Judges: Per Curiam
Filed: Oct. 31, 2016
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 27, 2016* Decided October 31, 2016 Before WILLIAM J. BAUER, Circuit Judge FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 16---2943 Appeal from the United States District Court for the SYL JOHNSON, Northern District of Illinois, Plaintiff---Appellant, Eastern Division. v. No. 16 C 5045 UMG R
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 27, 2016* Decided October 31, 2016 Before WILLIAM J. BAUER, Circuit Judge FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 16---2943 Appeal from the United States District Court for the SYL JOHNSON, Northern District of Illinois, Plaintiff---Appellant, Eastern Division. v. No. 16 C 5045 UMG RE..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 27, 2016*
Decided October 31, 2016
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 16-‐‑2943 Appeal from the United
States District Court for the
SYL JOHNSON, Northern District of Illinois,
Plaintiff-‐‑Appellant,
Eastern Division.
v.
No. 16 C 5045
UMG RECORDINGS, INCORPORATED, et al., Harry D. Leinenweber, Judge.
Defendants-‐‑Appellees.
Order
Musician Syl Johnson contends in this copyright case that some music publishers
have issued recordings that sample one of his songs, Different Strokes, in ways not pro-‐‑
tected by the doctrine of fair use. (Sampling means incorporating parts of an original
recording directly into a new one. The longer the incorporated sample, the less likely
* We have unanimously agreed to decide the case without argument because the briefs and record
adequately present the facts and legal arguments, and oral argument would not significantly aid the
court. See Fed. R. App. P. 34(a)(2)(C).
No. 16-‐‑2943 Page 2
the use will be lawful. See 17 U.S.C. §107(3).) Different Strokes was published in 1967 as
a single (it rose to Number 17 on Billboard’s Rhythm & Blues chart) and reissued in
1968 as part of the album Dresses Too Short. Johnson says that it is still under copyright.
Through his publishers, Johnson had made a similar contention in an earlier suit
(No. 13 C 7057) against more than 80 persons and companies. The 2013 suit, as we call
it, was assigned to Judge Gottschall and dismissed in January 2015 on the basis of a set-‐‑
tlement. Johnson’s new suit was assigned to Judge Leinenweber, who dismissed it on
the basis of claim preclusion. The current suit names as defendants six of the 80+ parties
sued in 2013. Johnson maintains that the 2013 suit was not really settled and that his
own attorney, in cahoots with the defendants, defrauded Judge Gottschall into thinking
that it had been. Judge Leinenweber told Johnson (now proceeding without counsel)
that this line of argument does not authorize separate litigation and that “you have to
go back before Judge Gottschall.” Instead of doing that, Johnson filed an appeal.
Judge Leinenweber was right. In federal courts, as in most states, a judgment in civil
litigation is not subject to collateral attack. Fraud is a basis for setting aside a judgment,
but that is done by motion or other proceeding in the original case rather than by a sep-‐‑
arate suit. See, e.g., Harris Trust & Savings Bank v. Ellis, 810 F.2d 700, 705–06 (7th Cir.
1987); Fed. R. Civ. P. 60(b)(3), (d)(3). While the judgment stands, it is preclusive in other
litigation. If Johnson can persuade Judge Gottschall (or any other judge assigned to the
2013 suit) to vacate that judgment, then he can either continue that suit or commence
independent litigation, potentially including both copyright claims and those state-‐‑law
claims for fraud that can be joined under 28 U.S.C. §1367(a). (There is some question
whether diversity jurisdiction independently supports his state-‐‑law claims against all
six defendants, but it is not a question that we need answer.) But Johnson has not at-‐‑
tempted to have the 2013 suit reopened, and his effort to obtain collateral review was
properly dismissed.
Johnson observes that the current suit seeks relief based on five songs that were not
part of the 2013 suit. But Johnson could have included those five songs in the 2013 suit,
which like this one contended that the defendants published excerpts of Different
Strokes. None of the recordings in question post-‐‑dates the 2013 suit. Litigants are not
entitled to split their claims into multiple pieces; the branch of preclusion that forbids
this, known as merger and bar, requires litigants to raise in one suit all claims and theo-‐‑
ries that are part of the same transaction and could have been litigated at the same time.
See, e.g., Palka v. Chicago, 662 F.3d 428, 437 (7th Cir. 2011); Herrmann v. Cencom Cable As-‐‑
sociates, Inc., 999 F.2d 223 (7th Cir. 1993). The theory behind the current suit is identical
to the theory behind the 2013 suit. If one publisher incorporated samples of Different
No. 16-‐‑2943 Page 3
Strokes into 100 of its releases, Johnson could not file 100 separate suits. He must in-‐‑
stead litigate all closely related claims at once.
AFFIRMED
