Bte v. Bonnecaze, Civ.A. 97-3644.

• Decision Date: 07 April 1999
• Docket Number: No. Civ.A. 97-3644.,Civ.A. 97-3644.
• Citation: 43 F.Supp.2d 619
• Parties: BTE, et al. v. BONNECAZE.
• Court: U.S. District Court — Eastern District of Louisiana

43 F.Supp.2d 619

BTE, et al. v. BONNECAZE.

No. Civ.A. 97-3644.

United States District Court, E.D. Louisiana.

April 7, 1999.

Eric Shuman, Stephen Winthrop Rider, McGlinchey Stafford, PLLC New Orleans, LA, for BTE ET CIE LLC, plaintiffs.

William Alexander Porteous, III, John J. Hainkel, Jr., Porteous, Hainkel, Johnson & Sarpy, New Orleans, LA, John L. Dardenne, Jr., King, LeBlanc, Bland Dardenne, LLP, Baton Rouge, LA, Len R. Brignac, James W. Noe, King, LeBlanc & Bland, LLP, New Orleans, LA, Elizabeth Meek Mayeaux, Frilot, Partridge, Kohnke & Clements, LC, New Orleans, LA, Neville Johnson, Neville Johnson, Attorney at Law, Los Angeles, CA, John Thomas Nesser, III, McDermott International, Inc., New Orleans, LA, for Cary R. Bonnecaze, defendant.

PORTEOUS, District Judge.

This cause came for hearing on March 24, 1999 upon the second motion for partial summary judgment by Kevin Griffin (now reclassified as a defendant) against Cary Bonnecaze (now reclassified as the plaintiff). Oral argument was waived and the matter was taken under submission on the briefs.

The Court, having studied the memoranda submitted by the parties, is fully advised in the premises and ready to rule.

ORDER AND REASONS

I. BACKGROUND

This litigation arose out of the dissociation of Cary Bonnecaze from the rock band "Better Than Ezra" and his dissociation from the LLC ("BTE, ET, CIE, LLC") formed by its members. Bonnecaze was the former drummer for the rock band. Bonnecaze brought claims, inter alia, asserting that as a "joint author" of certain Better Than Ezra songs, he is entitled an to an accounting of his share of copyright royalties, profits and benefits derived from the distribution, sale and reproduction of "Better Than Ezra songs." Kevin Griffin, an individual party to this suit, remains lead vocalist and guitarist in this band. Griffin contends that Bonnecaze did not author these songs at all, but that Griffin himself was the sole author. At the very least, Griffin argues that Bonnecaze never fixed any alleged contributions to the underlying musical compositions at issue in any tangible medium of expression (a necessity for independent copyrightability).

Griffin's central contention is that he would introduce the basic underlying musical composition to the band members, who would then aid in refining this initial material into the product heard on the sound recordings. Griffin maintains that these initial offerings to the band were sufficient to refute any claims that Bonnecaze may have to joint authorship of the underlying songs. However, Bonnecaze claims that he contributed inseparable and interdependent parts of certain songs, including "harmony, lyrics, percussion and song rhythms, melody and song and musical structure." See Doc. # 59. Bonnecaze claims that Griffin merely introduced "rough drafts" to the band, who subsequently aided in the creation of the final fixed composition (i.e., the sound recordings).

In a previous "Order and Reasons," this Court set forth the law governing this particular copyright dispute and decided that Griffin had failed to meet his summary judgment burdens at that time. See Doc. # 73. Griffin has now brought this second motion for summary judgment, contending that under the applicable law, Bonnecaze has failed to meet an essential element necessary to prove his claim of joint authorship of the underlying songs; namely, that Bonnecaze never fixed any alleged contributions in any tangible medium of expression prior to the sound recordings (a requisite in showing independent copyrightability).

Bonnecaze opposes this motion, claiming that the sound recordings subsequently released as "Better Than Ezra" songs (e.g., the sound recordings embodied on BTE's "Deluxe" alblum) were a sufficient means of fixing his contributions to the underlying songs in a tangible medium of expression.

II. LEGAL ANALYSIS

A. Law on Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). "The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651 (5th Cir.1996), (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).)) When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis supplied); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995).

Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co., 475 U.S. at 588, 106 S.Ct. 1348. Finally, the court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Joint Work

The Court feels that it is necessary to once again set forth the applicable law on this copyright issue. The Copyright Act defines a "joint work" as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole," 17 U.S.C. § 101 (1994). This definition also defines a work of joint authorship. Childress v. Taylor, 945 F.2d 500, 505 (2nd Cir.1991). The Second Circuit Court of Appeals has indicated that "[t]he touchtone of the statutory definition [of a joint work] `is the intention at the time the writing is done that the parts be absorbed or combined into an integrated unit.'" Thomson v. Larson, 147 F.3d 195, 199 (2nd Cir.1998) (citing H.R.Rep. No. 1476, 94th Cong. 120, 121 (1976), reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5735). Furthermore, although the statute does not define either "inseparable" or "interdependent," the courts have, based in part on the Copyright Act's legislative history, adopted fairly standard definitions. See Id.; Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (7th Cir.1994). Parts of a unitary whole are considered "inseparable" when they have little or no meaning standing alone. Childress, 945 F.2d at 505; Erickson, 13 F.3d at 1068. For example, when two authors collaborate to produce one written text, their contributions are inseparable. Parts of a unitary whole are considered "interdependent" when "they have some meaning standing alone but achieve their primary significance because of their combined effect." Childress, 945 F.2d at 505; see also Erickson, 13 F.3d at 1068. The lyrics and music of a song are often such interdependent parts. The authors of a joint work are co-owners of the copyright in that work. 17 U.S.C. § 201(a); see also Community for Creative-Non-Violence v. Reid, 490 U.S. 730, 753, 109 S.Ct. 2166, 2179, 104 L.Ed.2d 811 (1989).

A district court in the Fifth Circuit has recently addressed the issue of joint authorship. Clogston v. American Academy of Orthopaedic Surgeons, 930 F.Supp. 1156 (W.D.Texas 1996).¹ The court in Clogston stated that "while the terms inseparable, interdependent, and unitary whole have relatively clear meanings, the parties disagree about the nature of the intent necessary to create a joint work. The Fifth Circuit has not addressed this issue." Id. at 1158. The court in Clogston points to the Second Circuit's Childress and its progeny as a useful guideline for this issue. Id. at 1158-1159. Since the Fifth Circuit has yet to delineate a stance on the elements for finding joint authorship under § 101, this Court will follow the excellent analysis of the Second Circuit, most recently outlined in Thomson v. Larson, 147 F.3d 195.

In Childress, the Second Circuit construed § 101 of the Copyright Act and set forth "standards for determining when a contributor to a copyrighted work is entitled to be regarded as a joint author" where the parties have failed to sign any written agreement dealing with co-authorship. Thomson, 147 F.3d at 200 (quoting Childress, 945 F.2d at 501).² This Court believes that this directly addresses the matter at issue between Griffin and Bonnecaze. The court in Childress, while recognizing that the Copyright Act states only that co-authors must intend that their contributions "be merged into ... a unitary whole," explains further why a more stringent inquiry than the statutory language would seem to suggest is required:

[A]n inquiry so limited would extend joint author status to many persons who are not likely to have been within the contemplation of Congress. For example, a writer frequently works with an editor who makes numerous useful revisions to the first draft, some of which will consist of additions of copyrightable expression. Both intend their contributions to be merged into inseparable parts of a unitary whole, yet very few editors and even fewer writers would expect the editor to be accorded the status of joint author, enjoying an undivided half interest in the copyright in the published work.

Id. at 507. This reasoning evidences a desire to limit the claims of "overreaching" contributors. The court in Thomson noted that "[t]he...