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Peterson v. Kolodin

United States District Court, S.D. New York

January 29, 2014

KELLY PETERSON, as Executrix of the Estate of Oscar Peterson, Deceased, and JAYARVEE, INC., Plaintiffs,
v.
HILARY KOLODIN, a/k/a HILARY KOLE, Defendant

Page 255

For Kelly Peterson, as executrix of the Estate of Oscar Peterson, Deceased, Jayarvee, Inc., Plaintiffs, Counter Defendants: Paul J. Hanly, Jr, Hanly Conroy Bierstein & Sheridan LLP, New York, NY.

For Hilary Kolodin, also known as Hilary Kole, Defendant: Lawrence I. Garbuz, LEAD ATTORNEY, Lewis & Garbuz, P.C., New York, NY.

For Hilary Kolodin, Counter Claimant: Lawrence I. Garbuz, LEAD ATTORNEY, Lewis & Garbuz, P.C., New York, NY.

OPINION

Page 256

FINDING OF FACT, CONCLUSIONS OF LAW, AND ORDER

JED S. RAKOFF, U.S.D.J.

For persons of a certain age or temperament, that blend of simplicity and sophistication commonly called the American Songbook continues to reach our minds and hearts. But when the mind and heart are at war with each other, bitterness and anger override a decent respect for the truth. In the sad case at bar, the wounded feelings of three substantial contributors to the preservation of American song find expression in a shrill cacophony of testimony, some of which cannot survive scrutiny.

Plaintiffs Kelly Peterson, as executrix of the estate of Oscar Peterson, and Jayarvee, Inc., bring this action for copyright infringement against Hilary Kolodin, also known as Hilary Kole, who counter-claims for a declaration of copyright ownership. Plaintiffs allege that they own the copyrights to sound recordings created by Peterson and Kole, and that Kole has infringed those rights. Kole disputes these claims and asserts that she is a co-owner with the Peterson Estate of the copyrights to the sound recordings. Plaintiffs seek a permanent injunction and attorneys' fees and costs. Defendant seeks a declaratory judgment declaring that she has an ownership interest in the disputed copyright, and an order requiring Jayarvee to alter its copyright registration and transfer its ownership to Kole. The defendant's counterclaim also seeks attorney's fees and costs.

Following discovery and motion practice (the latter of which resulted in the Court's Memorandum Opinion dated September 6, 2013), the Court conducted a bench trial on September 23, 2013, October 7, 2013, and October 17, 2013. At the trial, the Court received in evidence approximately sixty exhibits and heard testimony from five witnesses: Kelly Peterson, John Valenti, Jim Czak, Jonas Herbsmann, and Hilary Kole. Following the trial, the parties submitted multiple post-trial memoranda. Having considered all the evidence and briefing, and having made credibility determinations and drawn reasonable inferences from the evidence, the Court makes the following findings of fact and conclusions of law:

Plaintiff Kelly Peterson is the widow of the late renowned jazz pianist Oscar Peterson. Joint Pretrial Consent Order.[1] Oscar Peterson passed away on December 23, 2007, and his widow is one of three executors of his estate. Id. Plaintiff Jayarvee, Inc. owns and operates Birdland, a

Page 257

much-admired jazz club in New York City. Id. Jayarvee's President and sole shareholder is John Valenti, who, through Jayarvee, has owned and operated Birdland since around 1985. Id. Defendant Hilary Kolodin is a professional vocalist of considerable talent and accomplishment, whose " stage name" is Hilary Kole. Id.

While performing at Birdland in September 2003, Kole met Valenti. Although Valenti was considerably her senior, the two quickly entered into a romantic relationship, a winter-spring romance perhaps predestined to fail. Id. Kole moved in with Valenti in January 2004, and by August 2006, the couple sometimes referred to each other as husband and wife. Trial Transcript (" Tr." ) 158. Kole and Valenti maintained a personal relationship until May 2011, when the two separated. Tr. 133. The break-up was ...


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