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LINZER v. EMI BLACKWOOD MUSIC

November 13, 1995

SANDY LINZER and DENNY RANDELL, Plaintiffs, against EMI BLACKWOOD MUSIC, INC., EMI MUSIC PUBLISHING, SCREEN GEMS-EMI MUSIC, INC., SEASONS FOUR MUSIC CORP., FRANKIE VALLI, ROBERT GAUDIO and PETER BENNETT, Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Plaintiffs Sandy Linzer and Denny Randell brought this action against Defendants EMI Blackwood Music, Inc., EMI Music Publishing, Screen Gems-EMI Music, Inc. (collectively "EMI"), Seasons Four Music Corp. ("Seasons Four"), Frankie Valli ("Valli"), Robert Gaudio ("Gaudio"), and Peter Bennett ("Bennett") (collectively "Defendants") for various copyright, trademark, tort, and contract claims. Seasons Four, Valli, Gaudio, and Bennett (collectively "Moving Defendants") have moved to dismiss the action insofar as it concerns them, under Fed. R. Civ. P. 12(b)(2) for lack of in personam jurisdiction; to dismiss under Rule 12(b)(3) for lack of venue; or to transfer venue to the Central District of California pursuant to 28 U.S.C. § 1404(a) (1988). For the reasons set forth below, the motion is granted in part and denied in part. This Court lacks jurisdiction over Seasons Four but possesses jurisdiction over Valli, Gaudio, and Bennett. As to the claims that remain -- those against Valli, Gaudio, Bennett, and EMI -- venue properly lies in this District.

 Linzer, a natural person residing in New Jersey, and Randell a natural person residing in California, are composers of popular songs.

 The Four Seasons (the "Group") is a popular singing group, of which defendants Valli and Gaudio were members. Seasons Four, a corporation which came into being in 1965, and which is variously alleged to have been incorporated under the laws of California and those of New York, was the corporate form organized to handle the business dealings of the Group. Seasons Four and the Group had offices in New York through 1966, and perhaps later. Seasons Four was dissolved in 1979, at which time its assets were transferred in their entirety to the Four Seasons Partnership (the "Partnership"). Valli, a natural person residing in California, and Gaudio, a natural person residing in Tennessee, were the principals of Seasons Four and are now the general partners of the Partnership.

 EMI Blackwood Music, Inc. is a Connecticut corporation with its principal place of business in New York. EMI Music Publishing, EMI Entertainment World, Inc., and Thorn EMI, Inc. are publishers of music. EMI Music Publishing is a New York entity. Screen Gems-EMI Music, Inc. is a Delaware Corporation with its principal place of business in New York and also is in the business of publishing music.

 Bennett, a natural person residing in California, has been the general counsel for Valli and Gaudio and their companies since 1969. Bennett owns Legibus Records, a record company, together with Valli and Gaudio.

 Relevant Third Parties

 Saturday Music, Inc. ("Saturday") is variously alleged to be a California corporation and New York corporation. Its president and owner is Robert Crewe, a natural person. Daniel Crewe, Robert Crewe's brother, is a natural person residing in New England. At some point in the past, and perhaps continuing into the present, Daniel Crewe owned part of Saturday. Robert and Daniel are referred to collectively here as "the Crewes".

 Windswept Pacific Music Publishing Co. ("Windswept") is a California entity.

 Broadcast Music, Inc. ("BMI") is a New York entity. Linzer and Randell are members of BMI, which administers their interests in the Songs. The Harry Fox Agency ("Fox") conducts a business similar to BMI. Randell is a member of Fox, which administers his interest in the Songs. BMI and Fox collect and remit to publishers, after deducting fees, the publisher's share from air play and record sales throughout the world.

 Prior Proceedings

 Plaintiffs filed their initial complaint in this action on February 28, 1994. Their Amended Complaint was submitted on April 12, 1994. On July 13, 1995, Moving Defendants filed their notice of motion and papers supporting the present motion, which was heard and considered finally submitted on August 2, 1995.

 In the present action, Plaintiffs seek a declaratory judgment regarding copyright ownership, as well as injunctive relief and damages for Defendants' alleged acts of copyright infringement, unfair competition, breach of fiduciary duty and tortious interference with contract. The other claims in this action derive similarly from the dispute over ownership of rights in the songs.

 This action is far from the first time that the parties have made use of the courts to settle their disputes. Indeed, since 1966, six actions have been heard in New York state courts regarding the Songs, their copyrights, and the proceeds generated. In 1966, Saturday sued Randell and Linzer in the Supreme Court of the State of New York for breach of their contracts with Saturday, and Linzer and Randell counterclaimed. The parties settled for a release of claims by Linzer and Randell and a cash payment by Saturday.

 In 1972, Randell sued Saturday and Seasons Four for breach of contract, seeking unpaid royalties. This suit also was settled, again for a release and payment. In 1977, Saturday assigned to EMI its fifty-percent copyright ownership in at least five of the six songs identified in this action, in settlement of a lawsuit between those two parties. In 1978, Linzer and Randell sued Saturday, EMI, Seasons Four, and Jobette Music Co., Inc. in New York State Supreme Court. That suit was ultimately dismissed in part by a stipulation discontinuing the action and resolved in part with a judgment against Linzer.

 Facts

 The facts except as noted below are derived from the Amended Complaint. In 1964, Linzer and Randell each agreed, after negotiations held in New York City with the Crewes, to render exclusive services as a songwriter for Saturday, which at that time was co-owned by the Crewes. Saturday in turn agreed to promote the songs written by Linzer and Randell (the "Songwriters Agreement"). Linzer and Randell assigned the publishing rights to certain songs to Saturday. Saturday had previously entered into an agreement with the Group. Under that agreement, any song owned or controlled by Saturday and recorded by the Group was to become the joint property of Saturday and Seasons Four. Certain of the songs written by Linzer and Randell were recorded by the Group in New York. Between 1964 and 1966, numerous business meetings were held as well at the premises of Saturday and Seasons in New York. At no time did either Linzer or Randell enter into any agreement with Seasons Four or the Group with respect to the rights in any songs written by Linzer or Randell and recorded by the Group.

 In 1977, Saturday assigned its shares of ownership and copyrights in the songs described above ("the Songs") to EMI. To the extent that Plaintiffs retained renewal rights in the Songs (an issue in this action), they never assigned those rights to either Saturday or Seasons Four. The initial term of the copyright in most of the Songs expired on December 31, 1993. In August of that year, Plaintiffs notified EMI, Seasons Four, BMI, Fox, and others of Plaintiffs' claims to rights in the Songs. Later that year, Plaintiffs filed applications with the Register of Copyrights to renew the copyrights in the Songs.

 Based on their interpretation of the original agreement and a paragraph in the Songwriter's Agreement for each of the individual songs, the Defendants have continued to license the Songs for recording and live performance and have profited from those licenses.

 The Motion to Dismiss for Lack of Jurisdiction is Granted as to Seasons Four and Denied as to Valli, Gaudio, and Bennett

 In considering a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, a district court must construe the facts from the pleadings and affidavits in the light most favorable to the plaintiff. See Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985). Implicit is the understanding that a plaintiff bears the burden of establishing jurisdiction over a defendant; however, until "a full evidentiary hearing or a trial on the merits is held, [a plaintiff] need only set forth prima facie evidence of personal jurisdiction." Beacon Enters. Inc., v. Menzies, 715 F.2d 757, 768 (2d Cir. 1983). Thereafter, a plaintiff must establish jurisdiction by a preponderance of the evidence. Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984); Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). From the pleadings and affidavits which the Court now has before it, Linzer and Randell have met their initial burden of making out a prima facie case for in personam jurisdiction over Valli, Gaudio, and Bennett, but not over Seasons Four.

 A federal court in a diversity action must look to the forum state's general jurisdictional or long-arm statute to determine whether in personam jurisdiction exists over a nonresident defendant. See Savin v. Ranier, 898 F.2d 304 (2d Cir. 1990) (citing Arrowsmith v. United Press Int'l, 320 F.2d 219, 222-25 (2d Cir. 1963 (en banc)). In the present action, Plaintiffs allege that all of the Defendants are subject to jurisdiction under § 302(a) of the Civil ...


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