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September 9, 1999


The opinion of the court was delivered by: Motley, District Judge.


Plaintiff Christopher G. Weber claims that his former bandmates, after joining the music group "Guns N' Roses," wrongly excluded him from the proceeds of two musical compositions he had co-written with them years earlier. Plaintiff presses a federal Lanham Act cause of action and state law causes of action for an accounting of profits, unjust enrichment, and unfair competition. Defendants have moved to dismiss. For the reasons given below, defendants' motions to dismiss are granted in their entirety and this action is dismissed.

I. Background

A. History of the Disputed Musical Compositions

Mr. Weber alleges that in 1983 he co-authored two original musical compositions: "Back Off Bitch" ("First Composition"), co-authored by Mr. Weber and defendant W. Axl Rose; and "Shadow of Your Love" ("Second Composition"), coauthored by Mr. Weber, Mr. Rose, and defendant Jeffrey Isbell p/k/a "Izzy Stradlin." Compl. ¶¶ 11-12.*fn1 At the time, Mr. Weber, Mr. Rose, and Mr. Isbell composed and performed music together as the music group "Hollywood Rose." Spiro Aff., Ex. C, ¶ 3 (October 19, 1989 complaint ("1989 Complaint") by Mr. Weber in prior federal lawsuit ("1989 Action")).

By the mid-1980s, Mr. Weber had parted ways with Mr. Rose and Mr. Isbell. In 1986, along with defendant Michael "Duff" McKagan, non-party Saul "Slash" Hudson, and non-party Steven Adler-but without Mr. Weber — Mr. Rose and Mr. Isbell formed the music group "Guns N' Roses" ("GNR"). Spiro Aff., Ex. C, ¶ 7 (1989 Complaint). In its heyday during the late 1980s and early 1990s, GNR enjoyed worldwide commercial success, with performances and sales of albums, packaged box sets, videocassettes, sheet music, etc., in the United States, Europe, Japan, and Australia. Compl. ¶¶ 15-33.

During this period, Mr. Weber alleges, GNR used the two Compositions in multiple GNR recordings without giving Mr. Weber co-authorship attribution. Beginning in September 1991, a song entitled "Back Off Bitch" ("First Song") appeared on various GNR recordings, including an album entitled "Use Your Illusion I" that was distributed throughout the United States and worldwide. Compl. ¶¶ 15-25. Mr. Weber did not learn of the First Song until March 1992, he claims, when he saw the First Song on "Use Your Illusion I" in a record store. Compl. ¶ 34; Weber Decl. ¶ 3. Beginning in June 1987, a song entitled "Shadow of Your Love" ("Second Song") appeared on various GNR recordings distributed outside the United States. Compl. ¶¶ 28-34. Mr. Weber did not learn of the Second Song until January 1997 because of its exclusively foreign distribution, he claims. Compl. ¶ 34. Each of the two Songs allegedly "contains a large portion of the . . . Composition" of the same name. Compl. ¶¶ 16, 31.

B. Mr. Weber's Pursuit of Co-Authorship Rights

While GNR never paid Mr. Weber for its alleged use of the Compositions, it did not expressly refuse to pay until December 1997, Mr. Weber claims. Compl. ¶¶ 35-36; Weber Decl. ¶¶ 5, 10; Ehrlich Decl. ¶ 11. Upon learning of the First Song, Mr. Weber "did not immediately seek legal intervention and instead waited for such accounting and for the correction of the misattribution of [his] work in that Composition which was given to others." Weber Decl. ¶ 3. Mr. Weber expected recognition and an accounting from GNR because he thought that, based on the then-settled 1989 Action he had filed against GNR for other co-authorship claims, GNR "knew to account to [him] for [his] co-authorship." Weber Decl. ¶ 3; Spiro Aff. ¶ 4.

Eventually, hearing nothing from GNR regarding the First Composition, Mr. Weber had an agent attempt negotiations with GNR from fall 1994 to December 1997. Weber Decl. ¶ 4; Ehrlich Decl. ¶ 2. During the negotiation efforts, Mr. Weber's agent reports that he received from GNR "continual promises that plaintiff would be paid some amount to be negotiated for his contribution to the Composition `Back Off Bitch' and that the misattribution of authorship would be corrected." Ehrlich Decl. ¶ 2; Weber Decl. ¶ 4. Published books of GNR sheet music during this period did list Mr. Weber as a coauthor, strengthening his belief in GNR's promises to recognize his co-authorship rights. Weber Decl. ¶ 5; Ehrlich Decl. ¶ 2, 4-8.

Upon learning of the Second Song in January 1997, Mr. Weber's agent broadened his negotiation efforts to include recognition and an accounting from GNR for the Second Composition. During that phase of negotiations, GNR's purported promises to pay Mr. Weber and to recognize his co-authorship extended identically to both the First and Second Compositions. Weber Decl. ¶¶ 8-9; Ehrlich Decl. ¶¶ 9-10.

C. Copyright Registrations

Mr. Weber claims that "[a]t all times, [he] has been co-owner of all right, title and interest, including, but not limited to, all rights of copyright, pertaining to the Compositions." Compl. ¶ 13. Mr. Weber did not apply for registration of the Compositions with the United States Copyright Office, however, until he filed the complaint in this action. Compl. ¶ 14.

The First and Second Songs are copyrighted as the creations and the property of various GNR members. The First Song was registered on December 16, 1991, initially listing Mr. Rose, Mr. Hudson, and non-party Paul Huge as the sole authors, but amended on August 8, 1994 to add Mr. McKagan and Mr. Stradlin as co-authors. Spiro Aff. ¶ 17, Ex. E. The Second Song was registered on August 7, 1987, listing Mr. Rose, Mr. Hudson, Mr. Adler as the sole authors. Spiro Aff. ¶ 15, Ex. D. Mr. Weber asserts that he did not know of the GNR copyright registrations for either the First or Second Song until after this litigation ensued. Weber Decl. ¶¶ 6, 11. In the 1989 Action, Mr. Weber made similar claims to co-authorship rights for three different songs. The GNR members' copyright to one of those songs, "Reckless Life," was registered on the same August 7, 1987 copyright registration statement as the Second Song in this action, "Shadow of Your Love." Spiro Aff. ¶¶ 5-6, Ex. D.

II. Discussion

Since amending his complaint, plaintiff does not press a formal Copyright Act cause of action, but does press the following four:, accounting of profits under state law; false designation of origin under the Lanham act, 15 U.S.C. § 1125(a); unfair competition under state law; and unjust enrichment under state law. All four causes of action, however, are premised on plaintiffs claim to co-ownership of defendants' copyrighted musical compositions. See, e.g., Compl. ΒΆ 38 (alleging, in accounting claim, that "At all times, plaintiff has been a co-owner of all rights and privileges in and to the copyright of the Compositions."). The Copyright Act limits plaintiffs present claims in three ways. First, it preempts any state law claim that would be too similar to a copyright ...

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