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Estate of Smith v. Cash Money Records, Inc.

United States District Court, S.D. New York

May 30, 2017

ESTATE OF JAMES OSCAR SMITH, et ano., Plaintiffs,
v.
CASH MONEY RECORDS, INC., et al., Defendants.

          OPINION & ORDER

          WILLIAM H. PAULEY III, District Judge.

         Plaintiffs the Estate of James Oscar Smith (the “Estate”) and Hebrew Hustle, Inc., bring this copyright infringement action against Defendants Cash Money Records, Inc., Universal Republic Records, UMG Recordings, Inc., Universal Music Group Distribution, Corp., EMI Music Publishing Management, LLC, Universal Music-MGB NA, LLC, Warner/Chappell Music, Inc., Sony/ATV Music Publishing, LLC, Aubrey Drake Graham, Mathew Jehu Samuels, Jordan Evans, Apple, Inc., and Amazon Digital Services, Inc. (collectively, “Defendants”). Plaintiffs and Defendants both move for summary judgment. For the reasons that follow, Plaintiffs' motion is denied and Defendants' motion is granted.

         BACKGROUND

         In 1982, Jimmy Smith recorded an album released by Elektra/Asylum Records titled Off the Top. (Joint Rule 56.1 Statement (“Joint Statement”), ¶ 7.) The first six tracks are purely instrumental, and the last track is a spoken-word recording titled “Jimmy Smith Rap” (“JSR”). The lyrics to JSR are:

Good God Almighty, like back in the old days
You know, years ago they had the A&R men to tell you what to play, how to play it and you know whether it's disco rock, but we just told Bruce that we want a straight edge jazz so we got the fellas together Grady Tate, Ron Carter, George Benson, Stanley Turrentine.
Stanley was coming off a cool jazz festival, Ron was coming off a cool jazz festival. And we just went in the studio and we did it.
We had the champagne in the studio, of course, you know, compliments of the company and we just laid back and did it.
Also, Grady Tate's wife brought us down some home cooked chicken and we just laid back and we was chomping on chicken and having a ball.
Jazz is the only real music that's gonna last. All that other bullshit is here today and gone tomorrow. But jazz was, is and always will be.
We may not do this sort of recording again, I may not get with the fellas again. George, Ron, Grady Tate, Stanley Turrentine.
So we hope you enjoy listening to this album half as much as we enjoyed playing it for you.
Because we had a ball.

(Joint Statement ¶ 10.)

         The label on each side of the record lists each song with the composer in parentheses, except for JSR, which lists no writer. (Joint Statement ¶¶ 11, 12.) Although Raymond Janifer, Jimmy Smith's nephew and co-manager of the Estate, was not present at the recording of JSR, he recalls Jimmy Smith telling him that he “laid down a dynamite rap on them and hope they don't cut it off the album.” (Oct. 14, 2015 Declaration of Raymond Janifer (“Janifer Decl.”), ECF No. 99, at ¶ 7.) Janifer also explained that Jimmy Smith did not write music, but instead made the music and words up in his head and then performed and recorded on tape. (Janifer Decl., ¶ 5.) Additionally, the website www.discogs.com lists Jimmy Smith as the author of JSR. (Oct. 12, 2015 Declaration of Stephen Hacker (“Hacker Decl.”), Ex. 1.)

         In April 2013, the Estate entered into an Administration Agreement with Modern Works Music Publishing (“Modern Works”). (Joint Statement ¶ 6.) The Agreement designated Modern Works as the “sole and exclusive Administrator” for the Estate (Joint Statement, Ex. A, ¶ 6), while noting that “[o]wnership remain[ed] with” the Estate (Joint Statement, Ex. A, ¶4). Modern Works agreed to register “all claims to copyright in the Compositions . . . with the United States Copyright Office” in the Estate's name. (Joint Statement, Ex. A, ¶ 6.)) In return, the Estate conferred on Modern Works “the exclusive right to administer and exploit the Compositions throughout the Territory during the Term.” (Joint Statement, Ex. A., ¶ 6.) A contemporaneous document explained that the Estate “entered into a worldwide, full-catalog administration agreement for the Compositions.” (Joint Statement, Ex. A., at 13.)

         On September 24, 2013, Cash Money Records and Universal Republic Records released an album titled Nothing Was the Same (the “Album”) by Aubrey Drake Graham (“Drake”). (Joint Statement ¶¶ 30-34.) The last song on the Album is “Pound Cake/Paris Morton Music 2” (“Pound Cake”). (Joint Statement ¶ 35.) The opening to Pound Cake samples about 35 seconds of JSR. The sampled portions are:

Good God Almighty, like back in the old days.
You know, years ago they had the A&R men to tell you what to play, how to play it and you know whether it's disco rock, but we just went in the studio and we did it.
We had champagne in the studio, of course, you know, compliments of the company, and we just laid back and did it.
So we hope you enjoy listening to this album half as much as we enjoyed playing it for you. Because we had a ball.
Only real music is gonna last, all that other bullshit is here today and gone tomorrow.

(Joint Statement, Ex. D.) While some words from JSR were rearranged or deleted, no words were added. (See (Oct. 20, 2015 Jeffrey Movit Declaration (“Movit Decl.”), ECF No. 94, at Ex. 5.)

         In producing the Album, Cash Money arranged for a music licensing company to ensure that parties obtained all necessary licenses. (Oct. 19, 2015 Declaration of Edward Grauer (“Grauer Decl.”), ECF No. 93, ¶ 3.) Defendants obtained a license for the JSR recording, but not for the JSR composition. (Joint Statement ¶¶ 36, 42.) The JSR composition copyright was not registered with the U.S. Copyright Office or any performing rights organization prior to the Album's release. (Joint Statement ¶¶ 17, 31, 55, 57.) The Estate maintains that it would not have granted a license for the composition because Jimmy Smith “wasn't a fan of hip hop.” (Joint Statement ¶ 42.) The JSR recording license stated that Defendants received “all requisite consents and permissions of . . . the copyright owners of the musical composition.” (Joint Statement ¶ 36.)

         Stephen Hacker is the principal of Hebrew Hustle, a music publisher that represents songwriters in negotiating the licensing of copyrights. (Joint Statement ¶ 43-44.) Prior to the release of the Album, Hacker had ongoing business relationships with many of the Defendants. (Joint Statement ¶ 47.)

         Approximately one week before the Album's release, Hacker reviewed an advance copy of the credits “to look for openings in rights, sign those rights and then disclose that to the Drake representatives” after the release of the Album. (Joint Statement ¶¶ 49, 51.) Hacker noticed that Defendants had secured a license for the recording of JSR, but not for the composition. (Joint Statement ¶ 49.) He reached out to Janifer to alert the Estate of Defendants' use of the JSR composition in the Album. (Joint Statement ¶ 54.) Thereafter, the Estate entered into a co-publishing agreement with Hebrew Hustle, assigning 50% of the copyright in the JSR composition to Hebrew Hustle and granting an exclusive right to exploit it. (Joint Statement, Ex. G.) Hebrew Hustle registered the JSR composition with the U.S. Copyright Office on October 23, 2013 in the name of Hebrew Hustle. (Joint Statement ¶¶ 55, 57.) Two months after the Album's release, the Estate's counsel sent a cease and desist letter, which was the first time Defendants learned of any alleged composition copyright interest in JSR. (Grauer Decl., ¶ 5.)

         LEGAL ...


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