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Wilson v. Dynatone Publishing Co.

United States District Court, S.D. New York

April 10, 2017


          OPINION & ORDER

          Paul A. Engelmayer United States District Judge.

         Plaintiffs John Wilson, Charles Still, and Terrance Stubbs seek declaratory judgments that (1) they are the owners of the renewal copyrights in the musical composition "Sho' Nuff (You Really Love Him)," and a recording of this song, which they authored and created in 1973; and (2) the copyright on this composition and recording registered by defendants in 1974 is invalid. Plaintiffs also seek accountings under New York law with respect to earnings from defendants' use of this composition and recording. In addition, Edward "Eddie" Perrell-a former defendant, now a cross-plaintiff-cross-claims against defendant UMG Recordings, Inc. for an accounting of its earnings from use of the recording. Plaintiffs' purpose in pursuing this relief is to enable them to obtain royalties from these works, which, in 2013, were sampled in two popular hit songs, Justin Timberlake’s “Suit & Tie” and J. Cole’s “Chaining Day.”

         Defendants Dynatone Publishing Company (“Dynatone”), UMG Recordings, Inc. (“UMG”), and Unichappell Music, Inc. (“Unichappell”) now move to dismiss all such claims. Defendants argue that plaintiffs’ claims as alleged in the Amended Complaint (“AC”) are barred by the three-year statute of limitations for copyright actions; and that the accounting claims fail to state a claim both because they are time-barred and because the AC does not allege a fiduciary relationship between plaintiffs and defendants.

         For the following reasons, the Court grants the motion to dismiss.

         I. Background

         A. Factual Background[1]

         Plaintiffs were the members of the musical group “Sly, Slick & Wicked,” which wrote and performed music in the 1970s. AC ¶¶ 13–15, 26. Around early 1973, Wilson wrote the musical composition “Sho’ Nuff (You Really Love Him)” (“Sho’ Nuff”) while traveling with Sly, Slick & Wicked and inspired by his recent break up with his wife. Id. ¶ 33.

         Around this time, Perrell was a music promoter based in New York City who wanted to help Sly, Slick & Wicked obtain a new recording agreement. Id. ¶¶ 29, 32. Perrell liked “Sho’ Nuff” and, at his suggestion, plaintiffs recorded “Sho’ Nuff” in April 1973 at Studio 88 on 8th Avenue in Manhattan. Id. ¶¶ 34–35. Perrell later played that recording for representatives of James Brown’s record label, People Records. Id. ¶¶ 36–39. Perrell and Brown then modified the “Sho’ Nuff” recording by adding strings and bells. Id. ¶ 40.

         The recording: As to the “Sho’ Nuff” recording, around June 28, 1973, People Records commercially released a “single” record of it, which featured Sly, Slick & Wicked’s song “Ready For You” on the record’s B side (the “1973 Recording”). Id. ¶¶ 41, 48. The credits on the label for the 1973 Recording list Perrell and James Brown as producers of “Sho’ Nuff,” id. ¶ 43; Sly, Slick & Wicked-with plaintiffs’ names listed-is also listed on the label, Jacobs Decl., Ex. 1. The label also states that the record distributor was Polydor Incorporated (“Polydor”), and includes, on its face, the words: “℗ 1973 Polydor Incorporated.” Id.[2] Polydor was successor-in-interest to People Records and predecessor-in-interest to UMG. AC ¶¶ 23, 60. Around this time, plaintiffs, as Sly, Slick & Wicked, performed “Sho’ Nuff” on the television show, “Soul Train.” Id. ¶ 42.

         On or about June 26, 1973, Polydor registered a copyright in the “Sho’ Nuff” recording, having acquired ownership rights in People Records’s ownership interest in the recording. Id. ¶¶ 60–61 & Ex. D. In the registration, Polydor claimed to be sole owner of the recording, which it termed a work made for hire. Id. ¶ 62. Plaintiffs allege, however, that the “Sho’ Nuff” recording was not a work for hire for Polydor, because (1) it had been created before Sly, Slick & Wicked had met with representatives from People Records, and (2) no written agreement created a work for hire relationship between Sly, Slick & Wicked and People Records. Id. ¶¶ 65–66. Plaintiffs further claim that they are co-owners, with Perrell and UMG (as successor-in-interest to Polydor, which in turn was successor-in-interest to UMG), of the recording. Id. ¶¶ 69–72. But, plaintiffs allege, they have never received any remuneration from Perrell or UMG for the recording, or any accounting in connection with earnings from it; and that Perrell and UMG intentionally failed to give plaintiffs an accounting of the earnings from the recording. On December 21, 2001, UMG obtained a renewal registration for the renewal term rights in the recording. Jacobs Decl., Ex. 4.

         The composition: As to the “Sho’ Nuff” composition, on or around May 12, 1973, plaintiffs registered their claim to the copyright for that composition with the United States Copyright Office. Id. ¶ 45 & Ex. A. The copyright registration listed Wilson, Still, and Stubbs as authors of the composition. Id. In addition, on or about July 9, 1973, Perrell registered the composition with Broadcast Music Inc. (“BMI”), listing Perrell Music, Belinda Music, and Dynatone as publishers. Id. ¶ 50. Perrell Music, Belinda Music, and Dynatone were listed as receiving the entire publisher’s share from the composition. Jacobs Decl., Ex. 2. The credits on the record label of the 1973 Release include “Dynatone Pub. Co./Perrell Music/Belinda Music (BMI)” as the publishers. Id., Ex. 1.

         On June 26, 1974, Chappell & Co., Inc., predecessor-in-interest to defendant Unichappell, id. ¶ 20, registered a copyright on the “Sho’ Nuff” composition, listing plaintiffs as the authors and Dynatone Publishing Company as the sole claimant. Id. ¶ 49 & Ex. B.[3]Plaintiffs allege, however, that they never executed a written agreement with People Records, Dynatone, or Belinda Music that transferred any interest in the renewal term of the copyright of the composition. Id. ¶ 51. And, they allege, Perrell and Dynatone “have been collecting the music publisher’s share of performance income for ‘Sho’ Nuff’ since 1973,” and Perrell never provided them with any accountings of royalties. Id. ¶¶ 52–53. Plaintiffs also allege that, “after this dispute arose,” Unichappell gave plaintiffs an accounting of royalties for the period of 1992– 2013. Id. ¶ 56. Finally, on November 19, 2015, several weeks before initiating this action, plaintiffs filed, “as evidence of their sole ownership of the renewal copyright,” a copyright registration for the renewal term rights in the “Sho’ Nuff” composition. Id. ¶ 58 & Ex. C.

         B. Perrell’s Cross-Claim

         Perrell is a musician, producer, songwriter, and performer in the record industry. Cross-Claim ¶ 117. He alleges that, in 1973, after producing, with James Brown, various recordings made by plaintiffs as “Sly, Slick & Wicked,” plaintiffs entered into a written agreement with James Brown’s People Records, which provided for plaintiffs to record exclusively for People Records, and which also assigned and transferred all copyright interests-including plaintiffs’- to People Records. Id. ¶ 119. Perrell was credited as a co-producer on the 1973 Recording of “Sho’ Nuff” and Perrell’s music publishing company was credited as a co-publisher of the “Sho’ Nuff” composition. Id. ¶ 120. And, as a co-publisher of the “Sho’ Nuff” composition, Perrell alleges, he registered the composition with BMI. Id. ¶ 121. Perrell alleges that UMG never gave him with an accounting or royalties from UMG in connection with the recording. Id. ¶ 126. He seeks an accounting of any royalties paid as a result of UMG’s alleged sampling of the “Sho’ Nuff” recording in Justin Timberlake’s “Suit & Tie” and J. Cole’s “Chaining Day.” Id. ¶¶ 127– 32.

         C. Procedural History

         On January 6, 2016, plaintiffs Wilson and Still filed a complaint. Dkt. 1. They sued defendants, plus Perrell, BMI, and Anheuser-Busch Companies, Inc. After various extensions of time for defendants to respond, on July 22, 2016, Perrell filed an answer and his Cross-Claim, Dkt. 40, and, on August 1, 2016, defendants ...

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