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TOMAS v. GILLESPIE

January 3, 2005.

JEAN BRYSON TOMAS, Plaintiff,
v.
LORRAINE GILLESPIE and DIZLO MUSIC CORPORATION, Defendants.



The opinion of the court was delivered by: GEORGE DANIELS, District Judge

OPINION AND ORDER

Plaintiff Jean Bryson Tomas sues defendants Lorraine Gillespie and Dizlo Music Corporation for declaratory relief, accounting damages, and imposition of a constructive trust based on Tomas' alleged ownership interest in copyrights to works authored by the late jazz musician Dizzy Gillespie ("Gillespie"). Defendants move for summary judgment under Fed.R.Civ.P. 56(c) on the grounds that the action is barred (i) by the three-year statute of limitations for civil actions maintained under the federal Copyright Act, 17 U.S.C. § 507(b), and (ii) by the doctrine of laches. For the reasons set forth below, the motion is granted.

  I.

  The following facts, viewed in the light most favorable to Tomas, are relevant to this opinion.

  Tomas was born on March 10, 1958 in New York City, out of wedlock, to Connie Bryson. (Statement of Material Facts submitted by Defs. Pursuant to Local Rule 56.1 ("Defs.' Rule 56.1 Statement") ¶ 1) Tomas claims that her biological father was Gillespie. Connie Bryson had been acquainted with Gillespie from 1953 and claims that they began a sexual relationship in 1955, when she turned 18. (Declaration of Constance Bryson ("Bryson Decl.") at 1)) Tomas claims that she "always knew" that Gillespie was her father. (Deposition of Jean Bryson Tomas ("Tomas Dep.") at 12)

  In November of 1964, Connie Bryson commenced paternity proceedings against Gillespie in New York State Family Court, New York County. (Id. ¶ 5) Tomas, who was about six years old at the time, remembered participating in this proceeding. (Id. ¶ 6; Tomas Dep. at 26) The Family Court ordered Gillespie to make monthly support payments of $125 for Tomas until she reached the age of majority. (Stipulation of Facts, dated February 2, 2001 ("Stipulation") at 2) Gillespie made these payments for approximately 14 years. (Id.) From an early age, Tomas knew that Gillespie was providing support to her after that child support proceeding. (Defs.' Rule 56.1 Statement ¶ 6)

  Gillespie died on January 6, 1993 in Englewood, New Jersey. (Am. Compl. ¶ 5) His last will and testament was probated in New Jersey Superior Court, Bergen County. (Id. ¶ 7) He bequeathed all his property to his widow, Lorraine Gillespie, and made no financial provision for Tomas or Tomas' child. (Id.)

  Tomas is herself a singer. (Defs.' Rule 56.1 Statement ¶ 7) From at least 1986, she has claimed in connection with her career that she is Gillespie's daughter. (Id.; Exs. 5 and 6 to Declaration of Jean Bryson Tomas ("Tomas Decl."); Tomas Dep. at 42) From at least 1988, she has claimed publicly that she is Gillespie's daughter to at least 25 newspapers and magazines, including the New York Times, USA Today, New York Post, and Alyn Shipton, who is the author of a biography of Gillespie titled Groovin' High.*fn1 (Defs.' Rule 56.1 Statement ¶ 7)

  In 1992, Tomas sought to retain Raoul Felder, an attorney, to represent her in a potential lawsuit against Gillespie to declare paternity. (Id. ¶ 8; Ex. D to Defs.' Reply Mem. of Law in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Reply")) In 1993, Telarc Records, a recording company, issued an album of Tomas' performances: the liner notes mentioned that she was Gillespie's daughter. (Defs. Rule 56.1 Statement ¶ 9; Ex. 5 to Tomas Decl.) That same year, Telarc Records issued two albums of Gillespie's last live recordings at the Blue Note jazz club in 1992. (Id. ¶ 10) Tomas claims that Gillespie's attorney Elliott Hoffman threatened in 1993 to prevent release by Telarc of other Gillespi recordings as long as Telarc continued to release Tomas' recordings. Those recordings were not released until August 1997 when Tomas' recording agreement with Telarc was not renewed. (Tomas Dep. at 72-75)

  On January 4, 2000 Tomas commenced the instant action. She filed an amended complaint on February 9, 2000. In her First Claim for Relief, Tomas seeks a judgment declaring that:
1. She is the natural daughter of Gillespie;
2. She owns a 50 percent beneficial interest in renewal copyrights for which the original copyrights were owned by Gillespie, as provided under 17 U.S.C. § 304(a)(C)(ii);
3. She has the right to exploit commercially the works — during their respective renewal copyright terms — whose original copyrights were owned by Gillespie;
4. As co-owner of the renewal copyrights, she is entitled to an accounting and payment from defendants with respect to her 50 percent pro rata share of all proceeds derived by defendants from the commercial exploitation of the renewal copyrights during their renewal terms.
In addition, she seeks orders
1. Requiring defendants to render future accountings and payments to her with respect to all proceeds from commercial exploitation of the renewal copyrights during their renewal terms;
2. Imposing a constructive trust with respect to 50 percent of all proceeds to defendants from the commercial exploitation of the renewal copyrights during their renewal terms.
In her Second Claim for Relief, Tomas seeks
1. A declaratory judgment that, as the natural child of Gillespie, she possesses a termination interest, as provided under 17 U.S.C. §§ 304(c) (2) and 203(a)(2);
2. A permanent injunction barring defendants from representing to any third party that defendants possess the entirety of the termination interest, and from purporting to terminate grants of rights to third parties executed by Gillespie with respect to any musical composition written by Gillespie or any sound recording on which Gillespie's recorded performance appears.
  On March 19, 2001, defendants moved for summary judgment on all claims.

  II.

  This court has subject matter jurisdiction pursuant to 17 U.S.C. § 101, et seq., and 28 U.S.C. § 1331.*fn2 Summary judgment is appropriate if, after drawing all justifiable inferences in favor of the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Curry v. City of Syracuse, 316 F.3d 324, 329 (2d Cir. 2003).

  ...


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