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TEMPO MUSIC, INC. v. FAMOUS MUSIC CORP.

December 16, 1993

TEMPO MUSIC, INC., Plaintiffs,
v.
FAMOUS MUSIC CORPORATION and MERCER ELLINGTON, Defendants/ Third-Party Plaintiffs, v. GREGORY A. MORRIS, as EXECUTOR OF THE ESTATE OF BILLY STRAYHORN, Third-Party Defendant.


Sand


The opinion of the court was delivered by: LEONARD B. SAND

SAND, J.

 Third-party plaintiffs, Famous Music Corporation and Mercer Ellington (collectively "the Ellington Estate"), filed a third-party complaint against third-party defendant, Gregory A. Morris, executor of the Billy Strayhorn estate ("the Strayhorn Estate") claiming copyright ownership of and entitlement to royalties from particular versions of the jazz classic, Satin Doll. This Court has ancillary jurisdiction over the third-party claim by virtue of the fact that federal jurisdiction exists over the original action, predicated under the federal copyright laws. Settlement has been reached on many of the other claims in this litigation, including those claims raised by Tempo Music, Inc. ("Tempo"), the plaintiff in the original action, against defendants/ third-party plaintiffs, Famous and Mercer Ellington. *fn1" What remains in dispute is whether Billy Strayhorn's estate has an interest in the harmony and revised melody of Satin Doll when used or performed without the lyrics. *fn2"

 In cross-motions for summary judgment, the parties have asked the Court to resolve an issue of first impression: whether a harmony added to an earlier work can, as a matter of law, be the subject of copyright. The Strayhorn Estate moves for partial summary judgment, seeking an order declaring that Strayhorn's heirs are entitled to one-third of all royalties and other compensation paid, payable and to become payable with respect to the harmony and revised melody. The Ellington Estate cross-moves, seeking an order declaring that as a matter of law, the Strayhorn Estate does not have any interest in any version of Satin Doll when used or performed without the lyrics. Additionally, the Strayhorn Estate moves to strike portions of an affidavit submitted by an expert for the Ellington Estate in opposition to Strayhorn's summary judgment motion. For the reasons stated below, each of the motions is denied.

 BACKGROUND

 At the center of the this controversy between the heirs of two of American's most well-known composers is the harmony and revised melody of the jazz standard, Satin Doll, as embodied in two particular versions of the work, copyrighted in 1958 and 1960. Four separate embodiments of Satin Doll define the boundaries of the dispute. The first embodiment is an instrumental version ("IW1") containing only the unpublished melody of Satin Doll as represented by a certified copy of the musical "lead sheet" deposited with the United States Copyright Office, corresponding to copyright registration No. Eu 320603, dated June 19, 1953. Although the Strayhorn Estate disputes the Ellington Estate's allegation that they are sole proprietors of IW1, the allegation is conceded to be true for purposes of this motion. The second version is also an instrumental version ("IW2") but contains harmony and a revised melody as embodied in a sound recording first released and distributed on phonorecord allegedly in or about June 1953 (Capitol Records number 2458) and performed by Duke Ellington and His Famous Orchestra throughout the country.

 The third embodiment, a version of the work containing harmony and a revised melody with lyrics, is a derivative work ("DW1") represented by a handwritten piano-vocal score deposited with the United States Copyright Office, corresponding to copyright registration No. Eu 549089, dated November 4, 1958. The fourth version, containing an introduction in addition to the harmony, revised melody and lyrics of Satin Doll, is a published edition of the derivative work ("DW2") represented by a piano-vocal score deposited with the United States Copyright Office, corresponding to copyright registration NO. Ep 144736, dated May 20, 1960. The question at the heart of the various motions is whether, as a matter of law, the Strayhorn Estate is entitled to an interest in the derivative works, DW1 and DW2, when used or performed without the lyrics. *fn3"

 DISCUSSION

 Resolution of the motions turns on two legal questions. The first question is: does a genuine issue of material fact exist concerning whether the harmony and revised melody are included within the scope of the copyrights in the Derivative Works? The second question is: assuming the copyrights do in fact extend to the harmony and revised melody, does a genuine issue of material fact exist regarding the validity of copyrighting this subject matter? This second question involves an issue of first impression -- whether a harmony added to an earlier work can, as a matter of law, be the subject of copyright.

 The Standard of Review

 Summary judgment is appropriate where the moving papers and affidavits submitted by the parties "show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and the court must view the evidence in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

 The Court's role in such a context is not to resolve disputed factual issues, but rather to determine whether the record, taken as a whole, supports any issues that require a trial. *fn4" See Matshushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Nevertheless, the very language of the summary judgment standard provides that "the mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (emphasis in original). Materiality is determined by reference to the substantive law applicable to the case at hand, and factual disputes irrelevant to its outcome "will not be counted." Id. at 248.

 I. The Scope of the Copyrights

 In determining whether Strayhorn's heirs have an interest in the harmony and revised melody of Satin Doll, the threshold issue which must be resolved is the scope of the copyrights in the Derivative Works. This portion of the dispute concerns whether the harmony and revised melody are within the scope of the copyrighted derivative material, and if so whether it can be said that Strayhorn collaborated in their creation, as a matter of law.

 According to Section 209 of the Copyright Act of 1909, the registration certificate issued by the Copyright Office "shall be admitted in any court as prima facie evidence of the facts stated therein." 17 U.S.C. ยง 209 (codified in 1947). *fn5" See also Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 n.1 (2d Cir. 1977); Plymouth Music Co. and Roncom Music Co. v. Magnus Organ Corp., et al., 456 F. Supp. 676, 679 (S.D.N.Y. 1978) (certificate admitted as ...


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