Caffey v. Cook

• Decision Date: 18 January 2006
• Docket Number: No. 04 CIV. 313(RJH).,04 CIV. 313(RJH).
• Citation: 409 F.Supp.2d 484
• Parties: Marion J. CAFFEY and Willette Klausner, Plaintiffs, v. Victor Trent COOK, Rodrick Dixon and Thomas Young, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 484

409 F.Supp.2d 484

Marion J. CAFFEY and Willette Klausner, Plaintiffs, v. Victor Trent COOK, Rodrick Dixon and Thomas Young, Defendants.

No. 04 CIV. 313(RJH).

United States District Court, S.D. New York.

January 18, 2006.

COPYRIGHT MATERIAL OMITTED

Ned W. Branthover, Robin, Blecker & Daley, Robert W. Cinque, Cinque & Cinque, New York, NY, for Plaintiffs/Defendants.

Stephen J. Quigley, Abelman, Frayne & Schwab, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

HOLWELL, District Judge.

Plaintiffs Marion J. Caffey and Willette Klausner (collectively "plaintiffs") brought this copyright action pursuant to 17 U.S.C. § 101 et seq. against Victor Trent Cook, Rodrick Dixon and Thomas Young (collectively "defendants"), asserting that defendants infringed on plaintiffs' copyright in a compilation of pre-existing musical compositions and bridge dialogue embodied in a musical show styled as "The Three Mo' Tenors" (the "Show").¹ Following the denial of plaintiffs' motion for summary judgment on this claim, the Court conducted a bench trial on various dates between June 14, 2005 and July 15, 2005. This Memorandum Opinion and Order sets forth the findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

I. The Parties

Plaintiff Marion J. Caffey has been a writer, choreographer, producer and director of live musical theater and concerts since 1981. He has directed and/or choreographed numerous musical stage shows, including Bowfire, Storyville, Forever Plaid, Jelly Roll: The Music and the Man, Little Shop of Horrors, Tintypes, The All Night Strut, Ain't Misbehavin', Purlie Victorious, Ruthless, Lady Day at Emerson's Bar & Grill, and Spunk. He has also conceived and written the musical shows Street Corner Symphony which opened on Broadway, Cookin' at the Cookery (The Music and Times of Alberta Hunter), Blackbirds of Broadway, and Three Mo' Divas. (Declaration of Marion J. Caffey ("Caffey Decl.") ¶¶ 1, 2.)

Plaintiff Willette M. Klausner is currently the sole shareholder and principal of Edgework Productions, Inc. Klausner has produced, co-produced and developed numerous theatrical projects involving musical theater and live stage shows. (Declaration of Willette M. Klausner ("Klausner Decl.") ¶¶ 1, 2.) On June 14, 2005 Caffey assigned any copyright interests he held in the Show to Klausner. (Marion J. Caffey Trial Testimony ("Caffey Tr.") 275.)

Defendant Victor Trent Cook is a classically trained counter-tenor by profession. Following high school, Cook was crowned the "$100,000 Male Vocal Champion!" by the popular television series Star Search. Cook has since appeared in numerous off-Broadway and Broadway productions and has received a Tony Award nomination for his role in the Broadway production Smokey Joe's Café. (Declaration of Victor Trent Cook ("Cook Decl.") ¶ 2.)

Defendant Rodrick Dixon is a classically trained lyric tenor with a Master of Art degree. (Declaration of Rodrick Dixon ("Dixon Decl.") ¶ 2.) Dixon has performed as a vocalist with symphonies throughout the world and has appeared in a wide variety of genres including opera, Broadway and musical theater. (Id.)

Defendant Thomas Young is also a classically trained lyric tenor and has appeared as a principal soloist in major concert halls and opera houses in approximately twenty countries. (Declaration of Thomas Young ("Young Decl.") ¶ 2.) Young is a tenured professor at Sarah Lawrence College and has worked in musical theater, including productions of Porgy and Bess, The Wiz and Evita. He has extensive recording and jazz credits including a 1992 album, High Standards, which featured two songs, Twisted and Send in the Clowns that were among the songs subsequently incorporated into the show. (Id.)

II. Creation of the Show

In 1997, Caffey developed the idea for a musical stage show which he ultimately named Three Mo' Tenors. He was inspired by the performances of "The Three Tenors" — Luciano Pavarotti, Placido Domingo and Jose Carreras — and sought to create a similar concert involving three African-American tenors performing diverse musical genres, including classical, Broadway, jazz, blues, soul and gospel. (Caffey Decl. ¶ 4.) Caffey believed that African-American tenors "were more likely to be able to adapt to the many various musical genres and could sing Broadway, blues, etc. without sounding like opera singers, making the concept and the show unique." (Id.) All of the parties agree that Caffey "conceived" the idea for the Show.² (Young Decl. ¶ 6.)

Caffey had known Young for over ten years, admired his work, and invited him to participate in the project in early 1998. (Id. ¶ 12; Young Tr. 316-18.) Caffey was also familiar with Cook's work and had produced a concert for him in which Cook sang multiple musical genres. (Caffey Decl. ¶ 14.) When Caffey approached Cook, Caffey stated that "[h]e told me he got an idea from the actual three tenors. And he knew of three specially trained African-American tenors who he thought would be tailor-made for this idea, he had, which was a take-off for the Three Tenors." (Victor Trent Cook Trial Testimony ("Cook Tr.") 143; Thomas Young Trial Testimony ("Young Tr.") 316.) Caffey also stated that he wanted the show to include a "multitude" of genres. (Cook Tr. 144.) Upon Cook's recommendation, Caffey invited Dixon to participate in a "showcase performance" in 1998 which had been arranged by Caffey to solicit investors in the Show. (Cook Tr. 150; Caffey Decl. ¶ 18.)

The showcase performance took place on November 19, 1998. Cook, Dixon and Young participated in the performance along with a fourth tenor, Jeff Haerston. (Id.) Caffey asked each of the performers to suggest songs from their own repertoire. (Caffey Decl. ¶ 18.) He [selected and] sequenced fourteen songs. (Pls.' Ex. 35). Cook testified that he, Young and Dixon "came to the table with our own repertoire." (Cook Tr. 195.) Young performed two of the songs in his standard repertoire — Nessun Dorma!, and Send in the Clowns. (Young Tr. 320.)³ Dixon performed Ah Mes Amis and Make Them Hear You, the latter of which came from the repertoire he performed in the Broadway musical Ragtime and had been specifically arranged for him by Ragtime's author. (Dixon Tr. 383.) Cook sang O'Lessate di Piagermi, (Pls.' Ex. 35; Dixon Tr. 490.) All three tenors sang La Donna e Mobile, a universal piece standard in each tenor's repertoire. (Dixon Tr. 387.) These songs from the defendants' repertoire were ultimately included in the thirty-two songs that were performed in the Show and listed in Caffey's subsequent copyright application. (Pls.' Ex. 1.) Caffey, however, insists that the showcase was not intended to be a precursor or version of the Show. (Caffey Decl. ¶ 19).

Following the showcase, Caffey, Cook, Dixon and Young engaged in a series of workshops to develop the Show. (Cook Tr. 151, 158.) Cook testified that the workshop was intended, in part, to demonstrate to Caffey which songs they wanted to include in the Show. (Id. at 158.) Over the course of three years, defendants and Caffey collaborated together in selecting the solo pieces, group numbers and some of the spoken dialogue to segue the songs. (Dixon Decl. ¶ 5; Dixon Tr. 486; Young Decl. ¶¶ 5-6; Defs.' Proposed Findings of Fact and Conclusions of Law ¶ 6.) The primary factors in determining the selection and ordering of the songs were (1) musicality; (2) familiarity and commercial popularity with the general public; and (3) the physical demands of performance. (Caffey Decl. ¶¶ 9, 11; Young Tr. 322.) Caffey felt that it was important to maintain "an `arc,' i.e., a pattern that resonates with and moves the audience in the most effective manner." (Caffey Decl. ¶ 11.) Dixon stated that "as far as crafting this concert from beginning to end, the arc, it had to [as] with, can you physically sing the repertoire, what do you feel comfortable singing, and number three, can you maintain the standard over four concerts in one week." (Dixon Tr. 486.)

The Show evolved into a collection of solos, group numbers and medleys linked together with a minimal amount of bridge dialogue. A script for the show prepared by Caffey identified thirty-two songs to be performed in the following order:

Act I: La Donna E Mobile

Nessun Dorma

Ah! Mes Amis, Pour Mon Amie

O Cessate di Piagarmi

Have You Heard About the Baby/Glory to the Newborn King

Let the Good Times Roll

Try to Remember

Not While I'm Around

Make Them Hear You

What Kind of Fool Am I?

Send in the Clowns

I'm a Brass Band

Minnie the Moocher

Act II: You Gotta be a Rug Cutter

It Don't Mean a Thing

I Let a Song Go Out of My Heart

Drop Me Off in Harlem

I'm Beginning to See the Light

Take the "A" Train

Today I Sing the Blues

Twisted

A Song For You

Soul Medley (Love Train/Oh Girl/Betcha By Golly Wow/Midnight Train to Georgia)

Were You There

America the Beautiful

Gospel Medley (Let the Praise Begin/Just Come/It's My Time to be Blessed)

With respect to the first four classical pieces — La Donna E Mobile, Nessun Dorma, Ah! Mes Ami and O Cessate di Piagarmi — Dixon testified that he and Young "felt that Nessun Dorma should lead after La Donna E Mobile because we wanted to establish very quickly with anybody in the room that the Italian aria, which is well known throughout the world" would establish "the legitimacy of what it is [the audience] are about to experience for the rest of the night." (Dixon Tr. 488.) Caffey placed O Cessate di Piagarmi, which was a solo piece performed by Cook, at the end of the four songs because he believed that Cook did not have a great deal of classical training and the song was relatively familiar and easy to sing. (Caffey Decl. ¶ 9; Dixon Tr. 489.) While Cook had suggested two other songs — Faith and Somewhere — to Caffey, those songs were ultimately not included in the Show. (Cook Tr. 207.) Defendants admitted that the Soul Medley which consisted of four...