United States District Court, S.D. New York
OPINION AND ORDER
PAULOETKEN United States District Judge.
Artists Rights Enforcement Corp. (“AREC”) brought
this suit against the Estate of Benjamin E. King (“Ben
E. King”) by its administrator Terris Cannon (the
“Estate”), as well as Betty King, Terris Cannon
(in his personal capacity), Benjamin E. King, and Angela
Matos (collectively “Defendants), seeking to enforce
two contracts between AREC and the deceased, Ben E. King.
Court granted in part and denied in part a motion to dismiss,
and AREC now moves for reconsideration and modification of
that Opinion and Order. (See Dkt. No. 28; Dkt. No.
30.) AREC also seeks leave to file an amended complaint.
(See Dkt. No. 43.) For the reasons that follow, the
motion for reconsideration is denied, and the motion to amend
Motion for Reconsideration
earlier ruling, this Court dismissed AREC's claim
relating to its Sale Agreement with deceased
singer/songwriter Ben E. King. See Artists Rights
Enf't Corp. v. Estate of King, No. 16 Civ. 1121,
2016 WL 7192093, at *4 (S.D.N.Y. Dec. 12, 2016). AREC now
asks the Court to reconsider this holding on the ground that
its right of administration, as set forth in the Sale
Agreement, did not constitute an interest in the copyrights
of the songs at issue in the contract (the “King
Songs”). (See Dkt. No. 31.)
motion for reconsideration is ‘an extraordinary remedy
to be employed sparingly in the interests of finality and
conservation of scarce judicial resources . . . .'”
Drapkin v. Mafco Consol. Grp., Inc., 818 F.Supp.2d
678, 695 (S.D.N.Y. 2011) (quoting In re Initial Public
Offering Sec. Litig., 399 F.Supp.2d 298, 300 (S.D.N.Y.
2005)). To prevail, the movant must demonstrate: “(1)
an intervening change in controlling law; (2) the
availability of new evidence or (3) a need to correct a clear
error or prevent manifest injustice.” Jacob v.
Duane Reade, Inc., 293 F.R.D. 578, 580-81 (S.D.N.Y.
2013) (quoting Drapkin, 818 F.Supp.2d at 696).
Ordinarily, the third showing-advanced by AREC here-requires
the movant to demonstrate that the Court overlooked a key
fact in the record or a controlling point of law. See
Cioce v. Cty. of Westchester, 128 F. App'x 181, 185
(2d Cir. 2005).
asks the Court to reverse its earlier Opinion and Order in
one respect: to hold that the administration right set forth
in the Sale Agreement, considered in isolation from other
terms in the Agreement, did not convey to AREC any interest
in the King Songs' copyrights, or any right under a
(soon-to-be) terminated grant, and therefore is not void as a
matter of law under the Copyright Act. (Dkt. No. 31 at 4.)
initial matter, AREC admits that “[t]he parties did not
brief extensively whether the right of administration,
” a right putatively conveyed to AREC under the Sale
Agreement, “was an interest in copyright.”
(Id. at 2.) Rather, it represents that Defendants
“implicitly conceded the validity of AREC's
position” (id.), and subsequently appears to
admit the novelty of the argument in this litigation
(see Dkt. No. 39 at 1). AREC's failure to put
this argument “before [the Court] on the underlying
motion, ” is reason enough to deny the motion-AREC has
waived the argument and cannot seek to litigate the issue for
the first time on a motion to reconsider. See Range Rd.
Music, Inc. v. Music Sales Corp., 90 F.Supp.2d
390, 392 (S.D.N.Y. 2000) (emphasis omitted) (quoting
Yurman Design Inc. v. Chaindom Enterp., Inc., No. 99
Civ. 9307, 2000 WL 217480, at *1 (S.D.N.Y. Feb. 22, 2000)).
further fails to point to controlling law or key facts that
the Court overlooked in its previous ruling. To support its
legal claim, AREC cites two treatises and several district
court opinions (primarily discussing royalties) (Dkt. No. 31
at 2), which do not constitute “controlling
decisions” for the purposes of a motion for
reconsideration. See Cobalt Multifamily Investors I, LLC
v. Shapiro, 06 Civ. 6468, 2009 WL 4408207, at *2
(S.D.N.Y. Dec. 1, 2009) (“Controlling decisions include
decisions from the United States Court of Appeals for the
Second Circuit; they do not include decisions from other
circuits or district courts, even courts in the Southern
District of New York.” (quoting Langsam v. Vallarta
Gardens, No. 08 Civ. 2222, 2009 WL 2252612, at *2
(S.D.N.Y. July 28, 2009))). Nor does AREC point to key facts
that the Court missed, instead alluding to its intention to
file a motion for leave to amend its complaint. (Dkt. No. 39
at 3-4.) AREC's motion therefore fails to make the
threshold showing warranting reconsideration. See
Cioce, 128 F. App'x at 185.
AREC's new argument-even if credited-does not address the
fact that, here, the promise of any administration rights set
out in the Sale Agreement was bound up with the transfer of
“ten percent (10%) of [King's] ownership
share” in the King Songs (or else ten percent of the
proceeds of any sale of ownership). (Dkt. No. 20-3 at 2.) The
Copyright Act invalidates not only the transfer of any
ownership or other direct interest in a copyright-such as the
ten percent promised to AREC in the Sale Agreement-but also
the “further grant . . . of any right covered
by a terminated grant” made prior to the effective date
of termination. 17 U.S.C. § 304(c)(6)(D) (emphasis
added). AREC does not clarify how the transfer of
administration rights in connection with the transfer of a
partial ownership interest (as described in the Sale
Agreement), or in light of the scope of the original grant to
Sony/ATV (Dkt. No. 20-3 at 2-3), falls outside the ambit of
“any right covered by a terminated
grant.” 17 U.S.C. §304(c)(6)(D) (emphasis added).
(See Dkt. No. 39 at 2.) As a result, AREC's
argument about the nature of administration rights would not
alter the Court's prior conclusion.