Bridgeport Music, Inc. v. Smith

• Decision Date: 20 May 2013
• Docket Number: No. 12–1523.,12–1523.
• Citation: 714 F.3d 932
• Parties: BRIDGEPORT MUSIC, INC., Westbound Records, Inc., and Southfield Music, Inc., Plaintiffs–Appellees, v. Rashaam A. SMITH, et al., Defendants, Janyce H. Tilmon–Jones, Movant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

714 F.3d 932

BRIDGEPORT MUSIC, INC., Westbound Records, Inc., and Southfield Music, Inc., Plaintiffs–Appellees,

v. Rashaam A. SMITH, et al., Defendants,Janyce H. Tilmon–Jones, Movant–Appellant.

No. 12–1523.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 23, 2013.

Decided and Filed: May 1, 2013.

Rehearing Denied May 20, 2013.

ARGUED:Jeffrey P. Thennisch, Dobrusin & Thennisch PC, Pontiac, Michigan, for Appellant. Richard S. Busch, King & Ballow, Nashville, Tennessee, for Appellees. ON BRIEF:Jeffrey P. Thennisch, Dobrusin & Thennisch PC, Pontiac, Michigan, for Appellant. Richard S. Busch, King & Ballow, Nashville, Tennessee, for Appellees.

Before: SUHRHEINRICH, MOORE and GIBBONS, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

I. Introduction

In 1974, songwriter, recording artist, producer, and performer Abrim Tilmon, Jr. (“Tilmon”), composed the song “ You're Getting a Little Too Smart ” (“ Smart ”).¹ In 1976, Tilmon assigned all of his rights to the song to Plaintiff Bridgeport Music, Inc. (“Plaintiff”). In 1997, Defendant rapper Rashaam A. Smith a/k/a Esham A. Smith released the song “ You & Me,” which, according to Plaintiffs Bridgeport, Southfield Music Inc., and Westbound Records, Inc. (“Plaintiffs”), unlawfully contained samples of the composition “ Smart.” In 2003, Plaintiffs sued Defendants Esham Smith; Overture Music, LLC; Psychopathic Records, Inc.; Red Music Distribution; Reel Life Productions, Inc.; and Scott Santos (“Defendants”) for copyright infringement. In 2004, Plaintiffs obtained default judgments against Defendants. In 2005, Plaintiffs recorded the judgments with the United States Copyright Office.

In 2011, Janyce Tilmon–Jones (“Tilmon–Jones”), Tilmon's widow and a nonparty to this lawsuit, filed a motion under Federal Rule of Civil Procedure 60(b) in the action, asking the district court to set aside the default judgments because she, not Plaintiffs, was the legal owner of the copyright by operation of law at the time the lawsuit was filed.² The district court denied the motion, as well as her motion for reconsideration. Tilmon–Jones appeals both of those rulings. For the reasons discussed below, we AFFIRM the judgment of the district court.

Plaintiffs have filed a motion for damages and costs pursuant to Fed. R.App. P. 38 and 28 U.S.C. § 1912, which we GRANT.

II. Background

A. The Song and the Claims

Tilmon wrote “ Smart ” in 1974 and it was registered with the United States Copyright Office on March 20, 1974. On March 31, 1976, Tilmon assigned his interest in “ Smart,” along with other compositions, to Plaintiff Bridgeport. On November 4, 1998, Bridgeport filed a second copyright application for “ Smart,” noting that it owned the work “[b]y written assignment.” On February 18, 2004, Bridgeport employee Jane Peterer filed a copyright renewal form for “ Smart,” claiming that she was the duly authorized agent of Tilmon–Jones. The registration fee was charged to Bridgeport's account. The application lists the “Renewal Claimant” as “Janyce H. Tilmon.” According to Tilmon–Jones, however, she never authorized Bridgeport or its agents to be her agent.

On January 21, 2011, Tilmon's estate filed a renewal application for “ Smart ” with the United States Copyright Office. This application was granted. It lists Tilmon–Jones and Tilmon's two children as claimants to the copyright.

B. The Action Sub Judice: Bridgeport Music, Inc. v. Smith, No. 2:03–72211

In June 1997, Defendant rapper Rashaam A. Smith a/k/a Esham A. Smith released the song “ You & Me ” on the album “Bruce Wayne: Gotham City 1987.” According to Plaintiffs, the song “ You & Me ” unlawfully contained samples of the composition “ Smart.”

1. The Default Judgments

On June 9, 2003, after the initial copyright ownership period had expired but prior to the expiration of the statutory limitations period, Plaintiffs sued Defendants in the Eastern District of Michigan for copyright infringement, asserting that the song “ You & Me ” infringed the composition “ Smart.” Bridgeport Music, Inc. v. Smith, No. 2:03–cv–72211 (E.D.Mich. June 9, 2003). This action was filed before Judge Borman (“Judge Borman” or “District Court”). Defendants did not file an answer. On August 16, 2004, Judge Borman entered default judgments against Defendant Reel Life Productions and Smith. On March 9, 2005, the District Court granted Plaintiffs' motion for attorney fees and entered judgment in favor of Plaintiffs and against Defendants. The default judgments required Defendants to pay certain sums to Bridgeport, and declared Plaintiffs “the 100% owner of the entirety of Defendant Reel Life Productions' ownership interest in the copyright in the infringing compositions and sound recordings effective as of the date of the creation of the composition.” The default judgment against Smith declared Plaintiffs “the 100% owner of the entirety of Defendant Esham's ownership interest in the copyright in the infringing compositions and sound recordings effective as of the date of the creation of the composition.” On March 11, 2005, Plaintiffs recorded the default judgment against Smith with the United States Copyright Office.

2. The Rule 60(b) Motion

On March 9, 2011, nearly seven years after Judge Borman entered the default judgments, Tilmon–Jones, a nonparty to the original underlying action, filed a motion for relief pursuant to Fed.R.Civ.P. 60(b)(4), (5), and (6), asking Judge Borman to set aside the judgments on the grounds that she was the copyright owner at the time the lawsuit was filed, since the renewal copyright interest in “ Smart ” had reverted to her by operation of law as of January 1, 2003. Specifically, she argued that Plaintiffs lacked standing when they filed the lawsuit, rendering the judgments void.

On September 27, 2011, Judge Borman denied Tilmon–Jones's Rule 60(b) motion, holding that Tilmon–Jones did not have standing because she had not shown that she was “strongly affected” by the judgment or made a strong showing that the default judgments were obtained by fraud. Judge Borman also noted that Tilmon–Jones was “fully able to sue Plaintiffs and have her rights to ‘ Smart’ fully adjudicated,” since she had already filed a complaint, which was then pending before Judge Friedman.³ Judge Borman therefore declined to address Tilmon–Jones's arguments for vacating the default judgments under Rule 60(b) “because [Tilmon–Jones] lacks standing under the Rule.”

3. The Motion for Reconsideration

On October 11, 2011, Tilmon–Jones filed a motion for reconsideration. She raised a new argument, namely that she had standing to bring her motion under a “legal representative” theory, and again asserted that Plaintiffs did not have standing to bring the original action. On December 12, 2011, Judge Borman denied the motion for reconsideration, holding that Tilmon–Jones had waived the legal representative argument by failing to raise it in her initial Rule 60(b) motion or at oral argument. Judge Borman addressed it anyway, and determined that Tilmon–Jones's legal representative argument, based on privity, failed because it contradicted her argument that the default judgments should be set aside under Rule 60(b) because Bridgeport was not her agent and therefore lacked standing. Thus, Judge Borman held that Tilmon–Jones did not have standing as Bridgeport's legal representative pursuant to Rule 60(b).

These two rulings by Judge Borman are the subject of this appeal.

4. The Rule 60(d)(3) Motion

On October 24, 2011, before Judge Borman had ruled on her motion for reconsideration, Tilmon–Jones filed another motion for relief from the order of the default judgments, based on a “fraud on the court” theory pursuant to Rule 60(d)(3). In this motion, Tilmon–Jones claimed that Plaintiffs' counsel knew that Bridgeport no longer owned the musical composition “ Smart ” when they filed the action.

On February 22, 2012, Judge Borman dismissed this motion, finding that, even if she had standing, Tilmon–Jones had failed to produce clear and convincing evidence of fraud. Tilmon–Jones did not appeal this ruling.

5. The Appeal

On January 11, 2012, Tilmon–Jones filed a notice of appeal. As noted, she appeals the September 27, 2011 opinion and order denying her motion for relief from an order pursuant to Fed.R.Civ.P. 60(b), and the December 12, 2011 opinion and order denying her motion for reconsideration.

C. The Prior Action⁴

On September 14, 2006, Tilmon–Jones, individually and as a personal representativeof the Estate of Abrim Tilmon, Jr., sued Armen Boladian (“Boladian”), President of Bridgeport, and Bridgeport, in the Eastern District of Michigan, for copyright infringement, conversion, and breach of contracts. See Tilmon–Jones v. Boladian, No. 5:06–cv–14048 (E.D.Mich., filed Sept. 14, 2006) (“the 2006 Action”). This action was filed before Judge O'Meara. The complaint alleged that two songs by Tilmon—“ Feel the Need (In Me),” and “ Yes I Know I'm in Love”—were covered by a Songwriter's Agreement that vested administration of the copyright in Bridgeport, but also required Bridgeport to pay royalties to Tilmon–Jones. These two songs are listed in Attachment C to the complaint. Tilmon–Jones alleged that the defendants were not paying the royalties. Tilmon–Jones also alleged that the defendants had “registered the Attachment C Compositions for copyright in Defendants [sic] own name in direct violation of Plaintiff's ownership.” The 2006 complaint alleged breach of contract, copyright infringement, unjust enrichment,conversion, and accounting, and sought inter alia, a “declaration that the copyright ownership in and to the Attachment C Compositions are owned and controlled by Plaintiff.”

Two other songs lists are attached to the 2006 complaint, Attachments A and B. The 2006 complaint acknowledged that Tilmon assigned the copyrights to the songs listed in Attachment A and Attachment B to Bridgeport and Boladian. “ Smart ” is listed on Attachment A.

On August 31, 2007, the...