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REPP v. WEBBER

February 9, 1996

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: KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 In this copyright infringement action, plaintiffs Ray Repp ("Repp") and K&R Music, Inc. ("K&R") move to dismiss defendants' counterclaims as time-barred. In Repp v. Lloyd Webber, 892 F. Supp. 552 (S.D.N.Y. 1995), the Court denied plaintiffs' motion for summary judgment dismissing defendants' counterclaims on several grounds argued by plaintiffs. At that time, however, the Court reserved judgment on plaintiffs' argument that the counterclaims were not timely, pending additional discovery on the issue. That discovery now complete, plaintiffs renew their motion for summary judgment dismissing the counterclaims on statute of limitations grounds. Defendants oppose the motion and seek expenses and attorney's fees, pursuant to Federal Rule of Civil Procedure 56(g), on the ground that plaintiffs' attorneys acted in bad faith in submitting false and misleading affidavits on the statute of limitations issue. For the reasons set forth below, both motions are denied.

 BACKGROUND *fn1"

 I. The Songs

 In 1968, Andrew Lloyd Webber ("Webber") composed the song "Close Every Door" for the popular musical entitled Joseph and the Amazing Technicolor Dreamcoat. The vocal score of the musical was released in the United States in 1969 and the work was registered for copyright protection that same year. In the ensuing years, Webber composed numerous musical scores, including the song "Phantom of the Opera" in 1985 for the musical of the same name.

 Repp, a composer and performer of religious and liturgical music, alleges that in the late 1970s *fn2" he created a religious folk song entitled "Till You," basing the lyrics on certain biblical verses from the Book of Luke. "Till You" was copyrighted in July 1978 and released publicly in an album entitled Benedicamus.

 In the summer of 1978, Repp founded K&R, which re-released Benedicamus in December 1978. Repp alleges that he personally ordered the manufacture of 5,000 copies of the Benedicamus album and more than 8,000 cassette tapes of the Benedicamus recording. According to Repp, only a handful of these albums remain, and all of the cassette tapes were either sold or distributed as promotional or airplay copies. *fn3"

 II. The Complaint

 In July 1990, plaintiffs brought this action for copyright infringement, unfair competition and deceptive trade practices. Specifically, the complaint asserted that Webber's 1985 song "Phantom of the Opera" substantially copied Repp's 1970's song "Till You." Plaintiffs charged the named corporate defendants with distributing and exploiting the "Phantom of the Opera" song in violation of his copyright rights in "Till You."

 In Repp v. Lloyd Webber, 858 F. Supp. 1292 (S.D.N.Y. 1994) (the "1994 Opinion"), the Court granted summary judgment in defendants' favor and dismissed the complaint. Specifically, the Court found that plaintiffs were unable to meet their burden of proving that Webber had access to "Till You" prior to composing "Phantom of the Opera." The Court also held that "Till You" was not so strikingly similar to "Phantom of the Opera" as to justify an inference of copying and improper appropriation absent evidence of access. *fn4"

 On October 12, 1994, this Court granted leave to plaintiffs to file a parallel motion for summary judgment on defendants' counterclaims, pursuant to Federal Rule of Civil Procedure 56(b). In Repp v. Lloyd Webber, 892 F. Supp. 552 (S.D.N.Y. 1995), the Court denied plaintiffs' motion for summary judgment dismissing defendants' counterclaims, rejecting plaintiffs' contentions that (1) defendants could not prove that Repp had access to the song "Close Every Door" prior to composing "Till You;" (2) the songs "Till You" and "Close Every Door" were not substantially similar as a matter of law; and (3) defendants could not contradict plaintiffs' evidence of independent creation of "Till You." At that time, however, the Court reserved judgment on plaintiffs' motion for summary judgment dismissing defendants' counterclaims on the ground that they ...


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