” “Uncle Jam Wants You,” and “The Electric Spanking of War Babies” shall
`remain under the Court’s exclusive jurisdiction. Proceeds of the sale, lease, or other
`disposition or use of the Funkadelic master sound recordings “Hardcore Jollies,” “One
`Nation Under a Groove,” “Uncle Jam Wants You,” and “The Electric Spanking of War
`Babies” shall be deposited by the Receiver in an FDIC-insured account established at an
`insured financial institution until a final order of the Court is entered regarding distribution
`of the funds.
`(6) Non-Interference
`The judgment debtor is prohibited from the sale, transfer, or other disposition
`of the Funkadelic master sound recordings “Hardcore Jollies,” “One Nation Under a
`Groove,” “Uncle Jam Wants You,” and “The Electric Spanking of War Babies” unless and
`until the Receiver is discharged. Defendant George Clinton and his agents, employees,
`companies, and partnerships are hereby restrained from interfering with the Receiver’s
`efforts to maximize the value of the sound recordings or from taking any actions that would
`reduce the value of the sound recordings.
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`For all of the foregoing reasons, plaintiff’s “Motion for Appointment of a
`Receiver” (Dkt. # 31 in the above-captioned matter) and “Corrected Motion [] for an Order
`for Sale of Copyrights in Partial or Full Satisfaction of Judgments. (Dkt. # 73 in C11-
`1142RSL) are GRANTED. Plaintiff shall provide statutory notice of entry of this Order to
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`defendant.
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`Because the legal issues raised in this case are novel, the Court has not found
`any reported case authorizing the relief afforded herein, and there is no just reason for
`delaying defendant’s ability to seek appellate review prior to execution despite this Court’s
`continuing jurisdiction over this matter, the Clerk of Court is directed to enter partial
`judgment in favor of plaintiff and against defendant pursuant to Fed. R. Civ. P. 54(b). This
`Order is hereby STAYED for thirty days to give defendant an opportunity to file a Notice
`of Appeal. If a timely Notice is not filed, this Order shall automatically become effective at
`the end of the thirty-day period. If defendant files a Notice of Appeal, this Order shall go
`into effect, if at all, upon final disposition of the appeal.
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`Dated this 27th day of November, 2012.
`
`A R
`
`obert S. Lasnik
`United States District Judge