MILTON I. SHADUR, Senior District Judge.
Clara Shepherd Warrick ("Shepherd") and Jimmy Lee Weary ("Weary") have brought this action against William Roberts II ("Rick Ross"), Andre Young ("Dr. Dre"), Shawn Carter ("Jay Z"),
Dr. Dre, Jay Z and Universal have moved to dismiss the Complaint here pursuant to Fed.R.Civ.P. ("Rule") 12(b)(6). Under the facts alleged in the Complaint (considered together with documents referred to in the Complaint), Universal was clearly a co-owner of the copyright in Grateful and therefore cannot be sued for infringement. That inescapable fact disposes of the Complaint's infringement claim — the sole federal claim presented by Shepherd and Weary — and this Court declines to exercise supplemental jurisdiction over their state law claims. Accordingly
Under Rule 12(b)(6) a party may move for dismissal of a complaint for its "failure to state a claim upon which relief can be granted." Although familiar Rule 12(b)(6) principles require a district court to accept all of a plaintiff's well-pleaded factual allegations as true, and to draw all reasonable inferences from those allegations in plaintiff's favor (Christensen v. County of Boone, 483 F.3d 454, 457 (7th Cir.2007) (per curiam)), it is equally true that "legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth" (McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.2011)).
In recent years the Supreme Court has made an important change in the evaluation of Rule 12(b)(6) motions in what this Court regularly refers to as "the Twombly-Iqbal canon" (a usage drawn from Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) — and Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) has also provided further Supreme Court enlightenment on the issue. That canon has introduced a notion of "plausibility" into the analysis, and in that respect our Court of Appeals has "interpreted Twombly and Iqbal to require the plaintiff to provid[e] some specific facts to support the legal claims asserted in the complaint" (McCauley, 671 F.3d at 616 (internal quotation marks omitted but brackets in original)). As McCauley, id. (internal quotation marks again omitted) went on to reconfirm, "the plaintiff must give enough details about the subject-matter of the case to present a story that holds together."
Shepherd and Weary are successful gospel music artists who have been involved in gospel music for decades (S.-W. Mem. 1). In 1976 they created Grateful, with Shepherd authoring the lyrics and Weary composing the music (¶ 19), and the song was first distributed by their gospel singing group Crowns of Glory (¶ 22). Shepherd and Weary insist that Grateful was meant to be performed "only as spiritually uplifting gospel music" (¶ 2), and it apparently was so employed until July 2012.
Grateful received radically different treatment with the release of an album titled God Forgives — I Don't on July 31, 2012.
Upon learning of the use of Grateful in 3 Kings, Shepherd and Weary notified Rick Ross, Dr. Dre, Jacob Dutton and Jay Z that they believed 3 Kings infringed Grateful (¶¶ 45-47). Those defendants, along with Universal, sought to justify their use of Grateful by arguing that Universal holds the sole copyright in that work and had licensed their activities (¶ 48). To that end Universal pointed to two relevant agreements, one executed by Shepherd and the other assertedly executed by Weary. First of those documents is an Exclusive Songwriter's and Composer's Agreement ("1974 Agreement") executed by Shepherd in 1974. 1974 Agreement ¶ 3 transfers broad rights in any musical composition created during the life of the 1974 Agreement to Universal's predecessor-in-interest, ABC/Dunhill Music, Inc. ("ABC/Dunhill"):
In return for that broad grant of rights, Shepherd was to receive compensation and royalties as set out in 1974 Agreement ¶ 7.
That 1974 Agreement was initially limited to a term of one year, so that it would have applied only to works composed between March 1, 1974 and March 1, 1975 (id. ¶¶ 2). But the 1974 Agreement also included a provision granting ABC/Dunhill four consecutive irrevocable options to renew the Agreement for successive one-year periods (id. ¶ 18). Those options could be exercised by giving notice 30 days before a scheduled expiration of the 1974 Agreement — that notice requirement itself being satisfied by depositing a properly addressed writing in the United States mail (id. ¶ 13). Universal has tendered copies of the renewal notices that it sent to Shepherd, together with certified mail receipts for the 1975-76 renewal notice (dated January 24, 1975) and the 1976-77 notice (dated January 12, 1976) (U. Mem. Ex. F) — though Shepherd's responsive memorandum asserts that she never received those renewal notices (S.-W. Mem. 17).
As for the second agreement — a 1976 Agreement purporting to transfer Weary's rights in Grateful to ABC/Dunhill — its precise terms need not be discussed for a simple reason: Weary asserts that his signature on that document was forged.
After the release of 3 Kings, Shepherd and Weary twice warned Rick Ross, Dr. Dre, Jacob Dutton and Jay Z that they believed 3 Kings infringed their copyright in Grateful (¶¶ 45-47). When those defendants and Universal disagreed, Shepherd and Weary sued, advancing copyright infringement and a variety of state law
Before turning to the meat of defendants' motion, this opinion must address their attempt to nip the controversy in the bud by invoking the doctrine of res judicata.
If any doubt remained that claim preclusion does not apply here, even a cursory reading of the Order would immediately put that doubt to rest. That document warns plaintiffs' counsel of traps to avoid "in connection with any future effort ... to refile this action" and states that "counsel are expected to attach those agreements... as exhibits to any new complaint" (2013 WL 3754918 at *2). This Court is of course well aware of the principles of claim preclusion, and if its earlier judgment had been so broad as to bar future actions by Weary and Shepherd — that is, once they had cured the deficiency noted in the Opinion — it would not have specified which documents counsel should attach to a new complaint. Having dispensed with defendants' procedural objection, then, this opinion turns to the merits of Shepherd's and Weary's current Complaint.
Universal argues that it cannot be liable for infringement because it was assertedly the sole holder of the copyright to Grateful and it licensed that work's use in 3 Kings. Universal bases that assertion on the 1974 Agreement signed by Shepherd and the 1976 Agreement bearing the signature "James Weary."
That argument is simply untenable in the present procedural posture. Weary alleges that his purported signature on the 1976 Agreement was forged, and he has pleaded sufficient factual specifics — notably his assertion that his legal name is "Jimmy Lee Weary" and that he has never signed his name as "James Weary" — to
But Universal has a powerful fallback argument: It contends that it was at least a co-owner of the copyright in Grateful because of Shepherd's transfer of her rights to ABC/Dunhill.
That proposition is also reaffirmed by such cases as Cortner v. Israel, 732 F.2d 267, 271 (2d Cir.1984), which holds — citing earlier caselaw — that "[i]t is elementary that the lawful owner of a copyright is incapable of infringing a copyright interest that is owned by him; nor can a joint owner of a copyright sue his co-owner for infringement."
Of course what has been said here applies only if (1) Shepherd did in fact transfer her rights to Grateful and (2) those rights included the authority to license Grateful's use in rap music. This opinion therefore turns to those two central issues.
Shepherd does not dispute the authenticity of her signature on the 1974 Agreement (see S.-W. Mem. 17-18). Instead she suggests that the 1974 Agreement expired before the creation of Grateful. It will be recalled that by its own terms the 1974 Agreement expired in
Shepherd asserts that ABC/Dunhill never exercised those options and that the agreement therefore expired in 1975. On that score Shepherd's Complaint ¶ 49 states that any agreement Shepherd may have entered into "had expired, was not effective, and/or did not allow the Defendants to use her lyrics for rap." Elaborating on that point, defendants' responsive memorandum states that "Defendants presented no evidence of the mailing of the purported January 27, 1975 option renewal letter and no evidence of a signed receipt by Clara Shepherd of that mailing" (S.-W. Mem. at 17).
But that is no more than a red herring, for the 1974 Agreement required only the mailing of a renewal notice to Shepherd's address (1974 Agreement ¶ 13). No evidence of a signed receipt by Shepherd was required — in fact the renewal notice was deemed sent at the moment that it was deposited in the mail (id.). And the certified mail receipts submitted by Universal provide ample evidence that renewal notices were indeed deposited in the mail, whether or not Shepherd ever received them. Those certified mail receipts are dated January 24, 1975 and January 12, 1976, well within the required time frames for extension (see U. Mem. Ex. F).
Shepherd nonetheless argues that — in the current procedural posture — this Court must accept as true her allegation that any agreement "had expired, was not effective, and/or did not allow the Defendants to use her lyrics for rap" (S. Mem. 18, quoting ¶ 49). But of course this Court need not accept Shepherd's legal conclusion as true, particularly a conclusion such as this one that contradicts the plain language of the 1974 Agreement and the certified mail receipts. As McCauley, 671 F.3d at 616, teaches, courts need not accept "legal conclusions and conclusory allegations" as true. Merely asserting that the 1974 Agreement had expired by 1976 does not make it so, even on a motion to dismiss, and Shepherd has provided no reason to doubt the authenticity of the documents submitted by the defendants. This Court therefore finds that the Composer's Agreement was in full force at the time that Shepherd and Weary composed Grateful.
But it is not enough to hold (as this opinion has done to this point) that even if
That line of argument, though, runs head-on into the text of the 1974 Agreement. And that Agreement's terms could not be more clear: Shepherd was selling in its totality her interest in the musical works created during the term of that Agreement (and Grateful was then created during that term). Shepherd thus transferred "each and every and all rights and interests of every kind, nature and description in and to" the works to be created during the 1974 Agreement's term (id. ¶ 3) — and that encompasses Grateful (Ex. 3). That phrase was not some artful obfuscation designed to catch unsuspecting musicians unaware. Instead it plainly conveyed that this was a contract of significant scope, and any ordinary reader of the English language would be on notice that the rights granted to ABC/Dunhill were extremely broad.
Among the rights specifically enumerated in 1974 Agreement ¶ 3 were ("without limiting the generality of the foregoing") the right to perform works such as Grateful over radio, television or any and all other means "now known or which may hereafter come into existence"; the right to "make any arrangement, adaptation ... and transposition [of Grateful] in whole or in part, and in connection with any other musical ... material"; and "any and all other rights of every and any nature." And those rights were to be ABC/Dunhill's "sole and exclusive property as the sole owner thereof."
Shepherd's assertion that the vast panoply of rights granted to ABC/Dunhill did not include the right to license her work as part of a rap song cannot withstand scrutiny. While the 1974 Agreement did not specifically list the possibility of sampling any of its subject matter — here Grateful — in a rap song — no doubt because that agreement was drafted in 1974, that authority is surely included within the broad rights that Shepherd ceded.
That same reasoning disposes of Shepherd's and Weary's objection to the use of Grateful in the specific context of "vulgar rap music." On that issue they contend that the 1974 Agreement does not permit the use of Grateful in rap music because that use destroys the value of the song in gospel circles and frustrates the song's original purpose of being "spiritually uplifting" (S.-W. Mem. 20-21). They also contend that it would be "illogical" to believe that Universal could destroy "the integrity and longevity of the song in its original genre" (id.).
Once again that interpretation cannot be squared with the plain text of the 1974 Agreement, which makes no mention of being "spiritually uplifting" or of the gospel genre. While Shepherd and Weary may have written Grateful intending to create spiritually uplifting music and may have hoped that it would continue to be used only in the context of gospel music, those desires were not memorialized in the
Because Universal acted in accordance with the rights that Shepherd ceded to it in the 1974 Agreement, it cannot be held liable for infringement. And lest the careful reader think that this Court "forgot about Dre," neither Dr. Dre, Jay Z, Rick Ross nor any of the other defendants can be held liable for infringement, for they produced and performed 3 Kings in accordance with licenses validly given by Universal. In sum, the infringement claim in Shepherd's and Weary's Complaint must therefore be dismissed — and with it, the prayer for attorneys' fees and statutory damages.
There is another independent — and equally fatal — bar to Shepherd's and Weary's recovery in this action. Even if they had been able to plead facts sufficient to support a plausible inference that they were the sole owners of Grateful (as they have not), they would still confront a separate insurmountable hurdle: This lawsuit was filed long after the three-year limitations period for copyright ownership claims had expired (see Section 507(b)). They seek to escape that result by contending (1) that the sine qua non of their Complaint is copyright infringement rather than the threshold issue of copyright ownership (so that the three year limitations period for ownership claims is somehow irrelevant) and (2) that they lacked notice of Universal's claim.
That first contention is belied by the plain terms of Shepherd's and Weary's Complaint, which discloses that the gravamen of their factual claim is clearly copyright ownership. Although the Complaint concedes that "Counsel for Defendants... has represented that a copyright was recorded with the United States Copyright Office in 1976" (¶ 20), it then goes on
Shepherd and Weary cannot circumvent the statute of limitations by simply refusing to acknowledge the legitimacy of Universal's copyright ownership claim-if they could do so, Congress' decision to impose a three year statute of limitations would be easily circumvented by artful pleading. As Cambridge Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H., 510 F.3d 77, 85 (1st Cir.2007) (statutory citation omitted) has made clear when faced with a similar attempt to recast a copyright ownership claim as one of infringement:
Similarly instructive is Kwan v. Schlein, 634 F.3d 224, 229, 230 (2d Cir.2011) (citation and internal quotation marks omitted), which held that a purported infringement claim was in fact a time-barred claim of ownership:
As in Kwan and Cambridge Literary Properties, this case poses the threshold question whether plaintiffs are the sole owners of the copyright — and the answer to that question, rather than the scope or nature of any infringement, is what is truly at issue in this action. Section 507(b)'s three-year statute of limitations therefore controls and began to run when Shepherd and Weary had notice of ABC/Dunhill's ownership claim.
Next Weary argues that he lacked notice of ABC/Dunhill's claim in 1976, so that the limitations clock did not begin to tick until the release of 3 Kings. But that argument runs head-on into Section 205(c), which states that registration of a copyright "gives all persons constructive notice of the facts stated in the recorded document," so long as "the document, or material
Weary presents three contentions as to why Section 205(c)'s constructive notice provision should not apply. None survives analytical scrutiny.
First Weary says that the issue of notice is fact-intensive and there is "no way any court could conclude on a motion to dismiss whether a `reasonable search' could have revealed this registration" (S.-W. Mem. 22). That is simply false. Any search for a song titled "I'm So Grateful" would have revealed ABC/Dunhill's registration. And Section 205(c) states only that such a registration must be revealed "by a reasonable search under the title ... of the work." This case falls squarely within the heart of that statute's text.
Weary next urges that, because his name is listed as "James Weary" on the registration rather than "Jimmy Lee Weary," he could not have suspected that the "I'm So Grateful" registered to ABC/Dunhill was the same song that he had composed. But Section 205(c) says nothing about the name of the author (rather than the name of the work) on a copyright registration. And it beggars belief that Weary, confronted with a copyright registration listing the full title of his work and the name "James Weary" (as well as the correct name of his co-author) would have had no idea that the song referred to was his own.
Finally Weary argues that because the copyright registration did not indicate that ABC/Dunhill owned the copyright in Grateful "to the exclusion of Shepherd and Weary," those plaintiffs had no reason to take defensive action and the statute of limitations did not begin to run. Of course that contention ignores the very nature of copyright registration. When an entity files a copyright registration and lists only its own name as an owner (as ABC/Dunhill did here), that serves as notice to the world that it considers itself the sole owner thereof. Indeed, the relevant regulation (37 C.F.R. § 202.3(a)(3)) says as much: a copyright claimant who is not an author must be "A person or organization that has obtained ownership of all rights under the copyright initially belonging to the author."
In sum, Weary and Shepherd had constructive notice of ABC/Dunhill's ownership claim as early as 1976, when ABC/Dunhill registered its copyright. As the preceding section of this opinion makes clear, Shepherd and Weary cannot sue Universal for infringement without first prevailing on the contested issue of ownership. But neither of them brought suit to contest ownership until 2013, more than 30 years after the applicable statute of limitations had run. For that reason too, plaintiffs' "infringement" claim must be dismissed.
That leaves only the Complaint's supplemental jurisdiction claims premised on state law. Though defendants raise a
Complaint ¶ 7 makes it clear that subject matter jurisdiction over the state law claims is based upon "principles of pendent and ancillary jurisdiction." And the last-cited statute codifies the principle, announced nearly a half century ago in United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), that such supplemental and jurisdiction claims may be dismissed without prejudice when all federal claims are dispatched before trial (accord, a host of cases such as Pugel v. Bd. of Trs. of the Univ. of Ill., 378 F.3d 659, 669 (7th Cir.2004)). This Court so orders.
Shepherd's and Weary's federal copyright claim is dismissed with prejudice, while their supplemental jurisdiction claims grounded in state law are dismissed without prejudice. Hence, as stated at the outset of this opinion, both the Complaint and this action are dismissed — a final judgment in the case.
