Intersong-USA v. CBS, INC.

• Decision Date: 13 February 1991
• Docket Number: No. 84 Civ. 0998(JFK).,84 Civ. 0998(JFK).
• Citation: 757 F. Supp. 274
• Court: U.S. District Court — Southern District of New York
• Parties: INTERSONG-USA and Enrique H. Chia, Plaintiffs, v. CBS, INC., SBK April Music, Inc., SBK April Music Holland B.V., Sunny Pop Songs, B.V., Julio Iglesias, Gianni Belfiore, Mario Balducci, Ramon Arcusa, CBS Grammofoonplatten, B.V., Amoretta Investments N.V., Serenade Investments, B.V. Pops Songs, Parcs Corporation N.V., Promal Films, Bel Bel Music, and CBS Records Inc., Defendants.

757 F. Supp. 274

INTERSONG-USA and Enrique H. Chia, Plaintiffs, v. CBS, INC., SBK April Music, Inc., SBK April Music Holland B.V., Sunny Pop Songs, B.V., Julio Iglesias, Gianni Belfiore, Mario Balducci, Ramon Arcusa, CBS Grammofoonplatten, B.V., Amoretta Investments N.V., Serenade Investments, B.V. Pops Songs, Parcs Corporation N.V., Promal Films, Bel Bel Music, and CBS Records Inc., Defendants.

No. 84 Civ. 0998(JFK).

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

February 13, 1991.

Deutsch, Klagsbrun & Blasband, New York City (David Blasband, Jessica Friedman, of counsel), for plaintiffs.

Weil, Gotshal & Manges, New York City (Robert G. Sugarman, Robin E. Silverman, Ann E. Dibble, Joseph P. Salvo, of counsel), for defendants.

Gail I. Edwin, New York City, for CBS Records Inc.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

KEENAN, District Judge:

This is an interesting and well-tried action for copyright infringement pursuant to the Copyright Act of 1976, 17 U.S.C. Sections 101, et seq. Plaintiffs Enrique Chia ("Chia") and his publisher, Intersong-USA Inc. ("Intersong"), allege that the melody of the song "Hey," which was initially recorded by Julio Iglesias ("Iglesias") in late 1979, was copied from Mr. Chia's song "Es."

FINDINGS OF FACT

Plaintiff Chia is a metallurgist who writes songs in his spare time. (Tr. 15¹). Plaintiff Intersong is the publisher of Chia's song "Es," and is now a subsidiary of Time Warner Company. (Tr. 22-23).

Defendant Iglesias is a native of Madrid, Spain and a well-known singer and international recording artist. Iglesias has recorded more than 60 albums since the mid-1970's. Many of his recordings have been "hits" and obtained gold and platinum status. (Tr. 682-84). Defendant Mario Balducci ("Balducci") is an Italian citizen and resident of Milan, Italy. Over the past 20 years he has composed the music to more than 300 songs, of which 130 have been published. (Tr. 304-06). Some of Balducci's songs have been recorded by Iglesias. (Tr. 384; PX m(4)²). Defendant Gianni Belfiore ("Belfiore") is an Italian citizen and resident of Rapallo, Italy. He is a lyricist who has written about 250 songs, some 130 of which have been published. Belfiore was trained at the Nautical School in Genoa, was a navigator for six years and later served as a purser with the Italian line sailing on the Michelangelo and Raffaello. (Tr. 530). This work at sea is an important part of the story in this case. Belfiore wrote lyrics for the Italian versions of many of Iglesias' songs which originally were performed in Spanish. Defendant Ramon Arcusa ("Arcusa") is a citizen of Madrid, Spain. Arcusa is a singer and songwriter who, since 1978, has been the arranger and producer for Iglesias. (Tr. 803-06).

Mario Battaini ("Battaini") is an Italian citizen living in Milan, who has been in the music business for many years. Since 1977, he has operated a recording studio in his home. (Tr. 407-08). Mrs. Paola Tagliaferro Rinaldi ("Tagliaferro") is an Italian citizen living in Rapallo. (Tr. 442-43). She had a short career as a singer in Italy from 1978-79, and knew Iglesias, Arcusa, Balducci, and Belfiore during this period. (Tr. 444-45, 455-60). She continues to be friendly with Belfiore. Teresa Lodi ("Lodi") is an Italian citizen and resident of Rapallo. She has been Belfiore's companion since 1977 and lives with him. (Tr. 488-89).

Alina Ross ("Ross"), a resident of Miami, Florida, worked at the Latin American Operations Office of CBS Records, Miami. She was Julie Sayres' secretary during 1978. (Tr. 755). CBS Records Inc. has recorded and released albums by Iglesias since 1978. (Tr. 684).

The Song "Es" and Access

It is undisputed that the song "Es" was written in early 1978 by Dr. Chia (Tr. 23) and that it is copyrighted. (PX g(1), g(2), h(1), h(2)). A demonstration tape of "Es" was prepared by a singer, Grissell Sanchez, in February 1978. (Tr. 33). Chia submitted the Grissell Sanchez tape to Julie Sayres ("Sayres") of CBS Records in March 1978 "for presentation to Mr. Iglesias." (Tr. 37-39). Sayres did not testify either at trial or by way of deposition. She has been identified as the artist and repertoire ("A & R") representative for CBS for Latin American artists, including Iglesias. (Tr. 38; Ross Dept. Tr. 6-8).

As one focuses on what happened to the Grissell Sanchez tape of "Es" that was left at CBS with Sayres and her secretary, Alina Ross (Tr. 39, 40), the picture becomes blurred and hazy. Chia claims that Sayres told him "she would be glad to present" the tape to Iglesias (Tr. 39) and that in the summer of 1978 Chia returned to CBS in Coral Gables where he spoke to Ross and Sayres and was allegedly told that Arcusa, on behalf of Iglesias, had rejected the song although he liked the music to it. (Tr. 41-43). Chia never got that tape back from CBS (Tr. 44). Iglesias acknowledged meeting Sayres five to ten times, but did not know what her job or function at CBS was. According to Iglesias, she played no role in suggesting any songs for him and he never received any tapes from her. (Tr. 695). Arcusa also knew Sayres, but did not know her position at CBS other than that she had contacts with Brazilian performers. (Tr. 815). He also never received any tapes from her, Ross, or anyone else at CBS in the 1970's. (Tr. 814, 816).

Alina Ross' testimony at deposition and trial leaves the trier of fact in a state of bewilderment as to what she really remembers, what she assumes, what she chooses to forget and what light she truly casts on the history of the Grissell Sanchez tape. Ross has worked for CBS, or one of its affiliates, for more than 12 of the last 13½ years. At the time of her deposition on July 25, 1989, she was working for a music company headquartered in Madrid, but by the time of her trial testimony she was working for CBS Discos, Inc. (Tr. 753, 754; Ross Dep. Tr. 4). As we will see, a cynic might speculate that her testimony was influenced by her employment status. In the late 1970's, Ross was Sayres' secretary at CBS. (Tr. 755, 756). While she was Sayres' secretary, Ross met Chia and she typed lyrics of "Es" for him, which he had brought with him in handwritten form. (Tr. 758). This testimony, in part, coincides with Chia's testimony. (Tr. 39). Ross testified at trial that she accepted a tape of the song from Chia in Sayres' absence (Sayres "at the time was away"). (Tr. 758). Ross testified at trial that she did not submit the tape to Iglesias, Arcusa, or any other artist or producer and that she did not know of her own knowledge whether Sayres submitted it to Iglesias or Arcusa or whether either of them rejected it. (Tr. 758, 759). However, in her deposition, she testified at page 15 as follows:

"Q. Do you recollect that during the meeting when the song was returned that the message to Mr. Chia was that it was not accepted by Mr. Iglesias?

A. I know the song was rejected by Mr. Iglesias."

This was but a few answers after page 15 of the deposition:

"Q. Do you have any recollection of the song "Es" being rejected by Mr. Iglesias or Mr. Arcusa?

A. No, I don't."

Her explanation for her deposition testimony is that she was "very nervous." (Tr. 762).

Besides the specific testimony about Iglesias, Arcusa and the "Es" tape, Ross gave the following direct testimony at trial:

"Q. Did Ms. Sayres, or did you, from time to time, receive tapes from composers with the request that they be passed along to artists?

A. Yes.

Q. And what was the normal practice? Was there a normal practice at the time?

A. The normal practice was she would receive them. Sometimes she would listen, sometimes she would not. Usually they were either sent back or just — they were kept in the company.

Q. Was every tape that was received passed along to any artist?

A. No.

Q. Of the tapes that were received, how many of them were passed along to artists?

A. In the Latin American office, none, in reality. None."

(Tr. 756, 757).

The Court concludes that the Ross testimony is of virtually no help in determining whether Iglesias and/or Arcusa had access to the Grissell Sanchez tape of "Es."

"Es" was recorded by Yolandita Monge and Chaliko in 1978. (PX b, d). El Llanto also recorded it in 1979. (PX c; Tr. 29-30, 32). There is evidence that the Monge version of "Es" was played on the radio in New York and Miami in the spring of 1979. (Tr. 51). In addition, there is evidence that "Es" was one of the ten most-played songs on one particular New York radio station, WJIT, in the spring of 1979. (PX i, j, k, l). Iglesias, Arcusa and Belfiore, however, deny having heard "Es" prior to the commencement of this lawsuit. (Tr. 582, 697, 817). None of these defendants testified to having listened to WJIT during the spring of 1979.

On the issue of credibility and access, the Court finds the testimony of Chia concerning his reaction to the revelation that Iglesias had recorded "Hey," which he was told in the late summer or early fall of 1980, most astounding. (Tr. 62-68). Chia testified that an unnamed friend brought him a tape of Iglesias' "Hey" "in the late summer of 1980." (Tr. 65). He played the tape realizing it sounded like "Es," but only played it once. (Tr. 66). He waited seven days before playing "Hey" again, all that week knowing that it sounded like "Es." (Tr. 67, 68). In December 1980, Chia travelled from near Atlanta, Georgia to Miami and then finally bought the phonograph record album of Iglesias' "Hey." (PX m(4); Tr. 63, 64, 73, 74).

Dr. Chia impressed the Court as an educated and intelligent man who has obtained degrees in chemistry, physics, and metallurgy as well as a doctorate in metallurgy, which he obtained from Georgia Tech in 1975. If he had really written "Es" with Iglesias in mind as the artist to perform it, as he testified (Tr. 99), and if he really was told by CBS that Iglesias and or Arcusa had rejected it (Tr. 41-43) after leaving it with CBS for Iglesias to listen to (Tr. 37-39), he would not have listened to "Hey" just once...