Edwards v. Take Fo' Records, Inc.
| Decision Date | 07 July 2020 |
| Docket Number | CIVIL ACTION NO. 19-12130 SECTION "F" |
| Parties | KIRK EDWARDS, professionally known as DJ JMK v. TAKE FO' RECORDS, INC., ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court are three motions: (1) a motion to dismiss pursuant to Rule 12(b)(5) by Sony/ATV Music Publishing LLC (improperly sued as Sony/ATV Allegro), Epic Records, a division of Sony Music Entertainment (improperly sued as Epic Records), and Quality Control Music, LLC; (2) a motion for reconsideration of judgment by the plaintiff, Kirk Edwards (professionally known as DJ JMK); and (3) a motion to dismiss pursuant to Rule 12(b)(6) by Take Fo' Records, Inc., Take Fo' Publishing, Positive Black Talk, Inc., Darwin Turner (professionally known as Choppa), and Earl Mackie. For the reasons that follow, the Rule 12(b)(5) motion to dismiss is GRANTED in part and DENIED in part; the plaintiff's motion for reconsideration is GRANTED in part and DENIED in part; and the Rule 12(b)(6) motion to dismiss is DENIED.
This copyright infringement lawsuit arises from a disc jockey's claim that he recently registered the copyright to a song, "Choppa Style," which he created some 20 years ago and that, now, more than 40 musical artists and record companies have used or sampled without his authorization in various recordings, including "Choppa Style," and The allegedly unauthorized use of the DJ's sound recording spawned this litigation against 47 defendants alleging copyright infringement as to all and breach of contract as to several.
Taken as true, these facts are drawn from the complaint. As a disc jockey in New Orleans, Kirk Edwards is professionally known as "DJ JMK." In November 2000, Edwards authored a sound recording and musical composition entitled "Choppa Style Instrumental." Edwards began to play and promote this musical work as he worked as a DJ at the Platinum Club in New Orleans.
Darwin Turner is a New Orleans rapper and songwriter professionally known as "Choppa." When Turner heard Edwards's "Choppa Style" instrumental being played in the Platinum Club, Turner asked Edwards if he could record lyrics to it; Edwards agreed.
During recording sessions at Edwards's studio, Edwards recorded these lyrics at the beginning of the song: "JMK...mic check, one-two, one-two, this is DJ JMK from JMK Productions and On Fire Records...representing that 10th ward, STP, RIP...I got mynigga Choppa Zhou 'bout to come up here and do his thing." Then, in the middle of the song, Edwards and Turner recorded this dialogue exchange: "Hold up DJ JMK (what)...I know you got that track (ah ha)...but I wanna know where all the independent ladies at (alrite)[.]" And at the end of the song: "just like that...my nigga Choppa Style, on fire records, JMK productions...summer 2001, it's goin' down just like that...check it out nigga...JMK."
After recording the lyrics to the instrumental, Edwards and Turner promoted the completed song, "Choppa Style," in various clubs in New Orleans. Edwards and Turner played the song for Earl Mackie, who owned Take Fo' Records, Inc.; they hoped the song would be included on an upcoming album entitled "Choppa Style" by Turner (Choppa). Take Fo' Records and Mackie contracted with Edwards to use his instrumental and sound recording with Choppa on Choppa's album in exchange for a flat fee, royalties, and a 30% bonus if Take Fo' Records secured a national distribution deal. The completed song, labeled "Choppa Style (JMK Remix) featuring DJ JMK," was included on the album.
The song became popular. Mackie and Take Fo' Records asked Edwards to create a radio-friendly version. Edwards did so; he removed the expletives and shortened the track by removing the dialogue exchange from the middle of the song. Both the radio-friendly version, entitled "Choppa Style (Radio) featuring DJJMK," along with the original version, were placed on Turner's album.
But Take Fo' Records failed to pay Edwards the agreed-upon royalties or 30% bonus. Take Fo' Records hired an in-house producer, William "Playa Will" Nelson to recreate Edwards's musical composition. Through Nelson, Take Fo' Records created another version of the song, this one also entitled "Choppa Style." This version was created without Edwards's permission and it misappropriated many of the recognizable and key protected elements of the Choppa Style instrumental. The infringing work, Choppa Style, misappropriates the instrumental's horn riff, arrangement, and melody. Take Fo' Records, through Nelson, used a piano to copy the horn melody and arrangement of Edwards' original version of the song. The infringing work was included as the second song on Turner's album named Choppa Style.
In 2003, Take Fo' Records and Mackie secured a national distribution deal for Turner as a result of Choppa Style. The deal was with Percy Miller (p/k/a Master P), No Limit Forever Records (owned by Miller), and Universal Records. Still no royalties or 30% bonus payment was tendered to Edwards, nor was Edwards consulted about the use of his instrumental and sound recording of Choppa Style. No Limit, Miller, and Universal hired Full Pack Productions to create yet another version of "Choppa Style" without Edwards's authorization. This version, which usedunauthorized sampling of Edwards's Choppa Style instrumental, Choppa Style (Radio), and Choppa Style (JMK Remix), was released as "Choppa Style Remix featuring Master P" and was included on Choppa's album, "Straight from the N.O.," recorded and produced by No Limit Records and Universal. Edwards did not authorize the reproduction, distribution, public performance, or creation of the unauthorized derivative work. The infringing work, "Choppa Style Remix featuring Master P," misappropriates key elements of Edwards's Choppa Style instrument, Choppa Style (radio), and Choppa Style (JMK Remix), including its horn rift and arrangement, drum pattern, and sequence.
In 2017, Mario Mims (professionally known as Yo Gotti) and Karim Kharbouch (professionally known as French Montana) released a sound recording entitled "Oh Yeah featuring French Montana," which misappropriated protected elements of Edwards's Choppa Style Instrumental, Choppa Style (Radio), and Choppa Style (JMK Remix), including the lyrics, combination horn riff, arrangement, and drum sequence. Edwards did not authorize the reproduction, distribution, public performance, or creation of an unauthorized derivative work.
In 2018, Caresha Brownlee (professionally known as Yung Miami) and Jatavia Johnson (professionally known as JT), known collectively as City Girls, along with Belcalis Almanzar (professionally known as Cardi B), released a sound recordingentitled "Twerk Feat Cardi B" through Motown Records and Quality Control Music, LLC. Edwards alleges that this recording misappropriates many protected elements of his Choppa Style Instrumental, Choppa Style (Radio), and Choppa Style (JMK Remix), including the lyrics, melody, and drum sequence. Edwards says he did not authorize their reproduction, distribution, public performance of the sound recording or the creation of an unauthorized derivative work.
In 2019, Mariel Semonte Orr (professionally known as Trouble) released through Def Jam Recordings a sound recording entitled "She a Winner featuring City Girls," which misappropriated protected elements of Edwards's Choppa Style Instrumental, Choppa Style (Radio), and Choppa Style (JMK Remix) including the melody, combination horn riff, arrangement, and drum sequence. Edwards did not authorize the reproduction, distribution, public performance of the sound recording, or creation of an unauthorized derivative work.
Edwards alleges that he is "[t]he sole creator and owner of the copyright in the sound recording, musical composition of 'Choppa Style Instrument,' 'Choppa Style (JMK Remix) featuring DJ JMK,' 'Choppa Style (Radio) featuring DJ JMK' and that his "copyright of 'Choppa Style Instrumental' was registered with the U.S. Copyright Office." It is alleged that defendants have willfully copied and digitally sampled many protected elements ofEdwards's copywritten work and infringed upon the copyright by reproducing, distributing, publishing, displaying, and creating unauthorized derivative works.
On August 12, 2019, Kirk Edwards (DJ JMK) filed this copyright infringement lawsuit naming 47 defendants.1 Edwards seeks declaratory and injunctive relief, as well as compensatory, statutory, and punitive damages. Edwards alleges that his "Choppa Style Instrumental" was "wholly original" and registered with the U.S. Copyright Office, Registration Number SR839985. Edwards fails to disclose in his complaint, but it is public record, that SR0000839985 is the registration number for "sound recording and music" called "Choppa Style" allegedly created in 2000 and authored by him, but the registration for the copyright is dated February 13, 2019, which is just six months before he filed this lawsuit. Edwards likewise fails to disclose that Darwin Turner and Earl Mackie registered with the U.S. Copyright Office "Choppa style/Choppa," which is a "sound recording" published by Take Fo' Records, created in 2001, published on July 20, 2001, andregistered on October 15, 2001 at registration number SR0000302440.2
In his first claim for relief, Edwards alleges copyright infringement by various defendants.3 Edwards alleges that he is the sole creator and owner of the copyright for Choppa Style Instrumental, Choppa Style (JMK Remix) featuring DJ JMK, and Choppa Style (Radio) featuring DJ JMK; that the defendants listed in Count 1 have directly infringed his copyright by preparing unauthorized derivatives, reproducing copyrighted elements of his work; that the defendants have distributed copies of works that contain copyrighted elements of his work; that the defendants have published,...
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