The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge.
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.
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.
Following the completion of "Mony, Mony," the story of this
case unfolds along several plot lines. The first plot line
involves Robert Ackoff's interest in "Mony, Mony," which has
changed hands a number of times in the past thirty-two years.
First, Ackoff assigned his interest in the
initial term of copyright to Patricia Music. See id. ¶ 7.
Next, on or about December 1, 1971, Ackoff further assigned all
his interest in "Mony, Mony" to Nomadam Music Corporation
("Nomadam"), which was affiliated with Patricia Music. See id.
¶ 8. Seventeen years later, on or about August 31, 1988,
the interests in "Mony, Mony" held by Patricia Music and Nomadam
were assigned, after various intermediary transfers, to Windswept,
a California corporation that does business with and maintains
an office in New York. See id. ¶ 9. Finally, on or about
July 28, 1999, Screen Gems, a Delaware corporation that does
business with and maintains an office in New York, acquired
Windswept's interest in "Mony, Mony." See id. ¶ 16. In recent
years, Robert Ackoff's interest in "Mony, Mony" has generated
total royalties of approximately $80,000 per year. See id.
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.
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 ...