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REPP v. WEBBER

July 19, 1995

RAY REPP and K & R MUSIC, INC., Plaintiffs, against ANDREW LLOYD WEBBER, THE REALLY USEFUL GROUP, PLC, THE REALLY USEFUL COMPANY, INC., MCA RECORDS, INC., HAL LEONARD PUBLISHING CORPORATION and POLYGRAM RECORDS, INC., Defendants.


The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 By Memorandum Opinion and Order dated August 3, 1994 (the "1994 Opinion"), the Court granted summary judgment dismissing the complaint. Plaintiffs now move, pursuant to Federal Rule of Civil Procedure 56, for summary judgment dismissing defendants' counterclaims. Defendants move, pursuant to 17 U.S.C. ยง 505, for an order granting them costs and attorneys' fees. The Court shall consider each issue below.

 BACKGROUND *fn1"

 I. Creation of "Close Every Door"

 In 1968, defendant Andrew Lloyd Webber ("Lloyd Webber") composed the song "Close Every Door" for his dramatico-musical work entitled Joseph and the Amazing Technicolor Dreamcoat ("Joseph"). Novello and Company, Ltd. ("Novello") released the vocal score of Joseph in the United States in 1969 and registered the work for copyright protection that same year. By written agreement dated April 21, 1989, Novello assigned its copyright interest in Joseph to The Really Useful Group, Ltd.

 In January 1969, Decca Records released a recording of a choral version of Joseph performed at St. Paul's Cathedral in England. At the same time, Decca Records released a single recording of "Close Every Door." The next year, Sceptre Records released Joseph in album form in the United States.

 In 1971, Joseph appeared on the Billboard magazine charts of popular music for twelve weeks, peaking at number eighty-four in May 1971. Subsequently, in 1974, MCA Records released a studio-recorded version of Joseph in the United States and, by December 1979, sold 18,833 copies of its recording.

 In May 1970, Joseph premiered at the College of the Immaculate Conception in Douglaston, New York. In 1972 and 1973, Joseph was performed in various productions in Scotland and England, and was broadcast on network television in the United Kingdom. In 1974, Joseph was performed at the Playhouse in the Park in Philadelphia, where it was reviewed by Variety magazine. In December 1976, Joseph was performed at the Brooklyn Academy of Music ("BAM"), where it was reviewed by, among others, The New York Times and The Christian Science Monitor.

 In 1982, Joseph opened on Broadway, where it was nominated for seven Tony awards and three Drama Desk awards. Throughout the 1970s and 1980s, Joseph also was performed in amateur, church, college and secondary school productions in the United States. Plaintiff Ray Repp ("Repp") contends, however, that he did not hear any music from Joseph until he attended a production of the work between August 31 and September 6, 1982. See Repp Decl. at P 16.

 II. Creation of "Till You"

 Repp alleges that, in September 1976, he composed a folk song entitled "Till You," basing the lyrics on certain Biblical verses from the Book of Luke. *fn2" Repp recites the circumstances surrounding his creation of "Till You" as follows:

 See Repp. Dec. at PP 8-9. *fn3" "Till You" was copyrighted in July 1978 and released to the public that spring as one of the songs on the album entitled Benedicamus.

 III. The Current Action

 In July 1990, plaintiffs commenced this action in the United States District Court for the Northern District of Illinois for copyright infringement (Count One) and unfair competition and deceptive trade practices (Count Two). *fn4" Specifically, plaintiffs alleged that Lloyd Webber copied "Till You" when he created the melody for his song "The Phantom of the Opera" (the "Phantom ...


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