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.
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.
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. ¶ 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 ...