Cusano v. Klein

• Decision Date: 06 February 2001
• Docket Number: DEFENDANTS-APPELLEE,AND,No. 00-55536,DEFENDANTS-APPELLEES,N,PLAINTIFF-APPELLANT,00-55536
• Citation: 264 F.3d 936
• Parties: (9th Cir. 2001) VINCENT CUSANO, INDIVIDUALLY D/B/A VINNIE VINCENT MUSIC, D/B/A STREETBEAT MUSIC F/K/A VINNIE VINCENT,, v. GENE KLEIN, AN INDIVIDUAL; STANLEY EISEN, AN INDIVIDUAL; THE KISS COMPANY, A NEW YORK CORPORATION; GENE SIMMONS WORLDWIDE, INC., A DELAWARE CORPORATION; SIMSTAN MUSIC LTD., A DELAWARE CORPORATION; KISSTORY LTD.; POLYGRAM RECORDS, INC., A DELAWARE CORPORATION,HORIPRO ENTERTAINMENT GROUP, A CALIFORNIA CORPORATION, DEFENDANT. VINCENT CUSANO, INDIVIDUALLY D/B/A VINNIE VINCENT MUSIC, D/B/A STREETBEAT MUSIC F/K/A VINNIE VINCENT,, v. GENE KLEIN, AN INDIVIDUAL; STANLEY EISEN, AN INDIVIDUAL; THE KISS COMPANY, A NEW YORK CORPORATION; GENE SIMMONS WORLDWIDE, INC., A DELAWARE CORPORATION; SIMSTAN MUSIC LTD., A DELAWARE CORPORATION; KISSTORY LTD.; POLYGRAM RECORDS, INC., A DELAWARE CORPORATION; HORIPRO ENTERTAINMENT GROUP, A CALIFORNIA CORPORATION, o. 99-56131
• Court: U.S. Court of Appeals — Ninth Circuit

Page 936

264 F.3d 936 (9th Cir. 2001)

VINCENT CUSANO, INDIVIDUALLY D/B/A VINNIE VINCENT MUSIC, D/B/A STREETBEAT MUSIC F/K/A VINNIE VINCENT, PLAINTIFF-APPELLANT, v. GENE KLEIN, AN INDIVIDUAL; STANLEY EISEN, AN INDIVIDUAL; THE KISS COMPANY, A NEW YORK CORPORATION; GENE SIMMONS WORLDWIDE, INC., A DELAWARE CORPORATION; SIMSTAN MUSIC LTD., A DELAWARE CORPORATION; KISSTORY LTD.; POLYGRAM RECORDS, INC., A DELAWARE CORPORATION, DEFENDANTS-APPELLEES AND HORIPRO ENTERTAINMENT GROUP, A CALIFORNIA CORPORATION, DEFENDANT.

VINCENT CUSANO, INDIVIDUALLY D/B/A VINNIE VINCENT MUSIC, D/B/A STREETBEAT MUSIC F/K/A VINNIE VINCENT, PLAINTIFF-APPELLANT, v. GENE KLEIN, AN INDIVIDUAL; STANLEY EISEN, AN INDIVIDUAL; THE KISS COMPANY, A NEW YORK CORPORATION; GENE SIMMONS WORLDWIDE, INC., A DELAWARE CORPORATION; SIMSTAN MUSIC LTD., A DELAWARE CORPORATION; KISSTORY LTD.; POLYGRAM RECORDS, INC., A DELAWARE CORPORATION; HORIPRO ENTERTAINMENT GROUP, A CALIFORNIA CORPORATION, DEFENDANTS-APPELLEES.

No. 00-55536, No. 99-56131

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 6, 2001--Pasadena, California

Filed September 6, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Counsel Richard H. Batson, II, Nashville, Tennessee, for the plaintiff-appellant.

Brian G. Wolf, Lavely & Singer, Los Angeles, California, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California A. Howard Matz, District Judge, Presiding D.C. No. CV-97-04914-AHM-AJ; D.C. No. CV-97-04914-AHM

Before: Harry Pregerson, William C. Canby, Jr., and David R. Thompson, Circuit Judges.

Canby, Circuit Judge

Vincent Cusano, individually and under certain professional and business names, brought this diversity action against persons and companies associated with the famous rock'n'roll band KISS, alleging various claims for unpaid royalties, defamation, and infringement of his right of publicity. Cusano appeals the district court's grant of summary judgment in favor of Defendants. In his companion appeal, No. 00-55536, which we consolidate for purposes of decision, Cusano challenges the district court's award of attorney's fees and costs. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2106, and we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff Vincent Cusano, professionally known as Vinnie Vincent, is a professional musician, songwriter and publisher, and former lead guitarist of the rock'n'roll band KISS. Cusano, individually and under his business names Streetbeat Music and Vinnie Vincent Music, brought this diversity action in July 1997 against persons and companies associated with KISS. Cusano alleged fourteen causes of action, including claims for unpaid royalties from songs Cusano co-authored and performed for the band, and claims for defamation and infringement of his right of publicity arising from the release of two videos and a book about KISS.¹ Two of the central questions raised by the appeal concern the effect of Cusano's Chapter 11 bankruptcy on his royalty-related claims, and the effect of the statutes of limitations on his defamation and right-of-publicity claims.

The "KISS Defendants" include: The KISS Company, successor in interest to KISS; Paul Stanley and Gene Klein a/k/a Gene Simmons, individual members of the band; KISStory, Ltd., a corporation that merchandises a book about KISS; and Gene Simmons Worldwide, Inc. and SimstanMusic, Ltd., companies that administer copyright interests of band members. Other Defendants include: Polygram Records Inc., publisher of certain songs co-authored by Cusano; and Horipro Entertainment Group, purported assignee of certain royalty rights to certain KISS compositions.

Cusano was the lead guitarist for KISS from 1982 until 1984, during which time Cusano co-authored and performed three songs for the 1982 KISS album "Creatures of the Night" and eight songs for the 1983 KISS album "Lick It Up." KISS and Cusano's publishing company, Streetbeat Music, executed co-publishing agreements in 1982 and 1984 covering these compositions, agreeing to share royalties evenly. Polygram allegedly administered the collection and distribution of royalties for KISS. Cusano alleges that KISS failed to honor certain provisions of the co-publishing agreements, and improperly exercised an option to purchase certain of Cusano's songrights, causing KISS wrongfully to receive and later assign to Horipro a portion of Cusano's rightful share of the royalties.

Cusano declared Chapter 11 bankruptcy in 1989. On the schedule for personal property, he listed "songrights in . . . Songs written while in the band known as `KISS,' " which he assigned a value of "unknown." Defendants Simmons and Stanley were listed as creditors possessing contingent and disputed claims in an unknown amount. Cusano's reorganization plan provided for a cash payment to the plan of $40,000, generally, and another cash payment of $1,521.60 to retain his songrights. The plan was confirmed in 1990 and Cusano was released from bankruptcy in 1993.

In 1992, although no longer a member of the band, Cusano co-authored three songs for the KISS album "Revenge." Cusano alleges that he never received royalties for the "Revenge" compositions because Defendants Klein and Stanley fraudulently attached a photocopy of his signature to an agreement purporting to assign his interest in the compositions to Gene Simmons Worldwide, Inc. and SimstanMusic, Ltd. Also in 1992, Cusano assigned part of his royalty rights in the "Creatures of the Night" compositions to Horipro, after which Horipro allegedly directed Polygram to pay Horipro more than its rightful share.

In 1994, the coffee-table book entitled "KISStory " was published, allegedly pursuant to a merchandising agreement between KISS and other non-parties for the production and distribution of an "authorized" and "limited edition" picture book about the rock band. Cusano alleges that his right of publicity was infringed because the book contains numerous photographs of Cusano that were utilized without his permission. Cusano further alleges that the book contains a defamatory reference to Cusano. His defamation claim also includes alleged defamatory statements that were published in two KISS videos released in 1987 and 1992.

Cusano filed the present action in July 1997 against KISS, individual band members, Polygram, and Horipro, in which he alleged claims for breach of fiduciary duty, fraud and deceit, constructive fraud, negligent misrepresentation, conversion, imposition of constructive trust, breach of contract, infringement on the right of publicity, defamation, and open book account for royalties.²

In December 1997, in response to Defendants' Rule 12(b)(6) and other motions, the district court transferred or dismissed several claims, in whole or in part. First, the district court severed all claims against Horipro and transferred them to the Southern District of New York, thereby removing from the case all of claim 7 for fraud and parts of claims 9 and 10 for conversion and imposition of constructive trust. Second, the district court applied California statutes of limitations to dismiss claims 2 through 5 for breach of fiduciary duty, fraud, and misrepresentation, to the extent that they arose before July 1994; claims 9 and 10 for conversion and imposition of constructive trust, to the extent that they arose before July 1997; claim 11 for breach of contract, to the extent that it arose before July 1993; and claim 14 for defamation, to the extent that it arose before July 1996.

Third, the district court dismissed entirely claims 6 and 8 for fraud, because Cusano failed to allege the reliance element and cited no authority allowing him to bring a claim for fraud upon a fiduciary. Fourth, as a consequence of dismissing claim 8 for fraud, brought against Klein, Stanley, Gene Simmons Worldwide, Inc., and SimstanMusic, Ltd., the district court dismissed claims 9 and 10 for conversion and imposition of constructive trust with respect to those same Defendants. Fifth, the district court dismissed in part claim 14 for defamation, holding that two of the four alleged defamatory statements are non-defamatory as a matter of law.

Finally, having previously taken notice of Cusano's Chapter 11 bankruptcy, the district court dismissed without prejudice all claims for royalties on the "Creatures of the Night" and "Lick It Up" compositions ("pre-petition compositions") which should have been paid prior to March 21, 1989 or for other damages which were incurred prior to March 21, 1989, the date Cusano filed his petition. The court found that Cusano had failed to schedule his claims for royalties and that the "songrights" asset he did schedule was vastly undervalued. Finding that these unscheduled claims "would appear to belong to the estate," the court informed Cusano that he could not proceed with these claims without first obtaining permission from the bankruptcy court. This ruling on Defendants' December 1997 motions resulted in at least partial dismissal of each of Cusano's fourteen claims.

In September 1998, with a new judge presiding over the case, the district court granted Defendants' motion for summary judgment on claim 11 for breach of contract, dismissing it in its entirety. The district court found that Cusano could not maintain this claim, in which he sought payment of artist's royalties for his performances with KISS, because he was not a member of the American Federation of Musicians ("AFM") during the time in which he was a member of the band, and thus had no standing to sue for breach of the AFM Labor Agreement.

In November 1998, with Cusano having yet to petition the bankruptcy court to release his claims, KISS Defendants and Polygram moved for summary judgment on all claims arising from pre-petition compositions. The district court granted...