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ACKOFF-ORTEGA v. WINDSWEPT PACIFIC ENTERTAINMENT CO.

June 5, 2000

SUSAN ACKOFF-ORTEGA, CELE ACKOFF, AND JON ACKOFF, PLAINTIFFS,
V.
WINDSWEPT PACIFIC ENTERTAINMENT CO. (INC.), SCREEN GEMS-EMI MUSIC, INC., AND RICHARD ROSENBLATT, DEFENDANTS.



The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge.

OPINION AND ORDER

Plaintiffs Susan Ackoff-Ortega, Cele Ackoff and Jon Ackoff seek a declaratory judgment under federal copyright law against defendants Windswept Pacific Entertainment Co. (Inc.) ("Windswept"), Screen Gems-EMI Music, Inc. ("Screen Gems"), and assert several state law contract claims against defendant Richard Rosenblatt. Rosenblatt now moves to dismiss or stay plaintiffs' claims against him, because plaintiffs have asserted those same claims as counterclaims in a state court action filed by Rosenblatt. For the reasons set forth below, Rosenblatt's motion is denied.

I. BACKGROUND

A. Facts

Robert Ackoff, a songwriter whose professional name was "Beau Gentry," died intestate in 1983, unmarried and without children. See Complaint ¶¶ 2-3.*fn1 Plaintiff Cele Ackoff is Robert Ackoff's mother, and plaintiffs Susan Ackoff-Ortega and Jon Ackoff are Cele Ackoff's surviving children. See id. ¶ 4.

On January 18, 1967, Robert Ackoff entered into an employment-for-hire agreement with Patricia Music Publishing ("Patricia Music"). See id. ¶ 14.*fn2 Sometime prior to April 4, 1968, Robert Ackoff co-authored the song "Mony, Mony" with Tommy James, Bobby Bloom, and defendant Richard Rosenblatt, a songwriter whose professional name was "Ritchie Cordell." See id. ¶¶ 5-6.

The second plot line involves the copyright registration of "Mony, Mony," which also has changed several times. On or about April 8, 1968, Patricia Music registered "Mony, Mony" with the United States Copyright Office (the "Copyright Office"), listing Ackoff, Rosenblatt, Bloom and James as the authors. See id. Twenty-eight years later, on or about February 5, 1996, Windswept registered "Mony, Mony" with the Copyright Office for the renewal term of copyright, again listing Ackoff, Rosenblatt, Bloom and James as the authors. See id. ¶ 10. The important change took place on August 20, 1997, when Windswept filed a supplementary copyright registration with the Copyright Office. See id. ¶ 13. In this supplementary registration, Windswept claimed that Patricia Music, not Robert Ackoff, was an author of "Mony, Mony," because Ackoff wrote the song as a work for hire. See id. Eight days later, the Copyright Office issued a supplementary registration reflecting this change. See id.

The final plot line involves the relationship between the Ackoffs and Richard Rosenblatt. In October 1988, Rosenblatt approached Cele Ackoff about recovering Robert Ackoff's share of the renewal copyright in "Mony, Mony" and twenty other songs in exchange for a portion of the royalties. See id. ¶ 19. Nearly a year later, on or about September 25, 1989, Cele and Jon Ackoff entered into a contract with Rosenblatt, in which Rosenblatt undertook to recover Ackoff's share of the renewal copyrights. See id. ¶¶ 19-21. In exchange, Cele and Jon Ackoff assigned those renewal copyrights to Rosenblatt, who was required to pay Jon 50 percent of any royalties that he recovered, except for royalties on public performances. See id. Plaintiffs allege that, when Cele and Jon Ackoff signed the contract, they were not represented by legal counsel, not knowledgeable about the music business, and incapable of understanding the contract. See id. ¶ 21.

Although Rosenblatt subsequently filed a number of lawsuits against Windswept, plaintiffs allege that Rosenblatt's efforts hindered rather than helped their claim to the renewal copyright in "Mony, Mony" and the other songs. See id. ¶ 26. In 1993, Rosenblatt sued Windswept and several other parties in federal court to recover his own interest in 59 songs. See id.

That lawsuit, which did not involve Robert Ackoff's interest, was dismissed for lack of subject matter jurisdiction. See id. In December 1994, Rosenblatt brought the same claims against the same defendants in state court. See id. Again, Robert Ackoff's interests were not part of that lawsuit. See id.

In January 1995, however, Rosenblatt's agent, Richard Roemer, informed Windswept that Rosenblatt was claiming Robert Ackoff's share in the renewal copyrights of ten songs, including "Mony, Mony." See id. In April 1995, Windswept informed Rosenblatt that it owned the renewal copyrights by virtue of the employment-for-hire agreement signed by Robert Ackoff on January 18, 1967. See id. In December 1995, during a deposition of Rosenblatt by Windswept's attorney pursuant to the state court action, Rosenblatt stipulated to exchange general releases with Windswept and to dismiss the state court action with prejudice. See id. In February 1997, Rosenblatt delivered to Windswept a general release of all claims against Windswept which Rosenblatt had or might ever have arising out of any events on or before September 13, 1995.*fn3 See id.

Plaintiffs allege that they did not learn of Rosenblatt's release until April 20, 1998. See id. ¶ 27. On that day, Rosenblatt sued Windswept, Cele Ackoff and Susan Ackoff-Ortega (as well as two other parties not relevant to this case) in this Court, claiming that he alone owned Ackoff's share of the renewal copyrights in "Mony, Mony" and two other songs. See id. Rosenblatt subsequently dismissed that action with prejudice as to Windswept and without prejudice as to Cele Ackoff and Susan Ackoff-Ortega. See id.

B. Procedural History

On December 1, 1999, plaintiffs Susan Ackoff-Ortega, Cele Ackoff and Jon Ackoff sued defendants Windswept, Screen Gems and Rosenblatt in this Court. In their Complaint, plaintiffs first seek a declaratory judgment stating that, because "Mony, Mony" was not a work-for-hire under the Copyright Act, they are entitled to Ackoff's share of the renewal copyright. In addition, plaintiffs ask that defendants be required to account for and pay over royalties and other monies received by or credited to them because of the renewal copyright. Second, plaintiffs seek a declaratory judgment stating that their contract with Rosenblatt is unenforceable on the basis of unconscionability, lack of consideration, and fraudulent inducement. Finally, plaintiffs allege that Rosenblatt breached their contract with him by granting Windswept a general release.

Plaintiffs seek damages of at least $1,000,000 on their breach of contract claim.

Sometime during 1998, Rosenblatt sued the Ackoffs in state court. The counterclaims filed by the Ackoffs in that suit mirror their claims against Rosenblatt in this case. On February 23, 2000, Justice Alice Schlesinger dismissed the breach of contract counterclaim without prejudice, primarily because of this lawsuit. See Reply Brief of Defendant Rosenblatt in Support of his Dismissal Motion ("Reply Br."), Ex. 1 (Transcript of February 23, 2000 Conference). That same day, Justice Schlesinger denied Rosenblatt's motion to dismiss the unconscionability ...


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