Gee v. CBS, INC.

Citation471 F. Supp. 600
Decision Date07 March 1979
Docket NumberCiv. A. No. 75-1792.
PartiesJack GEE, Jr. and William D. Harris, Esquire, Executor of the Estate of Jack Gee, Sr. v. CBS, INC., and Columbia Records, Inc.
CourtU.S. District Court — Eastern District of Pennsylvania









Herbert B. Newberg, Lloyd Zane Remick, Philadelphia, Pa., for plaintiffs.

James D. Fornari, George P. Williams, III, Philadelphia, Pa., Christine Philpot Clark, New York City, for defendants.


EDWARD R. BECKER, District Judge.

I. Preliminary Statement

This suit for damages and injunctive relief arises out of the luminous career of the late Bessie Smith who may be fairly described as "Empress of the Blues." See C. Albertson, Bessie (1972). Bessie Smith ("Smith") was a great singer and composer of the "blues."1 During the 1920's, Smith was one of America's top box office attractions and recording stars. From 1923 to 1928, the theatres in which she appeared on tour were filled to overflowing and thousands were turned away. During that period Smith earned from $1,500 to $2,000 per week, a staggering sum for anyone then to earn, and an awesome achievement for a black woman of that era.

From 1923 until her death in 1937, Smith was an exclusive recording artist for Columbia Phonograph Company, whose successor, Columbia Records, Inc. and its parent corporation, CBS, Inc., are the defendants herein. Some of plaintiffs' claims relate to Columbia Phonograph Company in the 1920's and 1930's and some to actions of its corporate successors in the 1950's and 1970's. For convenience defendants will simply be referred to as "Columbia." Smith died on September 26, 1937, in a tragic automobile accident near Clarksdale, Mississippi.2 She was survived by her husband, Jack Gee, Sr., who died in 1975. His executor, William D. Harris, is one of the plaintiffs herein. The other plaintiff is one Jack Gee, Jr., who claims to be the adopted son of Smith and Jack Gee, Sr.3

The multifaceted suit asserts a variety of claims against Columbia arising out of its dealings with Smith and her recordings during her lifetime, and out of Columbia's posthumous issue and reissue of those recordings. The case was originally filed only by Jack Gee, Jr., and its initial allegations concerned only federal copyright protection which Smith either obtained or might have obtained for the approximately forty (40) songs she composed, as well as recorded, between 1924 and 1934.4 The original complaint alleged that this copyright protection was subsequently infringed by defendants.

Columbia filed a motion to dismiss, based on plaintiff's failure to allege ownership of the copyrights and renewals upon which he based his claim. At this juncture, alleging that many if not all of the copyright registrations referred to in the original complaint were renewed in the name of Jack Gee, Sr. "as spouse and heir of Bessie Smith" and that they were still in effect, Jack Gee, Jr. filed an amended complaint adding Mr. Harris, Jack Gee, Sr.'s executor, as party plaintiff. What is now before us, however, on defendants' motion to dismiss, or in the alternative for summary judgment, is plaintiff's second amended complaint ("complaint") which adds a number of additional claims5 which may be summarized as follows.6

First, the complaint asserts that all the recording contracts and copyright agreements entered into by Smith and Columbia between 1924 and 1933 are invalid because of their unconscionability and Columbia's overreaching: Columbia is said to have taken advantage of Smith's illiteracy and lack of sophistication in business affairs. Complementing these allegations are the claims that the invalid contractual dealings were the product of race discrimination. On the average, Smith received a flat fee of $200 per selection recorded for Columbia with no royalties, allegedly in contrast to much larger sums, including royalties, paid to white artists then recording for Columbia such as Eddie Cantor, Ted Lewis, Rudy Vallee, Sophie Tucker and Bing Crosby. The complaint alleges that this corporate racism constituted wilful and intentional violation of the civil rights of Smith and of others similarly situated "by failing to afford them the opportunity to make and enforce contracts to the full extent as is enjoyed by white citizens, in violation of 42 U.S.C. § 1981." Plaintiffs have also advanced a novel theory of § 1981 liability by contending that these original contract discriminations are actually direct wrongs to themselves, as Smith's heirs.

The § 1981 claims are asserted in Count I of the complaint; Count II alleges invalidity of the 1924-33 recording contracts as a matter of state contract law. Count III focuses exclusively on copyrights, apparently under both federal and state (common) law. Counts IV and V, also added in the second amended Complaint, concern actions taken by Columbia in the past two decades. Columbia decided to re-issue Smith's records in album form in the early 1950's, and again in the early 1970's. On both occasions it re-recorded the songs using available new technology, re-assembled the original 78 r. p. m. records into 33 r. p. m. album format, wrote biographical and descriptive notes for the album jackets and printed photographs of Smith on the jacket covers.

In Count IV, plaintiffs claim that by re-recording the original 78 r. p. m. songs in the 1950's and again in the 1970's without the permission of Bessie Smith's heirs, Columbia infringed property rights protected under state law. Those property rights are said to have vested in Smith at the time she originally recorded the songs between 1923 and 1933, and relate not to her composition of forty of the songs, but to her singing style on the 160 records. In essence, the claim is that Smith acquired rights in her artistic performance which have descended to her heirs, the present plaintiffs, which rights were abridged in the early 1950's and again in the early 1970's. Count IV also contains a claim focusing on the reissuance in 1952 of one record ("At the Christmas Ball") for which Smith was never paid at the time of its original recording, and another claim focusing on the re-issuance of eight songs for which plaintiffs claim Smith was not fully paid in the 1930's. Under the rubric "misappropriation of artistic property," these nine songs are also the subject of a motion for summary judgment by the plaintiffs.

Count V concerns "publicity rights." These are analogous to, but somewhat distinct from, the "artistic performing rights" which are the subject of Count IV. Plaintiffs complain in Count V that defendant has exploited the image and likeness of Bessie Smith on record jackets and elsewhere, without their permission.

Upon analyzing plaintiffs' claims, one is struck at once by their vintage. The claims asserted in Counts I & II arose more than forty years ago (and some as much as fifty years ago). The claims in the other counts are also hoary, except for those relating to the 1970's reissues. Accordingly, defendants have invoked the applicable statutes of limitations. Such statutes, in the words of the Supreme Court are:

designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.

Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944).

Plaintiffs on the other hand contend that notwithstanding the age of the claims, under the facts of record the applicable statutes of limitations must be tolled. Plaintiffs have propounded four different tolling theories which we shall, in due course, consider in detail: 1) tolling because of inherent fraud in the transactions; 2) tolling because of subsequent fraudulent concealment by defendant; 3) tolling because of a breach of fiduciary or agency duty and subsequent concealment of that breach; and 4) tolling because of a "revival" of a stale claim by a recent acknowledgment. The third argument stems from the fact that during most of Bessie's recording career her alleged "manager," Frank Walker, was a Columbia executive. The fourth argument results from the fact that in 1974, Columbia's President, Bruce Lundvall, noting the disparity between sums paid to the artists circa 1974 and those paid in days past, announced that Columbia was donating some of the proceeds of sale of the 1970-72 reissue to a scholarship fund for needy black students.

Needless to say, a significant portion of this opinion will be concerned with statute of limitations matters. However, the statute of limitations arguments are not the only points of substance raised by Columbia. Equally cogent are their arguments about plaintiffs' standing to bring the action (and the real party in interest rule) and their arguments against the cognizability of plaintiffs' Count IV & V claims.

As we have noted, the matter is before us not only on a motion to dismiss but also on partial (cross) motions for summary judgment. The various arguments raised by the defendants in support of these motions—including the important statute of limitations points—are thus presented on a factual record. That factual record is an extensive one, coming to us in the form of affidavits (filed mainly by the plaintiffs); certain copyright assignments executed by Jack Gee, Sr. (filed by the defendants); and pre-trial discovery (principally deposition transcripts) filed of record. Interestingly, it is apparent that the...

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