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MERCHANT v. LYMON

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


March 22, 1994

JIMMY MERCHANT and HERMAN SANTIAGO, Plaintiffs,
v.
ELMIRA LYMON, MORRIS LEVY, BIG SEVEN MUSIC CORP., ROULETTE RECORDS, INC. and BROADCAST MUSIC, INC., Defendants.

The opinion of the court was delivered by: NAOMI REICE BUCHWALD

OPINION

 NAOMI REICE BUCHWALD

 CHIEF MAGISTRATE JUDGE

 After a five-day trial in the above-captioned action, held from November 10, 1992 through November 16, 1992, a jury returned a special verdict finding that plaintiffs Jimmy Merchant and Herman Santiago were co-authors, with Frank Lymon, of the hit song Why Do Fools Fall in Love? ("Fools"). *fn1" In addition, the jury found that plaintiffs were prevented from commencing a lawsuit for copyright royalties because of a reasonable fear of retribution lasting from 1969 until December 24, 1984.

 Thereafter, on December 15, 1992, defendants Levy, Big Seven Music Corp., and Roulette Records, Inc. (collectively referred to as the "Levy defendants") *fn2" filed a multi-faceted post-trial motion. Of particular relevance here was their application for judgment as a matter of law pursuant to Fed. R. Civ. P. 50 on the ground that plaintiffs were not entitled to a tolling of the statute of limitations as a matter of law, or alternatively, for the entirety of the period found by the jury. In an Opinion dated July 22, 1993 (the "July 22 Opinion"), this Court granted defendants' motion in relevant part. See Merchant v. Lymon, 828 F. Supp. 1048 (S.D.N.Y. 1993). Specifically, we held that duress must constitute an integral part of the cause of action in order to justify a tolling of the statute of limitations. Alternatively, we found that the jury's verdict was not supported by the evidence. Furthermore, based on the Copyright Act's statute of limitations, 17 U.S.C. § 507(b), we held that plaintiffs could only recover for damages accruing within three years of October 7, 1987, the day that plaintiffs filed their complaint. See Stone v. Williams, 970 F.2d 1043, 1051 (2d Cir. 1992), cert. denied, 113 S. Ct. 2330 (1993).

 On January 7, 1993, Windswept Pacific Entertainment Co. ("Windswept"), which acquired ownership of the Fools copyright in 1988, moved to intervene for all purposes under Fed. R. Civ. P. 24(a). Plaintiffs consented to Windswept's application. On February 25, 1993, Windswept filed its answer, pursuant to leave granted on February 4, 1993. Windswept now moves for this Court to amend its July 22 Opinion to state explicitly that Windswept is only liable for damages accruing since February 25, 1990, three years before its intervention in this action.

 DISCUSSION

 For reasons unknown to us, plaintiffs never sought to join Windswept as a defendant even though they knew that Windswept had acquired ownership of the Fools copyright after their complaint was filed. *fn3" In fact, to this date, plaintiffs have offered no explanation for their failure to join Windswept in a timely manner. Rather, in opposing this motion, plaintiffs' position is that Windswept was at fault for failing to intervene sooner. (Pls.' Mem. Opp. Mot. of Def. Windswept at 4-6.)

 We reject plaintiffs' contention. Responsibility for failure to join Windswept must be placed squarely with plaintiffs. The Copyright Act specifically states that "recordation of a document in the Copyright Office gives all persons constructive notice of the facts stated in the recorded document. . . ." 17 U.S.C. § 205(c). See generally 3 Nimmer on Copyright § 10.07, 10-51 - 10-70 (1993) ("Recordation of Transfers"). For a small fee, plaintiffs could have requested that the Copyright Office conduct a search for the current owner of the Fools copyright. 17 U.S.C. § 705(c). *fn4" Such a search would have revealed a recorded transfer of copyright interest to Windswept on October 14, 1988. Because plaintiffs had the knowledge and capacity to join Windswept in a timely fashion, there is no reason that the calculation of the limitations period ought not to run from the date that Windswept became a party to the action.

 CONCLUSION

 Based on the statute of limitation applicable in copyright cases, Windswept is liable only for damages accruing since February 25, 1990. Defendant's motion is granted.

 IT IS SO ORDERED.

 DATED: New York, New York

 March 22, 1994

 NAOMI REICE BUCHWALD

 CHIEF MAGISTRATE JUDGE


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